LIBRARY OF PRINCETON 
 
 THEOLOGICAL SEMINARY 
 
THE SECOND TABLE 
 
 OF 
 
 THE COMMANDMENTS. 
 
LONDON 
 EI) BY S P O T T I S \V O O D K A N 1 
 N"E\A'-.STRFET SQUARK 
 
THE SECOND TABLE 
 
 OF 
 
 THE COMMANDMENTS, 
 
 A PEEFECT CODE of 
 
 NATURAL MORAL LAW and of FUNDAMENTAL HUMAN LAW. 
 
 THE CRITERION OF JUSTICE. 
 
 BY 
 
 DAVID '^KOWLAND, 
 
 AUTHOR OF "LAWS OF NATURE, THE FOUNDATION OF MORALS. 
 
 LONDON : 
 
 LONGMANS, GREEN, AND CO. 
 
 1867. 
 
 The right of translation is reserved. 
 

 CONTENTS. 
 
 CHAPTER I. 
 
 THE NATURAL ENDOWMENT OF MAN, AND THE ORIGIN AND KISE OF 
 HUMAN SOCIETY AND ITS INSTITUTIONS 
 
 CHAPTER II. 
 
 THE MORALITY OF THE COMMANDMENTS DESCRIBED AND DISTIN- 
 GUISHED FROM SOCIAL AND PERSONAL DUTIES OF A MORAL KIND 14 
 
 CHAPTER III. 
 
 OF THE FUNDAMENTAL PRINCIPLE OF THE MORAL GOVERNMENT, AND 
 
 OF THE JURAL PRINCIPLE OF THE MORAL LAWS ... 24 
 
 CHAPTER IV. 
 
 LIFE AND THE BODY ' THOU SHALT NOT KILL ' .... 30 
 
 CHAPTER V. 
 
 MARRIAGE — THOU ' SHALT NOT COMMIT ADULTERY ' . . . .38 
 
 CHAPTER VI. 
 
 PROPERTY ' THOU SHALT NOT STEAL ' 44 
 
vi Contents. 
 
 CHAPTER VII. 
 
 Page 
 
 the aoministration of justice — 'thou shalt not bear false 
 
 witness' 55 
 
 CHAPTER VIII. 
 
 fHE PERFECTION OF THE NATURAL AND RE^TALED CODE TESTED 
 
 BY THE COMMENTARIES OF BLACKSTONE 65 
 
 CHAPTER IX. 
 
 THE NATURAL AND REVEALED CODE AS THE BASIS OF JURISPRUDENCE 
 
 CONSIDERED WITH REFERENCE TO THE WRITINGS OF JURISTS . 71 
 
 CHAPTER X. 
 
 NATURE COMPARED WITH UTILITY AS THE FOUNDATION OF MORAL 
 AND HUMAN LAW ; AND THE RESPECTIVE THEORIES TESTED BY 
 THE WRITINGS OF PHILOSOPHERS 90 
 
 CHAPTER XI. 
 
 JUSTICE, ITS ELEMENTS AND CRITERION; AND HUMAN JUSTICE AND 
 GOODNESS COMPARED WITH OUR CONCEPTIONS OF THE JUSTICE 
 AND GOODNESS OF GOD . . . . . • • . 1 J 3 
 
 POSTSCRIPT \'i\ 
 
THE 
 
 SECOND TABLE OF THE COMMAKDMENTS. 
 
 CHAPTER I. 
 
 The Natural Endowment of Man, and the Origin and Rise of 
 Human Society and its Institutions. 
 
 The title of this treatise indicates that the pro- 
 position which it affirms should be sustained by 
 proof derived from l^ature, or from that exposition 
 of Nature which discloses its identity with the will 
 of God. It assumes that a system of morality exists, 
 and that its author is divine. The endeavour is to 
 unfold the theory of the moral laws of Sinai, and to 
 show that they govern the world; and for that 
 purpose to refer them to the principles on which they 
 are based, to trace the objects which they were de- 
 signed to accomplish, and to evince their adaptation 
 to man in his individual and in his social condition ; 
 and by this analysis to demonstrate that I^ature 
 and Revelation unite in declaring one harmonious, 
 
 B 
 
2 Postulate of Natural Rights. 
 
 perfect, and immutable code of moral and funda- 
 mental liTiman law. 
 
 The leading theory of the treatise is, the natural 
 individuality of man ; that each human being is by 
 Nature, and therefore by the will of the great 
 Creator, owner of his, or her, body, with its life and 
 all its powers, physical and mental ; with a natural 
 right to use those powers for the individual benefit 
 of their owner; but subject to the same natural 
 ownership, powers, and rights in every other human 
 being. 
 
 The primary proof of that theory is found in the 
 self-consciousness of man of that individuality and of 
 that ownership, and of the possession of those powers 
 and rights. That self-consciousness the whole course 
 of nature is designed to confirm. It inspires a love 
 of life, to be enjoyed through the instrumentality of 
 the body, which instinctively leads to its preserva- 
 tion ; and it incites a self-love which regards in the 
 spirit of rivalry and enmity all who interfere with the 
 pleasures or interests of the individual owner of the 
 body. 
 
 Nature casts on every human being advanced be- 
 yond early infancy, an inevitable necessity to sustain 
 life by the use of the powers of the body ; and for 
 that purpose to strive and contend with other human 
 beings under the same necessity. The employment 
 
Unity of Nature and the Commandments. 3 
 
 of the body for that purpose, through the action of 
 natural impulses of which the individual alone is 
 conscious, although they are general in the human 
 race, inculcates a self-evident conception of a natural 
 right to the body as the instrument of labour, and to 
 the products of its labour for its sustentation. An 
 instinctive conviction of the existence of these natural 
 rights and powers is a leading motive of human 
 action, and their preservation is necessary to human 
 happiness. 
 
 The moral government of God is in accordance 
 with such individuality. The moral laws of the 
 Commandments are directed to its preservation in 
 terms which imply natural ownership and rights, and 
 forbid invasion of them. Nature, in the way it 
 works, through the instincts of man, declares laws 
 identical with those of the Commandments ; for, how- 
 ever authoritative the Commandments, God's moral 
 government does not rest solely on the revealed moral 
 laws, which do not, and which never did, reach the 
 whole human race ; and therefore it is through I^ature 
 we must necessarily suppose that the moral law was 
 originally, as it is now perpetually, communicated to 
 mankind. God has so constituted human nature, that 
 through sentiments, instincts, feelings and affections 
 implanted in man, He communicates His laws to him 
 unceasingly ; and thus is given to mankind, as weU 
 
4 The Course of the Inquiry. 
 
 to those who receive Revelation, as to those who are 
 excluded from it, moral laws of Nature, which Reve- 
 lation declares ; that Law described by St. Paul by 
 which the " Gentiles which have not the [revealed] 
 law, do by nature the things contained in the law, 
 these, having not the law, are a law unto themselves : 
 which show the work of the law written in their 
 heai-ts."^ 
 
 A theory of "natural rights," so limited, so defined 
 and so accordant with the self-consciousness of man- 
 kind, may be considered so far determinate as to 
 deserve inquiry into its social and moral action ; and 
 so far a truth as to be spared the obloquy with which 
 a suggestion of natural rights is frequently received. 
 I shall venture to undertake that inquiry, with the 
 purpose of developing the theory in action ; and as 
 the first step in the inquiry I shall briefly trace the 
 rise of human society from its original elements, and 
 through its several natural stages, terminating in 
 permanent institutions which, by the continuance of 
 the original causes, are now, in civilised life, in full 
 operation. And here it may be convenient to explain 
 that I shall not encumber my treatise by accounting 
 for departures from the moral laws either in un- 
 civilised or in civilised nations, in early ages or in 
 
 * Romans, ii. 14, 15. 
 
Ultimate Principles of the Human System. 5 
 
 modern times ; for it cannot be truly inferred from 
 disregard or disobedience of the moral laws, at any 
 time, or amongst any peoples, that the laws did not 
 then, or that they do not now, universally exist ; and if 
 we attempt to discover the moral obligation to which 
 mankind is subject, we must assume as the standard 
 of duty the highest moral condition which mankind 
 has attained or which it is capable of attaining. 
 
 It is a sound rule in philosophy, given by Cicero as 
 a test of the completeness of philosophical investi- 
 gation, to trace back the elements of the subject to 
 the ultimate points to which they can be referred, 
 but which themselves can be referred to nothinpr."^ 
 The ultimate principles — taking man as the de- 
 pository of the motive power, animal and mental, and 
 the director of the will by which it is put in action — 
 to which the human s^^stem can be referred, are the 
 appetites of Sex and Hunger. 
 
 These appetites, constituted by a physiological 
 organisation in man and brutes so similar as to be 
 almost identical, are invested with stimulative force 
 and power that insure their unceasing action ; but 
 with this wide and distinctive difference in the results 
 of that action, evidently a mark of creative design, 
 that whilst the appetites of brutes lead them into a 
 
 * Cicero, De Finibits Bonorum et Malorum, Lib. i. § ix. 
 
6 Divergence of Man from Brutes. 
 
 uniform and unvarying round of instinctive existence 
 from wliich no brute has ever emerged, upon the 
 same appetites in man the great and complicated 
 structure of human society is raised, and is preserved 
 and perpetuated by the same appetites through 
 successions of human beings. 
 
 These powers, common to man and brutes, although 
 more perfect in man, could not, as we clearly perceive 
 from the confined ca]3acity of brutes, have been the 
 basis of the human system, unless another and greater 
 power had been given to man. The creation of 
 man, and his intellectual divergence from the merely 
 instinctive capacity of brutes, mark the epoch of the 
 introduction of Eeason into the world, and of its 
 combination with the animal nature. Man uses his 
 physical powers under the direction of and in vital 
 union with his mental powers ; and thus he is 
 enabled to fulfil the higher destiny iri the world 
 awarded to him than that of the lower animals. 
 
 From the appetites spring the two vital elements 
 of human society; from one the human beiQgs by 
 whom the world is peopled ; from the other, food by 
 which their lives are sustained. 
 
 The appetite of sex is the provision of Nature for 
 maiataining a succession of human beings, and there 
 are various and peculiar instincts, feelings, affections, 
 and sentiments in human nature, in the sequel more 
 
Sex, and the Family. 7 
 
 particularly pointed out, which appear to be designed 
 to direct that appetite to marriage. From this insti- 
 tution of Nature large numbers of human beings are 
 daily brought into the world, and supply, and often 
 exceed, the numbers which, with similar rapidity, are 
 removed by death. But marriage has another im- 
 portant purpose in the human system. It is the 
 source and origin of families — the primitive element 
 of human society in which the human race is trained 
 for the performance of their social, moral, and re- 
 ligious duties — in which they are taught to worship 
 Him beside whom there is no other God, and to love 
 their neighbour as themselves. From the aggregation 
 of families arise the community, the state, society; 
 and from the natural necessity of vesting the chief 
 authority over the family in the father as the founder, 
 the idea and perhaps the primary form of human 
 government were communicated to mankind. The 
 Second Table of the Commandments is appropriately 
 commenced with the Fifth Commandment, which has 
 a design beyond the simple inculcation of filial re- 
 verence ; it points to the natural result of well-ordered 
 families, their division into other families, and to the 
 important place which they hold in society as 
 elements of the state. 
 
 The appetite of Hunger in its imperious demands 
 for daily food is the origin of Proj)erty. Food, the 
 
8 Hzmger, Food, Propej^ty. 
 
 second vital element of human society, man is destined 
 to procure by his labour ; and experience teaches him 
 that he cannot sustain his life and maintain his children 
 without making provision beyond the present day, by 
 labouring for more than present sustenance, and by 
 storing and preserving the surplus for the future. 
 Such surplus is his own, proprium, his property by 
 natural right, as the product of his natural powers ; 
 and the term expresses a distinction between mine 
 and thine that is universal throughout the human 
 race. Property originated in the simplest exercise of 
 those powers, in hunting, fishing, and gathering the 
 spontaneous fruits of the earth. It naturally extended 
 to portions of land on which cultivation through labour 
 was bestowed, and to habitations, clothing, furniture, 
 necessaries of life, and, in process of time, to the 
 luxuries of life; but secondary to food, and superfluous 
 unless food be supplied, and their value dej)reciating 
 when food is scarce ; so that in case of famine the 
 most luxurious and costly product of laboui- or art, 
 the coveted gold or jewel, is as nothing Avhen com- 
 pared with present food. Thus food, as it is the 
 origin, so it is the ultimate standard of the value of 
 property. 
 
 From this great vital necessity of Nature, food, with 
 its important but subsidiary necessaries, proceed all 
 the various modes of producing and storing food. 
 
Natural Origin of Contract. 9 
 
 Agriculture, fishing, hunting, manufactures, naviga- 
 tion, are expressions which cover whilst they enlarge 
 the simple processes of natural art. But these natural 
 arts and occupations cannot be made available in the 
 constitution of society unless their products can be 
 diffused from man to man, from family to family, from 
 state to state. Circulation is, however, not merely a 
 physical process ; it requires a motive, and it requires 
 an instrument. The motive is supplied by the con- 
 stant necessity for food, chiefly obtained by exchange 
 of labour for food, of food for labour, and by the ad- 
 vantage derived from the exchange between distant 
 communities of the several varieties of theii* natural 
 products. The instrument is Contract. 
 
 The axis on which the whole human social system 
 revolves is Contract. [Nature directed man to con- 
 tract by so limiting the power of one man to obtain 
 the property of another man, as to make contract 
 the inevitable medium of its distribution. For there 
 are three modes, and only three, by which one man 
 can obtain the property of another man — gift, con- 
 tract, or theft. 
 
 Of these three modes, gift and theft, although 
 morally distinct, are almost equally inefficient as 
 modes of distribution. Gift is the natural mode by 
 which a man may follow the dictates of the bene- 
 volence and natural affection implanted in human 
 
lO Primitive Forms of Contract. 
 
 nature which prompt men to do good to their fellow- 
 creatures, and to those allied to them ; acts of kind- 
 ness which are not enjoined as duties by positive 
 law, but which are encouraged bj those precepts 
 which teach us to love our neighbour as ourselves. 
 But gift has to encounter the natural love of acqui- 
 sition, and a disinclination to part with property 
 obtained by individual labour and saving ; and 
 although compassion may overcome these obstacles, 
 gift is not commonly spontaneous except towards 
 children or others in close natm^al relationship with 
 the donor. Theft leaves the ownership of the stolen 
 property unchanged ; and its recovery or restitution 
 when practicable is seldom abandoned or released. 
 But contract is agreeable to those feelings in man 
 Avhich stimulate him to increase his wealth. He 
 exchanges his property for a consideration which he 
 hopes will prove a gain ; and his proprietary rights 
 are recognised and protected when his will has 
 freely assented to the contract he has made. 
 
 The primitive form of contract of exchange was 
 Barter, which, Aristotle remarked, " had its original 
 beginning in Nature, from the fact that some men 
 had a surplus, and others less than was necessary for 
 them. Barter (he added) it is plain could have no 
 place in the first community, that is to say, in the 
 household, but must have begun when the number 
 
Barter and Contracts of Labour. 1 1 
 
 of those who composed the community came to be 
 enlarged, for the former of these had all thmgs the 
 same in common ; but those who came to be separated 
 had in common many other things which both parties 
 were obliged to exchange as their wants arose." "^ 
 
 Contracts of Labour must have had a beginning 
 equally primitive ; for in cases where the work to be 
 done exceeded the power of the household, or where 
 an individual sought to obtain immediate food in 
 exchange for his labour, such contracts would natu- 
 rally be resorted to. And although in ages and 
 societies where labour was to a large extent supplied 
 by slaves, whose employment practically diminished 
 the number of contracts, yet circumstances must have 
 continually occurred, where men were in any degree 
 free, which forced such contracts into occasional, if 
 not habitual use, as matters of unavoidable necessity. 
 
 The social operation of the trifold chain by which 
 property is bomid, is to protect the natural ownership 
 by placing the power of disposal in the hands of the 
 owner, either by gift or by contract, if he can pre- 
 serve his property from theft. That it was designed 
 specially for man is obvious from the fact, that to 
 contract, or even to make a simple promise, is beyond 
 the capacity of brutes. 
 
 The natural complement of a social system based 
 
 *■ Politics, book i. c. ix. 
 
12 The State and Human Govern^iient. 
 
 on and kept in action by physical forces of imperious 
 energy, and dependent on tlie preservation of natural 
 rights, is a State, which (Aristotle observed) " is first 
 founded that man may live, but continued that he 
 may live happil}^, for which reason every state is 
 the work of Nature." * These forces require to be 
 directed in accordance with natural rights, and to be 
 encouraged, even if they may not be compelled, into 
 the channels of labour and of the storing of food ; so 
 that the products of industry and prudence may be 
 insured to their natural owners against immoral 
 appropriation by other men. That is the office of 
 Human Government, which is the final cause of the 
 state. 
 
 The theory of natural rights Kas been developed 
 by this analysis beyond the original postulate. It 
 now appears that the powers of the body, physical 
 and mental, are employed in the production of pro- 
 perty, of which the primitive j)rinciple is food. The 
 natural rights are, therefore (1) an individual right 
 to the body with its life and all its powers — a right 
 which being innate is complete in man although he 
 remain inert in the use or exercise of his bodily 
 powers ; and (2) the ownership of all property called 
 into existence by each man, or acquired by lawful 
 means, that is, by his labour, or by gift or by con- 
 
 * Politics, book i. c. ii. 
 
FurtJier Development of Natu7^al Rights. 1 3 
 
 tract through the use of his natural powers, physical 
 or mental. These constitute the primary natural 
 rights ; all other rights are derivatives from these. 
 What the latter are, and how the natural rights are 
 restrained and controlled by the operation of the 
 natural condition that they must be used and enjoyed 
 by each individual subject to the same ownership, 
 rights, and powers in all other human beings, will 
 be considered in the progress of the work. 
 
 The whole system of human society, it thus appears, 
 is derived from I^ature. It is based upon original 
 principles which determine the course of mankind, 
 and lead them through the several natural stages of 
 marriage, families, and communities, to the constitu- 
 tion of society, and of the state, the depository of 
 human government ; and through the several natural 
 stages of labour, property, and contract to the attain- 
 ment of those derivative elements of civilisation, 
 trade, agriculture, and commerce, and the several 
 arts and sciences connected with them. 
 
14 The Subject- Matter of the Coi7imandinents. 
 
 CHAPTER II. 
 
 The Morality of the Commandments described, and distinguished from 
 Social and Personal Duties of a Moral kind. 
 
 The induction of tlie preceding chapter may liave led 
 to the inference, if it has not demonstrated, that the 
 subject-matter of the moral laws are the natural 
 rights of human beings to their body and its life, 
 with its powers, physical and mental ; and that the 
 forces which require moral restraint and direction in 
 accordance with natural rights, are the animal ferocity 
 of man, and the appetites of sex and hunger ; the 
 appetites, besides their own peculiar purposes, being 
 generally the exciting causes of the animal ferocity, 
 which is seldom carried to the extent of crime without 
 such subsidiary stimulant. Life, marriage, and pro- 
 perty, are exposed to human action which interferes 
 with the enjoyment of them, and often threatens, as 
 well as terminates, in individual cases, their existence. 
 That action it is the purpose of the moral laws to 
 restrain ; and it is a mark of the wisdom by which 
 they are framed, that we find them directed against 
 
Misconception of their Moral Scope. 15 
 
 the most salient action destructive of each class of 
 rights. But before proceeding further in the inquiry, 
 it is necessary to define the limits of the term 
 " morality," for a general application of it to every 
 variety of responsible action is the cause of confusion 
 in the treatment of moral subjects ; and from the 
 same cause it is now not uncommon to find the 
 Commandments pronounced imperfect as a code of 
 moral law. 
 
 A late eminent writer "^ described the Decaloofue 
 as imperfect, because it does not contain all moral 
 duties. " What is termed the moral law (he wrote) 
 is certainly in no way peculiarly to be identified with 
 the Decalogue, as some have strangely imagined. 
 Though moral duties are specially enjoined in many 
 places of the Law, yet the Decalogue most as suredly 
 does not contain all moral duties, even by remote 
 implication, and on the widest construction. li 
 totally omits many such, as e.g. beneficence, truth, 
 justice, temperance, control of temper, and others ; 
 and some moral precepts omitted here are introduced 
 in other places. But many moral duties are hardly 
 recognised, e.g. it is difficult to find any positive 
 prohibition of drunkenness in the Law. In one 
 passage only an indirect censure seems to be implied. f 
 
 * Christianity without Jiulaism, by Eev. Baden Powell, M.A., p. 104. 
 t Deut xxix. 19. 
 
