ESSAYS IN JURISPEUDENGE AND ETHICS
 
 ESSAYS 
 
 IN 
 
 JUEISPEUDENCE AND ETHICS 
 
 FREDERICK POLLOCK, M.A., LL.D. 
 
 LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE 
 
 ILontJon 
 
 MACMILLAN AND CO. 
 
 1882 
 
 9 177 1
 
 Printed by R. & R. Clakk, Edinburgh.
 
 A I P7e 
 
 TO 
 
 ERNEST EENAK
 
 PREFACE. 
 
 The substance of the following Essays has appeared 
 in divers journals and reviews in the course of the last 
 seven years. My first duty is to return my best 
 thanks to the proprietors and editors of those publica- 
 tions for the consent they have freely given to the 
 present reproduction. Some additions and rearrange- 
 ments have been made, and a few passages have been 
 worked in from articles on kindred subjects which for 
 one or another reason did not seem worth reprinting 
 separately. 
 
 No unity of design will be expected in a work thus 
 composed of occasional pieces ; but I hope that so 
 much unity of purpose and ideas may nevertheless 
 be found in it as will give it a certain measure of 
 coherence. The essays fall into two divisions, in the 
 first of which legal topics predominate, in the second 
 ethical. In the first it has been my aim to consider 
 legal ideas and institutions as aff'ected by or afi"ecting 
 the wider interests of history, politics, and practical 
 legislation. In the second I have endeavoured to 
 bring to a better defined issue certain points of ethi- 
 cal discussion by the help of distinctions founded on 
 familiar legal conceptions, and by sj^ecifically applying 
 those conceptions and distinctions to admitted facts.
 
 Vlll PREFACE. 
 
 In both subjects I have used by preference the his- 
 torical method, taking that term in a wide, but, I 
 think, not an unfairly wide sense. 
 
 There may be an apparent inconsistency in the 
 points of view taken in some of the legal essays. I 
 have started sometimes from the pure analysis of the 
 modern English school of jurisprudence, sometimes 
 from history, sometimes from practical expediency. 
 My own opinion is that all these methods are legiti- 
 mate, and that if their results fail to agree, it is the 
 fault not of the instrument but of the worker. No 
 doubt there exists a tendency to conflict between the 
 historical and the analytical manner of considering 
 legal phenomena. The historical student is tempted 
 to regard analytical jurisprudence as shallow sciolism, 
 while the analytical jurist is apt to charge the histori- 
 cal and comparative method with laxity of thought 
 and antiquarian pedantry. Both methods are in truth 
 useful and necessary, and either of them alone is 
 imperfect. The modern developments of legal theory 
 have shown them in their power and in their short- 
 comings. 
 
 The history of law was by no means neglected 
 before the rise of modern critical jurisprudence ; but 
 its results were of little value so long as they could 
 not be read in the light of general ideas and principles. 
 Blackstone gives the history of English law from the 
 thirteenth century onwards with sufficient fulness for 
 all ordinary purposes, and, as a rule, with great ac- 
 curacy : the historical merit of his Commentaries has 
 been too much overlooked in the discussion of his
 
 PREFACE. IX 
 
 faulty arrangement and inadequate theories. Montes- 
 quieu not only collects a great quantity of materials 
 for legal history, but has a notion of historical method 
 and comparative research far in advance of other 
 writers of his time. Yet all this work remained un- 
 fruitful for the best part of a century. It had to be 
 fertilized by the ideas of the analytical school. Ben- 
 tham, on the other hand, had no room in his mind for 
 history. He would have liked to make a clean sweep 
 of all the laws and customs of Europe, and start 
 afresh with a code warranted to secure the greatest 
 happiness. Even language had for him no continuity 
 to be respected. He seriously drafted specimens of 
 legislation in a style invented by himself as the most 
 appropriate for the purpose, and defying all the usages 
 of common syntax. A system proceeding from this 
 habit of mind could not easily adapt itself to the facts 
 of different ages and societies. Its general proposi- 
 tions were in truth, like those of political economy, 
 drawn from the conditions of a particular society at a 
 particular time, or rather those conditions as they 
 would be in the absence of disturbing: elements. 
 These conditions have still their peculiar value for 
 scientific jurisprudence, insomuch as they are those 
 which more and more tend to be realized in the pro- 
 gress of modern civilized communities. But this ) 
 value cannot be rightly perceived and set on its true / 
 footing until the extreme claims of abstract analysis 
 have broken down in the presence of unforeseen and 
 refractory elements of fact. Thus the Indian village 
 community shows us a state of society to which, 
 
 h
 
 X PREFACE, 
 
 tliougli it is an orderly and well-settled one, Bentham's 
 or Austin's definitions are applicable only by doing 
 extreme violence to language ; and the consideration 
 of such phenomena has led Sir Henry Maine to apply 
 the needful correction to the analytical theory. Again, 
 in the art of legislation the analytical intellect is in- 
 dispensable to give us the power of expressing clearly 
 what we intend, while the historical view comes in to 
 help our choice of immediately desirable and practic- 
 able objects. If it be asked whether analytical and 
 historical work are to go on correcting one another for 
 all time, I am disposed to say that j)robably they will. 
 All scientific definition is really provisional and ap- 
 proximative ; and all applications of our knowledge to 
 the actual conduct of life are endeavours towards an 
 ideal which, however near we may come to grasping 
 it, will ever escape our full possession.
 
 CONTENTS. 
 
 II. 
 
 HI. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 X. 
 
 XL 
 
 XII. 
 
 XIII. 
 
 The Nature of Jurisprudence, considered in rela- 
 tion TO SOME Recent Contributions to Legal 
 Science 
 
 Laws of Nature and Laws of Man 
 
 Some Defects of our Commercial Law 
 
 The Law of Partnership in England 
 
 Employees' Liability 
 
 The Theory of Persecution 
 
 The Oath of Allegiance 
 
 The History of English Law as 
 Politics 
 
 A Branch of 
 
 The Science of Case-Law . 
 
 The Casuistry of Common Sense 
 
 Ethics and Morals . 
 
 Marcus Aurelius and the Stoic Philosophy 
 
 Mr. Spencer's Data of Ethics 
 
 Index ..... 
 
 1 
 
 42 
 
 60 
 
 95 
 
 lU 
 
 U4 
 
 176 
 
 198 
 237 
 261 
 287 
 314 
 352 
 379
 
 I. 
 
 THE NATURE OF JURISPRUDENCE 
 
 CONSIDERED IN RELATION TO SOME RECENT CONTRIBUTIONS 
 TO LEGAL SCIENCE.^ 
 
 Professor Holland of Oxford is to be congratulated 
 on having done a piece of work that was much called 
 for. Though several years have passed since the 
 Universities and the Inns of Court proclaimed the 
 importance of jurisprudence as a part of legal educa- 
 tion, nobody has taken up Austin's unfinished work 
 in a serious or satisfactory manner, or succeeded in 
 making it very clear what jurisprudence really is. 
 To English students it means at present, for all prac- 
 tical purposes, the two volumes of Austin's Lectures, 
 or the one volume into which their matter has been 
 more lately condensed by his able editor. It may be 
 true of Austin's work, as Professor Holland says, that 
 
 ^ Tlie Elements of Jurisprudence. By Thomas Erskine Holland, 
 D.C.L., etc. Oxford: Clarendon Press. 1880. The Institutes of Law : 
 a Treatise of the Principles of Jurisprudence cts determined by Nature. 
 By James Lorimer, Advocate, Regius Professor of Public Law and of 
 the Law of Nature and Nations in the University of Edinburgh, etc. 
 Second edition, revised and enlarged. Edinburgh and London : 
 William Blackwood and Sons. 1880. International Law. By William 
 Edward Hall, M.A., Barrister-at-Law. Oxford : Clarendon Press. 1880. 
 
 ' B
 
 2 THE NATURE OF JURISPRUDENCE. [l 
 
 no one can read it without improvement ; yet lie 
 seems to confine his praise to the introductory part, 
 originally published as " The Province of Jurispru- 
 dence Determined," and so far I am quite of one 
 mind with him. In any case, it is not desirable that 
 Austin's should remain for an indefinite time the only 
 means of improvement in this department of know- 
 ledge available for our seats of learning. It is, after 
 all, a fragmentary publication, and has the faults 
 incidental to this character, in addition to the others 
 with which it is chargeable. As I am not now criti- 
 cizing Austin, I will only say that these are precisely 
 of the kind which make a book less fit for the use of 
 beginners. Besides, the increase of general knowledge 
 and interest has a certain eff'ect on the relative import- 
 ance of diff'erent parts of a great subject. "Those 
 distinctions upon which Austin, after his somewhat 
 superfluously careful manner, bestows most labour are 
 put in so clear a light that they can hardly again be 
 lost sight of;" and if there is one thing more than 
 another for which we ought fervently to thank 
 Austin's labours, it is that at this time of day no 
 rational being could or would occupy six lectures with 
 the discussion of what positive law is not. For the 
 rest, Professor Holland's preface, while it points out 
 with unquestionable truth that " works upon legal 
 system by English writers have hitherto been singu- 
 larly unsystematic," is studiously courteous to his 
 predecessors. It is perhaps an excess of courtesy to 
 mention Dr. Broom^s work on Legal Maxims, a 
 thinof of neither fish nor flesh, on the same level with
 
 l] THE NATURE OF JURISPRUDENCE. 3 
 
 Smith's Leading Cases, which, though it never pre- 
 tended to be anything but technical, stands in the 
 first rank of our technical books. 
 
 Jurisprudence is dfi^ned by Professor Holland as 
 the formal science ®9fa!w: " not the material science 
 of those portions of the law which various nations 
 have in common, but the formal science of those 
 relations of mankind w^hich are generally recognized 
 as having legal consequences." It stands towards 
 actual legal systems, past or present, in a relation like 
 that of grammar to particular languages. As a matter 
 of fact, its construction has been suggested by the 
 comparison of different systems ; but such comparison 
 is not in itself a necessary condition for the existence 
 of such a science. " Just as similarities and differ- 
 ences in the growth of different languages are collected 
 and arranged by Comparative Philology, and the facts 
 thus collected are the foundation of abstract Grammar, 
 so Comparative Law collects and tabulates the legal 
 institutions of various countries ; and from the results 
 thus prepared the .abstract science of Jurisprudence is 
 enabled to set forth an orderly view of the ideas and 
 methods which have been variously realized in actual 
 systems." 
 
 The parallel is felicitous, and only too felicitous. 
 If it be just, it goes a little too far for the writer's 
 purpose. Abstract grammar, in the sense here speci- 
 fied, is evidently a conceivable science. But is it an 
 actual science in the sense of being explicitly taught 
 or learnt by any one ? We have never heard of its 
 professors or text-books. No such teachers or books.
 