1 6 The Morality of the Commandments. 
 
 The prohibition in respect to the priests,"^ and the 
 Nazarite vow, were peculiar cases." f 
 
 The Decalogue assuredly does not contain all the 
 " moral duties " suggested as absent from it in the 
 quoted passage. That it is, therefore, imperfect or 
 incomplete is a hasty assumption, esj)ecially when we 
 consider the authority on which it rests ; an ex- 
 amination of its laws may show that the Command- 
 ments were not designed to contain all the duties 
 alleged to be absent from it ; and we may separate 
 the duties of mankind into their several varieties of 
 class and obligation, and distinguish them by names. 
 
 I. The moral laws of the Commandments are the 
 fundamental laws of God's government of this world, 
 and obedience to them takes the first rank amongst 
 the duties of mankind. Their simple terms make it 
 obvious that they are social laws designed for the 
 government of men in their intercourse with each 
 other in the common relations and business of life ; 
 and the actions which they forbid are of that kind, 
 that two parties at least must be concerned in them. 
 It is, further, a necessary inference from the laws, 
 that of the two parties one must have rights which 
 the other intends to invade, or, when a law is violated, 
 has invaded. The forbidden acts, when accomplished, 
 become crimes, and the morality of the Decalogue is 
 
 * Dcut. vi. 3. t Lev. i. 9. 
 
Objection that the Lazvs are Negative. 17 
 
 forbearance from crimes. To its laws it would be 
 accordant with the primary rank of the Decalogue, 
 to confine the expression " Moral Laws," to express 
 its duties as " the Moral Duties," and to call the 
 general responsibility to its laws, " Morality." 
 
 The scope and range of the moral law of the 
 Commandments, will be investigated in future chap- 
 ters, when each law will be examined separately, and 
 it is hoped that it will be apparent that they com- 
 prehend all actions of which men are capable, that 
 violate natural rights and are punishable by human 
 government. Then it will be seen whether justice is 
 absent from the Decalogue, and what ground there 
 is for the objection to the completeness of the moral 
 code. 
 
 But another objection is made to it, that its law 
 are negative ; that, in its precepts, "thou shalt not" 
 predominates unduly over "thou shalt." That ob- 
 jection will be changed to approbation by those who 
 consider how much easier it is "not to do," than 
 " to do," to be passive than to be active ; and they 
 will feel grateful for legislation which casts upon us 
 no positive duties. But, in order " not to do," it may 
 be necessary " to do ; " and such indirect af&rmative 
 provision is contained in the moral laws. Two of the 
 chief personal duties of man are, to labour for present 
 food, and to make provision of food for the future. 
 
 c 
 
1 8 Benevolence, or Social Duties. 
 
 They are the preservatives of life and of social in- 
 dependence. They are also the best preservatives 
 against temptation to crime. Thus performance of 
 these personal duties is implied in the law " thou 
 shalt not steal ; " and they must come to a man's 
 mind as the natural duties of his position, whenever 
 he is in such a condition that to sustain his life he 
 must either labour or steal. 
 
 But as God has framed the moral laws as negative 
 laws, and has formed His government on a negative 
 system, we may conclude, from the absence of positive 
 law, that positive action is not required as a moral 
 principle. And from that inference ^ve may deduce 
 another, that obedience to the moral laws is approved 
 by God as sufficient for His design, and is, therefore 
 a state of " good ; " although it may not, without the 
 performance of other duties to be presentl}^ mentioned, 
 be a state of perfect virtue. '' Good," therefore, not 
 being called into existence by positive law, must exist 
 antecedently in the nature of man ; in other words, 
 it must be his normal state, for it is by disobedience 
 to the laws that goodness is disturbed, and that its 
 contraries arise.^ 
 
 TI. Beneficence, or Benevolence, absent from the 
 Decalogue, opens an entirely different class of socia 
 
 * " Virtue is the natural law we are born under." — Bishop Butlers 
 Sermon I. on Human Nature. 
 
Antithetical to those of the Decalogue. 19 
 
 actions ; so different as to be antithetical to the 
 actions forbidden by the Decalogue. The latter are 
 always evil, whilst benevolence is the source of 
 actions which, in intention at least, are always good. 
 The moral laws are exact in their terms, protecting 
 defined rights ; the duties of beneficence are not 
 called forth by rights : they are discharged by spon- 
 taneous gifts. They do not admit of reduction to 
 specific laws, and they are recommended by general 
 precepts ; and here we find the formula " do," supply- 
 ing the supposed defect in the moral system. 
 
 But there is a yet greater antithesis between the 
 duties of benevolence, and the Laws of the Decalogue 
 — that the former appeal to mental principles, to 
 affections implanted in the Mind of man, whilst the 
 latter are directed against actions originating in the 
 animal nature. The mind and the body are vitally 
 united in the creature, man, and the greater portion 
 of his actions partake of the characteristics of both 
 natures ; but actions marked for their goodness or 
 their wickedness generally disclose a preponderance 
 of the peculiar qualities of their original sources. 
 
 But if benevolence has no place in the Command- 
 ments, it has a high place amongst the social duties 
 of mankind. The benevolent affections have, in the 
 mental nature, an office and a mode of action which 
 resemble those of the passions in the animal nature. 
 
 c 2 
 
20 Social hnportaiice of Benevolent Duties, 
 
 As the passions act as stimulants to the appetites, 
 and to the actions which they originate ; so the 
 benevolent affections stimulate the reason to more 
 active operation for the good of our fellow-creatures, 
 than would proceed from its generally slow and 
 deliberate motion. They are the source of those 
 refined principles of duty, which, rising above the 
 appetites and the negative obedience due to the 
 moral laws, urge human beings to positive good ; to 
 love, compassionate, relieve, and comfort their fellow- 
 creatures, and to the adoption of higher standards 
 of virtue than simple abstinence from moral crime. 
 
 The benevolent duties are not dissociated from the 
 moral laws ; indeed, it is a part of the duty to take 
 care that the act of benevolence shall not interfere 
 with or have a tendency to counteract the primary 
 authority of the moral law; that it does not en- 
 courage omission to labour, and to save. This conflict 
 of duty is one of the chief difficulties in the exercise 
 of benevolence, in a concrete- form ; so that the duty, 
 when treated as a moral duty, is often expressed as 
 to be determined by " what we ought to do." No 
 law of duty can be laid down other than in general 
 preceptive terms : it lies with each man to make a 
 law for himself, with regard to his duty of bene- 
 volence, and to its specific acts ; in which his means, 
 and the superior claims of his family and dependants, 
 are elements in his determination. 
 
Ethical rather than Moral. 21 
 
 The benevolent duties being spontaneous and un- 
 connected with rights, rest on a religious obligation, 
 the duty being direct to God. But it is upon the 
 performance or non-performance of these duties that 
 the social character of a man is formed and is esti- 
 mated by his fellow-men; the character being de- 
 termined by the gradual growth of the virtues which 
 spring from the cultivation and the practice of 
 benevolence in its various kinds. The obligation to 
 these virtues it would be consistent with Aristotle's 
 philosophy to distinguish as Ethics, and their duties 
 as ethical duties, for we learn from him that r]Qos^ 
 which signifies moral virtue, arises from habit, Wos ; 
 whence also it got its name. He also rejected the 
 moral crimes from his philosophy, as inconsistent 
 with his ethical system.^ These ethical, or bene- 
 volent, duties, although widely distinguished from 
 the moral duties of the Commandments, act on the 
 conscience in respect of the law which each man 
 makes for himself, according to his ability and cir- 
 cumstances; "their conscience also bearing witness, 
 and their thoughts accusing or else excusing " as in 
 the case of a moral law. 
 
 III. Other duties alleged to be omitted from the 
 Decalogue are of a personal kind, of which the 
 examples given are, want of control of temper, and 
 drunkenness. Man is subject, through the pressure 
 
 * Nicom. Eth. ii. 1. t Hem. ii. 6. 
 
2 2 Personal Ditties. Sins. 
 
 of the appetites and the force of the passions, to 
 numerous self-indulgences that lower his social 
 character, by diminishing* his power of doing his 
 duty to those dependent on him, to society, and to 
 his God. So long as these indulgences continue to 
 be personal, not ending in violations of the rights 
 protected by the Commandments, they are Sins for 
 which the responsibility is direct to God. Truth, 
 alleged to be absent from the Decalogue, is a personal 
 duty. It is also absent from the Sermon on the 
 Mount ; and its absence from both these high codes 
 suggests the inference, that there are reasons in 
 nature for the omission, and some will be offered for 
 consideration in the sequel. 
 
 " Want of control of temper," or anger, is not an 
 unmitigated evil, nor its opposite an invariable duty. 
 "No passion (said Butler) that God has endued us 
 with, can be in itself evil." ^ If it is so uncontrolled 
 as to lead to crime, for instance, murder, as its un- 
 happy consequence, it brings the angered man within 
 the sixth Commandment. But it is often a virtuous 
 feeling, as when anger is roused by a sense of violated 
 justice. It then stimulates a man to protect the 
 injured, and to advocate and defend just rights and 
 principles, which, without the stimulus of anger, 
 might pass unregarded. 
 
 * SiTinon on Rcsentnient. 
 
Religious Duties to God. 23 
 
 Drunkenness is a great evil, but in its nature it is a 
 personal sin ; for the individual does not indulge in 
 drunkenness to injure society, although that is the 
 effect of drunkenness, but to gratify his own appetite. 
 Its consequences to the drunkard are very serious, in 
 the decay of his health, of his ability to labour, in 
 the disorder of his affairs, and in the neglect of his 
 family. As a stimulant to crimes, which are breaches 
 of the moral laws, it receives its punishment, for it 
 is not allowed by human government to excuse acts 
 done under its influence which affect the natural 
 rights and property of other men. 
 
 These several classes or varieties of action — moral 
 duty or morality, duties of benevolence or ethics, and 
 duties of purity of life, failure in which is sin — are 
 all comprehended in the paramount duty of obedience 
 to God, as the Maker of mankind, their Law-giver 
 and the ultimate Judge of their actions. There are, 
 besides, religious duties to Him — worship, prayer and 
 praise, thanksgiving, fear and love. If a man could 
 perform aU these several duties, truly and faithfully, 
 perhaps few would deny that he had attained a state 
 of perfect virtue. 
 
24 Tlie Natural Rights a Mental Stimulant. 
 
 CHAPTER III. 
 
 Of the Fundamental Principle of the Moral Government, and of the 
 Jural Principle of the Moral Laws. 
 
 The Almiglity Maker, when lie invested the mind of 
 man with a consciousness of natural rights, created 
 an efficient cause only secondary in intensity to the 
 power of the appetites. These stimulate his animal 
 nature to action ; but man might have remained as 
 unprogressive as a brute if he had not been furnished 
 with a mental stimulant, which brings his mind and 
 body into joint action for a common purpose. An 
 instinctive consciousness of unity as owner of his 
 body and all ifcs powers, gives to each individual an 
 interest separate from that of his fellow-creatures, 
 but it does not preclude their co-action and co- 
 operation. 
 
 Thus furnished, man is constituted for society ; 
 but again, we find his action there facilitated by 
 the simple and unfettered form in which his na- 
 tural rights are bestowed upon him. The rights are 
 not correlatives of duties. No action is necessary 
 
Not Correlatives of Ditties, 25 
 
 to complete the rights. They are acquired by birth, 
 and even previous to birth, for the crime of murder 
 may be committed in the womb, and they never can 
 be justly disputed, for each man knows by his con- 
 sciousness of his own rights, their universality in the 
 human race. Nor is there a positive moral duty, 
 although it may be, and is, a social and benevolent 
 duty to protect the natural rights of other men. 
 Violations of rights are wrongs to the parties in- 
 jured, not because the violation is a betrayal of 
 duty, but because it spoliates a right which is a 
 gift of God, by an act which is, or which is equiva- 
 lent to theft ; and so an act of disobedience to God's 
 law. The wrong is not augmented by failure in 
 a correlative duty. If the moral oblig*ation arose 
 out of correlative or reciprocal duty, a man might 
 consent to be murdered by an acquiescence previously 
 given; but neither individual man, nor human 
 government, can release God's right to, or His 
 creature's duty of obedience ; and therefore they 
 cannot set aside the moral crimes of the Command- 
 ments. 
 
 This beneficent arrangement of natural rights is 
 necessary to their enjoyment. If they were depend- 
 ent on the observance or performance of similar 
 rights in other men, they could not be exercised or 
 enforced by the weak against the powerful — or 
 
26 Correlative Rights arise from Contract. 
 
 against the power of tyrannical government. These 
 could always raise an issue whether some correlative 
 duty had been performed ; and so the bulk of man- 
 kind might be kept in perpetual slavery. But as 
 rights independent of correlative duties, they give to 
 each human being an invariable status, which can 
 be affected only by the punishment awarded by 
 human government for specific crime. The just 
 punishment of crime restricts the natural rights, 
 but it does not deprive the person under punishment 
 of rights not affected by the sentence of punishment. 
 Thus it is murder to kill a person under sentence 
 only of imprisonment. 
 
 But the Creator did not leave man solitary in his 
 individuality and independence. The trifold chain by 
 which rights and property are protected, furnishes 
 the means by which reciprocal and interdependent 
 rights and duties may be created between men. 
 Contract founds a new moral relation between them. 
 Through its operation they interchange their rights 
 and property, and by mutual promise enter into 
 obligations which result in rights and duties that 
 are correlative and reciprocal. It effects a change 
 of rights by mutual consent, and the rights so 
 changed, or agreed to be changed, pass to and from 
 the contracting parties, and become as natural rights 
 protected by the authority of the moral laws. The 
 
yural Principle of the Moral Laws. 27 
 
 crimes and injuries to which natural rights give rise 
 may be perpetrated under the concealment of a 
 contract; and honest performance of it can only 
 be tested by the principles of the moral laws. The 
 effect of this variety of moral action is to divide 
 moral crime into two classes: — (1) crimes open or 
 public, and (2) crimes under the cover of contract. 
 
 The most general physical principle into which 
 the human system can be resolved, considering man 
 as endowed with natural rights, and possessing 
 appetites and desires that stimulate him to use his 
 natural powers for his individual benefit, is Property. 
 The most general antagonistic principle to propert}^, 
 considering the chief moral danger to which it is 
 exposed, is Theft; and theft, as antagonistic to 
 rights and to property, is, therefore, the generic 
 moral crime of society. The jural princii)le of the 
 moral laws is restraint of theft, and restraint of 
 theft, in its various modes and forms, is the essence 
 and active principle of human law. 
 
 The power of the abstract principle of property-, 
 and of its protective law, pervades all human rela- 
 tions. There is no other principle or law into which 
 our natural or individual, or our political or social 
 rights can be resolved. In our social dealings the 
 inquiry to be made of our conscience is, have we 
 taken or detained from our neighbour, openly or 
 
28 Natural Moi^al Law evolved from Rights. 
 
 covertly, " any thing that is his," affecting his life, 
 body, family, or property? Have we given to him 
 less than his right, or prevailed on him to accept 
 less by false or deceitful representation, or by keep- 
 ing him in ignorance of his due ? The principle and 
 law are so ingrained by nature into our minds, that 
 in our common social intercom-se, and in cases where 
 no moral obligation exists, we introduce them into our 
 speech, and by similar moral phrases, apply them 
 to fancied rights and duties. Where a civility is 
 received and not returned, we say we owe a return ; 
 or we have not done our friend justice in our estima- 
 tion of his accomplishments or powers of amuse- 
 ment ; and we deprive him of his just merit, from 
 an envious motive that partakes of the injustice of 
 the law, " thou shalt not steal." 
 
 The natural rights evolve moral laws by their 
 automatic power. These are laws of Nature. Our 
 next step in the investigation is to inquire whether 
 they coincide with the moral laws of the Command- 
 ments, of which true tests will be, that they contain 
 within their scope all those actions, in their several 
 varieties, which interfere with the natural rights, and 
 which constitute wrongs. Property, in relation to 
 morality, comprehends the natural rights, and all 
 their products, physical and mental. It divides 
 itself naturally into three classes, coiTesponding 
 
Three Classes of Property. 29 
 
 with the body and its appetites of sex and hunger. 
 (1) Property in the body ; (2) property in relation to 
 marriage and the family; and (3) property in the 
 physical and mental products of the powers of the 
 body. Under these divisions, with which the Divine 
 laws correspond, an analysis of each of these three 
 classes of property will be made, and of the corre- 
 sponding crimes and wrongs, the completeness of 
 which may be tested by our knowledge of human 
 life, and by the proceedings of our Courts of Justice, 
 which, displayed in our daily journals, describe every 
 phase and form of social and moral action, in a nation 
 which presents every kind of moral temptation and 
 every variety of moral crime. 
 
T/ie Sixth Commandment. 
 
 CHAPTEE rV. 
 
 LIFE AND THE BODY. 
 
 VI.— Thou shalt not kill. 
 
 The sixth Commandment, "thou shalt not kill," 
 appeals to the moral sense of mankind against the 
 highest crime of humanity. The princij^le of pro- 
 perty resolves the crime, high and heinous though 
 it be, into the generic crime of theft, and the great 
 law must be considered as a special application of 
 " thou shalt not steal " to the protection of the life 
 of man. 
 
 The destruction of life by murder raises pecu- 
 liar feelings in the human heart. The murderer 
 is execrated not only for his cruelty, but for having 
 taken from his human brother his most valued pos- 
 session, w^hich no earthly power can restore. Nor 
 does it admit of recompense to the victim, whereas 
 crimes against material property or rights admit of 
 restitution and of punishment, which may force, or 
 be substituted for, restitution. It has the least excuse 
 
Punishment of Ahu^dei^ by Death. 3 1 
 
 of any crime ; for there is no natural impulsive appetite 
 which desires the life of a fellow-creature to appease 
 it. Adultery may be palliated by temptation ; theft 
 may be excused by the pressure of hunger ; but the 
 murderer, on the contrary, has natural feelings and 
 sentiments adverse to murder, which must be stifled 
 or overcome in order to work himself into the state 
 of physical energy, whether of cool determination or 
 of excited passion, which seems to be a necessary 
 antecedent to an act of murder. The Law of Sinai 
 is in perfect accordance with the law of Nature in 
 every human heart. 
 
 There is much difference of opinion in the present 
 day concerning the proper punishment of the crime of 
 murder. It was, until recent times, an axiom, " that 
 the common feelings of mankind demand the blood 
 of the murderer ; "^ but, in our day, dislike of capital 
 punishment, engendered by its long and indiscrimi- 
 nate use for minor crimes, has extended even to 
 murder, and the advocates are numerous for its 
 entire abolition. Revelation has given a precept or 
 injunction, that " whoso sheddeth man's blood, by 
 man shall his blood be shed," and for two different 
 reasons ; (1) " for in the image of God made He 
 man," and (2) " for the blood is the life." If the in- 
 junction be considered independently of the authority 
 
 * Gibbon's History. 
 
32 Mttrder marked as the Highest Crime. 
 
 it derives from revelation, the reasons, as criteria of 
 its sacredness, are not without remarkable force as 
 suggestive of their origin in God; for no earthly 
 being could know, in the remote time of that re- 
 velation, the high importance of the criteria to the 
 progress of man as a social being, in the one case, 
 and to his physical existence in the other. Reason, 
 supposed to be " the image " referred to, has been 
 developed to an extent which has raised the human 
 race, in its most advanced civilisation, to knowledge 
 and power which the earliest races of mankind could 
 neither have foreseen nor imagined. The criterion 
 " for the blood is the life," has peculiar relevancy, 
 when viewed by the light of modern science; the 
 theory being, that the blood is not merely the sub- 
 stance which sustains life, but that it is, itself, a 
 living, organised body.* 
 
 But there is in nature a very remarkable distinction, 
 in God's gift of life from all other natural property, 
 even from the body of man as well as from material 
 property produced by labour. The trifold chain by 
 which i)roperty is bound, does not extend to life. As 
 it must not be stolen by murder, so its owner cannot 
 give it by free consent, take it himself, nor sell it by 
 contract. The most heinous crime, next to murder, 
 
 * Penny CyolopsDdia, art. " Blood." Brewster's Edinburgh En- 
 cyclopaedia, 1830, art. " Physiologj'." 
 