 4 THE NATUEE OF JURISPRUDENCE. [l 
 
 as far as I can learn, liave been called forth by the 
 development of modern philology. Nor is there in 
 fact room for them. Abstract grammar is given by 
 implication in every systematic grammar of a parti- 
 cular language, and its generality appears as soon as 
 the grammatical structure of two different languages 
 is referred to a common type. When the English 
 schoolboy who has learnt Latin learns (if he ever does, 
 which, with our existing methods, is uncertain) enough 
 of his own language to know that the verbal-substan- 
 tive forms in "I go a-fishing" and in " Lusum it 
 Maecenas" are homologous, he makes an application of 
 abstract grammar. When the comparative j)hilologist 
 performs a like process on a larger scale, he must 
 either come to his task equipped with a scheme of 
 abstract grammar or make one as he goes along. But 
 neither boys nor men learn abstract grammar by itself 
 The reason, I conceive, is that the subject-matter can- 
 not be understood until the learner has mastered the 
 grammar of at least one concrete language ; and, if 
 the language be a tolerably developed one, and the 
 grammar arranged on a tolerably rational plan, in 
 learnino; the matter he has learnt the form also. 
 There is no need for his learning it over again in the 
 abstract. In order to appreciate its importance as 
 form, he has only to await the occasion of applying it 
 to new matter. Perhaps it may be said that a person 
 who, being empirically master of his own language, 
 takes up the grammar of it for the first time, is really 
 learning abstract grammar ; for in. this case the matter 
 consists of what he knows already. Not the less does
 
 l] THE NATURE OF JURISPRUDENCE. 5 
 
 he acquire the abstract system through the concrete 
 application. We may observe in passing that Phil- 
 ology is considerably richer than Jurisprudence both 
 in the variety of actual types to be observed and in 
 the number of distinct systematic arrangements that 
 have been constructed. Greek, Indian, and Arabic 
 grammarians worked out their schemes in perfect 
 independence. It would seem that philologists have 
 great opportunities for elaborating the science of 
 abstract grammar. What use they have made of 
 them is more than I am competent to say ; l^ut one 
 cannot help suspecting that our leaders in philology 
 would not think such an operation very profitable. 
 
 Again, the student of medicine learns vertebrate 
 anatomy, which is the knowledge of particular verte- 
 brate structures. He learns comparative anatomy, 
 whereby he comes to perceive the analogies of difi'erent 
 vertebrate structures. Hence he forms the idea of a 
 general vertebrate type, which is not the image of any 
 existing skeleton, but is a generic symbol of a certain 
 disposition and relation of parts which any specific 
 vertebrate skeleton embodies and makes visible. 
 Shall we reo;ard this as a new and distinct knowledge 
 or science, and call it abstract vertebrate anatomy ? 
 And, if we do, can it be taught or learnt in its 
 abstract character 1 
 
 It appears to me that jurisprudence, as more or 
 less vaguely understood in English usage of the term, 
 and now clearly defined by Professor Holland, is 
 doomed to vacillate between two alternatives, of which 
 both are unsatisfying. It may confine itself to making
 
 6 THE NATURE OF JURISPRUDENCE. [l 
 
 out a catalogue of blank forms ; in other words, to 
 the pure theory of legal classification. I do not for a 
 moment deny that the scientific arrangement of the 
 law is a subject worthy of the most careful discussion. 
 But I do not think it a good subject to be dwelt upon 
 by students at an early stage. The reasons for or 
 against a particular scheme cannot be understood 
 until the matter to be dealt with by it is to some 
 extent familiar. If, on the other hand, jurisprudence 
 undertakes to explain and illustrate the blank forms 
 of its classification by showing how they are filled up, 
 its constant tendency is to slide into the partial 
 exposition — comparative or otherwise — of some par- 
 ticular system. This tendency appears more than 
 once in Professor Holland's work, as where he brings 
 in a statement of the peculiar and by no means ele- 
 mentary English doctrine of contributory negligence. 
 One feels, again, that his broad mention of the results 
 educible from the tangle of statutes that make up our 
 law of copyright is either too much or too little, — too 
 much for a treatise on the general form of laws, too 
 little for a treatise on the laws of England. 
 
 Since the law of England is, by the consent of all 
 persons who have seriously thought about it, in sore 
 need of a S3^stematic expounder, the best and most 
 profitable way to prove the value of jurisprudence 
 would perhaps be to show it in that specific applica- 
 tion. If Professor Holland, or some other equally 
 competent worker, or two or three such together, 
 would give us a good book of Institutes of English 
 Law, that would indeed be a boon for lawyers and
 
 l] THE NATURE OF JURISPRUDENCE. 7 
 
 students to welcome. As it is, our young men hear 
 systematic lectures on jurisprudence and legal method 
 in general, and have meanwhile to pick up their first 
 notions of the law of their own country from mauled 
 and tinkered editions or imitations of Blackstone put 
 together in defiance of all rational arrano-ement. 
 Blackstone's work was an excellent one in his time 
 and accordins^ to his lio-hts : w^e mi^ht honour him 
 better at this day than by a blundering lip-service 
 which, as a rule, eS"ectually excludes the knowledge of 
 what Blackstone really wrote. The modern editions 
 utterly spoil Blackstone as literature, without produc- 
 inor a good account of the modern law. One conse- 
 quence of this is that the historical value of Blackstone 
 in his genuine form is apt to be sadly underrated. 
 
 And, in fact, if we turn to Germany, where the 
 academic teaching of law is more fully developed than 
 with us, w^e shall find a state of things which Profes- 
 sor Holland mentions with a certain air of surprise. 
 Although the last thing tJiat can be said against the 
 German school is that the philosophical and theoretical 
 consideration of legal conceptions fails to find expres- 
 sion in it, there are no distinct organs or departments 
 for the purely formal science of law. What in 
 England we have lately called jurisprudence is em- 
 bodied by German writers in their extensive and 
 methodical treatises known as PandeMen, of which 
 the subject is modern Roman law, — that is, so much of 
 the Roman civil law as has furnished, or may be con- 
 sidered capable of furnishing, the groundwork of the 
 modern law of German States. Most, if not all, of
 
 8 THE NATURE OP JURISPEUDENCE. [l 
 
 these works contain a certain amount of matter of a 
 highly general nature ; but this is treated, and as I 
 think rightly so, as preliminary to the study of the 
 particular system. 
 
 At the same time, I am far from saying that under 
 the peculiar conditions of English legal literature the 
 study of legal ideas in their most abstract form is not 
 useful and necessary. But I think a scientific exposi- 
 tion of English law would be still better, and should 
 be regarded as the end to which our provisional study 
 of abstract jurisprudence is to lead up. This position 
 may be illustrated by returning to the philological 
 comparison which has already been used. Let us 
 supj)ose that the English language, instead of being 
 the simplest member of a group, stands apart from all 
 others, and is exceedingly complex in structure and 
 full of anomalies. Let us also suppose that the litera- 
 ture relating to it — comprising grammars, dictionaries, 
 and philological works of all kinds — is of enormous 
 bulk, and contains much matter of great value, but is 
 terribly diffuse, and arranged partly on wrong systems, 
 and mostly on no system at all. In this state of con- 
 fusion it mio;;ht well be that the cultivation of abstract 
 grammar would precede the actual reform of English 
 grammar, and it is even conceivable that this might 
 be the only way to it. And this imaginary case is 
 roughly parallel to the real state of English laws and 
 law-books. A general view of the field of Positive 
 Law, with only just so much concrete illustration as is 
 needed to make it intelligible, may do much to clear 
 the heads of learners, and beget in them a just discon-
 
 l] THE NATURE OF JURISPRUDENCE. 9 
 
 tent with the crude and formless condition in which 
 the details of almost every topic are still left. To 
 make a cosmos out of this chaos of disjointed particu- 
 lars is a task which a later generation, prepared by 
 such teaching as Professor Holland's in this book, and 
 Mr. Markby's in his Elements of Laiv, may be able to 
 attempt with good hope of success. 
 
 It remains to say a few words of the manner in 
 which Professor Holland handles in detail the subject 
 which he has defined as the formal science of law. 
 His exposition is clear and careful throughout, and the 
 work is, for law students' purposes, a great improve- 
 ment on Austin. Though considerably less bulky, it 
 is more complete, more symmetrical, and more intel- 
 ligible. As literature it is almost incomparably better. 
 Austin's painfully laboured style has an efi'ect amount- 
 ing to repulsion on some persons, of whom I confess 
 myself to be one. Professor Holland's is concise with- 
 out abruptness, flowing without tediousness, and dis- 
 tinct without wearisome repetitions. 
 
 The subjects discussed at the outset are naturally 
 the definition of law and the theory of sovereignty. 
 The two chapters on the various usages of the word 
 laiv might perhaps bear to be yet further shortened. 
 I should doubt, indeed, whether their subject is 
 properly within the scope of jurisprudence. Professor 
 Holland's definition of law runs thus: — "A generahj 
 rule of external human action enforced by a sovereign | 
 political authority," — or, should we say, purporting to 
 be enforced ? for not every sovereign can make sure 
 of enforcing his commands ; and sometimes laws are
 
 10 THE NATURE OF JURISPRUDENCE. [l 
 
 made without even any great intention of enforcing 
 them. I do not see wliy this should not come at the 
 very beginning, with the statement that only such 
 laws as answer this description are the subject of legal 
 science. However, the opening chapters as they stand 
 form a good introduction to the modern terminology. 
 Proceeding to the theory of sovereignty, Professor 
 Holland confesses and avoids Sir Henry Maine's 
 criticism of the extreme analytical doctrine, which is 
 or ought to be by this time well known, and sums up 
 his own result in these words : — " It is convenient to 
 recognize as laws only such rules as are enforced by a 
 sovereign political authority, although there are states 
 of society in which it is dilhcult to ascertain as a fact 
 what rules answer to this description." But the 
 qualification seems not quite adequate. In the states 
 of society specified by Sir Henry Maine, and to this 
 day prevailing over a large part of the earth, the 
 difficulty is not merely to ascertain what rules of con- 
 duct are true laws, but to find any person or body 
 answering the description of a sovereign political 
 authority in the sense required by the analytical 
 school. The half-dozen pages on customary law strike 
 us as particularly good. Professor Holland brings 
 out and harmonizes the elements of truth in the 
 opposed views of the English analytical and the 
 German historical jurists. Austin's contention that 
 customary law " is nothing but judiciary law founded 
 on an anterior custom," is disallowed as being re- 
 pugnant to the facts. The Courts decide whether an 
 alleged custom is or is not binding, not at their
 
 l] THE NATURE OF JURISPRUDENCE. 11 
 
 pleasure, but according to settled rules. The condi- 
 tions on which the validity of a custom depends must 
 be present, if they are present, before the case occurs 
 for decision ; just as the text of an Act of Parliament 
 has the force of law when the Act is passed, though it 
 may afterwards call for judicial interpretation. In 
 this case the retrospective application of the construc- 
 tion arrived at by the Court is obviously necessary ; 
 and what takes place when a custom is allowed is 
 essentially the same. Indeed similar considerations 
 might be shown to apply largely, though not univer- 
 sally, to the declaration of rules of common law ; so 
 that in this sense, though not in the sense intended by 
 Austin, his dictum above cited may be accepted. 
 