Minor Offences against the Body. 33 
 
 is rape. The intending violator of woman's chastity 
 may obtain his end and be spared his crime by the 
 woman's gift of her person (which is not contrary to 
 nature), or by a contract of marriage. The intending 
 thief may be turned from his criminal purpose by a 
 gift of the coveted property, or by a contract for its 
 sale to him. This natural difference gives to murder 
 an exceptional place in moral crime, that marks it as 
 peculiarly under the ban of the Creator. For crimes 
 less than murder capital punishment cannot be jus- 
 tified ; but only experience can teach what the effect 
 on the safety of human life would be of placing 
 murder, in its punishment, on an equality with theft 
 of property. To a murderer, advanced in life, im- 
 prisonment for life, compared with the punishment 
 of a thief for a term of years, might be merely a 
 nominal distinction; and thus the crime of murder 
 would, in regard to punishment, be eliminated from 
 the human code, and decimated from the Command- 
 ments. 
 
 Minor offences against the body fall naturally 
 under the power of human government, as offences 
 against natural right, or as unjust interferences with 
 natural property; and inasmuch as mutilation, 
 wounds, and bodily injuries deprive the owner of 
 the body of the use of limbs and other members, 
 injure health, diminish strength, and prevent labour, 
 
 D 
 
34 Minor Crimes omitted from Comma^idments. 
 
 and may thus reduce tlie owner to poverty and even 
 death; such offences are necessarily restrained by 
 laws of human government. Their omission from 
 the Commandments may be regarded as an instance 
 of the adaptation of the latter to human nature, with 
 which nothing could be more inconsistent than laws 
 specifically forbidding men from fighting, assaulting, 
 or even frequently assailing their fellow-men, whether 
 as enemies or as companions. Man derives from his 
 animal nature the combative instinct in a high degree. 
 He plumes himself on his courage, and despises a 
 coward. All communities engage in warfare ; and 
 civilisation cannot repress personal violences and 
 fights even amongst friends and neighbours. It may 
 reasonably be supposed that God left these offences 
 for repression and punishment by human government, 
 when His creatures were prepared for that restraint 
 by civilisation. How slow the progress has been may 
 be perceived from the fact that men, and those of the 
 most educated class, have only recently overcome the 
 animal passion for revenge which prompted them 
 to call out their fellow-men (and that in disobedience 
 to the laws of human government) to defend their 
 lives in duel, for daring to impeach truth or repu- 
 tation, under the chivalrous name of honour. 
 
 The essence of the crime of murder, in the law of 
 England, is that it be committed with premeditation, 
 
Mtcrder and Minor Crimes by English Laiv. 35 
 
 or " malice aforethonght," as to which there are legal 
 distinctions of malice express or implied, which it is 
 not necessary to enter into here. 
 
 Murder, and the minor ferocious crimes, cannot be 
 exhibited in their varieties by a more comprehensive 
 classification than that of English law. Such crimes 
 are there called "crimes against the person," and 
 they comprise murder, manslaughter, attempts to 
 murder, attempts to maim, rape, assaults with bodily 
 harm, batteries and common assaults. The higher 
 offences are distinguished as felonies, and the lower 
 as misdemeanours. 
 
 The crimes of the preceding list are those which 
 we have distinguished as open crimes, but the great 
 law, with its virtual declaration of man's natural 
 ownership of his body and its adjuncts, has a civil 
 as well as criminal category of forbidden actions. 
 Between our natural division of open crimes and 
 crimes under the cover of contract, are injuries to 
 the body called Torts or Wrongs, in the Eoman Law, 
 Delicta, which are not treated by English law as 
 crimes punishable by bodily restraint, but as civil 
 injuries, and they are redressed by civil action, and 
 compensated by pecuniary damages proportioned to 
 the injury; but in these minor offences we trace 
 the generic crime of theft. Injury to good name 
 or reputation is a tort or wrong, which, in its 
 
 i> 2 
 
36 Torts or Wrongs to the Body. 
 
 nature, is theft. It is the offspring of civilisation, 
 since good name has become important in business, 
 or in society. In uncivilised communities anger, 
 excited by calumny, was more naturally satisfied by 
 castigation of the offender; and society has greatly 
 advanced v^hen it can be said of slander or libel, that 
 it is a more injurious theft to take away good-name 
 than to steal a purse, which, in comparison with it, 
 is "trash." Nuisances which rob a man of health, 
 and other similar injuries, are treated by English law 
 as torts, but if resolved into first principles as pri- 
 vations or rights, they belong to the generic crime of 
 theft. 
 
 The rights and power's of the body, are also the sub- 
 ject of Contract. The skiU acquired by its strength 
 or by practice in manipulation, in various ways, be- 
 comes a species of property. From the natui-al 
 ownership of the body is derived the authority for 
 those laws which award damages for loss of life or 
 bodily injury, through neglect of ordinary care by 
 persons who by contract undertake responsible duties, 
 of which railway accidents are consj^icuous examples. 
 The ownership of the body is violated by any action 
 which interferes with its just liberty and freedom, 
 whether affected by "false imprisonments," or by 
 "kidnapping." Slavery is an unjust privation of 
 natural liberty, which has largely prevailed, not- 
 
Stimtdmit Action of the Mind. 37 
 
 withstanding tlie universal sentiment, that men are 
 by nature free and equal. It is of the highest 
 moral criminality, for it deprives the slave not only 
 of his person, but of the products of his labour. To 
 an attempt to perpetrate that theft, nature prompts 
 the last extremity of resistance. 
 
 The mind, conscious of the ownership of the body, 
 is the originator of political freedom, and the an- 
 tagonist of tyranny. It points to equal laws, as the 
 resultants of equal rights, and to the impartial ad- 
 ministration of justice, as the corollary of equal laws. 
 It encourages labour in science and art, its products 
 being the property of the producer, as material pro- 
 perty. It inspires noble and generous actions for the 
 good of society, winning for the actor, as the fruit of 
 such actions, personal esteem, and sometimes an im- 
 perishable name. It demands freedom of thought 
 and liberty of conscience as natural rights. 
 
38 The Seventh Commandment. 
 
 CHAPTEE V. 
 
 MARRIAGE. 
 VII. — Thou shalt not commit adultery. 
 
 Marriage is the provision by which the sexes con- 
 join their natural rights to their respective bodies, by 
 a mutnal contract, induced by Nature, by which also 
 the employment of their natural powers is redis- 
 tributed with especial reference to the new duties 
 which marriage calls into existence, for the nurture 
 and education of the children of the marriage, and 
 for the establishment of a family. 
 
 Nature does not by force of circumstances which 
 leave no choice compel her children to marriage ; but 
 she persuades them by feelings and desires which 
 they are seldom able to resist. The youth of both 
 sexes, when they reach puberty, are inspired with a 
 desire to pair. The passion of love is raised up, and, 
 causing mutual selection, it is inflamed by admiration 
 of the beauty or manly strength, the natural graces 
 or mental qualities, which the enamoured pair exhibit 
 
Marriage a Contract of Nature. 39 
 
 to each, other; and they employ all their arts to 
 obtain exclusive love, to be followed by marriage, 
 as the natural consequence of the passion, and of the 
 selection which it caused. In this mutual affiance, by 
 a tacit but well-understood recognition of the ends 
 and purposes of marriage derived from their feelings 
 and experience, they agree to live together, to beget 
 children, to nurture them, and to prepare them for 
 taking their parents' places in the world ; and as 
 these duties require the full period of life for their 
 completion, the natural sentiment accords with that 
 duration, in the young pair, and in their parents, to 
 whose feelings it would be repugnant to give their 
 daughter for a union less than life. 
 
 But Nature does not leave her work to the sole 
 action of the early sentiment of love. Children 
 arrive in succession and become new ties of affection. 
 The prolonged duties of human parentage contrast 
 strikingly with the rapid discharge of parental duties 
 by animals ; and such contrast is a remarkable 
 instance of divergence in the details of Nature's plan 
 when man was created. The parents have a joint 
 property in their children, as they have in the persons 
 of each other ; but nature distinguishes and divides 
 the marriage duties between the wedded pair. To 
 the woman is given the duty of nourishing the child- 
 ren in their infancyj and of protecting and succouring 
 
40 S?tasive Foi^ce of Nature to Marriage. 
 
 them whilst growing up; and the marriage having 
 placed the woman under the authority and protec- 
 tion of the man, there is cast on him the duty of 
 labouring for her support, and for the support of 
 their children, and of bringing the latter forward in 
 life. These duties, natural results of the marriage, 
 confer correlative rights ; and as derived from Nature 
 and enforced by natural sentiments, they have, as 
 duties to the Creator, and as the expression of His 
 will, the force of natural laws. 
 
 With this suasive action of Nature the Decalogue 
 wonderfully accords. It lays no command on man- 
 kind to marry : it seems tb say, " If you marry you 
 enter into a contract of the most sacred kind, by 
 which you undertake to beget children, to rear and 
 educate them, and to form with them a family, and so 
 to do your part in furtherance of the Creator's plan 
 for the well-being of the human race. Beware that 
 you do not, by Adultery, vitiate your marriage." 
 
 As in all human contracts and engagements there 
 is failure, so marriage is not exempt, although 
 entered into with ardent feelings of love and fidelity. 
 Adultery occurs, and then there is imported into 
 the conjugal home the usual characteristics of crime. 
 Secrecy is maintained as long as possible, by artful 
 caution, and the faithless partner lives in dread of 
 the discovery of the acted lie. The moral sentiment 
 
Sexual Fidelity the Mean of Marriage. 41 
 
 is awakened, reflective of the natural law in tlie 
 human heart, "thou shalt not commit adultery;" 
 for the wisdom of God has made sexual fidelity the 
 ^mean on which marriage rests. The wedded pair 
 may be unsuited and unhappy; they may oppose 
 each other's wishes, resist each other's will, even 
 deny cohabitation; they may carry their mutual 
 opposition to any extreme short of adultery, and yet 
 neither of them may desire to separate; for that 
 desire is counteracted by regard for the interests of 
 their children, and by the moral opinion of their 
 relations and friends. The unhappy pair is not 
 impure, nor is their former love irrecoverable through 
 returning good sense, or through the interference of 
 friends. But if adultery be committed the marriage 
 is vitiated and destroyed. The essence of the mar- 
 riage contract, mutual fidelity, has been violated by 
 the guilty partner, who has given to a paramour what 
 was the exclusive right of the faithful partner. The 
 paramour also has taken and enjoyed secretly and 
 fraudulently the right and property of another ; and 
 thus they have aided each other and conspired to 
 terminate, and have ended unfitly and prematurely, 
 the most important and most interesting of human 
 contracts, and have also infringed the great principle 
 of property that runs through all human afiairs. 
 The marriage of pairs is not exclusively the order 
 
42 Nature followed by Hiunan Laws. 
 
 of Nature. Polygamy has long prevailed, and still 
 prevails, amongst Asiatic nations. It is a contract 
 which, has its type in the lower creation. But 
 adultery attaches to polygamy as to a marriage of 
 pairs, and by the laws of the Koran infidelity by the 
 woman is punished with severity. 
 
 Nature's laws relating to marriage act directty 
 on human government. The loving pair having 
 made in their solitude their natural contract, it is 
 transferred to human government to give effect and 
 publicity to it by such forms, religious or secular, 
 as it may determine. It must give effect to the 
 moral law by divorce, and by such punishment of 
 adulterers as will make the law respected and visit 
 the offenders with penal consequences. The English 
 Legislature has accorded divorce to a wife in those 
 cases only in which adultery by the husband, how- 
 ever habitual and open, has been coupled with cruelty 
 of a character so gross as to come within the defini- 
 tion of " legal cruelty," or with desertion for a period 
 of two years. And if human government has not 
 found it expedient or possible to make adultery a 
 felonious crime, it seems justified by those consi- 
 derations which have made the natural impulse to 
 marriage suasive and not mandatory. 
 
 It is also within the province of human govern- 
 ment to provide for the performance of the natural 
 
In Mainnage and as to Children. 43 
 
 duties of the married pair towards tlieir children. 
 Their lives are protected by the sixth Commandment, 
 and all the other duties of the parents are so defined 
 by natural laws, that in this great branch of human 
 legislation, there is no better guide than Nature's 
 instincts. 
 
44 The Fu7idainental Moral Law. 
 
 CHAPTEE VI. 
 
 PEOPERTT. 
 
 VIII.— Thou shalt not steal. 
 
 The seventh. Commandment " thou shalt not steal," 
 lias before been stated to be the fundamental law of 
 the moral system. It is applied by the two pre- 
 ceding commandments to the crimes of murder and 
 adultery ; and it comprises within its scope, as the 
 subject-matter of the law, all rights and property 
 that are not comprehended within those Command- 
 ments, Its most comj)rehensive relation is to mate- 
 rial property, and to rights connected with it ; but 
 the moral law is not confined to these ; and we shall 
 find that rights and duties of a personal kind, un- 
 connected with material pro^Derty, are included within 
 its jural scope and principle. 
 
 The natural distinction before made, of open or 
 public crimes, and of crimes under the cover of 
 contract, is largely developed in the scojdc of this 
 law. The most extensive duty of human govern- 
 
open Crimes against Property. 45 
 
 ment is to protect material property from theft ; for 
 life, labour, trade, and most human blessings dej)end 
 upon the security of property. English law distin- 
 guishes wrongs against property into public crimes 
 and civil injuries. The former, in the nomenclature 
 of English law, are, robbery, burglary, arson, larceny, 
 piracy, receiving stolen goods, embezzlement, false 
 pretences, forgery and fraud, which are but varieties 
 of the same crime, and infractions of the same 
 fundamental law. 
 
 But, as in the case of the body, so here there 
 are, intermediate between public crimes and crimes 
 under cover of contract, torts or wrongs, which, as 
 trespasses or nuisances affecting property, or the en- 
 joyment of property, not arising out of contract, are 
 treated as civil injuries, and are compensated by 
 damages, on the principle that, like torts against 
 the body, they are unjustifiable privations of rights 
 freely enjoyed before the tort or wrong was com- 
 mitted, and, as such, they fall withm the generic 
 crime of theft. 
 
 All other injuries to material property and rights 
 arise out of contract. If we examine the operation 
 of contracts of labour, and contracts of sale or ex- 
 change at the present day, we find that all the affairs 
 of life are carried on, and all the wants of human 
 society are supplied, by means of contracts. The 
 
46 The Universality of Contract. 
 
 houses in which we live, the furniture which makes 
 them habitable, the servants who keep them in 
 order, and who wait on us and prepare the food 
 which we and they consume, the food itself, the 
 clothing, and all other necessaries of daily life, the 
 railways and carriages in which we travel, or take 
 the air, the places of amusement where we recreate 
 ourselves, are all supplied and kept in action by 
 continually recurring contracts. The trades and pro- 
 fessions by which we earn our incomes give occasion 
 for another variety of contracts. Trade and com- 
 merce, the creatures of the natural principle of 
 contract, have called forth contracts of sale, of 
 barter and exchange, of commission and agency, 
 of bailment and trust, of letting and hiring, of 
 sureties, of insurance, of partnershij), and the like. 
 Agriculture, navigation, manufactures, and mining, 
 have their peculiar contracts adapted to their peculiar 
 operations. The artizans and labourers of every sort 
 have no peculiar variety of contracts, but only more 
 or less, according to their wages or their exchanging 
 power acquired through their savings, of the con- 
 tracts above sketched in relation to the wealthier 
 classes of society. 
 
 As the result of the trifold chain by which the 
 distribution of property is confined to gift, contract, 
 or theft, contracts which are fraudulent merge into 
 
Frauds through Contracts, Theft. 47 
 
 theft. Contracts, fraudulent in tlieir inception, or in 
 their performance or non -performance, are the sources 
 of immorality, which genericallj is theft. 
 
 As to the inception of contract, jurists have laid 
 down rules, that he who makes a contract about any- 
 thing ought to make known the faults of the thing 
 so far as he knows them, unless such faults are 
 known to the party with whom he deals ; and that in 
 the principal act of a contract this equality be re- 
 quired, that more be not demanded than is equitable.^ 
 Concealment of that which, if known, would change 
 the face of the transaction — misdescription with in- 
 tention to misrepresent; studied concealment of 
 defects not known to the buyer nor discoverable by 
 his vigilance — taint the contract with fraud, and 
 make its dishonest products theft. 
 
 But although the contract be free from taint of 
 fraud in its inception, it may be made the cover of 
 theft in the execution of it. Most of the contracts 
 of daily life are implied contracts, in which, beyond 
 the article and the quantity of it required and the 
 price, all verbally stated, there are no express stipu- 
 lations. It is implied that the goods delivered, or 
 the work done, shall be of equal value with the price 
 demanded for them; and, on the other hand, that 
 the price shall be paid on the delivery of the goods, 
 
 * Grotius de Jure Belli et Pacis, c. xii. 5, 9, 10, 11. 
 
48 Implied and Expires s Contracts. 
 
 or the completion of the work, or at the expiration 
 of the credit. In express contracts these conditions 
 are secured by actual stipulation. In the execution 
 of these contracts, when inferior goods, or imitated 
 or adulterated goods, or smaller quantities than those 
 pui'chased, whether from false weights or want of 
 proper care, or when inferior workmanship with in- 
 ferior materials are fraudulently supplied ; such de- 
 partures from the contract are a gain to the seller 
 under the cover of the contract of more than it justly 
 authorised, to the loss and injury of the buyer ; and 
 such defalcation is the instrument of taking from 
 the latter against his will — that is, neither by his 
 gift, nor b}^ his contract, for that did not authorise 
 it, and consequently by theft — that portion of the 
 price paid which was gained by the delivery of in- 
 ferior goods, or by inferior workmanship and mate- 
 rials below the contract value. 
 
 The higher contracts of commerce must be tested 
 by the same prmciple — just performance of them 
 according to the contract stipulations, implied oi* 
 express. In contracts of commission or agency, the 
 agent who, by neglect of duty, causes a loss to his 
 employer, and notwithstanding such neglect takes 
 his pay as if he had protected his principal's in- 
 terests and preserved him from loss, is involved in a 
 double fraud — the loss which his cmjoloyer has sus- 
 
Contracts of Commerce. 49 
 
 tained througli Ms neglect, and the pay or commis- 
 sion which he has taken or received for services that 
 were not only inefficient, but were injurious ; and, 
 unless he makes restitution, the defalcation is theft. 
 In like manner, he who uses money entrusted to him 
 for a special purpose, for his own advantage, un- 
 known to and unsanctioned hy him who confided the 
 money to his care, is guilty of a fraudulent breach 
 of trust and duty, which makes any loss to his em- 
 ployer, not restored, theft. 
 
 On the other hand, where the party to a contract 
 who is to pay for goods, or work, or for services to 
 be done or performed, receives the stipulated work or 
 advantages with the intention not to pay for them, 
 there can be no distinction made between such appro- 
 priation and theft. And although the intention was 
 not complete, but the buyer knew, and suppressed such 
 knowledge from the other party, that there existed 
 no means, nor any reasonable probability, of his 
 paying the stipulated price when the credit expired, 
 the moral difference from theft is very minute. 
 
 Contracts, the performance of which is deferred to a 
 distant time, are exposed to repudiation by the temp- 
 tation which arises from a change of circumstances 
 and altered interests to endeavour to withdraw from 
 them, or to render them inoperative. A contract 
 is a mutual promise, the effect of which is to change 
 
 E 
 
50 Deferred Contracts. 
 
 the ownership in the subject of the contract imme- 
 diately the promises are exchanged, or recorded ; 
 what remains unaccomplished is the delivery of the 
 property and of the money its price, to the new 
 owners respectively created by the contract, at the 
 time and place agreed. And as when one party 
 delivers his goods, and the other fraudulently with- 
 holds the goods or money which he promised to give 
 concurrently in exchange, such withholding is a 
 transparent theft ; so non-performance of deferred 
 contracts, where the motive is fraudulent, and non- 
 performance is not justified by circumstances of pre- 
 vention or inability that have intervened since the 
 contract, is a breach of the law " thou shalt not 
 steal." If we could penetrate into the motive of a 
 man who refuses, when able, to perform his contract, 
 it would generally be found to be this — he would lose, 
 instead of, as he hoped, gain ; and if he perseveres, 
 he steals what the other party would have gained if 
 the contract had been performed, and thus he adds 
 an actual theft to an implied lie. 
 