 In the chapter on Eights a series of definitions is 
 carefully and elegantly worked out ; the distinction 
 between might, moral right (as sanctioned by existing 
 positive morality), and legal right, is exceedingly well 
 put, and ought to nip in the bud a good many fine 
 flowers of confused thinking. The only point on 
 which a little more explanation might be useful is the 
 difierence between positive morality and ideal moral- 
 ity, which is not expressly noticed. Legal right is 
 defined as a capacity residing in one man (we should 
 rather say " person," as man does not include artificial 
 persons) of controlling, with the assent and assistance 
 of the State, the actions of others. In popular usage 
 we speak elliptically of a man having a right to use 
 his property as he likes, and so forth ; whereas his 
 right is, accurately speaking, to prevent other people 
 from interfering with his use. This does not, how-
 
 12 THE NATURE OF JURISPRUDENCE. [l 
 
 ever, affect the correctness of the definition. With 
 regard to persons as subjects of rights and duties 
 (" Trager der Rechtsverhaltnisse/' as the Germans 
 more neatly have it), Professor Holland has invented 
 two new terms ; he calls the person entitled " the 
 person of inherence," and the person bound " the per- 
 son of incidence." Perhaps these are hardly neces- 
 sary, but they are at least innocent. In his general 
 classification of the subject-matter of positive law 
 Professor Holland takes rights in preference to duties 
 as the starting-point. This arrangement may be the 
 more easily understood at first sight, but I am dis- 
 posed to regret the choice. It is impossible to arrange 
 a body of law under a scheme of rights without some 
 dislocation or repetition. After going through the 
 categories of substantive rights, you have to start 
 afresh with a catalogue of wrongs, consisting to a great 
 extent in the breach of duties corresponding to the 
 rights which have already been set forth. Another 
 objection is that all rights have corresponding duties, 
 while some duties (Austin's " absolute duties ") have 
 no corresponding rights, and therefore a classification 
 founded on rights is, by the nature of the case, incom- 
 plete. But this is not admitted by Professor Holland, 
 who maintains that the State's being the fountain of 
 legal right does not prevent the State from having 
 rights as well as any other artificial person, or even 
 from having cbities " such as it prescribes to itself," 
 in so far as it submits to the jurisdiction and the 
 decisions of its own Courts. This, I think, is just; 
 yet there are various duties of a more or less public
 
 l] THE NATURE OF JURISPRUDENCE. 13 
 
 kind as to which it is not easy to say where the 
 corresponding rights are, and cases are frequent in 
 practice where there is no doubt as to the person 
 bound, but the person entitled can be ascertained only 
 after a lapse of time, certain or uncertain, or by 
 judicial decision between adverse claims. It is true 
 that the devolution of duties is also at times difficult 
 to trace. The duties attached to trust estates afford 
 a signal example. 
 
 It is satisfactory to find that Professor Holland 
 retains the ancient and fundamental division of Private 
 and Public Law, and disapproves rather summarily 
 of Austin's curious aberration on this point. Few as 
 English attempts at legal classification have been, we 
 have already had far too much of straining after 
 novelty for novelty's sake. One or two late writers, 
 whose ambition is apparently to be the Blackstones of 
 our time, have made their work all but worthless by 
 deliberate confusion of the familiar boundaries. With 
 regard to the troublesome question of the law of status, 
 and its due place in a system. Professor Holland starts 
 from the citizen of full age and capacity as having 
 " normal rights." Differences in status consist in 
 departures or degradations from this normal capacity, 
 which are attached to particular personal conditions, 
 such as infancy or coverture. The rights and duties 
 which arise from the relations of normal citizens to 
 one another come naturally to be considered in the first 
 place ; then we consider them as they may be affected 
 by the abnormal condition of one or both parties. 
 " The inquiry into the law of Persons is thus supple-
 
 14 THE NATURE OF JURISPRUDENCE. [l 
 
 mentary and secondary to that into the residue of the 
 law, commonly called the law of Things." To this it 
 may be added that the law of Persons is more subject 
 to historical and local variations, and more difficult to 
 refer to any generally accepted principles. Take, for 
 instance, the rules on such a topic as the contract of 
 sale, as we find them in the Corpus Juris, and as they 
 now exist in any State of the civilized world, and then 
 make the like comparison as to marriage and its legal 
 incidents and consequences. In the first case the 
 difi"erences will be appreciable ; but — whether as be- 
 tween the Roman and any particular modern system, 
 or as between the laws of different modern States — 
 they will be trifling as compared with those which 
 strike us in the second. At the same time the 
 importance of the law of Persons as compared with 
 the law of Things is ever on the wane in modern 
 systems. In Hindu law the family and caste are 
 everything, and equal rights of equal individuals 
 are next to nothing. In the world of modern law 
 caste and slavery, the great ancient heads of per- 
 sonal inequality, have disappeared, and the law of 
 Persons is but a fraction of the whole body. These 
 are additional reasons for putting the law of Things, 
 with Professor Holland, before the law of Persons. 
 Yet one has a certain lingering prejudice in favour 
 of the Roman arrangement. The law of Persons 
 gives a kind of dramatic interest to the opening 
 of the subject. Perhaps the separation of the whole 
 body of law into a General Part and a Special Part, 
 after the German example, might help to solve the
 
 l] THE NATURE OF JURISPRUDENCE. 15 
 
 difficulty. The broad characters of status would 
 come into the General Part. In the Special Part 
 there would probably be no need for a separate treat- 
 ment of the law of Persons, but the details would 
 be worked into the subjects specially ajffected by them. 
 Thus the general nature of an infant's disabilities 
 would be mentioned under the general chapter of the 
 law of Persons, but his power of binding himself by 
 contract would be discussed afterwards under the law 
 of Contract. As to the nomenclature, there is a little 
 awkwardness in using the term "abnormal" for a 
 condition such as infancy, through which every natural 
 person has to pass, or the existence of a corporation, 
 which is not only familiar in every civilized country, 
 but is really an extension of the power of the individ- 
 uals composing it. But it is etymologically appro- 
 priate, as Professor Holland shows by comparing the 
 old grammatical arrangement of the declension of 
 nouns, in which the cases are artificially viewed as 
 departures from an assumed normal form ; and nothing 
 better has yet been proposed. 
 
 Professor Holland speaks of " antecedent '"' instead 
 of primary or sanctioned, and " remedial " instead of 
 secondary or sanctioning, rights. It occurs to me that 
 " substantive " and " adjective " might do as well, and 
 mark more distinctly the relation of rights to proce- 
 dure. We have already " substantive law " and 
 " adjective law," the latter being the law of procedure. 
 Now remedial rights are the rights with which the 
 law of procedure is concerned. Primary or ante- 
 cedent rights are enforced only through the medium
 
 16 THE NATURE OF JURISPRUDENCE. [l 
 
 of these, as there can be no proceeding except by some 
 one who has a right to proceed. Why not, then, use 
 the term " adjective rights " for the rights which are 
 worked out by adjective law ? Moreover, the term 
 " remedial " is not always appropriate ; there are pro- 
 ceedings, such as interpleader and payment of money 
 into Court by a trustee, where the first step is taken 
 by a party who seeks to be relieved, not against some 
 one else's breach of duty, but against the risk of un- 
 willing breach of duty on his own part. That in so 
 doing he exercises a right is clear ; but it can hardly 
 be called either sanctioning or remedial. 
 
 We need not follow Professor Holland minutely 
 through the various topics of Private Law. On the 
 law of ownership it is neither easy nor desirable to 
 say anything very new, though, in mentioning what 
 things cannot be property. Professor Holland makes 
 the rather sweeping statement that " air and water 
 are obviously for the free use of all mankind." As 
 regards water there is obviously a great deal, such as 
 ponds in private grounds, which is not for the free 
 use of mankind in any sense, and still more, such as 
 portions of rivers subject to rights of lower ri]3arian 
 owners, of which the use is not free in the sense of 
 being unlimited. However, it is true that water runnino; 
 or standing in its natural state cannot be stolen ; and 
 Blackstone even speaks of " the elements of light, air, 
 and water," as things which " must of necessity con- 
 tinue common by the law of nature." Under the 
 head of rights in personam, Professor Holland makes 
 a chapter of rights ex lege ; we should prefer to say
 
 l] THE NATURE OF JURISPRUDENCE. 17 
 
 rights appendant or riglits annexed by law, as ex lege 
 in this sense is hardly good Latin. This term com- 
 prises the rights of husband and wife (because, though 
 the existence of the state of marriage depends on the 
 will of the parties, its incidents do not), with other 
 family relations ; trusts, the quasi-contracts of the 
 civil law, the fictitious contracts of English law 
 which were the subject of the old " common counts," 
 and some other relations of a like sort arising from 
 circumstances independent of contract. We do not 
 find any notice of the analogous rights in rem which 
 belong to the head of obligations quasi ex delicto in 
 Roman law, and with us have been established by the 
 class of decisions laying down the measure of an 
 owner's liability for the safe keeping of dangerous 
 things. I think myself that the term quasi ex delicto, 
 decried by Austin and others as unmeaning, is both 
 significant and appropriate for liabilities of this kind. 
 Where a man was held liable for the acts or defaults 
 of other persons, the Romans did not see their way to 
 saying he had committed a delict. There was no 
 maleficium on his part if a slave did damage by throw- 
 ing rubbish out of his house in Rome while he was 
 away in Campania. Yet it was thought right he 
 should answer for it as if the act had been his own, 
 and the liability was naturally and fitly described as 
 quasi ex maleficio. This conception has a certain 
 special importance for us in England. In our law 
 there is a border-land where contract and tort overlap, 
 and the key to these phenomena must be sought in 
 the idea just mentioned, or a closely analogous one. 
 
 c
 
 18 THE NATURE OF JURISPRUDENCE. [l 
 
 Before entering on contracts proper, Professor Holland 
 remarks in effect that the action in " tort founded on 
 contract " of English law is from the scientific point 
 of view, anomalous, which is true. Nevertheless the 
 action in tort is, as matter of history, much the older ; 
 and it must be remembered that, down to the Common 
 Law Procedure Act the commonest form of action on 
 contracts was a modified action on the case. There 
 must have been a widely -spread notion that even 
 when the contract was not enforceable as such, say for 
 want of formality, it created a kind of special duty of 
 which a wilful or neglisfent breach would be action- 
 able. The needful extension of duties ex contractu 
 was arrived at circuitously through the supposition of 
 a duty quasi ex delicto. 
 
 In the chapter on Remedial Rights it is said that 
 *' so long as all goes well the action of the law is 
 dormant ;" we think it should have been added that 
 so far as things do go well it is in some measure due 
 to general knowledge that the law, if broken, will be 
 enforced, and that thus the law is really most opera- 
 tive when least conspicuous. International laAv is 
 happily described as "the vanishing point of Juris- 
 prudence ;" and here we leave Professor Holland on 
 the verge of the ground specially assigned to him by 
 his office, on which, however, the plan of his work 
 forbids him to enter at any length on this occasion. 
 