 It has before been remarked, that the jural prin- 
 ciple of the law " thou shalt not steal," — restraint of 
 theft — is the governing principle of human society, 
 and that no other principle can be imagined, because 
 the social condition of this world is based on rights 
 and property. The same jural principle protects the 
 
Public Rights, Duties, and TriLsts. 51 
 
 rights conferred bj human government, and all other 
 rights under the authority of human law. It also 
 governs the performance of j)ublic duties and trusts, 
 which, in relation to the public, are rights ; so that 
 it is to this jural principle all rights and correlative 
 duties must be referred, as the test of privation of 
 rights or performance of duty. 
 
 Honest performance of public duties is thus 
 brought to the test of the moral law. A public 
 servant, paid or unpaid, by undertaking public 
 duties, virtually contracts with the state who ap- 
 pointed him, and with its subjects for whose benefit 
 he is appointed, to execute his duties faithfully and 
 efficiently ; so that all rights, public and individual, 
 committed to his care, may be preserved and duly 
 distributed to those entitled to them ; and in so far 
 as the public, or any individual, does npt receive 
 their respective rights from the neglect or from the 
 moral inefficiency of the trustee, or from a capricious 
 and unjust official withholding of such rights, or 
 from preferences in distribution where rights are 
 equal, it is theft from the public, or from the indi- 
 vidual, of the rights which they were entitled to, 
 and which they would have enjoyed if the public 
 affairs had been committed to a more scrupulous and 
 more honest public servant. 
 
 Bribery is a contract entered into for the purpose 
 
 e2 
 
52 Bribery. 
 
 of producing breacli of trust or duty, and it is theft 
 in him who receives the bribe — theft of the right 
 which the public, or the state, or he who conferred 
 the trust, had to honest performance of it, in con- 
 formity with the principles of the trust, and also of 
 the right of him who, but for the bribe, would have 
 been preferred; and he who gains by a bribe that 
 which, but for the bribe, would have been given to 
 another, is the recipient of a gain or advantage 
 acquired by theft. 
 
 Bribery at parliamentary elections is, in its moral 
 results, theft. Assuming the franchise to be a trust, 
 the elector owes the duty to exercise it honestly to 
 three distinct parties : (1) to the state ; (2) to his co- 
 electors, and also to the non-electors, the elected 
 being constitutionally the representative of the whole 
 community ; and (3) to the candidates who, if the 
 electors were incorruptible, would go to the poll with 
 a moral certainty that the electors would make their 
 choice and give their votes in conformity with con- 
 stitutional principles of selection. The candidates 
 are under a moral and constitutional duty to refrain 
 from interference with the free choice of the electors, 
 especially not to corrupt them; and they owe that 
 (luty — (1) to the state ; (2) to the electors and non- 
 electors ; and (3) to each other. But the vote cannot 
 be brought to the test of legality on abstract prin- 
 
Daily Contracts in Great Britain. 53 
 
 ciples ; and, like treason, betrayal of elective trust can 
 only be proved by overt act. Bribery is such overt 
 act, and, if resolved into simple and general moral 
 principles, it falls within tlie category of theft. As 
 regards the candidate who, but for the bribe, should 
 and would have been preferred, the theft of the vote 
 from him is plain ; and as to the candidate who, by 
 giving the bribe, obtained the vote, he is the recipient 
 of a gain obtained through an illegal contract, the 
 purpose of which was theft. As regards the state, 
 and the pure electors and the non-electors, the con- 
 tract with its results, was theft of their constitutional 
 right to a choice in accordance with conscientious 
 observance of legal and constitutional principles. 
 Intimidation and undue influence have the same 
 moral results ; they are even double thefts ; — theft of 
 the right of the elector to the free exercise of his 
 choice, and theft of his vote from the candidate, who, 
 but for the intimidation or undue influence, would 
 have received the vote; and that whether the vote 
 be given to the rival candidate, or withheld through 
 enforced neutrality. 
 
 The great diffusion of contract throughout society, 
 involving, both in making and executing contracts, 
 moral duty of the highest kind, makes it worth while 
 to try to form some conception of the extent of con- 
 tract in this small island which is our home. The 
 
54 liJiportance of Honesty in Contracts. 
 
 census enables an approximate calculation to be made 
 of the daily number of contracts in Great Britain. 
 It may be taken that there are nearly 5,000,000 
 families, and on the average, five persons in each 
 family ; and if we suppose that the adult members of 
 both sexes in each family, in their domestic affairs, in 
 their trades and professions, and in the management 
 of their estates and proj^erty, enter into, or renew, 
 or continue five contracts a day (one member of two 
 families being assumed as engaged in each contract) 
 then we have 25,000,000 as an approximate number 
 of the contracts made daily in Great Britain. 
 
 How vast is this field of operation for good or for 
 evil ! How much general well-being and happiness 
 depend on honest contract and honest performance 
 of it ! Open crimes against property may not be so 
 injurious to society, nor even so productive of immo- 
 rality and disobedience to the Law of God, as secret 
 dishonesty in its various forms. How can our duty 
 be better defined, or our temptation to dishonesty 
 be better restrained, than by testing every gain we 
 are in pursuit of by the natural axiom, and by ask- 
 ing ourselves, do we propose to get it by gift, by 
 honest contract, or by theft ? 
 
The Ninth and Tenth Commandments. 5 5 
 
 CHAPTER YII. 
 
 THE ADMINISTRATION OP JUSTICE. 
 IX. — Thou shalt not bear false witness against tliy neighbour. 
 
 The three Connnandments or moral laws that have 
 been passed in review are those which the Creator 
 ordained and thought sufficient for the moral govern- 
 ment of mankind as members of society, and as 
 fundamental laws of human government. We have 
 seen that they are directly applicable to the vital 
 elements of social life, the protection of the persons of 
 men, of their families, and of their property derived 
 through labour. It may have appeared that these 
 laws form a complete and perfect system of moral and 
 fundamental human law ; but as that may require 
 further elucidation, it will be attempted in the next 
 chapter. 
 
 But here it will be convenient to remark that the 
 tenth Commandment, "thou shalt not covet," does 
 not enlarge the natural code. It declares no new 
 principle, nor does it extend to new subjects of law. 
 
56 Principle of Admi^iistration ofj^tsticc. 
 
 It was interpreted by our Lord as " Defraud not,""^ 
 which, admits of its being considered as an application 
 of the law "thou shalt not steal" to the Ic^er degrees 
 of theft, which, as we have seen, have such an extensive 
 range in society through the natural instrument, con- 
 tract. But although it declares no new principle, it 
 confirms the princi]3le of individual rights. It is a 
 clear declaration of a man's proj)erty in his house, in 
 his wife, in his servants, in his ox, in his ass, and in 
 everything that is his ; and not to covet these, may 
 be interpreted as a direction to avoid the indulgence 
 of desire for the property of our neighbours, which 
 camiot be obtained without breach of moral and 
 human law. 
 
 The ninth Commandment, " Thou shalt not bear 
 false witness against thy neighbour," most strikingly 
 shows the perfection of the great Creator's code. It 
 is not directed against any crime arising out of the 
 body or its appetites, like the other laws, but is intro- 
 ductory of a new principle, the essential principle of 
 the administration of justice, which is a solemn 
 inquiry by human government into the truth or 
 falsehood of the allegations of parties contending for, 
 or defending rights. It is designed to discover truth, 
 and, when the truth is found, to distribute to each 
 man his own according to his right, and to ordain 
 
 * Markx. 19. 
 
Two Classes of Falsehood. 57 
 
 punislinient or redress for the injury committed. 
 That proceeding necessarily requires the examination 
 of persons cognizant of facts having relation to the 
 inquiry — the testimony of witnesses. In such testi- 
 mony this Commandment requires absolute truth 
 from the witness, as far as he is capable of expressing 
 the facts within his knowledge. But before con- 
 tinuing the consideration of this law, we will attempt 
 to give an answer to the objection made to the 
 perfection of the Decalogue as a moral code, that it 
 does not contain a law of Truth ; or, in the negative 
 form of its legislation, a law forbidding falsehood and 
 lies in ordinary communications between men, as well 
 on those more solemn occasions when men are called 
 upon, after the exercise of memory and thought, by 
 deliberate speech and under the sanction of an oath, 
 to give their testimony as witnesses on questions of 
 right and wrong between man and man. 
 
 It must not be inferred, because ordinary false- 
 hood and lies are not expressly forbidden in the Com- 
 mandments, that truth is not required in ordinary 
 circumstances, nor that it is overlooked when it is 
 connected with moral crime. Eecalling the distinction 
 before made of the several classes of morality, false- 
 hood and lies have two degrees of moral turpitude, 
 and are divisible into two moral classes : (1) falsehood 
 and lies, which are imiocuous to the party deceived, 
 
58 Falsehood without Injustice. 
 
 as regards his natural rights protected by the moral 
 laws, where falsehood is of the nature of personal 
 sin ; and (2) falsehood and lies which produce loss or 
 injury to life, body, family, property, or good name, 
 where it is moral crime. 
 
 I. The first class of falsehood is not within the 
 scope of this essay, but the moral distinction that has 
 been made will be illustrated, and the general cause 
 of truth may be served by resolving the distinction 
 into the facts out of which it arises and on which it 
 depends. 
 
 The Sermon on the Mount coincides with the 
 Commandments, in the absence of express teaching 
 concerning truth, and the inference is strong, that 
 the omission is in accordance with the necessity of 
 nature. Our Lord urges the exclusion of oaths in 
 conversation, but without expressly requiring that 
 men's communications with each other shall be always 
 true. But although truth is not enforced b}^ the two 
 great codes of E-evelation, the love of truth is natural 
 to man ; and his admiration of its bold assertion, in 
 circumstances of peril, is as warm and unbounded 
 as that excited by the display of heroic courage in 
 circumstances of personal danger. The pursuit of 
 truth in science and philosophy affords the purest 
 and most exalted pleasure ; and in the common 
 intercourse of life, the respect attained by good 
 
Natu7^al CatLses that disturb Trtith. 59 
 
 conduct is chiefly founded on the character acquired 
 for truth and openness. 
 
 But although the natural disposition is to truth, 
 and it prevails largely in ordinary life, yet there are 
 many disturbing causes ; and to maintain truth 
 invariably, requires an effort and a will that exalt 
 success into a virtue. Amongst the attributes of 
 God is perfect Truth. We know that falsehood 
 cannot be approved by Him ; and a true and obedient 
 worshipper of God will strive to avoid falsehood, even 
 though in circumstances that may be supposed to 
 make it excusable. 
 
 The disturbing causes are very numerous, and very 
 powerful, as many of them are founded in nature. 
 Imagination, hope, fear, love, hatred, vanity, emu- 
 lation, produce exaggerations which misrepresent 
 truth to the mind, even where no motive of injury 
 or injustice, or even of deception prevails ; and these 
 exaggerations excite the will to speech and action 
 conformable to them. 
 
 Lying is often used as a defence by men of de- 
 pendent condition, to avert danger; as animals draw 
 off the attention of their pursuers by the exercise 
 of their natural instinct of cunning. A man in a 
 humble and dependent social condition, having some 
 necessary object to preserve, some danger to avert, 
 some displeasure to remove, and fearing the power 
 
6o Opinions of Divines and Philosophers. 
 
 wMcli lie to whom lie lies has over him in his person, 
 family, property, or in his labour for his daily food, 
 resorts to a lie for his defence. For ordinary lying 
 prevails most amongst men who are in dependence on 
 more powerful men, and whose well-being is contin- 
 gent on their pleasing their superiors exercising over 
 them, perhaps, tyrannous authority; and fearless 
 avowal of truth, openly spoken on all occasions, with- 
 out regard to consequences, is, in general, only found 
 in men whose social position, whether rich or poor, 
 renders them independent of the power or caprice of 
 other men. 
 
 But concealment of thoughts by suppression of 
 truth, and even departure from truth, are considered 
 to be justified when occasions occur in which out- 
 spoken truth would be more injurious than conceal- 
 ment ; and divines and philosophers have expressed 
 opinions and cited authorities even from the Scrip- 
 tures, that simulation and dissimulation are not to 
 be entirely removed from the scheme of human life. 
 There is a dictum of Saint Augustine, "that it is lawful 
 to conceal, in prudence, the truth under a certain dis- 
 simulation." "^ We can easily imagine occasions where 
 a justifiable concealment of plans or purposes, perfectly 
 innocent in themselves, would be frustrated, if when 
 
 * Cited by Grot ins, lil"). iii. 1, who disputed Cicero's assertion (I)e 
 Offic. iii. 15),"cxomni vita simulatiouom dissinuilationcniquetollondam." 
 
Falsehood with Injustice. 6i 
 
 questioned, we were required to state frankly and 
 openly all our intentions to our opponents. 
 
 These reasons account for the omission from the 
 revealed codes of express laws, requiring truth on all 
 occasions, and there are few so happily constituted, 
 and so happily placed, as not to be thankful to per- 
 ceive, in the absence of express law, a concession to 
 the weakness of human nature, and why, in cases in 
 which falsehood is innocuous to the party deceived, 
 the offence has not been made punishable by human 
 government, but cognizable as a sin by God alone, 
 who knows all hearts. 
 
 II. The second class of falsehood or lies, those 
 which produce injury or injustice to life, bod}^ family, 
 property, rights, or good name, have none of the 
 mitigating circumstances that are excusatory in the 
 other class ; but it is to be remarked, that falsehood 
 in connection with injuries or wrongs, is but an in- 
 strument of crime. Falsehood may be said to be an 
 instrument or inherent in every crime; for every 
 crime (unless done in open defiance) is planned and 
 perpetrated in secrecy, and, so long as it is hidden 
 or unconfessed, there is an acted lie. It may be used 
 as false j)retence to obtain property by fraud, to effect 
 the seduction of a wife, or to accomplish murder by 
 deceiving the victim into a snare. In these offences 
 the essence of the crime is the purpose accomplished 
 
62 False-Witness 07" Perjitry. 
 
 to which the lie was accessory; and in the heavier 
 wickedness of the crime the minor instrument is ab- 
 sorbed. The commandments and human government, 
 following Nature in estimating the lie as an instru- 
 ment, forbid the major crime, and so virtually for- 
 bid the instrument also. 
 
 This principle of interpretation has the authority 
 of Mosaic law. In Leviticus^ it is written, " if a soul 
 sin, and commit a tresj)ass against the Lord, and 
 lie unto his neighbour in that which was delivered 
 him to keep, or in fellowship, or in a thing taken 
 away by violence, or hath deceived his neighbour ; or 
 have found that which was lost, and lieth concerning 
 it, and sweareth falsely . . . then he shall restore 
 that which he took violently away, or the thing 
 which he hath deceitfully gotten, or that which was 
 delivered him to keep, or the lost thing which he 
 found, or all that about which he hath sworn falsely." 
 These were moral offences, in which the lie was an 
 instrument either of accom23lishment or concealment 
 of a major crime, robbing or fraud, and the punish- 
 ment was restitution. 
 
 When lying rises to false-witness or perjury, the case 
 is altered ; lying is then the crime. The purpose of 
 the investigation is the discovery of truth, in order 
 to do justice between man and man ; and by implica- 
 tion from the Commandment, truth is em2:>hatically 
 
 * Chap. vi. ver. 2-5. 
 
Religious Pin^posc of the Oath. 63 
 
 required ' on all occasions when moral questions of 
 right and wrong arise that are to be determined by 
 human testimony, whether such testimony be given 
 by words of simple assurance, or under the sanction 
 of oaths. 
 
 But there are always criminal motives at the 
 bottom of designed false- witness. The testimony 
 may be made the instrument of dii^ect crime, by the 
 conviction and punishment of an innocent person. 
 Lower but also criminal motives may be some advant- 
 age to the witness himself, either by direct bribery, 
 or a share in the gain expected from false testimony, 
 or at least the advantage or pleasure of favouring a 
 friend and protecting him from the consequences of 
 his immoral act. The law, " thou shalt not steal," here 
 forces itself on the attention and on the conscience of 
 the witness ; and if he forswears himself, he acts in 
 disobedience of the Commandment and of the natural 
 law written in his heart. 
 
 By means of the oath, a religious sanction has been 
 added to the moral sanction of the natural and re- 
 vealed law. Belief in a Deity who rewards and 
 punishes men according to their moral deserts, may 
 be said to be universal throughout mankind. It 
 seems to be natural to call " G-od to witness," on 
 occasions when it is wished to inspire confidence in 
 promises, or belief in assertions which it is desired 
 
64 Oath sanctioned by the Third Commandment. 
 
 should be accepted, and acted upon as true. Oatlis 
 have been in use from remote antiquity, among all 
 peoples and in every age. By the oath the vritness 
 solemnly calls on the Deity in whom he believes, and 
 whom he worships, to give him Divine helj) to avoid 
 false-witness ; and he recognises his liability to the 
 punishment which, from the justice and power of God, 
 awaits him, hereafter, who is false in his testimony ; 
 and the third Commandment has made it known, 
 that " God will not hold him guiltless who taketh 
 His name in vain." 
 
Perfection of Natural and Revealed Code. 65 
 
 CHAPTEE VIII. 
 
 The Perfection of the Natural and Eevealed Code tested by the 
 Commentaries of Blackstone. 
 
 The Moral Code consists of four laws : — N"ature 
 and Revelation declare tlie same laws. The analysis 
 of each law has probably made the deduction clear 
 that it is the representative of a class or category of 
 law, and that the separate categories, when com- 
 bined, constitute a perfect moral code comprehend- 
 ing every form of moral action. But it may not be 
 superfluous to bring the combined classes of law to 
 the test of a system of human law in actual opera- 
 tion ; and there can be no better probation of the 
 perfection and completeness of the Divine code de- 
 duced from the analysis than a comparison of it with 
 " the Commentaries of Blackstone," which, as a digest 
 of the laws of England, contain all the laws, fonda- 
 mental and municipal, which an ancient nation of 
 the highest civilisation and most extensive commerce 
 required for its government. 
 
66 Tested by Blackstones Commentaries. 
 
 The value of Blackstone's Commentaries as such 
 a test is in the absence of all attempt by him to found 
 his digest on principles of human nature, obtained 
 by induction or by philosophical analysis. Admitting 
 the necessity of founding his treatise on a methodi- 
 cal division of the laws of England, he did not, in 
 his preliminary treatise " on the Nature of Laws in 
 general," adopt, or follow, or even name the Deca- 
 logue as his guide: he only referred generally to 
 the revealed or divine law found only in the Holy 
 Scriptures ; precepts, when revealed, found upon com- 
 parison to be really a part of the original law of 
 nature, but their truths not attainable by reason in 
 its present corrupted state, and until they were 
 revealed hid from the wisdom of ages; yet of the 
 same original with those of nature. Upon these two 
 foundations, the law of Natm-e and the law of Eevela- 
 tion (he wrote), depend all human laws. We have, 
 therefore, in Blackstone's division of the law, the 
 work of a learned jurist, who, whilst fully impressed 
 with the value and importance of Revelation, followed 
 the dictates of his own ex^Derience of the actions of 
 mankind, as displayed in coui-ts of justice and else- 
 where, and of the teachings of " the law written in 
 the heart." He may, also, have been led to, or con- 
 firmed in his jural division of law by a passage 
 in the Institutes of Justinian, " Omne jus quo 
 
. '' Rights of Persons r 67 
 
 utininr, vel ad Personas attinet, vel ad Res, vel ad 
 Actiones " — the latter being the legal process for 
 enforcing the rights. 
 
 Eemarking that " municipal law is a rule of civil 
 conduct, commanding what is right and prohibiting 
 what is wrong ;" and that " the primary and prin- 
 cipal objects of law are rights and wrongs," Black- 
 stone followed that division, which we have found to 
 be fundamental in nature, and he subdivided the 
 rights into "rights of persons," and " rights of 
 things;" and the wrongs into "private wi'ongs," or 
 civil injuries, and "public wrongs," or crimes and 
 misdemeanours . 
 