 In the same year that Professor Holland's Elements 
 of Jurisprudence appeared at Oxford, there issued 
 from Edinburgh the second edition of Professor 
 Lorimer's Institutes of Laiv. This is the only work
 
 l] THE NATURE OF JURISPRUDENCE. 19 
 
 known to me which adequately sets forth in English 
 a view of the nature of jurisprudence diametrically 
 opposed to that of the English analytical school. It 
 would, therefore, be valuable even if this were only 
 fairly well done ; but Professor Lorimer has done it 
 as well as it can be done, and has procured a refined 
 satisfaction to followers of the English school who 
 take up his book : I mean the satisfaction of reading 
 a vigorous and well- written exposition of a theory with 
 which one entirely disagrees. We can imagine an 
 English student of jurisprudence, parched with the 
 stern limitations and crabbed analysis of Austin, 
 turning with interest and even eagerness to seek 
 variety in Professor Lorimer's treatise. He would 
 certainly not be disappointed in that respect. Almost 
 the whole of it deals with topics which, according to 
 the English view, may be philosophical, or ethical, or 
 political, but are distinctly outside the province of 
 jurisprudence. In other words, our English school 
 holds that the absolute law which is or should be the 
 origin and pattern of all existing laws, — Naturrecht as 
 the Germans call it, — either does not exist or does not 
 concern lawyers more than any one else. What is 
 here delivered from the Chair of Public Law in Edin- 
 burgh is a book of Naturrecht from beginning to 
 end. It contains in detail much good writing, much 
 ingenuity, and not a little good sense on various 
 political and social questions ; the credit of all which 
 belongs, in my opinion, to Professor Lorimer's person, 
 and in no way to his system. As to the impression 
 made by it as a whole, I confess for my own part to
 
 20 THE NATURE OF JURISPEUDENCE. [l 
 
 feeling rather like tlie young man in Grimm's Marchen 
 who went out to learn to shiver, and whose curiosity 
 was finally satisfied — after the total failure of a 
 haunted castle and other adventures — by the applica- 
 tion of a pail of cold water from the brook with the 
 little fishes in it. I had long known of Naturrecht 
 as a thing existing in German books, but it had never 
 come in my way to any serious extent. The German 
 writers, for instance, who expound the Eoman law for 
 the benefit of practical students disclose very little of 
 it. We have to thank Professor Lorimer for revealing 
 the mystery in as good English as the nature of the 
 subject admits. As I came to the last page I said to 
 myself with a mental gasp and shiver, " Ugh ! ugh ! 
 now I know what Naturrecht is." Natural law, as 
 conceived by Professor Lorimer and his authorities, 
 appears to cover a great part of what is commonly 
 understood in this country by moral and political 
 philosophy ; the foundations of moral obligation, the 
 extent of the power which the State ought to exercise 
 over citizens, the duty of the citizen to obey the laws 
 of the State, the nature of justice, the analysis of the 
 political ideas of liberty and equality, the methods of 
 political discipline and instruction, and much else 
 which cannot here be specified. We find in addition 
 a sort of introductory digression on ethnology and the 
 history of religions, in which it may be observed that 
 the discussion of Buddhism is not brought up to the 
 existing state of knowledge on the subject. In my 
 view it is also irrelevant, but not more so than the 
 rest of the chapter in which it occurs. This, it is fair
 
 l] THE NATURE OF JURISPRUDENCE. 21 
 
 to say, is about the only point at which there is any- 
 thing to except to on the score of workmanship ; for 
 when Professor Lorimer's method allows him to come 
 down to the region of tangible facts, he is generally 
 accurate. Nor can we dispute his right to adopt, as 
 he does in this chapter, Sir A. Grant's rather fanciful 
 conjecture that the founders of Stoicism were of 
 Semitic blood. A significant guide-post to the general 
 direction and spirit of the w^ ork is the manner in wdiich 
 Professor Lorimer uses the term " positive law." To 
 an English reader this means actually existing law — 
 the law w^hich the courts of justice and the executive 
 powers of government enforce, or profess to enforce, 
 at a given time and place. Professor Lorimer treats 
 this usage as a mere aberration, and almost makes an 
 apology for mentioning it. For him "positive law" 
 is not the enforceable law which does exist, — the law of 
 Scotland, for example, as it stands at the date of his 
 writing, — but that which would exist if, the actual 
 circumstances being otherwise the same, legislators and 
 judges were perfectly wise. The law as it does exist 
 is called " enacted law," and dealt with as on a quite 
 subordinate footing. " Human enactments," we are 
 told, " never attain to the full character of positive 
 laws. But they possess the character of positive laws, 
 more or less, in proportion to the extent to which 
 they are, or are not, interpretations and realizations of 
 the law of nature." In this nomenclature the law of 
 employers' liability as modified by the Act of 1880 on 
 that subject is only "enacted law;" the "positive 
 law " is what an infallible Parliament would have
 
 22 THE NATURE OF JURISPRUDENCE. [l 
 
 made it ; in other words, it is something theoretically 
 ascertainable, but of which every man will have his 
 own theory. In Professor Lorimer's own words, 
 *' though necessarily existent and discoverable, positive 
 laws never have been, and probably never will be, 
 perfectly discovered." This kind of "positive law" 
 is, however, not coextensive with the law of nature. 
 For the law of nature includes all moral duties with- 
 out exception, and it is not to be assumed that a 
 perfectly wise legislator would attempt to enforce all 
 moral duties. Again, natural law is described as 
 binding on all rational creatures, while the ideal 
 " positive law " would, in Professor Lorimer's view at 
 any rate, be adapted to the varying polity and cir- 
 cumstances of each State. For instance, the English 
 and Scotch rules on a particular point might be dif- 
 ferent, though they were the best possible for England 
 and Scotland respectively. Still more would this be 
 the case as between countries in different stages of 
 civilization. 
 
 This nomenclature shows of itself, as indeed the 
 book shows wherever one opens it, that the school 
 followed by Professor Lorimer concerns itself far less 
 with law as it is than with law as it ought to be, or at 
 least regards the consideration of law as it ought to 
 be as forming the fit and necessary philosophical pro- 
 legomena to the study of law as it is. My own view 
 (and, I think, the view of most English students) is a 
 totally different one. I think it a mistake to preface 
 the study of legal conceptions by an exposition of 
 transcendental ethics, and not less a mistake to pre-
 
 l] THE NATURE OF JURISPRUDENCE. 23 
 
 face it, as Austin did, by an exposition of the principle 
 of utility. I do not see that a jurist is bound to be a 
 moral philosopher more than other men ; though I do 
 think it quite possible that a lawyer who happens to 
 study moral philosophy may find a legal habit of mind 
 and legal analogies of considerable use in clearing up 
 his ethical conceptions. It is true that positive law 
 in the English sense, the " enacted law " of Profes-' 
 sor Lorimer, assumes the existence of society and 
 morality. There must be a body of men living con- 
 tinuously together, and there must be among them a 
 fairly settled body of prevalent opinion as to what is 
 right and wrong. This latter condition is not really an 
 independent one, since, if a settled common opinion 
 about matters of conduct failed to become established 
 or ceased to exist, the society could no longer hold 
 together. As a further condition for the existence of 
 law as distinct from custom and morality, or, to speak 
 more exactly, for the differentiation of law and mora- 
 lity out of custom, there must also be a general 
 understanding that some rules of conduct are fit to be 
 enforced by definite means of compulsion, and in the 
 last resort by the whole power of the society, and 
 others are not. And there must be some sort of 
 common agreement, though it may be, and mostly is, 
 a vague and rough one, and obscurely felt in the 
 common sense of the average citizen, as to the 
 boundary to be drawn between these classes of rules. 
 Yet more is wanted before we can have a civilized and 
 effective system of law. The commonwealth must 
 assume and exercise a power beyond that of issuing
 
 24 THE NATURE OF JURISPRUDENCE. [l 
 
 commands for the purpose of repressing actual crime 
 and wickedness and strengthening righteousness. 
 There are many matters indifferent in themselves in 
 the sense that they may be dealt with in one way as 
 well as in another, but not indifferent in this sense, 
 that it would be of great inconvenience if they were 
 not dealt with in some uniform way. We may name 
 the rule of the road as a simple and familiar case. On 
 such matters the community lays down fixed rules, 
 not to enforce this or that course of action as right in 
 itself, but just for the sake of having a fixed rule. 
 These rules, when made, are as much entitled to 
 observance as those which add the legal sanction to 
 what is already prescribed by morality ; though we 
 rather fail to see what account can be given of them 
 by those who put their trust in the supposed law of 
 nature, unless they come down for the nonce to a 
 " question of what is vulgarly called expediency," as 
 Professor Lorimer delicately puts it. Reflection shows 
 that all positive law must have more or less of this 
 arbitrary, or rather discretionary, element. For while 
 the moral law says to an Englishman, as it did to a 
 Roman, " Thou shalt not steal," the Roman law said, 
 "If you steal you shall be liable to an actio furti;'' 
 but English law says, " You shall not be liable to a 
 civil action, but you may be tried by a judge and 
 jury, and sentenced to penal servitude." English law, 
 moreover, defines with great elaborateness, and perhaj)S 
 not with perfect reasonableness, what is and what is 
 not theft. But in administration the substance of the 
 law cannot be distinguished from the particular defi-
 
 l] THE NATUflE OF JURISPRUDENCE. 25 
 
 nitions and provisions in which it takes its form. For 
 if this and that citizen were free to observe or not 
 observe it at his discretion in this or that particular, 
 it would no longer be law. And thus among civilized \ 
 people, after the distinction between law and morality , 
 is fully established, it comes to be understood that it 
 is a specific moral duty to obey existing positive law, 
 not only when we cannot see the reason for it, but 
 when we think the reason a bad one. This is subject 
 to the exception of the extreme cases in which rebel- 
 lion is morally justifiable ; and the case of a serious 
 claim of legal right as against a particular authority 
 within the State, or a usurping power, is not an 
 exception at all. But it is understood, or ought to be, 
 that to refuse obedience to an existing law because one 
 disHkes it is, as far as it goes, rebellion and nothing 
 else. And even in exceptional cases persons who 
 resist the de facto possessors of legal power do it at 
 their own risk, and cannot complain of being treated 
 as law-breakers or rebels if they fail. 
 
 I have thus set down with needful brevity what I 
 conceive to be in a general way the moral data pre- 
 supposed by the positive law of civilized nations. It 
 will be observed that nothing whatever is said about 
 the historical or rational origin of morality, or the 
 nature of moral obligation in itself I have tried to 
 say nothing inconsistent with Professor Lorimer's or 
 any other transcendental scheme of ethics. We may 
 take the morality of men living together in settled ' 
 societies as an existing and sufficiently ascertained 
 fact. It is for the moralist and the metaphysician to
 
 26 THE NATURE OF JURISPRUDENCE. [l 
 
 analyse it if tliey can ; enough for us that it is there. 
 Even with this limitation I do not think that the 
 statements I have just now made, be they right or 
 wrong, are propositions of jurisprudence. The topics 
 may be admissible as belonging to a sort of border- 
 land or penumbra of legal science. An introductory 
 sketch of the outlying affinities and analogies of a 
 special subject is in many ways useful, and is common 
 in the practice of teachers. But we deny that the 
 jurist requires, as Professor Lorimer assumes him to 
 require, " an absolute basis for his science." Why 
 should he not, like other people, be content with a 
 basis of acknowledged fact ? Positive law exists. In 
 other words, there are certain social institutions which 
 are protected, and certain rules of conduct which are 
 in various ways and degrees enforced, by the courts 
 of justice of all civilized countries. The fact is 
 notorious and intelligible to all men of all ways of 
 thinking, whether they account for it by deduction 
 from the law of nature or otherwise. If the jurist 
 accepts it as for his purposes ultimate, he does only 
 what all other students of special sciences do ; we 
 may add, what they did and must have done in order 
 that those sciences might be constructed. Where 
 would geometry be if the geometer were expected at 
 the outset of his work to grapple with the meta- 
 physical difficulties that beset our notion of space ? 
 Where would physics be if the physicist had to 
 explain the existence of matter ? Kant is the great 
 founder of our modern criticism of ultimate philoso- 
 phical notions ; but we know very well that Kant
 
 l] THE NATURE OF JURISPRUDENCE. 27 
 
 himself expected nothing of this kind from men of 
 science. And the cases appear to me precisely- 
 parallel. Geometry is the science of space, and 
 physics the science of matter, in the same way that 
 jurisprudence is the science of laws. The special 
 sciences furnish the data of philosophy ; they do not 
 need a complete philosophy to stand on their own 
 ground. If they did, we should be in but a sorry 
 plight. Observe, too, the warning to be derived from 
 the analogy. Discussion of the nature of space is 
 rendered possible only by a highly developed geo- 
 metry ; rational discussion of the nature of matter only 
 by advanced physical knowledge. And we may fairly 
 contend, without prejudging the issue between tran- 
 scendental and empirical theories of duty, that profit- 
 able discussion of the origin and nature of laws in 
 general must follow, and not precede, the scientific 
 study of laws as they exist. Whether that study can 
 in the long run be conveniently exhibited as a thing 
 apart from and theoretically preceding the study of 
 any particular system of laws is a question which 
 deserves attention. Something has been said about 
 it above in connection with Professor Holland's 
 Elements of Jurisprudence. It does not arise upon 
 anything in Professor Lorimer's book, for the simple 
 reason that he barely gets to the threshold of the 
 topics that properly belong to jurisprudence, general, 
 comparative, or particular, as understood by Professor 
 Holland and ourselves. To sum up the general criti- 
 cism : The jurist or legislator, even on Professor 
 Lorimer's own showing, has to accept the laws of
 
 28 THE NATURE OF JURISPRUDENCE. [l 
 
 nature as facts. If, as facts, they are equally acces- 
 sible to all rational men, and equally material to be 
 known and acted upon, I cannot see why the jurist is 
 bound to analyse them philosophically more than any 
 other rational man. If in the knowledge of them 
 there is anything peculiar to jurists or legislators, 
 they seem to that extent to lose the universal 
 character which is said to be a mark of natural law. 
 So far as the iusti atque iniusti scientia from which 
 the lawyer starts is something which he does not 
 share with laymen, it is a special and technical piece 
 of knowledge, — a law of lawyers' nature at most, not 
 of human or rational nature. 
 
 But after all, it may be said, writers are free to 
 define their subjects in their own way. The Univer- 
 sity of Edinburgh and its professors have a perfect 
 right to say that " Institutes of Law " shall mean 
 the general prolegomena of politics and the theory of 
 legislation. To this I reply that the same method 
 which, in my opinion, leads to a misconception of the 
 nature and scope of legal science no less appears to 
 me to lead to waste and misdirection of power in the 
 subjects actually treated by it under the name of 
 legal science. It may be the radical perverseness of 
 English habits of thinking, but in my English eyes 
 much of the work done by Professor Lorimer — and, 
 as far as execution and expression go, thoroughly 
 well done — either arrives by high-flying and circuit- 
 ous roads at obvious general conclusions, or arrives at 
 more precise ones by a slenderly disguised appeal to 
 the principle of '' what is vulgarly called expediency."
 
 l] THE NATUEE OF JUEISPRUDENCE. 29 
 
 Tims the question is brouglit up of tlie State's right 
 to inflict and regulate punishment,- — a question which, 
 from the English point of view, has in jurisprudence 
 no meaning. The solution comes round, however, to 
 the position that for the individual citizen the State 
 is infallible. " The fact that one form of punishment 
 attains the object of the absolute law l^etter than 
 another must be proved ; but the competence of the 
 Legislature to determine the adequacy of the proof 
 must be assumed as the hypothesis on which all 
 positive law rests." This is simply the analytical 
 doctrine of sovereignty stated in a slightly varied 
 way. More than once, indeed, we have a feeling 
 that, while the voice is the voice of a teacher pro- 
 pounding transcendental Naturrecht, the hands are 
 the hands of Hobbes. In Professor Lorimer's system 
 right and might ultimately coincide ; as they likewise 
 do, be it observed, in Mr. Herbert Spencer's, or in 
 almost any scheme which takes account of the progres- 
 sive character of morality and civilization. Further, 
 Professor Lorimer holds that we must act on that 
 which appears, and that for many purposes might is 
 the best or only evidence of apparent right. He 
 fully accepts the position that "right to be" is 
 measured by "power of being," and thus gives a 
 hand back to Hobbes and forward to Mr. Spencer. 
 As between independent nations, he lays down per- 
 manent success as the permanent test of right. Only 
 righteous conquests endure, and all enduring con- 
 quests are righteous. And yet almost in the same 
 breath Professor Lorimer makes the statement — to our
 
 30 THE NATURE OF JURISPRUDENCE. [l 
 
 Southern ears paradoxical — that laws cannot create 
 rights, and calls to witness a famous passage of 
 Burke's, of which it is sufficient to say that Burke 
 spoke not as a jurist, but as a statesman/ In denying 
 " the position that any body of men have a right to 
 make what laws they please," he was really protest- 
 ing against that very confusion of legal right with 
 moral right or political utility which the transcen- 
 dentalists briug back from the other side. What 
 Professor Lorimer is doing is to state in the transcen- 
 dental manner that laws will not work, or will work 
 badly, if they are made without due regard to the 
 facts. The matter is true, but the manner is itself a 
 defiance of fact and usage. Laws made by the 
 supreme power in a State, be they wise or foolish, do 
 create claims which that power will, by the Courts 
 and otherwise, do its best to enforce, and these claims 
 are called rights by everybody save transcendental 
 philosophers when they are philosophizing. 
 
 One good test of the worth of ideas and theories 
 in general jurisprudence is their application to inter- 
 national law. This task had too long been left 
 unattempted by the English school. As to the sub- 
 ject itself, it is one in which English citizens and 
 statesmen are at least as deeply interested as those of 
 any other country, and in which there are peculiar 
 objections to receiving the doctrines of foreign writers 
 without a certain amount of caution. Our reproach 
 has now been taken away by Mr, Hall, and so well 
 that with his book in hand an English lawyer need no 
 
 ^ Tracts on the Popery Laws, Ch. 3, Part 2.
 
 l] THE NATURE OF JURISPRUDENCE. 31 
 
 longer be afraid to speak in tlie gate with any of tlie 
 American or Continental authorities. In a work that 
 covers so much debatable ground much must of 
 necessity be exposed to criticism. In fact, a writer 
 on international law has to be perpetually on the 
 verge of controversy. He must embark on almost 
 endless discussion of a mixed mass of precedents and 
 reasons, in which the exact value of the precedents is 
 seldom known, and the reasons are constantly biassed 
 by theoretical assumptions or political interest. No 
 doubt there is a certain amount of settled principle, 
 but the application of it by different States in their 
 conduct and by different writers in their books is so 
 various that what agreement there is appears at times 
 to be illusory. One method much approved among 
 writers on the law of nations is to simplify trouble- 
 some questions by assuming that rules are settled 
 when they are not ; taking care, of course, to pick out 
 among the conflicting opinions that one which favours 
 the writer's own sentiments, or seems to promise most 
 advantage to his nation. Such is not Mr. Hall's way. 
 AVhatever else he does, he is always frank in facing 
 difficulties. He treats international law as a study of 
 real facts, not a scheme to be elaborated by deduction 
 without regard to the actual behaviour of princes and 
 rulers. 
 
 At the outset of his book Mr. Hall explains with 
 laudable clearness that he intends to proceed not on 
 transcendental but on empirical principles. His first 
 statement, carefully framed not to prejudge contro- 
 verted points of speculation, is that " International
 
 32 THE NATURE OF JURISPRUDENCE. [l 
 
 Law consists in certain rules of conduct which modern 
 civilized States regard as being binding on them in 
 their relations with one another with a force compar- 
 able in nature and degree to that binding the con- 
 scientious person to obey the laws of his country, and 
 which they also regard as being enforceable by appro- 
 priate means in case of infringement." These rules 
 " may be considered to be an imperfect attempt to 
 give effect to an absolute right which is assumed to 
 exist and to be capable of being discovered ; or they 
 may be looked upon simply as a reflection of the 
 moral development and the external life of the 
 particular nations which are governed by them." 
 Besides these two views, there is a mixed or inter- 
 mediate one to the efi'ect that international law is 
 founded on some kind of absolute right ; but the evi- 
 dence of what is right must be sought in positive law 
 and usage. " In the following work," adds Mr. Hall, 
 " the second view is assumed to be correct." The 
 reasons given for it are, in my opinion, conclusive. 
 Their general tenor is, or ought to be, not unfamiliar 
 to every one who has studied in the English school of 
 jurisprudence ; but I doubt if they have ever been so 
 clearly and completely stated. They are reinforced, 
 moreover, by an interesting Appendix " On the For- 
 mation of the Conception of International Law," 
 which is a good, concise introduction to the history 
 of the subject. Among these preliminary topics Mr. 
 Hall is especially instructive on the value of treaties 
 as evidence of what the law of nations is. It is sup- 
 posed by some writers that treaties form a sort of
 
 I] THE NATUllE OF JURISPRUDENCE. 33 
 
 international case-law ; but, as Mr. Hall truly points 
 out, even if they profess to declare existing law, the 
 declaration can bind only the parties who make it. 
 A competent number of such declarations to the same 
 effect might conceivably establish a consensus of great 
 weight ; but, again, " it cannot be admitted that the 
 greater number of treaties do in fact express in a 
 peculiarly solemn manner, or indeed at all, the views 
 of the contracting parties as to what is or ought to be 
 international law." The chief value that treaties 
 possess is really historical, " as marking points in the 
 movement of thought." If we find at a given time a 
 particular new practice or modification of old practice 
 occurring as matter of express convention in several 
 treaties, and if afterwards these treaty stipulations 
 " are found to become nearly universal for a while, 
 and then to dwindle away, leaving a practice more or 
 less confirmed," this is good evidence that something 
 which was introduced by way of special agreement has 
 passed into the common usage of nations, and is no 
 longer thought to need the protection of express treaty 
 rights. And as to usage Mr. Hall justly points out 
 that the usage of all nations is not of equal value in 
 all things ; for instance, " it would at the present day 
 be absurd to declare a maritime usage to be legally 
 fixed in a sense opposed to the continued assertion of 
 both Great Britain and the United States." 
 
 The only point on which one could wish for a 
 fuller exposition is the nature of the sanctions, or 
 quasi-sanctions, of international law. This law con- 
 sists to a great extent, as we may see by opening Mr. 
 