 To the same division of natural rights, (if we make 
 a verbal correction of Blackstone's terms in which 
 he has sacrificed accuracy to terseness, and which he 
 would have avoided if he had followed Justinian,) 
 to rights in respect of persons, and rights in respect 
 of things, we have been led by our induction from the 
 appetites of sex and hunger. The laws, "thou shalt 
 do no murder," and "thou shalt not commit adultery," 
 acting upon the natural rights of mankind to the 
 body and its life, protect the rights of persons ; and 
 the first book of the Commentaries which treats " of 
 the absolute rights of individuals, such as would 
 belong to their persons merely in a state of nature, 
 and which every man is entitled to enjoy, whether out 
 
 F 2 
 
68 " Rights of Things:' 
 
 of society or in it," describes the personal rights 
 which we have deduced from Nature, and the Moral 
 Laws ; the right of security and enjoyment of life, 
 limb, body, health and reputation, the rights and the 
 reciprocal duties of husband and wife, and the moral 
 relation of parent and child. 
 
 " The Eights of Things " are described in the 
 second book of the Commentaries as "those rights 
 which a man may acquire in and to such external 
 things as are unconnected with his person." This 
 subdivision of rights wholly relates to property; of 
 which land or real property, and moveable property 
 or personal property, are the natural as well as the 
 social elements. 
 
 The two first books of the Commentaries further 
 contain digests of the positive or instituted law which 
 it is the peculiar province of human government to 
 provide and declare as supplementary to the moral 
 law. These are — laws for the establishment and 
 preservation of the government and the state, for 
 providing and collecting the revenue, for appointing 
 magistrates, for supporting the clergy, and forming 
 and preserving the military and maritime powers; 
 and besides these, laws for carrying out the natural 
 rights — to regulate the alienation of property, by 
 contract, and by gift, and by will, — a form of gift, — 
 by inheritance, and by succession, and to define the 
 
Positive or InstitiUed Law. 69 
 
 rights acquired by marriage. The test of the justice 
 of the positive or instituted law, supplementary to the 
 , moral laws, is the natural law on which they must be 
 founded. Human government must carry out and 
 enforce the natural rights, and adopt the moral laws 
 as jural principles in its legislation. 
 
 Wrongs both public and private, are invasions of, 
 or injuries to natural rights ; those which have been 
 specified in our analysis of the moral laws. 
 
 Lastly, the Commentaries treat of "Redress of 
 private wrongs and punishment of crimes and mis- 
 demeanours, and the modes of procedure in the 
 administration of Justice." The juridical principle 
 of the ninth Commandment is adopted. The wit- 
 nesses give their testimony on oath, and the law is 
 applied according to the testimony of the witnesses. 
 
 We here make a break in our work. We have 
 completed the direct proof which it is in our power 
 to offer in support of the jDropositions affirmed, (1) 
 that the moral laws declared in the Commandments 
 are identical with laws of Nature ; and (2) that they, 
 respectively, form a perfect code of moral law and of 
 fundamental human law. The whole proof of the 
 first part of the proposition has been obtained from 
 facts of nature. It has started from natural rights, 
 as a truth within the self-consciousness of man ; the 
 subject-matter of the laws has been traced to ultimate 
 
o Completion of Proof, from Nature. 
 
 principles in nature; and by the inductive method 
 of discovering laws from facts, it has been found that 
 the moral laws are corollaries evolved from the natural 
 rights. The second part of the proposition has been 
 proved by a copious analysis of each law ; which, com- 
 pared with the practical jurisprudence of Blackstone, 
 has shown the identity of the laws as moral laws,^and 
 as fundamental laws of human government, and their 
 completeness for the moral and for the himian govern- 
 ment of mankind. We shall now proceed to consider 
 sj^stems of jurisprudence and moral philosophy whose 
 theories are opposed to the theory of natural law. 
 By that means the other side of the great question 
 — " what is the foundation of morals " ? — will be laid 
 before my readers, who, by comparison of the system 
 of Nature with its opposite system, — the theory of 
 Utility — that morality was deduced by men from ob- 
 servation and experience of what is useful to society 
 or productive of general happiness, — may form their 
 own judgment in which of these systems Truth is 
 found. 
 
Human Government and yttrisprudence. 7 1 
 
 CHAPTER IX. 
 
 The Natural and Eevealed Code as the Basis of Jurisprudence, 
 considered with reference to the Writings of Jurists. 
 
 Human goverimient opens a new moral relation 
 between men based on the moral laws. It is the 
 instrument by wbicli God executes His laAvs on 
 earth ; by which He gives to them practical force. 
 It is easy to imagine that its origin may have been 
 the expansion of the family authority necessarily 
 transferred by the increase of families into a com- 
 munity, to a chief or to a number of elders. The 
 form of government seems to be left open to the 
 choice of mankind, or to the influence of circum- 
 stances which determine the choice; but some 
 government is a necessity of man's nature ; and in 
 those countries of the world where no government 
 exists, not even a chief, — for such there are, — the 
 peo23le are in the lowest social condition it is possible 
 to conceive. 
 
 The relation of man to human government modi- 
 fies his natural rights, and confers on him new, but 
 
72 Restraining Action of Natural Rights. 
 
 derivative, rights. Bj placing- himself under its pro- 
 tection he diminishes the absoluteness of his natural 
 rights. He must not be the judge of an alleged 
 violation of them, nor punish the violator with his 
 own hand. He must also submit to some deduction 
 from his property or from the earnings of his labour, 
 as his contribution to the expenses of the govern- 
 ment; and he must yield some portion of his per- 
 sonal freedom to protect his country when in war, 
 and at all times when required for the protection 
 of the community. The condition attached to the 
 natural rights — that the enjoyment of them is sub- 
 ject to the same natural ownership, rights, and 
 powers, in every other human being — also exercises 
 a restrictive effect. It restrains the natural rights 
 to the limits of the individual rights and powers ; 
 and its action is directed to that end by the an- 
 tagonism which invasion of the rights of another 
 instantly produces. 
 
 Through this individuality which makes each man 
 the natural protector of his own rights, an accumula- 
 tion of vigilance is produced against unjust exercise 
 of rights, which makes equal rights, instead of being 
 destructive of society as is sometimes imagined, its 
 greatest strength. The rights of each man must 
 be so exercised that he does not take life, nor injure 
 the body of another man, invade property or rights, 
 
On the People and on Government. "j^^ 
 
 natural or acquired, by theft or fraud, nor violate 
 marriage obligations. Man encounters tbese restric- 
 tions in every place and at all times ; and it is sub- 
 ject to these restrictions that he is free and equal 
 with his brother. 
 
 The natural rights are also the restraints of the 
 power of human government, as well as the govern- 
 ing principle of its authority. The jural principle of 
 the moral laws must guide the action of the execu- 
 tive government and be the criterion of its justice. 
 It must import that principle into its laws ; and all 
 positive or instituted law opposed to the natural 
 rights is in excess of the authority of human go- 
 vernment. It is this principle which marks the 
 line of separation between the fundamental laws of 
 human government, and its positive or instituted law. 
 
 International law has the same natural boundaries. 
 A state is but an aggregation of men with the same 
 natural rights protected by the same moral laws; 
 and so a state can have no rights but those of its 
 individual members, against another state consti- 
 tuted in the same manner. It may defend its rights 
 by war, for between states there is no tribunal by 
 which redress can be obtained but that of force. 
 But a state cannot make war to steal territory, and, 
 with it, its inhabitants, without a breach of the law 
 "Thou shalt not steal." 
 
74 ^>^^ Natiu^al Right to Government. 
 
 There appears to be no natural right to the power 
 of human government ; if such existed, every one 
 having a natural and equal right to be supreme no 
 one would acknowledge and obey an equal who dis- 
 possessed him of his natural right, and government 
 could not be. 
 
 The natural right in relation to government, which 
 is universal, is, to the protection of person and pro- 
 perty ; and that protection human government was 
 instituted to aflPord. We have seen that person and 
 pro])erty constitute the whole subject-matter of hu- 
 man law, as it does of moral law, and that besides 
 the laws for their j)rotection there are not necessarily 
 under human government any other laws than those 
 instituted for the maintenance and support of the 
 government itself. If men could enjoy their persons 
 and property unmolested in a state of nature, there 
 would be no necessity for human government ; nor, 
 in civilised life, would it have any functions if these 
 rights were invariably acknowledged and never dis- 
 turbed. 
 
 But although the protection of person and pro- 
 perty is transferred from the owners of them in a 
 state of nature to the chiefs of human government, 
 the parties and the causes that made necessary pro- 
 tection on the one hand and restraint on the other, 
 remain the same under human government as in a 
 
Instihtted to Protect Natural Rights. 75 
 
 state of nature. The parties are the same, for it is 
 still the protection of the people from one another ; 
 and in every community, primitive or civilised, from 
 causes which have their foundation in nature, the 
 people become divided into two classes, possessors of 
 property and non-possessors of property; with grada- 
 tions between the extremes of both classes, but yet 
 the several classes sufficiently marked and distinct to 
 place the possessor and the non-possessor of property 
 in different social positions as subjects of the state. 
 
 The fundamental cause of that social division arises 
 out of the natural distinction before explained, in 
 the development of the natural rights ; ^ from the 
 different manner in which people employ the powers 
 of the body, physical and mental. There are doubt- 
 less other natural causes, such as the difference in 
 mental and physical ability amongst men, that render 
 the employment of the natural powers more difficult 
 to some men than to others ; but we here refer only 
 to the conditions on which the natural rights are 
 given to man, and it is clear that property is not an 
 innate gift to man, but it must be worked for and 
 secured by the employment of the mental and phy- 
 sical powers which are innate, and by the exercise of 
 the individual will. This distinction between the 
 people affects their relation to the government of the 
 
 * Suirra, p. 12. 
 
76 Claims on its Protection not equal. 
 
 communit}', and the amount of protection which they 
 require from it ; through the diversity of inaction 
 and action, one portion of them possesses only the 
 natural right of person as an entity and the right 
 of property as a potentiality, whilst the other por- 
 tion i30ssesses both rights as entities. 
 
 Monarchy affords protection to person and pro- 
 perty free from any interest directly discordant with 
 that of either class of the people, for all the people 
 besides the monarch being the governed, and not 
 partaking of the governing power whether they are 
 possessors or non-possessors of property, the power 
 of the monarch is uncontaminated by any political 
 preference for either. 
 
 Democracy transfers the ruling power to the go- 
 verned under the monarchy, and by means of repre- 
 sentatives elected by the peo2:)le the legislative and 
 executive power of government is in the gift of the 
 people. The protection it affords to property is in- 
 complete. The two classes of people, possessors and 
 non-possessors of property, share equally in the 
 election of the representatives, and thus the ruling 
 power is in the joint gift of tliose who in relation 
 to property require restraint, and of those who 
 require protection, or in a majority determined by 
 a poll of these classes combined. 
 
 It is said that men being equal by nature are 
 
Distrib2ttion of Political Pozuer. j^j 
 
 entitled to equal political power. Men are equal in 
 respect of natural rights, that is, they are equal as 
 the governed. They are entitled from human govern- 
 ment to equal protection of person and property, 
 and to equal laws in relation to them; and when 
 these are afforded, the people enjoy all that is most 
 valuable in the institution of government — for these 
 are the true practical tests of the goodness of a 
 government. Wlien the ruling power is transferred 
 from a single ruler to the people themselves, they 
 will consult their own happiness if they require such 
 a distribution of the elective franchise as will best 
 produce and secure' equal protection and equal laws, 
 and will prevent a preponderance of political power 
 opposed to the natural rights. A just distribution 
 seems to be an apportionment of the elective power 
 between the people in relation to their claims on the 
 protection of government ; that is, in relation to the 
 entities before mentioned which they have acquired 
 through the employment of their natural powers and 
 rights ; for unless the government be so constituted 
 as to have authority over both entities, it will fail in 
 its original design and purpose. It should be re- 
 membered that a combination of numbers exercising 
 the power of government has no authority to di- 
 minish the natural rights of a minority, otherwise 
 than by laws which equally, or in a just ratio, affect 
 
78 Uniformity of Moral Sentiment. 
 
 the majority. In relation to natural rights, numbers 
 may not do what an individual may not do — take 
 life or property, or interfere with the natural powers, 
 without committing moral crime. There is no power 
 in human government to change the general equality 
 of natural rights ; and no government can long exer- 
 cise great and general injustice against natural rights, 
 and escape being overthrown by revolution, or termi- 
 nation in despotism. 
 
 1^0 theory of morality or jurisprudence can be 
 complete uuless it accounts for the general uniformity 
 of moral sentiments among mankind, and for the 
 resemblance to such moral sentiments which positive 
 law is compelled to take. I trust that sufficient 
 causes of such uniformity and resemblance have been 
 made apparent in the previous chapters ; in the 
 automatic force of the natural rights, as neces- 
 sarily developing ' in the human heart ' natural laws 
 by which they are declared and protected. When 
 our attention is called to an action of a moral nature, 
 we immediately know whether it is conformable or 
 not to the rights and to the moral laws within us, 
 and moral sentiments, corresponding with the moral 
 quality of the action, and reflective of the moral laws, 
 instinctively and independently of our will, spring up 
 in our minds. 
 
 The constant action of this consciousness in the 
 
yurisprudence. 79 
 
 mind appears sufficient to account for, and it may 
 be the true explanation of that faculty long the sub- 
 ject of dispute amongst philosophers, the Conscience 
 or Moral Sense. These rights cannot be invaded 
 without a stinging sense of injustice in him whose 
 rights are invaded, and generally a determination 
 to enforce restitution, to which is often added re- 
 venge ; and the invader of such rights knows what 
 feelings he will call forth, and the danger to which 
 his acts expose him. This consciousness, in its double 
 action, produces the phenomena attributed to the 
 conscience or moral sense."^ 
 
 These principles seem to present a natural founda- 
 tion for a science of jurisprudence, but a natural 
 origin of the science, or one that rests it on immu- 
 table principles, is scornfully rejected by modern 
 jurists. The preference shown for utility as the 
 foundation of morals, and consequently of jurispru- 
 dence, has produced such contempt for a basis in 
 nature, that to refer to it, merely using the phrase, 
 is supposed to requu-e some boldness, and even some 
 apology. t Yet it is admitted that jurisprudence has 
 
 * It must be recollected, that we are here considering only the 
 morality of the Decalogue, which has relation to rights. In the book 
 mentioned in the title-page I have considered the varieties of the 
 phenomena of the conscience, and I have attempted to explain how such 
 varieties are brought under the action of conscience. See the Postscript 
 at the end of this volume. 
 
 t Phillips on Jurisprudence, p. 28. 1863. 
 
8o Newton s Method of Philosophising. 
 
 not been successfully treated as an art or science, tlie 
 most distinguislied writer on it asserting that "what 
 has hitherto stood in the place of a science has for 
 the most part been a set of guesses." ^ Nothing ap- 
 pears more remarkable in the history of moral philo- 
 sophy than the absence of attempts to treat it on 
 principles purely natural, unless it be the extreme 
 repugnance to tolerate any attempts to derive its 
 principles from nature. Yet the subject of the 
 science is man as he is constituted by the hand of 
 his Maker, and as he appears in the world ; and the 
 purpose of the science is the knowledge of the moral 
 and social laws or rules to which he is subject, and of 
 the duties which are cast upon him in relation to his 
 fellow-men as individuals and in society. Why should 
 the method of philosophising used in physical science 
 be discarded from use in moral science, and hypothesis 
 substituted for inductive fact? "Newton, taught by 
 Bacon to despise hypotheses as the fictions of human 
 fancy, laid it down as a rule of philosophising, that 
 no causes of natural things ought to be assigned but 
 such as can be proved to have a real existence. He 
 saw that all the length men can go in accounting 
 for phenomena is to discover the laws of nature 
 according to ^vliich they are produced ; and therefore 
 
 * Ancient Law, p. 113. 
 
Historical Method of yurisprudence. 8 1 
 
 that the true rule of philosophising is this : From 
 real facts ascertained by observation and experiment, 
 to collect by just induction the laws of nature, and 
 to apply the laws so discovered to account for 
 the phenomena of nature." "^ 
 
 The theories of jurisprudence most in favour 
 are those of Utility and a system founded on 
 that philosophy, called the Historical Method. f The 
 theory of the latter is that morality and law origi- 
 nated in the primitive ages of human society, and 
 were progressive with its advance. The method is 
 to trace the progress of law from the earliest point at 
 which its history can be taken up ; to penetrate as 
 far as we can in the history of primitive societies, 
 and thus to commence with the simplest social forms 
 in a state as near as possible to their rudimentary 
 condition. 
 
 The difficulty of grappling with the phenomena of 
 early societies is represented as great, " but even if 
 they gave more trouble than they do, no pains would 
 be wasted in ascertaining the germs out of which has 
 assuredly been unfolded every form of moral res- 
 traint which controls our actions and shapes our con- 
 duct at the present moment." % 
 
 * Eeid on the Intellectual Powers, essay 2, c. viii. Hamilton's ed. p. 271. 
 t Ancient Law ; its Connection with the Early History]of Society, 
 and its Kelation to Modern Ideas. By Henry Sumner Maine, 1863. 
 + Pp. 118-20. 
 
 G 
 
82 Historical Sources of Law. 
 
 The hypothesis has not been supported from sources 
 sufficiently primitive to make it a conclusive proposi- 
 tion that every form of moral restraint originated in 
 law, independently of what is " behind the law " — 
 original natural causes which produced the law. It is 
 conceded that the Twelve Tables and codes of the same 
 class largely diffused over the Roman and Hellenic 
 worlds at epochs not widely distant from one another, 
 or jural phenomena which lie behind these codes and 
 preceded them in point of time, are the earliest points 
 at which the history of law can at present be taken up. 
 " Not a 'few documentary records exist (it is added) 
 which profess to give us information concerning the 
 early phenomena of law ; but until jDhilology has 
 effected a complete analysis of the Sanskrit literature, 
 our best sources of knowledge are undoubtedly the 
 Greek Homeric Poems, considered of course not as a 
 Jhistory of actual occurrences, but as a description, not 
 wholly idealised, of a state of society known to the 
 writer." "^ 
 
 Natural law is excluded with disdain from the his- 
 torical method, and it is only conceived as associated 
 with the wild views and revolutionary principles of 
 Rousseau. " Theories plausible and comprehensive, 
 but absolutely unverified, such as the Law of Nature 
 or the Social Compact, enjoy a universal preference 
 
 » P. 2. 
 
Natural Law Rejected. ^t^ 
 
 over sober research into the primitive history of 
 society and law ; and they obscure the truth not only 
 by diverting attention from the only quarter in which 
 it can be found, but by that most real and most 
 important influence which, when once entertained 
 and believed in, they are enabled to exercise on the 
 later stages of jurisprudence." "^ 
 
 The existence of natural law, the result of origi- 
 nal principles of human nature, such as the natural 
 rights before described, is not confuted by the rejection 
 of the Social Compact of Eousseau. The operation of 
 nature as the origin of society and law is, therefore, 
 in no degree considered in this learned treatise. 
 There is no enquiry into the existence of natural 
 rights, or of appetites, instincts, desires, impulses, 
 and feelings implanted in the bodies or minds of 
 men, which may be the motive forces of their 
 actions and conduct, and from which primitive 
 society may have sprung, and natural law and human 
 law may be deduced. The historical theory appears 
 to be, that mankind, without any stimulating or 
 directing impulses from nature, worked out for them- 
 selves a moral system and a system of human law. 
 
 I shall not enquire whether the Hindoo Code called 
 the Laws of Menu has not been made known to 
 English readers by translations, because a comparison 
 
 * P. 3. 
 
 G 2 
 
84 Other Ancient Codes not Considered. 
 
 of their laws with, existing law is omitted from the 
 treatise, for the reason that although it is certainly 
 a Brahmin compilation, yet in the opinion of the best 
 contemporary orientalists it is, in great part, an ideal 
 picture of that which in the view of the Brahmins 
 oucjht to be the law."^ Even on that supposition some 
 light might have been thrown by them on the his- 
 torical theory. Nor shall I conjecture why the code 
 of Sinai, of at least equal antiquity with any discoveries 
 that can be expected from Sanskrit literature, and 
 commonly supposed to be of superior authority, is 
 altogether excluded from the historical method. But 
 I shall ask, can the origin of morality and law be 
 determined by the codes of primitive societies were 
 such codes in existence ? 
 