 D
 
 34 THE NATURE OF JURISPRUDENCE. [l 
 
 Hall's book almost anywhere, of statements about 
 what an independent nation may or may not do. 
 What is the real meaning of this language ? By 
 writers who are content to take refuge in the prin- 
 ciples of absolute right the question is of course ne- 
 glected. To those who, like Mr. Hall, prefer to stand 
 on the more solid, if more humble, ground of fact and 
 experience, it should be of considerable importance. 
 Most persons would say that the sanction by which 
 the law of nations is enforced is war; in which may 
 be included for this purpose isolated acts of force, 
 reprisals, so-called pacific blockades, and the like, 
 which are acts of war if the State against whom they 
 are employed thinks fit to treat them as such. And 
 the reflection is now a trite one that international law 
 difi'ers from laws proper in that the parties are judges 
 in their own cause. Every Government must decide 
 for itself whether the conduct of another independent 
 Government is such as to make war necessary or 
 comparatively desirable. Yet the books undertake to 
 tell us in some detail that certain causes of war are 
 just, and certain others are unjust ; not, indeed, with- 
 out a quiet but sufiiciently clear indication from Mr. 
 Hall of the amount of wool that the utmost ingenuity 
 and enterprise of pig-shearers may be expected to 
 produce in this kind. How can we speak of a war as 
 legally unjust when there is no penalty save the risks 
 of the war itself, which may turn out, for anything 
 that can be pronounced beforehand, to the unjust 
 combatant's advantage ? If a majority of the Great 
 Powers were ready and willing to act habitually in
 
 l] THE NATURE OF JURISPRUDE^X'E. 35 
 
 concert for the purpose of restraining aggressions or 
 provocations generally deemed unjust, that would be 
 an effective sanction indeed. But we are yet far from 
 this state of thinors. ]\Ir. Kino-lake has endeavoured, 
 at the beginning of his History of the Crimean War, 
 to show that an inchoate usao-e in this direction exists. 
 We should be only too glad' to believe that such is the 
 case. But the usage described by ]\Ir. Kinglake, if it 
 does exist, is still unrecognized and undefined. It 
 belons^s to somethino: which is to international law 
 what morality is to laws proper. And this, by the 
 way, may justify us in speaking of the law of nations 
 as against extreme purists of the analytical school, who 
 deny that it is really law. Since we find in the', 
 practice of nations that some duties are conceived ofj 
 as positive, and others as only honourable, it is cleaW 
 that here, as in the practice of individual men, tlja 
 distinction between law and morality does exii^, 
 though it may be relatively undefined, and though 
 the law may not possess all the characters of that 
 which is so called as between a particular State and 
 its subjects. 
 
 Again, belligerents are bound to respect the rights 
 of neutrals ; and these rights may be said in a 
 true and intelligible sense to be sanctioned by war. 
 For a belligerent who interferes beyond measure with 
 a neutral's rights or interests exposes himself to 
 having two enemies to do with instead of one — a 
 danger which not even the strongest Power will care 
 lightly to encounter. To this it is to be added that 
 the interest of anv one neutral is, in most cases, the
 
 36 THE NATURE OF JURISPRUDENCE. [l , 
 
 interest of all, so that the remoter but not insensible 
 risk of an overwhelming coalition is present to keep 
 the belliojerents within bounds. But likewise there 
 are laws of war conceived by publicists and statesmen 
 to be binding on the belligerents as between them- 
 selves. Modern warfare is a state of '' regulated 
 violence," as Mr. Hall names it. And here we are not 
 dealing with speculations in the air. There is no 
 doubt that the violence of war has in fact been 
 regulated and moderated to an extent that seemed 
 impracticable in the time of Grotius. Whence comes 
 the force of the regulation ? The sanction of war is 
 exhausted, for these rules become effective only when 
 and so far as a state of war already exists. It may be 
 said that the fear of retaliation or reprisals is a 
 sanction. Where this comes into play, however, that 
 which is for the time sanctioned is apt to be the 
 stronger j)arty's interpretation of the laws of war in 
 his own favour, as was seen in the German invasion of 
 France ten years ago. Moreover, reprisals and retalia- 
 tion are available only to a limited extent, being, 
 according to modern notions, too odious to be carried 
 to extremities. In fact the grosser an offence is, the 
 less is it capable of being punislied in kind. Here, 
 then, formal and tangible sanctions desert us. The 
 " temperaments " of modern warfare, to use Grotius's 
 term, rest in truth on an appeal to the common 
 morality and humanity of civilized nations, which 
 belligerents are presumed still to share, and in fact 
 still do share to a great extent, even in the midst of 
 active hostilities. It is consonant to the feelings of
 
 l] THE NATURE OF JURISPRUDENCE. 37 
 
 civilized Governments, and in the long run to their 
 interests, to observe towards one another in war some 
 such rules as an enlio-htened neutral mio;ht wish to be 
 observed for the sake of diminishing suffering and ill- 
 will to the greatest extent compatible with the objects 
 of war being attained. In other words, the sanction 
 imposing on belligerents a certain observance of 
 honour, humanity, and private rights, is at bottom the 
 general opinion of civilized people. This is practically 
 recognized by the manner in which belligerent Powers 
 are accustomed to record their complaints of alleged 
 infractions of the laws and usages of war. Such com- 
 plaints can but seldom have the force of a specific 
 threat ; their object is to procure redress from the 
 adversary's own sense of what is right, or, in default 
 of this, to shame him into it by publicity. Should we 
 not, then, regard public opinion as the final sanction 
 of international law in every case, — a sancti'^n with 
 physical force behind it, no doubt, in one or another 
 shape, but a force latent and undefined, and to be 
 called into action only in an extreme case? This 
 would bring out more clearly than the common view 
 does the analogy between international law as govern- 
 ing the relations of States, and the rules of morality as 
 governing those of individuals. Or a better parallel, 
 perhaps, may be found in the customary rules of a 
 patriarchal tribe, which are enforced by no specially 
 organized authority, and in which morality and law 
 are still imperfectly distinguished. The view here 
 suggested is really implied in the statement made by 
 various writers from Suarez downwards, though per- 
 
 'MS i i i I
 
 38 THE NATURE OF JURISPRUDENCE. [l 
 
 haps with full distinctness by none before Austin, that 
 the fear of provoking general hostility — not only that 
 of the State particularly offended — is the ultimate 
 compulsory motive for obedience to international rules. 
 It seems to be a further consequence that war is 
 analogous, not to the legal remedy of suing in a court 
 of justice, but to the " self-help," more or less regulated 
 by custom, which has a considerable place in archaic 
 legal systems, and of which surviving rudiments, 
 reduced to a subordinate rank and fettered by new 
 safeguards, may be found in the most polished ones. 
 To pursue the comparison one step farther, some guide 
 for speculation as to the possible development and 
 strengthening of international law may be found in the 
 historical circumstances of partly civilized communi- 
 ties. Probably in early Roman history, certainly in 
 the middle ages, and notably in the Icelandic society 
 described in the Sagas, private war went on for a con- 
 siderable time side by side with legal redress before 
 the supremacy of the law was finally made good. It 
 is quite fair to object to the more ambitious schemes 
 for European federation, universal tribunals of arbitra- 
 tion, and the like, that sovereign States would never 
 consent to be bound by them. But it is idle to object 
 to the more cautious proposals, such as Bluntschli's, 
 that they are not calculated, and do not profess, to 
 make wars at once and for ever impossible. 
 
 It is time to return from our digression to Mr. 
 Hall's work. One of his greatest merits is lucid 
 arrangement. He begins with a First Part of 
 " General Principles," corresponding pretty much to
 
 l] THE NATURE OF JURISPRUDENCE. 39 
 
 the AUgemeiner Theil of systematic German writers, 
 and giving a comprehensive view of the subject and 
 its different branches. Then he takes up the divi- 
 sions in detail. Under the head of " The haw govern- 
 ing States in their normal relations," the rights and 
 duties of sovereign States in time of peace are set 
 forth. Here we have the doctrines of territorial 
 dominion, sovereignty, the so-called "exterritoriality" 
 of public vessels, extra-territorial jurisdiction, diplo- 
 matic agents, and treaties. This same exterritoriality 
 is treated by Mr. Hall as a fiction needlessly intro- 
 duced to explain anomalous immunities which are 
 really to be accounted for on special grounds of neces- 
 sity or convenience. The third part deals with " the 
 law governing States in the relation of war," which 
 includes, besides what are known as the laws of war, 
 the rights of cajDture and levying contributions, the 
 position of a military occupant, and the rules which 
 determine the " enemy character" of property. The 
 relations of neutral States to the belligerents are kept 
 apart under the title of " the law governing States in 
 the relation of neutrality," where, among other ques- 
 tions, the rules of contraband, blockade, and maritime 
 visit and capture, are discussed. Mr. Hall's division 
 of the subject is, we believe, new, though its conveni- 
 ence makes it seem obvious when once exhibited. 
 His treatment of the matter in detail is, with few if 
 any exceptions, as good as his method. He is careful 
 to preserve the distinction between theory and usage, 
 and among usages to distinguish those which are 
 established from such as are still uncertain or in pro-
 
 40 THE NATUEE OF JUEISPRUDENCE. [l 
 
 cess of formation ; for instance, the growing practice 
 of restraining belligerents as much as possible from 
 bringing their prizes into neutral harbours. In two 
 or three places noted for criticism on the first reading 
 of the book the doubt or objection is removed by sub- 
 sequent explanations or additions ; and this perhaps 
 is not a bad test of the general thoroughness of the 
 work. The chapter on treaties might be improved 
 by giving more attention to their operation in actually 
 transferring dominion where the cession of territory 
 enters into them. When such a treaty is executed, 
 the parties are bound to its results not so much by 
 the specific obligation of the treaty itself as by the 
 general duty of nations to respect one another's terri- 
 torial sovereignty. The analogous case in municipal 
 law is that of a conveyance, not of a pure contract. 
 Some of the language still commonly used implies a 
 confusion which Mr. Hall might well have given a 
 paragraph or two to clearing away. Treaties of this 
 kind have been distinguished by some publicists from 
 properly contractual treaties under the unhappily 
 chosen name of ■' transitory conventions," and their 
 effect has been still more unhappily expressed by the 
 maxim that " transitory conventions are by the nature 
 of the case perpetual." This is at best an extremely 
 clumsy way of saying that the result is to create not 
 an obligation but ownership. Proceeding from writers 
 versed in Eoman law, it is really past excuse. When 
 a sale is complete the seller is bound to respect for an 
 indefinite time the right of ownership acquired by the 
 buyer, and it makes no difference if a lawsuit arises
 
 l] THE NATURE OF JURISPRUDENCE. 41 
 
 between them about some other matter ; but we do 
 not say that the contract of sale is perpetual. On the 
 question of "pacific blockade" Mr. Hall treats the 
 authority of modern usage (six cases within twenty 
 years) in a rather off-hand way. One must agree 
 with him, however, that on principle it is an act of 
 war or nothing. Finally, we may point to Mr. Hall's 
 not infrequent criticism of the Continental writers as 
 full of excellent and profitable instruction.
 
 42 LAWS OF NATURE AND LAWS OF MAN. [ll 
 
 11. 
 
 LAWS OF NATURE AND LAWS OF MAN. 
 
 The nature and extent of the analogy between laws 
 in the strict or political sense, and the uniformities 
 in the course of physical events which we call laws of 
 nature, have often been discussed. Blackstone and 
 earlier writers pressed the comparison with rhetorical 
 inexactness, which has been rebuked by the later 
 analytical school with some excess of severity, as if 
 the likeness were merely verbal and misleading. 
 Early in this century the correction was more 
 modestly but not less effectually made by Black- 
 stone's editor Christian. " In all cases," he says, 
 " where it " (the word law) " is not applied to human 
 conduct, it may be considered as a metaphor ; and in 
 every instance a more appropriate term may be 
 
 found When we apply the word law to 
 
 motion, matter, or the works of nature or of art, we 
 shall find in every case that, with equal or greater 
 propriety and perspicuity, we might have used the 
 words quality, property, or peculiarity." Still the 
 resemblance, notwithstanding all criticism, is a real 
 one. The laws made by princes and rulers aim with 
 more or less success, though never with perfect sue-
 
 Il] LAWS OF NATURE AND LAWS OF MAN. 43 
 
 cess, at producing uniformity of conduct witliin tlie 
 field of action to which they apply. We observe in 
 the course of nature uniformities which are constant. 
 This constancy, compared with the partial and un- 
 certain obedience given to human ordinances, has in 
 all times presented itself to men as the perfect fulfil- 
 ment in another region of that which the lawgiver 
 can only strive to attain. By laws we can, more or 
 less, make men behave in particular ways ; the con- 
 straints of express enactment or customary rules are 
 sufiicient to some extent, but not altogether, to deter- 
 mine their acts and forbearances. But the powers of 
 nature always behave in the same ways, and this 
 readily suggests to our mind a constraint which is 
 always present and always efficient. Seed-time and 
 harvest, the changes of the moon, the courses of the 
 stars, come round without fail. Thus it would be 
 mth men's actions if the law were always obeyed, 
 and therefore we seem to see in nature a law more 
 perfect than man's because never broken. In some 
 such way as this the phrase "laws of nature" has 
 come into common use, and in the practice of modern 
 writers almost any general proposition in any branch 
 of science may be called a law. That this manner of 
 speaking should come to be regarded as containing an 
 explanation of the facts is but one of innumerable 
 instances of the tyranny constantly usurped over man 
 by his own creatures — words. But in following this 
 track of resemblance we have introduced unawares an 
 important difference. At first sight the laws of 
 nature seem to differ from those of man only in being
 
 44 LAWS OF NATURE AND LAWS OF MAN. [n 
 
 inviolate ; and their excellence in this respect is 
 indeed a not uncommon topic of natural theology. 
 But, when we consider it more curiously, the distinc- 
 tion is one of kind. The laws of nature are not more 
 excellent than Acts of Parliament, but belong to 
 another category. Christian has expressed the point 
 as well as anybody: "When law is applied to any 
 other object than man, it ceases to contain two of its 
 essential ingredient ideas — namely, disobedience and 
 punishment." A law of nature is obeyed, as we say, 
 because there is no room for disobedience. In the 
 case of laws in the proper sense, the law is one thing 
 and the obedience — or, as it may be, disobedience — 
 of any man subject to it is another thing : in the 
 case of a law of nature there is no such difference. 
 Human statutes, and even divine ones according to 
 the majority of theologians, are commands addressed 
 to agents who may or may not follow them. Their 
 object is a certain uniformity, but the uniformity 
 does not necessarily ensue. Nay, the law would still 
 be a law if no single person obeyed it on any one 
 occasion. But a law of nature is inseparable from 
 uniformity ; or rather it is the uniformity itself. 
 
 These considerations are such as by this time are 
 pretty familiar to students of jurisprudence. Men of 
 science have hitherto not troubled themselves much 
 with the question, or at any rate have not added any- 
 thing to the legal view of it. As to the attempts of 
 philosophers who were neither men of science nor 
 lawyers to clear up the general notion of law, they 
 are best left in charitable silence. But lately Pro-
 
 Il] LAWS OF NATURE AND LAWS OF MAN. 45 
 
 fessor Huxley, in his admirable introduction to Messrs. 
 Macmillan and Co.'s series of Science Primers,^ has 
 brought a fresh and powerful scientific mind to bear 
 upon this ancient comparison or metaphor, and shown 
 once more that no subject is too worn to be put in 
 some new light. His paragraph on " Laws of Nature " 
 is quite short, and a considerable part of it may be 
 given in his own words : — 
 
 When we have made out by careful and repeated observation 
 that something is always the cause of a certain effect, or that 
 certain events always take place in the same order, we speak of 
 the truth thus discovered as a law of nature. Thus it is a law 
 of nature that anything heavy falls to the ground if it is unsup- 
 ported. . . . But it is desirable to remember that which is very 
 often forgotten, that the laws of nature are not the causes of the 
 order of nature, but only our way of stating as much as we have 
 made out of that order. Stones do not fall to the ground in 
 consequence of the law just stated, as people sometimes carelessly 
 say; but the law is a way of asserting that which invariably 
 happens when heavy bodies at the surface of the earth, stones 
 among the rest, are free to move. 
 
 The laws of nature are, in fact, in this respect similar to the 
 laws which men make for the guidance of their conduct towards 
 one another. There are laws about the payment of taxes, and 
 there are laws against stealing or murder. But the law is not 
 the cause of a man's paying his taxes, nor is it the cause of his 
 abstaining from theft or murder. The law is simply a state- 
 ment of what will happen to a man if he does not pay his taxes, 
 and if he commits theft or murder ; and the cause of his paying 
 his taxes or abstaining from crime (in the absence of any better 
 motive) is the fear of consequences which is the effect of his 
 belief in that statement. A law of man tells [us] what Ave may 
 expect society will do under certain circumstances ; and a law of 
 
 ^ The title of the book is Science Primers : Introductory, which is 
 an awkward one to quote.
 
 46 LAWS OF NATURE AND LAWS OF MAN. [n 
 
 nature tells us what we may expect natural objects will do under 
 certain circumstances. Each contains information addressed to 
 our intelligence, and, except so far as it influences our intelligence, 
 it is merely so much sound or writing. 
 
 While there is this much analogy between human and 
 natural laws, however, certain essential differences between the 
 two must not be overlooked. Human law consists of commands 
 addressed to voluntary agents, which they may obey or disobey; 
 and the law is not rendered null and void by being broken. 
 Natural laws, on the other hand, are not commands, but asser- 
 tions respecting the invariable order of nature ; and they remain 
 laws only so long as they can be shown to express that order. 
 To speak of the violation or the suspension of a law of nature 
 is an absurdity. All that the phrase can really mean is that, 
 under certain circumstances, the assertion contained in the law 
 is not true ; and the just conclusion is, not that the order of 
 nature is interrupted, but that we have made a mistake in stat- 
 ing that order. A true natural law is an universal rule, and, as 
 such, admits of no exceptions. 
 
 Professor Huxley, it will be seen, fully recognizes 
 tlie difference insisted upon by Bentliam and bis fol- 
 lowers in this country ; and on tbat point we do not 
 see how his exposition can be bettered. We can only 
 rejoice that truths which down to our own time were 
 ignored or imperfectly apprehended by the majority 
 of learned men are now presented in clear, simple, 
 and forcible language to every one who sets about 
 acquiring even the rudiments of scientific training. 
 There is some novelty, however, in the similarity 
 between natural and political or civil laws, which is 
 pointed out in the middle section of the passage 
 we have quoted ; and we may find here some matter 
 for further reflection. Professor Huxley assigns uni- 
 formity of action as the common element in our 
 conception of laws proper and of the so-called laws of
 
 Il] LAWS OF NATUKE AND LAWS OF MAN. 47 
 
 nature, but he assigns the uniformity of law properly 
 so called to an unaccustomed place. He refers our 
 impression of uniformity not to the effect of laws in 
 so far as they are observed, but to that which happens 
 if they are broken. Not in the action of the citizen 
 who obeys, but in the action of the State which pun- 
 ishes the disobedient, we are to perceive the analogy 
 to the certain and constant operations of nature. 
 This is not only ingenious, but seems to fall in very 
 well with the doctrine of our analytical school, which, 
 as all students know, lays peculiar stress on the sanc- 
 tions of positive law. Moreover, there is a consider- 
 able show of convenience for it. There is in any case 
 no perfect uniformity to be discovered in human 
 positive law. But on the common view the excep- 
 tional cases will be all cases of disobedience ; on 
 Professor Huxley's view they will be only those cases 
 of disobedience which escape punishment. And thus 
 there is a decided gain in the apparent closeness of 
 the analogy. 
 
 But we have to consider how far it can be rightly 
 said that " the law is simply a statement of what will 
 happen to a man " if he disobeys it. And it is to be 
 observed in the first place that, however true this 
 may be for the analytical inquirer, it is not the 
 manner in which the law is actually regarded for 
 any practical purpose ; except, perhaps, criminal law, 
 which is not safely to be taken as the type of f>ositive 
 law in general. Honest men want, as a rule, to know 
 enough of the law to conform to it in their dealings ; 
 but, inasmuch as they have no intention of breaking
 
 48 LAWS OF NATURE AND LAWS OF MAN. [ll 
 
 it, do not want to know the exact consequences of a 
 breacli. Hence the historical account of the com- 
 parison which would be required by Professor Huxley's 
 explanation seems less probable than that which we 
 have given above. Further, the " statement of what 
 will happen " is by no means a simple one, for its 
 truth depends on several conditions. The sanction 
 will take effect if the wrong and the wrongdoer are 
 discovered, and if there is no miscarriage in any part 
 of the proceedings, and if the law is honestly ad- 
 ministered. And all these conditions are, or may be, 
 material : the last of them, happily, need not be con- 
 sidered in England ; but there are many countries 
 where it is otherwise. In the last year or two we 
 have been repeatedly told that many wholesome laws 
 are nominally in force in Asia Minor, which only need 
 to be put in real use to make the condition of the 
 people, if not the best that might be, at least much 
 better than it is. But then these laws are not 
 statements of what will happen : they are statements 
 of what does not happen, and was never seriously 
 expected to happen by persons who knew the 
 secrets of Turkish government. In the southern 
 provinces of Russia the law presumably forbids Rus- 
 sians of the orthodox Greek persuasion to plunder, 
 ravish, and murder their fellow-subjects, and not the 
 less so that the sufferers may happen to be Jews. Yet 
 the people of several Russian towns and villages have 
 been doing all these things openly, as we hear, to 
 their Jewish fellow-subjects; and we do not hear that 
 the criminals have been punished, or that any serious
 
 Il] LAWS OF NATURE AND LAWS OF MAN. 49 
 
 endeavour has been made to punish them. In our 
 own country there have been many penal statutes 
 which were not in any natural sense statements of 
 what would happen to persons contravening them ; 
 for they have been habitually neglected and contra- 
 vened to this day, and nothing whatever has happened 
 to the transgressors. This is true even of some 
 modern and apparently rational enactments, such as 
 that against the conveyance of voters in boroughs. 
 Again, it seems far-fetched to heighten the analogy 
 between laws proper and laws of nature by saying 
 that " the law is not the cause of a man's paying his 
 taxes." Surely it is at least a causa sine qua non, 
 for without it why should he pay them, or how could 
 there be taxes to pay ? To take a concrete instance, 
 it seems not easy to deny that the Elementary Educa- 
 tion Act — that is, the will of Parliament as expressed 
 by the Act — is the cause of school boards being 
 elected and of householders paying school rates. 
 