 Such codes, it may be anticipated, do not disclose 
 the principles on which they were constructed. To 
 be recognised as " the germs " of the morality and law 
 which now control our actions and shape our con- 
 duct, the law which they unfold must be homo- 
 geneous with existing law. But being homogeneous, 
 the question would remain midetermined, whether 
 these primitive people were impelled to make their 
 laws by implanted principles of nature, or by their 
 simple unaided observation and exj)erience. It may 
 be asked, also, what extent of retrospective research 
 * P. 17. 
 
Difficulties of the Historical Method. 85 
 
 is necessary to determine arrival at the codes which, 
 contain the germs of morality and law, and how snch 
 codes are to be known when reached if they are 
 homogeneous with existing law ? The longer and 
 more remote the chain of continuity, and the wider 
 the spread of ancient homogeneous law, the more 
 complete the argument for a common origin in some 
 natural principle " behind the law ; " as the cause of 
 that general uniformity which every system of law is 
 compelled to take. 
 
 The discoveries expected from Sanskrit literature 
 are a vain expectation, if we have traced law to its 
 origin in natural rights, and in the appetites, as the 
 ultimate principles of the human system. Varieties 
 of positive law we may expect to find in such ancient 
 codes, adapted to some peculiarity in physical circum- 
 stances, climate, or condition of the governed. " Eor 
 (said Bacon) there are in nature certain fountains of 
 justice, whence all civil laws are derived but as 
 streams ; and like as waters do take tinctures and 
 tastes from the soils through which they run, so 
 do civil laws vary according to the regions and 
 governments where they are planted, though they 
 proceed from the same fountains." ^ 
 
 It is only the h^^pothetical origin of morality and 
 law propounded in the treatise under consideration, 
 
 * Of the Advancement of Learning, book ii. Works, vol. iii. p. 475. 
 
86 Homc7nc Poems foundedin Nature. 
 
 that I presume to question. The learning and 
 juridical value of the expositions of Ancient Law are 
 placed by public opinion beyond dispute. But I may 
 point out that the subjects of disquisition are 
 derivative not fundamental subjects of law. Primo- 
 geniture, wills, widows' shares of moveables, aliena- 
 tion of property, contract, even the nexum and 
 patria potestas, are subjects of positive and instituted 
 law in very close afinity with, and by the theory 
 of this treatise they must necessarily be referred 
 ultimately to an origin in nature. 
 
 The Homeric Poems, fertile as they are supposed 
 to be in ancient law, are not deficient in examples of 
 natural law. The Iliad is founded on the moral 
 principle expressed in the Seventh Commandment. 
 Its action arises out of the jural principle of the laws 
 of Revelation : the antagonism of rights and wrongs, 
 and its natural result — desire to redress and punish 
 moral delinquency. Chryses obeyed a natural prin- 
 ciple, and enforced a natural right, when he 
 demanded his captive daughter from Agamemnon. 
 The Odyssey is founded on the same principle of 
 nature. Penelope, in the absence of Ulysses, and in 
 the hope of his return, resists the importunities of her 
 numerous suitors, and Homer represents her as a 
 chaste and faithful wife. 
 
 There are not wanting distinguished philosophers 
 
Plato on Natural Law. %^ 
 
 to suj)port a theory of natural law, whom it is no 
 disgrace to follow into the field. 
 
 Plato, in the Minos,* brings into discussion the 
 question " what is the generic constituent of Noyu-os-, 
 or Law ; what characteristic property it is which is 
 common to all Law, and is implied in the name 
 Law ? " The answer adopted after discussion is " that 
 Law is not the aggregate of laws enacted or of 
 customs held binding ; but that which lies behind 
 these laws and customs, imparting to them their 
 binding force." It is not stated what is the binding 
 force which lies behind the laws ; but the principle 
 is asserted that Law includes as a portion of its 
 meaning justice, and that " there can be no such 
 thing as bad pr wicked law." No weight is placed 
 on differences between different nations, for " Law 
 wishes or aims to be the finding out of real i by ; and 
 if there are differences between different nations, 
 this is because the poAver to find out does not always 
 accompany the wish to find out." 
 
 " As to the assertion that Law is one thing here, 
 another thing there, one thing at one time, another 
 thing at another — Sokrates contests it. Just things 
 are just (he says) everywhere and at all times ; unjust 
 things are unjust also. . . It is only the right, the 
 true, the real . . . which is properly a law, and 
 
 * Grote's Plato, vol. i. pp. 418-429. 
 
SS Aristotle and Grotius 
 
 is entitled to be so called. That which, is not right 
 is not a law, — ought not to be so called, — and is only 
 supposed to be a law bjthe error of ignorant men."^ 
 Aristotle in the Ethics marks the distinction 
 between natural law and positive or instituted law. 
 " Of the political just one part is natural, the other 
 legal. The natural is that which everywhere is valid, 
 and depends not upon being or not being received. 
 The legal is that which originally was a matter of 
 indifference, but which when enacted was so no 
 longer; as the price of ransom, or the animals 
 proper for sacrifice." f In the Rhetoric the dis- 
 tinction is more remarkable : " Right and wrong are 
 defined by laws of two kinds. One is Law proper, the 
 other, universal Law. That is Law proper which is 
 settled as law by each community for itself; that is 
 universal which is accordmg to nature. For there 
 is, as all feel, an inward persuasion by nature, a 
 universal right and wrong, without any covenant or 
 agreement being made among men to that effect. 
 As the Antigone of Sophocles is made to say, that 
 it was right in her to bury her brother Polynices, 
 though forbidden, as being right by nature. 
 
 " For this is not a law of yostorday, 
 But an eternal ; nor its rise is known." t 
 
 * riato, Minos, 317 C. f Nicom. Ethics, book v. c. 7. 
 
 1 "Rhetoric," book i. c. 13. 
 
on Natiu^al and Instituted Law. 89 
 
 Grotius laid down the necessity of separating 
 natural or permanent law from instituted law in the 
 construction of a science of jurisprudence. " Many 
 in preceding times have designed to invest juris- 
 prudence vdth the form of an art or science, but no 
 one has done this. Nor can it be done except care 
 be taken on that point which has never yet been 
 properly attended to, to separate Instituted Law 
 from ^Natural Law. For natural law, as being 
 always the same, can be easily collected into an art ; 
 but that which depends upon institution, since it is 
 often changed, and is different in different places, is 
 out of the domain of art, as the perception of indivi- 
 dual things in other cases also is." ^ 
 
 * Grotius "De Jure Belli et Pacis," Prolegomena. 
 
90 Nahtre and Utility compared. 
 
 CHAPTER X. 
 
 Nature compared with Utility as the foundation of moral and human law, 
 and the respective theories tested by the writings of philosophers. 
 
 The theory of moral philosophy raost opposed to a 
 theory of natural moral law is that of Utility. The 
 marked preference shown for the latter by eminent 
 philosophers and public writers at the present day 
 brings me into conflict with formidable opponents. 
 But I am encouraged when I reflect that what I write 
 is the j^roduct of much thought and meditation for 
 years past. It has afforded me the highest pleasure to 
 contemplate the Moral System as the result of Natural 
 Law, and to work out, slowly but patiently, my first 
 crude conception of its origin and design, and to trace 
 it, as I believe, to its Divine Creator. I feel a humble 
 confidence that lam proceeding in the direction and on 
 the foundation of Truth ; but I am far from expecting 
 that long-established theories, however erroneous, will 
 be quickly superseded by my lucubrations, or that 
 nothing will remain to be added to the latter by other 
 minds in order to make the truth complete. I trust, 
 however, it wdll aj)pear to some of my readers that 
 
A ristotle. g i 
 
 what lias been developed and described partakes of 
 those qualities which Copernicus said should be pos- 
 tulated by the philosopher — " the symmetry and sim- 
 plicity of the Works of God." 
 
 In selecting philosophers and quoting their works 
 in support of, or in opposition to, my views, the pro- 
 ceeding partakes of the character of a trial, where 
 each party calls witnesses who give direct testimony 
 in support of the issues, and also cross-examines the 
 witnesses of his opponent, to weaken their testimony 
 or to derive from them admissions of facts which cor- 
 roborate his propositions. The witnesses to support 
 the law of nature and Eevelation are Pagan philo- 
 sophers of the highest celebrity, and Christian philo- 
 sophers of no less eminence. 
 
 I. Aeistotle is claimed as a supporter of Utility ; 
 but from the Politics^ have been quoted passages 
 which show him to be a supporter of Nature. I do 
 not find in the Ethics or in the Politics any ex- 
 press recognition of the existence of natural rights ; 
 but in the Ethics there is his clear authority for 
 the existence of fundamental and immutable moral 
 laws, in the remarkable exception which he made 
 from his ethical system of the mean state. "But 
 (he remarked) it is not every action, nor every pas- 
 sion, which admits of the mean state ; for some have 
 
 * Ante, Chap. I. 
 
92 Aristotle in support of the Moral Lazus. 
 
 their badness at once implied in their name; as, 
 for example, malevolence, shamelessness, envy ; and 
 amongst actions, adultery, theft, homicide. For all 
 these, and such as these, are so called from their 
 beincr themselves bad, not because their excesses or 
 defects are bad. In these, then, it is impossible ever 
 to be right; but we must always be wrong. Nor 
 does the right or wrong in such cases as these 
 depend at all upon the person with whom, or the time 
 when, or the manner in which adultery is committed ; 
 but absolutely the doing of any one of these things 
 is wrong . . however they be done sin is committed." ^ 
 This is the positive, clear, and earnest dictum of a 
 philosopher who never saw or heard of the Com- 
 mandments, and therefore his positive and clear de- 
 nunciation of these actions as indisputable crimes 
 must have been derived from Nature. They are, too, 
 the exact actions forbidden by the Commandments — 
 adultery, theft, homicide ; and the omission of false- 
 witness only slightly, if it at all, impairs the coinci- 
 dence of the Pagan philosopher's moral code with the 
 moral code of Eevelation ; for it has been shown f that 
 the immorality of falsewitness is concentrated in its 
 final result in one of the moral crimes which Aristotle 
 pronounced impossible ever to be right. 
 
 Cicero gave testimony to an invariable law of 
 
 * Nicora. Ethics, book ii. c. G. Browne's Translution. f St'.^ra, Chap. VII. 
 
Cicero. Honesty an invariable Law. 93 
 
 justice with regard to property in tlie following 
 manner : " There is nothing npon earth so contrary to 
 nature, neither death, nor poverty, nor pain, nor 
 whatever other evil can befal a man, either in his 
 body or fortune, as to take away anything wrongfully 
 from another, and to do one's self a kindness by 
 injuring one's neighbour. For, in the first place, it 
 ruins all manner of society and intercourse amongst 
 men ; since it is plain, that if once men arrive at such 
 a pass as to plunder and injure the rest of their neigh- 
 bours out of hopes to procure some advantage to 
 themselves, there must follow of course a dissolution 
 of that society, which of all things in the world is 
 most agreeable to nature . . . For though it is 
 no more than what nature will allow of, that each 
 man should look after himself in the first place, and 
 furnish himself with the necessaries of life, before he 
 takes care to provide for other people ; yet the same 
 nature will by no means permit that any one should 
 rise by thrusting down another, and increase his own 
 fortune by the spoils of his neighbours. . . Nature 
 and right reason, as being at once both a human and 
 divine law too, command the duty of not thrusting 
 down another to increase his own fortune with much 
 greater authority ; and whoever obeys them (as all 
 men must, who propose to live according to the rules 
 of nature) will never be guilty of coveting what is 
 
94 ^0 Extreme justifies TJieft. 
 
 another's, or applying to his own use what had first 
 been injuriously taken from his neighbour .... 
 But what (perhaps some men will be apt to say) if a 
 wise man be ready to perish for hunger, must he not 
 take away victuals from another, though a perfectly 
 useless and insignificant fellow ? Not at all, for life 
 itself is not so dear to me as a settled resolution 
 of doing no wrong for my private advantage. But 
 suppose this good man, almost dead with cold, should 
 have it in his power to take Phalaris' clothes away, 
 one of the most savage and inhuman tyrants ; would 
 you not have him to do it ? There is no great difi- 
 culty in determining such cases ; for it is certain, if 
 you take away anything from another, though never 
 so useless and insignificant a creature, for no other 
 end but to benefit yourself by it, it is an inhuman 
 action, and plainly contrary to the laws of nature : but 
 if you are one, who by living will do very great service 
 to the Eepublic, or perhaps to the society of mankind in 
 general, and for that reason only take something from 
 another ; it is an action that is not to be found much 
 fault with. But in all other cases, every man is 
 bound to bear his own misfortunes, rather than to 
 get quit of them by ^vronging his neighbour."^ 
 Bacon: "We proceed now to Ethics which con- 
 
 * Tully's Offices, book iii. c. 5 & 6 ; Dr. Cockraan's Translation. 
 
Bacon. Nature. Pleasure and Pain. 95 
 
 sidereth of the will of man.^ In the handling of this 
 science those who have written seem to me to have 
 made good portraitures of good, virtue, dntj, felicity ; 
 but how to attain these excellent marks, they pass it 
 over. For it is not the disputing that moral virtues 
 are in the mind of man by habit and not by nature, 
 or the distinguishing that generous spirits are won 
 by doctrines and persuasions, and the vulgar sort 
 by reward and punishment, and the like scattered 
 glances and touches, that can excuse the absence of 
 this part." 
 
 " The reason of this omission I suppose to be that 
 hidden rock whereupon both this and many other 
 barks of laiowledge have been cast away ; which is, 
 that men despised to be conversant in ordinary and 
 common matters ; the judicious direction whereof 
 nevertheless is the wisest doctrine (for life consisteth 
 not in novelties or subtleties). . . For the nature 
 of Good, positive, or simple, philosophers have set it 
 down excellently, in describing the forms of virtue 
 and duty. Again for the degrees and comparative 
 nature of Good, they have also excellently handled it 
 in the comparisons between a contemplative and an 
 active life, in the distinction between virtue with 
 reluctation and virtue secured, and the like. 
 
 * De Augmentis Scientiariim, lib. vii. c. 1 .— Spedding, vol. i. p. 713, 
 Translation; Spedding, vol. iii. p. 417. Abridged. 
 
96 Locke 071 Moral Lazus of Nature. 
 
 " Notwithstanding, if before tliey had come to the 
 popular and received notions of virtue and vice, 
 pleasure and pain, and the rest, they had stayed a 
 little longer upon the enquiry concerning the roots of 
 good and evil, and the strings of those roots, they 
 had given, in my opinion, a great light to that which 
 followed ; and specially if they had consulted with 
 Nature they had made their doctrines less prolix and 
 more profound." 
 
 Locke distinguished laws of nature from his doctrine 
 of innate -laws. " I would not here be mistaken, as if, 
 because I deny an innate law, I thought there were 
 none but positive laws. There is a great deal of 
 difference between an innate law and a law of nature ; 
 between something imprinted on our minds in their 
 very original, and something that we being ignorant 
 of may attain to the knowledge of, by the use and due 
 application of our natural faculties. And I think 
 they equally forsake the truth, who, running into 
 contrary extremes, either affirm an imiate law, or 
 deny that there is a law knowable by the light of 
 nature, i. e. without the help of positive revelation." ^ 
 
 The same great philosopher referred to " the Divine 
 law, whereby (he observed) I mean that law which 
 God has set to the actions of men, whether promul- 
 gated to them by the light of nature, or the voice of 
 
 * An Essay concerning Human Understanding, book i. c. 3. s. 13. 
 
Pkilosophers of Utility. 97 
 
 Revelation. That God has given a rnle whereby men 
 should govern themselves, I think there is nobody 
 so brutish as to deny. He has a right to do it, we 
 are His creatures : He has goodness and wisdom to 
 direct our actions to that which is best ; and He has 
 power to enforce it by rewards and punishments of 
 infinite weight and duration, in another life ; for no- 
 body can take us out of His hands. This is the only 
 true touch-stone of moral rectitude ; and by compar- 
 ing them to this law it is, that men judge of the most 
 considerable moral good or evil of their actions : that 
 is, whether as duties or as sins, they are like to pro- 
 cure them happiness or misery from the hands of the 
 Almighty."-^ 
 
 II. We now proceed to examine the works of 
 philosophers whose theories are opposed to the exist- 
 ence of natural rights, and of natural or revealed 
 moral laws — those philosophers who base their moral 
 systems on Utility or Happiness. This examination 
 has two objects ; — 1, to find admissions in their works 
 of the chief facts on which the theory of natural 
 rights and natural laws rests ; and (2), to examine the 
 principles of the system of Utility described in their 
 works, and to compare them with the principles de- 
 rived from nature by our induction ; or to show that in 
 the constitution of their system the most important 
 
 * Essay, book ii. c. 28, s. 8. 
 H 
 
98 Paley — admitted Nattiral Rights. 
 
 motives of human action have been overlooked or 
 undervalued. 
 
 The chief facts above alluded to are — 
 
 1. The existence of natural rights. 
 
 2. The existence of natural moral laws equivalent 
 with those of Revelation. 
 
 Admissions, if found, of both these facts would 
 clearly exclude any other than a natural basis for 
 morality ; and an admission of either of them should 
 produce the same result when we consider that 
 natural rights and natural laws stand in such close 
 relation to each other, that the admission of one 
 necessarily implies the existence of the other, as 
 correlative. 
 
 Palet raised his system of philosophy on the 
 theory of Utility ; but he admitted the existence of 
 natural rights, such (he said) as would belong to a 
 man, although there subsisted in the world no civil 
 government whatever. " Natural rights (he continued) 
 are a man's right to his life, limbs, and liberty ; his 
 right to the produce of his personal labour ; to the 
 use, in common with others, of air, light, and water. 
 If a thousand different persons, from a thousand 
 different corners of the world, were cast together 
 upon a desert island, they would from the first, be 
 every one entitled to these rights." "^ 
 
 * The Principles of Moral and Political Philosophy, c. x. 
 
The Commandments he omitted. 99 
 
 This is an admission of natural rigMs as original 
 human principles to the whole extent of their exist- 
 ence claimed in this treatise — life, and limb, and 
 liberty, as personal rights ; and the produce of labour 
 as rights of property. But beyond the admission of 
 natural rights there is no consideration of them ; 
 they are not carried into the argument, which is 
 wholly devoted to sustain the theory of Utility. 
 
 A treatise which professed not to separate natural 
 and revealed religion from each other, seems to 
 require that the Commandments should be brought 
 into the argument, if not for their authority for the 
 purpose of showing that they are not opposed to 
 the theory of Utility. But in the chapter on " The 
 Scriptures " the Commandments are not mentioned, 
 nor, although the I?Tew Testament is quoted, the 
 confirmation of them by our Lord. Paley there 
 explained that the Scriptures were unsuited for 
 teaching morality, and therefore did not supersede 
 the science of which he' professed to treat : but as 
 he nevertheless made the Scriptures a source of his 
 proof, he could not set aside the most important, 
 clear, and direct of Scriptural authority, without at 
 least showing that it did not affect his theory. 
 
 Yirtue he defined to be " the doing good to man- 
 kind, in obedience to the Will of God, and for the 
 sake of everlasting happiness." "The methods (he 
 
I oo Natural and Revealed Religion. 
 
 said) of coining to the Will of God are two (1), by 
 His express declarations when they are to be had, and 
 which must be sought for in Scripture ; and (2) by 
 what we can discover of His designs and disposition 
 of His works ; or, as we usually call it, the light of 
 nature." But he pointed out the absurdity of sepa- 
 rating natural and revealed religion from each other. 
 "The object (he said) of both is the same — to discover 
 the Will of God ; and provided we do but discover it, 
 it matters nothing by what means." 
 
 This second reference to Scripture for the express 
 declarations of the Will of God, is not followed by 
 any reference to the Commandments. As he did not 
 refer to them as a body of Eevealed Moral Law, so 
 he abstained (except indirectly) from reference 
 to the law^s in detail when considering the special 
 subjects of each law. His work does not contain a 
 chapter on murder ; but in his chapter on duelling 
 he mentions murder, and remarks simply, "murder 
 is forbidden." In his chapter on adultery he says 
 " Thou slialt not commit adultery, was an inter- 
 dict delivered by God Himself." " Thou shalt not 
 steal," does not appear in his work. His previous 
 assertion of the natural right of every man to the 
 produce of his labour — his property — is overlooked, 
 and instead of it, we find that, the real foundation 
 of our ri^ht is "the law of the land." "Thou 
 
Paleys Theory of Utility. loi 
 
 shalt not bear false witness " is omitted from his 
 chapters on oaths, even when perjury is under con- 
 sideration. 
 
 Having substituted " the law of the land " for 
 nature, as the foundation of rights, and the founda- 
 tion of law, he prepared the way for his theory of 
 Utility; and the Commandments implying natural 
 rights and laws derived from God, and therefore 
 inconsistent with that hypothesis, were necessarily 
 suppressed. Resuming his former postulate, that 
 actions are to be estimated by their tendency to 
 promote happiness, he declared the theory of Utility 
 in its most naked form. " Whatever is expedient is 
 right. It is the utility of any moral rule alone which 
 constitutes the obligation of it ; " and that theory he 
 illustrated by the following passage, which may be 
 compared with the morality of Cicero : — 
 
 "But to all this (he said) there seems a plain ob- 
 jection, viz., that many actions are useful which no 
 man in his senses will allow to be right. There are 
 occasions in which the hand of the assassin would be 
 very useful. The present possessor of some great 
 estate employs his influence and fortune to annoy, 
 corrupt, or oppress all about him. His estate would 
 devolve, by his death, to a successor of an opposite 
 character. It is useful, therefore, to dispatch such a 
 one, as soon as possible, out of the way; as the 
 
I02 Bentham. 
 
 neigliboiirhood would exchange thereby a pernicious 
 tyrant for a wise and generous benefactor. It may 
 be useful to rob a miser, and give the money to the 
 poor; as the money, no doubt, would produce more 
 happiness by being laid out in food and clothing for 
 half-a-dozen distressed families, than by continuing 
 locked up in a miser's chest. It may be useful to get 
 possession of a place, a piece of preferment, or of a 
 seat in parliament, by bribery or false-swearing ; as 
 by means of them we may serve the public more 
 effectually than in our private station. What then 
 shall we say ? Must we admit these actions to be 
 right, which would be to justify assassination, plun- 
 der, and perjury ; or must we give up our principle, 
 that the criterion of right is utility ? 
 
 " It is not necessary to do either. The true 
 answer is this, that these actions, after all, are not 
 useful, and for that reason, and that alone, are not 
 right." 
 
 Bentham "^ had a theory of " Eights properly so- 
 called," that they are the creatures of " Law properly 
 so called," that is, not natural rights nor natural 
 law, the supposed existence of which he denied with 
 the utmost scorn. 
 
 He further declares that " every law is an evil, for 
 
 * Theory of Lopjislation. By Jeremy P>entliam. Translated from the 
 French of Etienne Dumont by li. llildreth, 1864, 
 
Evil of Crime, General, not Individual. 103 
 
 every law is an infraction of liberty. Government 
 has but the clioice of evils." 
 
 If every law is an infraction of a riglit, the actions 
 of murder, adultery, and theft, forbidden by the 
 revealed moral law as declaratory of natural law, 
 and prohibited by human government, are " rights 
 properly so called," and thus the rights of Utility 
 and the rights implied by the Commandments are 
 the exact opposites of each other. 
 
 The evil which government must consider before it 
 makes laws infringing upon rights, is divided into 
 many classes, but the two principal parts are (1), 
 that which falls immediately upon individuals — 
 which is called evil of the first order ; and (2) that 
 which takes its origin in the first, and spreads 
 through the entire community, or among an in- 
 definite number of non-assignable individuals, which 
 is called evil of the second order. " There are cases (it 
 is said) in which if we confine ourselves to the effects 
 of the first order, the good will be an incontestable 
 preponderance over the evil. Were the offence con- 
 sidered only under this point of view, it would not be 
 easy to assign any good reasons to justify the rigour 
 of the laws. Everything depends upon the evil of the 
 second order ; it is this which gives to such actions 
 the character of crime, and which makes punishment 
 necessary. Let us take (he remarked) for example, 
 
I04 Empire of Pleasure and Pain. 
 
 the physical desire of satisfying hunger. Let a 
 beggar, pressed by hunger, steal from a rich man's 
 house a loaf, which, perhaps, saves him from 
 starving; can it be possible to compare the good 
 which the thief acquires for himself, with the evil 
 which the rich man suffers? The same is true of 
 less striking examples. Let a man pillage the public 
 treasury ; he enriches himself and impoverishes no- 
 body. The wrong which he does to individuals is 
 reduced to impalpable parts. It is not on account of 
 the evil of the first order that it is necessary to erect 
 these actions into offences, but on account of the evil 
 of the second order." 
 
 [N'atural law and natural rights are treated by 
 Bentham with great disdain, as " fictions or meta- 
 phors ; " but he has experienced the difficulty which 
 he has not overcome of constructing a system of 
 human society independently of nature. And so 
 when he introduces his favourite fundamental theory, 
 he begins, " Nature has placed man under the empire 
 of 'pleasure and of pain. We owe to them all our 
 ideas ; we refer to them all our judgments, and all 
 the determinations of our life. He who pretends to 
 withdraw himself from this subjection knows not 
 what he says. His only object is to seek pleasure 
 and shun pain, even at the very instant that he 
 rejects the greatest pleasures, or embraces pains the 
 
An Admissioti of Power of Nature. 105 
 
 most acute. These eternal and irresistible sentiments 
 ought to be the great study of the moralist and the 
 legislator. The principle of utility subjects every 
 thing to these two motives." 
 
 To assert that pleasure and pain are the chief 
 motives of human action, and to admit that they 
 are " eternal " is to place their origin in nature, and 
 through nature in God. But the question for the 
 philosopher will still remain whether, admitting plea- 
 sure and pain to be causes of human action, they are 
 formal or ultimate causes, or only material causes 
 carrying the ultimate causes into immediate action. 
 In themselves, pleasure and pain are clearly effects, 
 although they may be material causes in relation to 
 actions which immediately result from them. But 
 as material causes they cannot be the foundation of 
 the moral system, which must be an ultimate cause 
 "to which every thing may be referred but which 
 itself can be referred to nothing." "^ 
 
 Bentham ascribed to himself great merit for pre- 
 paring, by great labour of analysis, a complete 
 catalogue of the simple pleasures and pains. The 
 simple pleasures he distributed into fifteen heads or 
 categories ; the simple pains into eleven categories — 
 one only of the former contains the pleasures of sense, 
 one of the latter, the pains of sense. The remainder 
 
 * Supra, p, 5. 
 
io6 Plcasmxs and Pahis of Sense. 
 
 in both, categories are abstract qualities chiefly of a 
 mental nature, and as such they are not entitled to 
 consideration in philosophical reasoning- until they 
 are resolved into their concrete elements ; and then 
 one of these heads, which partakes of a physical 
 nature — the pleasures of riches — would most as- 
 suredly be resolved into the pleasures of sense. 
 
 The " pleasures of sense " consist of those of taste, 
 smell, sight, hearing, touch, health, and the pleasures 
 of novelty. The " pains of sense," are those of hun- 
 ger and thirst, taste, smell, touch, hearing, sight, 
 excess of cold or heat, diseases, fatigue. 
 
 Why hunger and thirst, in respect of their gratifi- 
 cation, do not appear amongst the pleasures as well 
 as amongst the pains of sense is not explained. 
 But it is more incomprehensible why the sexual 
 appetite is excluded from both categories, and is 
 found only in a separate category of '^ pleasures ex- 
 isting without having corresponding pains," where it 
 appears as " the pleasures of love. The want of them 
 (it is added) is not attended with positive pain, 
 except when there is disappointment. Some tem- 
 peraments may suffer from tliis want, but in general, 
 continence is in the power of every one, and is very 
 far from being a state of pain." 
 
 These observations show that Bentham did not 
 extend his analysis so far as to discover that the 
 
Austin. 107 
 
 appetites through their pleasures and pains, when 
 referred to their original places in nature, are natural 
 forces fertile of crime unless supplied according to 
 their natural exigencies; and that in the profuse 
 power which they possess and which they exercise 
 over human beings, is placed the perpetuation of the 
 human system, as the sources of life, and of the 
 sustentation of life. A human mechanician invests 
 his machine with power more than sufficient for its 
 ordinary action, in order to ensure continuance of 
 action when obstacles present themselves or resist- 
 ance increases ; and we may reverently suppose that 
 the great Creator had a similar purpose in so con- 
 stituting the appetites as the motive forces of the 
 human system that they should not cease to act for 
 the accomplishment of His design from insufficient 
 power. 
 
 Austin.^ — The want of coincidence in original 
 principles is very remarkable amongst the philoso- 
 phers of Utility. Austin, an ardent supporter of the 
 theory, admitted the authority of revealed laws as 
 express commands, admitting also the existence of 
 unrevealed laws, " the only laws set to that portion of 
 mankind excluded from the light of Revelation; 
 whilst both revealed law and law derived from the 
 light of nature are binding upon us (who have access 
 
 * The Province of Jurisprudence Determined. By John Austin. 
 
io8 Ansfms Theory of Nahtral and 
 
 to the truths of Revelation) in so far as the revealed 
 law has left our duties undetermined." 
 
 This representation of the distribution of revealed 
 lav7 and unrevealed law divides the human race into 
 two portions, of which one is under both revealed 
 law and unrevealed law, and the other is under un- 
 revealed law alone. Further, that portion excluded 
 from the light of Revelation cannot by the light of 
 nature obtain knowledge of revealed law; for some 
 duties we could not know without the help of Reve- 
 lation, and these the revealed law has stated distinctly 
 and precisely ; " and further " because unrevealed 
 laws are the only laws which God has set to that por- 
 tion of mankind who are excluded from the light of 
 Revelation." 
 
 Against the last dictum Aristotle may be produced 
 as an illustrious example that the portion of man- 
 kind excluded from Revelation, obtained without 
 the help of Revelation knowledge of law identical 
 with revealed law, and knew its duties by the light 
 of nature. But neither Aristotle nor Cicero dis- 
 covered by the light of nature the favourite doc- 
 trine of Utility, and thus propounded also by Austin, 
 thab theft is harmless or even useful when con- 
 sidered by itself; " for example, if a poor man steal 
 a handful from the heap of his rich neighbour, 
 the act, considered by itself, is harmless or positively 
 
Revealed L a zv. — Mill. 1 09 
 
 good; and one man's poverty is assuaged with the 
 superfluous wealth of another ; and it is only because 
 if thefts were general they would be injurious to the 
 security of property, would bring the rich to poverty, 
 and what were a greater evil, would aggravate the 
 poverty of the poor, that theft is evil." 
 
 Mill — Mr. John Stuart. This eminent philoso- 
 pher is the latest writer on Utilitarianism. His work 
 with that title ^ was professedly written to correct 
 mistakes that had arisen concerning the nature and 
 principles of that philosophy. He does not, in his 
 work, recognise either natural rights or natural 
 moral laws; nor does he express the views of the 
 previous philosophers of the positive good, or even 
 of the harmlessness, of theft. 
 
 He opposes his own system, which he says may be 
 termed the inductive school of ethics, to that system 
 of morality which he calls the intuitive school — dis- 
 carding the opinion of the latter school that the 
 principles of morals are evident a i^riori, requiring 
 nothing to command assent excei)ting that the 
 meaning of the terms be understood ; and holding, 
 as the opinion of his school, that right and wrong, 
 as well as truth and falsehood, are questions of 
 observation and experience. 
 
 "Both schools (he observes) recognise also, to a 
 
 * Utilitarianism. By John Stuart Mill. 1861. 
 
I lo Creed of Utility 
 
 great extent, the same moral laws ; but differ as to 
 their evidence, and the source from which they derive 
 their authority." That admission narrows the ques- 
 tion of the orig-in of the moral laws to the issue 
 raised in the present treatise, whether they proceed 
 from God, through nature and revelation, or whether 
 they were produced by the "observation and expe- 
 rience " of men. The limitation of the coincidence 
 between the two schools, to the " same moral laws," 
 impliedly denies the deduction that the moral laws 
 are complete and exhaustive; and it also leads to 
 the inference that besides the moral laws there are, 
 according to the philosophy of Utility, other laws 
 morally binding upon mankind which have proceeded 
 from " observation and experience." If that be so 
 the following is the formula given by Mr. Mill 
 for ascertaining moral actions a,nd constructing 
 moral law. 
 
 " The creed which accepts as the foundation of 
 morals. Utility or the Greatest Happiness Principle, 
 holds that actions are right in proportion as they 
 tend to promote happiness, wrong as they tend to 
 produce the reverse of happiness. By happiness is 
 intended pleasure and the absence of pain ; by un- 
 happiness, pain, and the privation of pleasure." 
 
 Let us examine the creed by Cicero's rule of 
 philosophising. If happiness be the ultimate end of 
 
reduced to Natu7^e. 1 1 1 
 
 human action, or the end for the sake of which and 
 by which human action is called forth, human action 
 must bear the test of being referable to nothing else ; 
 that is, to no other or deeper principle than happi- 
 ness. Love between the sexes is the efficient cause 
 of human actions that produce happiness of greater 
 extent, variety, and intensity, than any other motive 
 principle — actions arising out of the conjugal, the 
 parental, and the filial relations — yet happiness is 
 not the ultimate end of actions proceeding from 
 love between the sexes beyond which they can be 
 referred to nothing, for their primary purpose is the 
 procreation and perpetuation of the human race. 
 The desire and necessity for food produce a very 
 large proportion of the aggregate of human actions ; 
 but happiness is not the ultimate end of actions 
 originating in the appetite of hunger beyond which 
 they can be referred to nothing; for there is the 
 further and deeper princij^le that the appetite is the 
 fundamental provision of nature for sustaining life ; 
 and the actions of which it is the efficient cause 
 are primarily accessory to that end. 
 
 If we attempt to refer the appetites in which these 
 actions originate to deeper principles, we pass 
 beyond human causes, and necessarily arrive at the 
 Great First Cause, the will of God. 
 
 Thus these abstract qualities of Utility or Happiness 
 
1 1 2 Utility tested by Nature. 
 
 which, appear to be efficient causes of human action, 
 give way when reduced to their concrete elements 
 to physical principles of nature ; and with respect to 
 the Greatest Happiness Principle — the greatest hap- 
 piness of the greatest number — if carried so far as a 
 principle of legislation as to divert from a minority 
 their natural rights in order to favour a majority, 
 it would be at variance with the equal ownership of 
 such rights by nature. 
 
 Utility may reasonably be required to produce by 
 inductive reasoning from its own principles, a primary 
 law which cannot be traced to an origin in nature ; 
 and unless that be done it should bow to the Wisdom 
 that gave the Commandments, natural and revealed, 
 as all-comprehensive and universal Laws. 
 
Justice. 1 1 3 
 
 CHAPTER XI. 
 
 Justice, its Elements and Criterion, and the human conception of Justice 
 and Goodness, considered with reference to the Justice and Goodness 
 of God. 
 
 The nature of Justice has occupied mucli specula- 
 tive thought from the time of Plato to our own day. 
 Justinian defined it, — to give to every one his own ; 
 and his interpretation has been chiefly followed by 
 jurists. 
 
 Justice is an abstract principle, having concrete 
 elements. The concrete elements of justice are 
 Rights. 
 
 Rights may exist by nature, or they may be created 
 by law. The rights which God established in man 
 exist by nature; if human government confers rights, 
 they exist by law. 
 
 Rights by nature do not require confirmation by 
 human law. Born with us, a mental conception of 
 them soon grows up within us as our reason does ; 
 and that being universal in mankind, a moral and 
 instinctive conviction that it is wrong to invade the 
 
 I 
 
114 ^^^^ Equilibritmt of Rights. 
 
 rights of others gi-ows up concurrently with a con- 
 viction of the inviolability of our own rights, and has 
 the force of natural law. Nature thus supplies the 
 place of positive law; and the moral law, whether of 
 nature or of Eevelation, which negatively forbids 
 invasion of the natural rights, is the Criterion of 
 Justice. 
 
 The most perfect state of humanity is equal action 
 of the natural rights. Unequal action is imperfection. 
 Every act forbidden by the moral laws produces 
 inequality of rights in two opposite modes ; by ex- 
 ceeding rights, and by reducing them. To restore 
 the natural equality is Justice, which is the Equili- 
 brium of Rights. 
 
 The forms of justice are the modes of restoring 
 the equilibrium of rights. To do justice is to restore 
 rights taken away, or where that cannot be done, 
 to compensate for. the injury which the abstraction 
 of them occasioned. To administer justice is to pro- 
 duce the same effects by the judgment of an arbi- 
 trator or of a court of law. Divine Justice is the 
 Judgment of God for human wrong, and for dis- 
 obedience of His moral laws. 
 
 It has been said that " human morality, even in its 
 highest elevation, is not identical with, nor adequate 
 to measure the absolute morality of God." 
 
 ^' That there is an Absolute Morality, based upon, or 
 
Human Morality identical with Divine. 1 1 5 
 
 rather identical with the Eternal [N'ature of God, is 
 indeed a conviction forced upon ns by the same evi- 
 dence as that on which we believe that God exists at 
 all. But wliat that Absolute Morality is, we are as un- 
 able to fix in auy human conception, as we are to define 
 the other attributes of the same Divine Nature. To 
 human conception it seems impossible that Absolute 
 Morality should be manifested in the form of a law 
 of obligation ; for such a law implies relation and 
 subjection to the authority of a lawgiver. And, as 
 all human morality is manifested in this form, the 
 conclusion seems unavoidable, that human morality, 
 even in its highest elevation, is not identical with, nor 
 adequate to measure, the Absolute Morality of God.'"^ 
 
 I. Human morality is embodied in laws which have 
 relation to natural rights, the preservation of which 
 from invasion is the end of the laws, and the attain- 
 ment of the end is a state of justice. Those laws 
 protect the natural rights by forbidding murder, 
 adultery, theft, and perjury. 
 
 God gave these laws to man as His laws in two 
 ways — through nature and through Eevelation ; and, 
 by His intervention, man, as constituting human 
 government, promulgates the same laws throughout 
 human society. The Divine and the human laws 
 
 * The Limits of Religious Thought examined. By Henry Longuevill» 
 Mansel, B.D., ed. 4, p. 135. 
 
1 1 6 Human Morality identical with Divine. 
 
 having the same origin and the same purpose their 
 morality must be identical. 
 
 If the laws proceed from God, the abstract principle 
 of the laws must have been designed by Him. In 
 its concrete form it is, " Thou shalt not steal ; " in an 
 abstract form it is the inviolability of rights and pro- 
 perty, and the unlawfulness of invading them. It is 
 as impossible to conceive the ethical principle of 
 these laws not to be axiomatic in the government of 
 God, as it is to conceive that with Him " the whole 
 is not greater than its part." 
 
 It does not interfere with Divine and human coin- 
 cidence ill the ethical principle of the Moral Laws 
 that murder, adultery, and theft have relation to 
 human conditions, which may not exist beyond this 
 world. The principle is a]Dplicable to all God's 
 worlds in which He has placed creatures, and en- 
 dowed them with rights common to all. The Divine 
 government of this world is founded on that ethical 
 principle, and we have no difficulty in imagining it 
 to be a universal and eternal principle. 
 
 II. But it is said human morality is not adequate 
 to measure the Absolute Morality of God. In pro- 
 pounding the theory of Absolute Morality an objection 
 to it is raised which is not removed, that " to human 
 conception it seems impossible that absolute morality 
 should be manifested in the form of a law of obliga- 
 
The ''Absolute Morality of God!' 117 
 
 tion ; for such a law implies relation and subjection to 
 the authority of a law-giver." It might have been 
 added that besides a superior it implies equals ; and 
 either of these implications is fatal to the theory. 
 
 For, it may be asked, what is meant by the 
 absolute morality of God? Is He under any law? 
 Has He equals with whom to contend, and who 
 have rights that are equal to, and which may 
 conflict with His? Is He under the influence of 
 desires that may tempt Him to depart from the 
 course marked out as right by His Wisdom and 
 Goodness ? The human moral relation is not between 
 God and man, but between man and man, God being 
 the arbiter and the final judge of their actions, and 
 the awarder of reward and punishment. The ab- 
 solute morality of God is, therefore, non-existent ; 
 and the predication of morality to Him, although 
 doubtless intended to elevate our conception of the 
 sublimity of His justice, reduces Him to the level of 
 His creatures. 
 
 It has been inferred that if " the absolute morality 
 of God" transcends human morality even "in its 
 highest elevation," man has no assurance that the 
 moral laws and moral principles by which he strives 
 to regulate his life are those by which God measures 
 his conduct, or by which He will fijiaUy judge him. 
 But although the relation of man to God be a 
 
1 1 8 Divine Justice. 
 
 relation of obedience and not a moral relation, it must 
 necessarily be that, by the moral laws and moral 
 principles given and declared by Him, through 
 nature and Revelation for the government of man, 
 men will be judged, for the laws and moral principles 
 are adapted to man's nature and to his human con- 
 dition. We have analysed moral crime, and have seen 
 its small variety, its negative form — consisting almost 
 exclusively of concrete acts on concrete substances — 
 the most heinous crimes being acts committed upon 
 the human body, and even contemplated crimes not 
 carried into acts must be defined by the same elements. 
 The conscience of man tells him for what crimes and 
 by what laws he will be judged, unless he is forgiven. 
 The justice of God in relation to man, as applying to 
 the same elements, must, therefore, be of the same 
 nature as human justice, although God's administra- 
 tion of it, in regard to its perfection, will be as much 
 above human justice as His Omniscience, and infinite 
 wisdom and goodness excel the same finite qualities 
 in human judges. 
 
 But although we feel assured that God will judge 
 His human creatures by the morality He has given 
 to them, we cannot infer that His acts, as they 
 appear to us in the phenomena of His Providence, 
 can always be explained by, or brought to the test 
 of, human morality.. But we are not, therefore, driven 
 
Phenomena of God's Providence. 1 1 9 
 
 to infer that there is an Absolute Morality incon- 
 ceivable by men, for there are other attributes of God 
 by which such phenomena may be explained, and to 
 which they may be referred — His Infinite Wisdom 
 and Goodness. The following passage, which has 
 lately attracted considerable attention,^ seems to 
 insist that such phenomena are incomprehensible 
 unless upon the theory of Absolute Morality. 
 
 " It is a fact which experience forces upon us, and 
 which it is useless, were it possible, to disguise, 
 that the representation of God after the model of 
 the highest human morality which we are capable of 
 conceiving, is not sufficient to account for all the 
 phenomena exhibited by the course of His natural 
 Providence. The infliction of physical suffering, the 
 permission of moral evil, the adversity of the good, 
 the prosperity of the wicked, the crimes of the guilty 
 involving the misery of the innocent, the tardy 
 appearance and partial distribution of moral and 
 religious knowledge in the world — these are facts 
 which no doubt are reconcilable, we know not how, 
 with the Infinite Goodness of God, but which cer- 
 tainly are not to be explained on the supposition that 
 its sole and sufficient type is to be found in the finite 
 goodness of man." t 
 
 * See Mill's Examination of Sir W. Hamilton's Philosophy, p. 100. 
 t Limits of Keligious Thought, preface to the fourth edition, p. 13. 
 
1 20 God's Providence relates to the Universe. 
 
 The highest human morality which we are capable 
 of conceiving is concentrated in justice, the obser- 
 vance of rights. The phenomena exhibited by the 
 course of God's natural Providence cannot be brought 
 to the test of human morality, for the contraries 
 of these phenomena are not rights in mankind. If 
 we refer the phenomena to the test of the ethical 
 obligations and duties, we have the same result, for 
 those duties are not correlatives of rights, nor are 
 they of fixed obligation. To account for the pheno- 
 mena as proceeding from God's natural Providence, 
 it is necessary to take a wider field of view than 
 is afforded by human morality. We must consider 
 the phenomena, not simply in relation to this world 
 and its inhabitants, but as involved in God's govern- 
 ment of the Universe. 
 
 The whole inquiry, therefore, is resolved into the 
 question, how the phenomena exhibited by the course 
 of God's natural Providence are reconcilable with 
 the Infinite Goodness of God. It is admitted to be 
 reconcilable, but we know not how ; and that con- 
 cession makes it not presumptuous in any earnest 
 and devout inquirer to offer his mite of thought to- 
 wards an explanation of it. 
 
 The asserter of a difficulty admitted to be soluble, 
 but not solved, may not exclude the solution of it 
 by the use of a particular hypothesis ; and I shall, 
 
Goodness, hifinite and Finite. 121 
 
 therefore, take tlie liberty of considering the ex- 
 cluded hypothesis, " that the infinite goodness of 
 God is not to be explained on the supposition that 
 its sole and sufficient type is to be found in the finite 
 goodness of man." 
 
 That the finite goodness of man is the primary 
 type of goodness is a proposition that may be dis- 
 missed at once as irreverent and unphilosophical ; but 
 it is not unimportant to consider the reverse of the 
 proposition, whether the primary and infinite good- 
 ness of God be not the type of the finite goodness of 
 man. For unless man be endowed with goodness by 
 the act of his Creator, how did he acquire it ? He 
 did not derive it with his animal nature from brutes 
 for they do not possess it ; and it being conceded 
 that man possesses finite goodness, there can be no 
 other source of his finite goodness than the Creator, 
 who, as the possessor of infinite goodness, must have 
 conferred on man goodness of which the type, in kind 
 but not in degree, is Divine goodness; for if it is 
 different in kind as well as in degree from Divine 
 goodness, there being no other source of goodness, it 
 is not goodness at all. 
 
 The goodness of man must, like his moral duties, 
 be employed upon subjects associated with his own 
 nature and social condition, and it must take its 
 forms and colour from them. That goodness is a 
 
I 2 2 Finite Goodness in Ma7is Nature. 
 
 part of the constitution of man's nature, and that it 
 has its duties in the social system, have before been 
 shown."^ And although some take pleasure in denying 
 their nature, and in deducing goodness as well as 
 morals from self-love or self-interest — which is a 
 denial of goodness, and a declaration that its duties 
 are wrong, unless selfishness be right — the voice of 
 nature and experience seem plainly to oppose the 
 selfish theory. " The epithets, sociable, good-natured, 
 humane, merciful, grateful, friendly, generous, bene- 
 ficent, or their equivalents, are known in all lan- 
 guages, and universally express the highest merit 
 which human nature is capable of attaining." f These 
 not being part of the animal nature — for brutes do 
 not possess them — it does not appear how man 
 acquired them unless they were implanted in his 
 nature by his Creator. 
 
 But although these qualities can only be exhibited 
 by human beings in human forms, they may be re- 
 solved into principles more universal. Experience 
 shows that they have a range of power from 
 parental and filial love to the j)hilantliropy which 
 extends its benevolence to the whole human race. 
 They may be applicable to creatures endowed with 
 reason, in other worlds, under whatever form of 
 existence ; and if we contemplate their relation to 
 
 * Supra, ch. iii. 
 
 t Hume's Essays, vol. ii. 
 
God's Goodness Universal. 123 
 
 God, their tendency is not to lower, but to elevate 
 our concej)tion of His goodness. 
 
 The Goodness of God has a range of action equal 
 to His Universe, and equal to His Omnipotence. He 
 sustains His worlds by physical laws, and He guides 
 and restrains His human creatures by moral laws 
 adaj>ted to the organisation of their bodies, to the 
 purposes of their mundane existence, and to the 
 degree of reason with which He has endowed them. 
 The action of mankind is, therefore, subject not only 
 to the moral laws but subordinate to the general 
 physical laws of nature. 
 
 " The infliction of physical suffering," is a phrase 
 which suggests suffering from the effect of physical 
 laws, and suffering from the organisation of the human 
 body and its mundane condition. The physical forces 
 of nature in their action often produce physical 
 suffering in man, when he encounters them by ac- 
 cident, in places or in circumstances where he can- 
 not protect himself from the natural consequences 
 of collision with them ; or when, as he often does, he 
 wilfully and daringly exposes himself to them. But 
 experience has given to man a certain and assured 
 knowledge by which he is forewarned that if he 
 encounters or exposes himself to the great physical 
 forces of nature, he must, when their action is ex- 
 tended to a sufficient degree, suffer in the unequal 
 
1 24 Existence of Physical Suffering. 
 
 contest. If he contends with them they are sure 
 on some occasions to prevail over his strength, and 
 alike over his knowledge as over his ignorance of 
 their power and physical action. If he fall from a 
 precipice the law of gravitation which preserves the 
 worlds in their orbits, is not suspended for his 
 benefit. If he descends into a mine and encounters 
 there the gases evolved by natural laws, or set free 
 by his mineral operations, their chemical affinities 
 are not suj^pressed in his favour ; and he especially 
 invites his fate if, in the confidence of escape, he 
 supplies the gaseous fluid with the flame which, if it 
 does not always produce the fatal explosion, it is 
 only because occasionally the contact is not complete. 
 So if man encounters the sea,, or the winds, or the 
 frozen lakes, or if he employs the steam whose ex- 
 pansive power he has discovered and subdued to his 
 wiU, the physical laws must still prevail when by his 
 inattention or his ignorance, natural causes excite 
 them to man's destruction. But we must remember 
 that it is from the study and developement of the 
 physical forces of nature that cultivated man derives 
 his highest pleasure and his chief reward ; and what 
 but the gift of God, from His inflnite goodness 
 through the instrumentality of man, are the dis- 
 coveries of science, which by subduing the physical 
 forces to man's will have increased the dynamic power 
 
Disease and Sickness. 
 
 125 
 
 at his command by substitnting for tbe thews and 
 sinews of men and animals the physical forces of 
 nature ? 
 
 Physical suffering from disease and wounds is 
 incident to the body, as well from the inefficient care 
 and oftentimes rashness with which it is exposed to 
 injury, as because it is the natural instrument of 
 decay and death. Sickness and disease arrive at all 
 periods of age, for the duration of life is not uniform, 
 and it appears uncertain to us, in the Divine plan. 
 The chief elements of health are air, water, and food 
 obtained through labour which furnishes bodily exer- 
 cise ; and there are few by whom these simple elements 
 are not attainable by ordinary exertion and foresight. 
 Health is the greatest blessing and the greatest 
 source of enjoyment conferred on man. A sound 
 mind in a sound body is an axiom that describes 
 a perfect state of human felicity. It does not depend 
 on riches if there is sufficiency of wholesome food ; 
 large numbers enjoy such health ; it may be said to be 
 the normal condition of the young. 
 
 Injury to health proceeds in a large degree from 
 intemperance, which produces present disease and 
 sows the seeds of diseases that reach posterity. But 
 there is a strong recuperative power in nature. 
 Wounds heal and diseases subside when the morbid 
 causes or the vicious habits are subdued. 
 
126 Mora I Pu rpose of Sickness. 
 
 But sickness has a moral purpose in the human 
 system. It cuts off man from his sins and directs 
 his mind to the contemplation of his future destiny. 
 It caUs forth the aid and sympathy of those who 
 witness the sickness, and it exhibits the tenderness 
 of woman in the unceasing care and most unselfish 
 devotion of the wife and mother, and of others who 
 from pure humanity undertake the severe duties of 
 the nurse. 
 
 Medical science directs the energies of affection 
 and devotion by its skill and experience ; and lately 
 means have been discovered of suspending the pains 
 of the sick and wounded, and of performing the most 
 painful operations on the body without suffering, or 
 even consciousness of the progress of the operation. 
 Chloroform and other anaesthetics are agents sup- 
 plied by God, through nature ; and their power over 
 the brain is a discovery of science through His aid or 
 permission ; and these, assuredly, are striking exam- 
 ples of the goodness of God in close analogy with 
 human goodness — desire to relieve the sufferer from 
 his pains. 
 
 " The permission of moral evil," is a phrase that 
 does not accurately express God's relation to moral 
 evil. He does not permit it. He forbids it. He has 
 not given to mankind, through nature and revela- 
 tion, laws which they cannot obey. Neither is moral 
 
Permission of Moral Evil. 127 
 
 evil a necessary consequence of the constitution of 
 human nature, nor of the moral law which is given 
 to man. For if it were a necessary consequence 
 it would be universal; and much moral evil as 
 there is in the world, there is a large number, and 
 even a large proportion, of men and women who 
 never rob their fellow-creatures of their natural 
 rights, by murder, adultery, theft, or falsewitness ; 
 but, on the contrary, are constantly engaged in 
 actions of benevolence. The failures of men in the 
 duties of benevolence, or their individual sins, we do 
 not speak of, for they are not moral evil. 
 
 " The adversity of the good and the prosperity of 
 the wicked," are expressions not intended to represent 
 the positive condition of the good and wicked, but 
 the results of observation that worldly j^rosperity or 
 adversity is not awarded to men according to the 
 estimate of their character formed by other men. 
 But such estimate is often founded on fallacious 
 appearances, and it seems to be a clear lesson from 
 human life in all its varieties of action that as a 
 man sows he shall reap; and, therefore, the ad- 
 versity of the good or the prosperity of the wicked 
 is not determined in this life by their merits or 
 demerits. But suppose it had been designed that 
 the good should be always prosperous and the wicked 
 always in adversity, how could human government 
 
128 The Good and the Wicked. 
 
 perform its duties, having two classes of men marked 
 out by Providence as the good and the wicked? 
 The good might be amiable, but the wicked would 
 be the reverse, and no sentiments of love or charity 
 could subdue the contests which would arise between 
 them. We may more surely perceive that the Creator 
 has had regard to the happiness of His creatures by 
 reserving the distinction of "good" and "wicked" 
 to His own determination, when the final account 
 has been made up ; and by ordain mg that in the 
 meantime the wicked and the good shall share pros- 
 perity or adversity in worldly affairs according to 
 their skill and knowledge, and their industry and 
 prudence ; even although the wicked man may, for 
 a time, mingle with those industrial qualities acts of 
 moral evil. But these, if continued, soon commence 
 retributory action. They produce suspicion of im- 
 morality, which, as it increases, tarnishes the cha- 
 racter, and diminishes the means of prosperity by 
 separating the suspected rogue from honest men ; 
 until at length exposure occurs, and involves him 
 in utter ruin. But this final issue of dishonesty may 
 be deferred ; for God gives opportunity of repentance 
 and restitution, and it may be that He often reserves 
 the sinner for His own judgment. 
 
 The physical effect of moral evil — " the crimes of 
 the guilty involving the misery of the innocent," is a 
 
Morality and Religion. 129 
 
 necessary effect of crime, which, generally consists in 
 the abstraction of the life, property, or rights of an 
 innocent person. Bnfc the injury and the misery 
 that are results of crime appeal to the good feelings 
 of an intending criminal not to involve those near 
 and dear to him in the ruin which his crimes, if 
 detected, will bring upon him. The uncertainty of 
 the incidence of crime, also, rouses the vigilance of 
 society to prevent and punish crime, and further to 
 teach men the eternal laws which God requires them 
 to obey. 
 
 " The tardy appearance and partial distribution of 
 moral and religious knowledge in the world," are 
 subjects beyond the scope of man's insight. The 
 only inquiry open to him, and it is one of deep 
 significance and importance, is in what degree 
 Morality and Religion, associated together in the 
 Ten Commandments as they are in nature by an 
 indissoluble bond, ' may have been retarded in their 
 progress by the actions of men. These pages dis- 
 close the inconsistency of the system of morality long 
 taught in our colleges and schools with the system 
 or with the authority of the second table of the Com- 
 mandments ; and with regard to Religion, scholastic 
 creeds and formularies, productions of men, have long 
 divided Christians into sects, amongst which there 
 are some that reject such creeds and formularies as 
 
 K 
 
130 The Conclusion. 
 
 departures from the first fiindamental principle and 
 from the First Law of the Ten Commandments. 
 
 This humble attempt " to justify the ways of God 
 to man," is but a human view of the phenomena of 
 His Providence, derived from, and limited and con- 
 fined to, such facts as nature discloses to the per- 
 ception of man, to such ideas of goodness as are 
 exhibited by his fellow-creatures, and to the prin- 
 ciples of the moral laws. The suj)er-human relations 
 of these phenomena are hidden from his sight, and 
 are beyond his horizon. But what we are permitted 
 to see and comprehend, suffices to show that if we 
 could behold and contemplate the whole purpose and 
 design of God's Providence, they would manifest His 
 Infinite Wisdom, Goodness, and Justice. 
 
131 
 
 POSTSCEIPT. 
 
 I WISH to connect this little volume with its prede- 
 cessor mentioned in the title-page, and below, ^ for 
 they are both products of the same train of thought, 
 and successive developments of it at different periods. 
 The present work, as the latest, is the most advanced, 
 and for that reason it stands first in the order of 
 perusal. It is in advance of its predecessor by the 
 adoption of Natural Rights as the foundation of the 
 moral and social system, whereas in the first essay 
 natural rights appear as results not as causes, and the 
 Commandments as coincidences with Laws of Nature 
 deduced from a more extensive induction of the facts 
 of nature than was thought necessary where natural 
 rights being postulated, natural laws protective of 
 them are consequents of the rights. In the previous, 
 as in this book, the moral laws deduced fi:*om the in- 
 duction were compared with the laws of human 
 
 * Laws of Nature, the Foundation of Morals. By David Rowland, 
 Author of a Manual of the English Constitution. London : John 
 Murray, Albemarle Street, 1863. 
 
132 Postscript. 
 
 government, and shown to be identical ; but not in a 
 form so systematic or so comprehensive as in the 
 present volume, where the origin of the laws and the 
 application of them to morality and to human govern- 
 ment are presented under one view. 
 
 The other subjects of the previous book are those 
 which must come under consideration in any attempt 
 to construct a moral and ethical system. The present 
 book is employed in developing the animal nature^ 
 and tracing the rise of human society, and the 
 origin and working of the moral laws ; the ethical 
 duties of the mental nature being only slightly 
 treated for the purpose of marking the distinctions 
 between the several classes of duties which pertain to 
 mankind. In the previous book the general subject 
 is divided into two parts, the animal nature and the 
 mental nature. In the first part, besides the subject 
 common to both books but differently treated in each, 
 moral evil is analysed and traced, in its several forms, 
 to its sources in the animal nature ; and the passions, 
 and the mode and the extent of their action in re- 
 lation to moral evil are considered. In the second 
 part the nature and office of reason in relation to 
 morality is examined, with the view of proving that 
 moral evil springs wholly from the animal nature ; 
 and that from the mental nature, and from affections 
 and feelings implanted there, arise the virtues of the 
 
Postscript. 133 
 
 human character ; and it has been there attempted 
 to show the mode of action of the affections and the 
 nature and extent of the obligation of the ethical 
 duties which spring from them, and of the sanctions 
 by which those duties are enforced. 
 
 I have also in the previous volume offered a theory 
 to explain the action of Conscience, and I have 
 suggested other theories on the same principle to 
 explain the varieties of the phenomena of the con- 
 science, which have been considered as difficulties 
 insurmountable against an uniform theory. The 
 existence of natural rights has not disturbed the 
 theory, but has on the contrary strengthened it, by 
 the basis which they afford to the moral laws, as 
 automatic consequents of natural rights. 
 
 I believe that there are great truths in these books, 
 but errors there also must be. The merit may, per- 
 haps, be awarded to them of having opened a new 
 line of thought on moral law and morality, and 
 of having reasoned it, to an extent which explains 
 their phenomena, and traces them to a common and 
 ultimate cause. The merit of such a work does 
 not, in the judgment of philosophers, wholly de- 
 pend on the success of the reasoning. " A system 
 of philosophy is of the highest value only when 
 it embraces both these requisitions — when it is 
 both true and reasoned. But a system which is 
 
1 34 Postscript. 
 
 reasoned without being* true, is always of higher 
 value than a system which is true without being 
 reasoned. The latter kind of system is of no value ; 
 because philosophy is the attainment of truth hy the 
 vjay of reason. That is its definition.""^ These prin- 
 ciples are applicable to the criticism as well as to the 
 construction of a philosophical system, but they are 
 especially applicable to Moral Philosophy, the sci- 
 ence " which relates to man himself ; " which a 
 distinguished philosopher, well practised in the study 
 of the science, has pronounced to be " the most com- 
 plex and most difficult subject of study on which the 
 human mind can be engaged." f 
 
 * Professor Ferrier in " The Institutes of Metaphysie," sections 
 4 and 5. 
 
 t Mill's System of Logic. " On the Logic of the Moral Sciences," book 
 vi., vol. ii.. p.' 2 12. 
 
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