 No doubt law, so far as it takes effect by reason 
 of its sanction, is effectual through the belief of the 
 subject addressed that the threatened evil will follow 
 in case of disobedience. But the belief or assertion 
 that the threatened evil will follow is not the law 
 itself: it is an inference from the law taken with its 
 circumstances. In itself, the law is, from the assumed 
 point of view, a command coupled with a threat. 
 The probability that the rulers issuing it will make 
 their threat good — which may depend on their power, 
 or on their will, or both — must be ascertained by 
 other means of information. Strictly the law tells us 
 
 E
 
 50 LAWS OF NATURE AND LAWS OF MAN. [n 
 
 only what the State professes that it will do ; and in 
 well-governed commonwealths this will coincide, sav- 
 ing inevitable accidents, with "what we may expect 
 society will do." But the two things are not identical. 
 On the ground taken by Professor Huxley, the nearest 
 counterpart to a law of nature in the scientific sense 
 would seem to be, not the enactment or decree of a 
 sovereign power in itself, but a statement of its con- 
 tents (say in a collection of statutes, or in an exposi- 
 tion by a text-writer), coupled with the tacit assump- 
 tion that the law can and will be enforced. Again, 
 the amount of uniformity which is actually presented 
 by the working of human laws depends in great 
 measure on something not immediately connected 
 either with the character of those laws as commands, 
 or with the punishments denounced on men who dis- 
 obey them. We mean the following of precedent. This 
 is a mark of law which is perha23S as important as any. 
 We should hardly give the name of law to a 
 series of unrelated and inconsistent commands, en- 
 forced by arbitrary and uncertain methods, although 
 their subject-matter might be the same as that of the 
 kind of laws we are used to. The capricious orders of 
 a crazy despot may be laws according to Austin's 
 definition until they are revoked ; but if so, it is the 
 worse for the definition. In any case the law of 
 civilized countries, as we now find it, is to a great 
 extent founded on precedent. In the English system, 
 which prevails, with few exceptions, throughout the 
 British dominions and the United States, the prece- 
 dents are furnished by the recorded decisions of judges
 
 Il] LAWS OF NATURE AND LAWS OF MAN. 51 
 
 on questions which have occurred in actual litigation. 
 In the system of the Eomau ]aw, which prevails on 
 the Continent of Europe and in the settlements and 
 possessions of Continental Powers, the precedents con- 
 sist of the opinions of distinguished lawyers and text- 
 writers on questions which may or may not have 
 come before them in a practical way ; to which, 
 according to the modern practice of several countries, 
 judicial decisions are added, but not so as to have any 
 greater authority than the best opinions. The differ- 
 ences between the two systems are important ; but at 
 present we are not concerned to pursue them. They 
 agree, however, in this, that they look for guidance in 
 new difficulties to the treatment of similar difficulties 
 in past times. The manner and degree of their 
 observance of precedent are diverse ; the general 
 character is the same. And it is an observance also 
 largely met with in those parts of the conduct of life 
 which have a formal and quasi-legal character, such 
 as the proceedings of legislative and executive bodies, 
 public meetings, and committees. Of actual cere- 
 monies we say nothing, as their history is distinct. 
 In modern times they have mostly become parts of 
 some order or discipline which is directly or indirectly 
 under the sanction of positive law ; and then the 
 necessity of observing them is for the persons con- 
 cerned simply the necessity of obeying the law. But 
 ceremonies are doubtless earlier than any laws, and the 
 influence of ceremonial ideas and habits on ancient 
 law is a subject of which the importance is already 
 apparent, and on which there is probably still much
 
 52 LAWS OF NATUEE AND LAWS OF MAN. [ll 
 
 to be learnt. So long and in so far as ceremonies 
 exist independently of law, their safeguard is the 
 supposed necessity of performing them exactly at all 
 points in order to obtain a desired benefit or avert a 
 dreaded misfortune. 
 
 At this day the regard for precedent which 
 pervades not only the law itself, but every de- 
 partment of life that has become coloured by legal 
 ideas, appears to us a thing requiring explana- 
 tion. And very fair and reasonable explanations are 
 forthcoming. Not to neglect the results of our pre- 
 decessors' experience in a like matter is easily admitted 
 as the plainest counsel of common sense. Nor is it 
 difficult to see the advantage of applying this most 
 general rule with a certain artificial nicety for par- 
 ticular purposes. Other things being equal, that 
 conclusion is most probable which has been arrived 
 at upon the fullest discussion and ripest consideration. 
 Thus the decision of three or four judges, after careful 
 argument and time taken to prepare the judgment, is 
 manifestly of more weight (assuming no great dis- 
 parity of abilities) than that of a single judge who 
 has to make up his mind on the spot. Hence the 
 gradation of authority in our English system of judi- 
 cial precedents may be rationally as well as practically 
 justified. And on most questions aff"ecting action we 
 feel that the judgment of a competent and adequately 
 informed person on a question of the same or a like 
 kind is a considerable help to shaping our own course. 
 This is in part, perhaps, because the reasons and 
 motives of conduct in any but the simplest afiairs can
 
 ir] LAWS OF NATURE AND LAWS OF MAN. 53 
 
 but seldom be fully expressed ; so that there is really 
 niore to be learnt from a prudent man's actions than 
 from the reasons he or any one else can give for them. 
 This and much more is to be said for respect for pre- 
 cedent on the ground of reasonableness. 
 
 Then on the ground of convenience there are 
 divers aro-uments of weio^ht. If it is known that a 
 decision once arrived at will be followed in the like 
 case in time to come, the uncertainty of men's affairs 
 is diminished, and occasions of dispute taken away. 
 The same questions must not be agitated for ever : 
 interest rei puhlicae ut sitjinis litium is a good maxim 
 for standing causes of litigation as well as for every 
 lawsuit in particular. And on this head also it would 
 be easy but superfluous to enlarge. There is yet 
 another ground of convenience which may seem at 
 first sight of small account, but which is greater than 
 it seems. Two sorts of cases present much difficulty 
 of choosing on principle what to do : those where the 
 choice is between two or more ways of doing the same 
 thing which are in themselves indiflerent, and those 
 where the question of substance is such that no per- 
 fectly reasonable solution seems attainable. The rule 
 of the road may be taken as an example of the first 
 class ; the treatment of contracts concluded by corre- 
 spondence as an example of the second. Yet some- 
 thing has to be done ; and, the choice being once 
 made, it becomes natural for the saving of trouble 
 and perplexity to do the same thing, or as nearly as 
 may be, when a similar case recurs. The fact of 
 having taken a particular course once will of itself
 
 54 LAWS OF NATURE AND LAWS OF MAN. [ll 
 
 determine a certain tendency to follow it again if the 
 conditions are repeated. In the same way the ex- 
 perience of a thing having been done by others will, 
 on a renewal of the circumstances, give rise to a cer- 
 tain expectation of its being done again. This is a 
 general fact of human nature, included by psycholo- 
 gists in the statement of what is called the law of 
 association. Thus a single instance makes a pre- 
 cedent, and the precedent tends to confirm itself by 
 repetition. 
 
 It seems not unlikely that this is the manner in 
 which the ideas of precedent and custom are origin- 
 ally formed. What has been done once is done again, 
 not because it seems the best thing to do, but because 
 there is an unreasoning tendency to do it, which in 
 the absence of other and stronger motives will pre- 
 vail. The more often it is done the stronger will be 
 the expectation of its being done yet again on the 
 next occasion, and this will at length become a sense 
 of necessity. No words are needed to prove that even 
 the most freethinking of mankind are to a great ex- 
 tent the slaves of habit ; and ancient customs and 
 customary laws are a special kind of habit produced 
 in times and circumstances excluding reflection and 
 criticism. Nevertheless men begin to ask for at least 
 the show of reasons at a very early stage of social 
 growth ; and a merely verbal show being in those 
 stages enough, the thing is readily made to explain 
 itself. A man ignorant of the arts of exact reasoning, 
 and feeling in himself the impulse to do what he has 
 done before, need have no difficulty in accepting as
 
 Il] LAWS OF NATURE AND LAWS OF MAN. 55 
 
 the suflScient foundation of a custom the fact that 
 it is accustomed. It is the familiar and natural thing, 
 therefore necessary and right. " Our fathers have 
 always done so," is the standing reply to the inquiries 
 of astonished travellers, or of the bolder minds which 
 may appear in the tribe itself. And it may well seem 
 conclusive to a mind which has not learnt to dis- 
 tinguish the expectation that the future will resemble 
 the past from the use of experience as a guide to 
 deliberate action. The will or ought of natural 
 sequence is confounded by this untutored contem- 
 plation with the ought of rational conduct and 
 ethical duty. 
 
 Another point is to be noted in the psychology of 
 custom, which may be of some importance. We 
 think of customs as established by long use, and in a 
 lawyer's idea of custom this is a vital element. But 
 this is because we have learnt how great are the 
 dangers of error if we conclude from solitary or few 
 instances either as to relations of cause and ejBFect or 
 as to the convenience of a particular course of action. 
 There is no reason to suppose that when society was 
 in its infancy mankind were troubled with any such 
 scruples. If we may draw inferences from the child- 
 hood of the individual to that of the race, one or two 
 instances probably sufficed to make a good custom for 
 our prehistoric ancestors. It is notorious that young 
 children will appeal to precedent in support of their 
 requests almost as soon as they can frame a coherent 
 sentence. They will allege, if they can, the leave of 
 a competent authority as already had, as by offering
 
 56 LAWS OF NATURE AND LAWS OF MAN. [ll 
 
 such a plea as '' Mamma lets me do it " to a father's 
 prohibition of sports threatening danger to the child 
 or destruction to furniture. But if the authority 
 referred to turns out (as generally happens) not to 
 support the argument, the child's artless cunning falls 
 back on the defence of bare precedent. " One day I 
 did it," or words to that effect, are brought out wdtli 
 an air of perfect seriousness and confidence ; and, 
 though the plea is overruled, it is at least doubtful 
 whether the pleader is intellectually satisfied. It may 
 be suspected that we have in these involuntary revela- 
 tions of infant logic the true primitive form of the 
 universal argument of archaic conservatism. "One 
 day I did it " is the simple and undisguised statement 
 of the mental process more plausibly expressed by 
 children of larger growth in the shape of " our fathers 
 have always done so." The child is father of the man 
 in more ways than have yet been observed with ade- 
 quate care ; and the study of children's ways and 
 language has not improbably a considerable part 
 before it in the psychological researches of the near 
 future. In connexion with the subject now under 
 our view it would be interesting to note the earliest 
 age at which the sense of justice becomes distinct. 
 "We mean not merely the sense of rightness or wrong- 
 ness in particular actions, which may be acquired in 
 very tender years, but the conception of a constant 
 and even rule to be applied without respect of persons. 
 Much will depend on the training and example given 
 by parents. A child weakly and capriciously dealt 
 with must be slower in forming the notions of right
 
 Il] LAWS OF NATURE AND LAWS OF MAN. 57 
 
 and justice than one brought up in a firm and equal 
 discipline ; and the belief that justice is due to child- 
 ren as well as to adults is still, unhappily, far from 
 universal. But we suspect that even under the most 
 favourable circumstances the idea of justice, in the 
 specific and proper sense, is of relatively tardy growth. 
 Now, turning back to the consideration of what 
 are called laws of nature, we may observe that nature 
 presents to us, even more than the image of command 
 always obeyed, that of precedent invariably followed. 
 The analogy to human laws in their modern or 
 statutory sense, as express commands prescribing 
 particular things to be done, is the product of a 
 rather advanced stao^e of reflection. "Whatever its 
 value may be (and I am free to confess that I do not 
 rate it highly), it is artificial. The analogy to human 
 law in its ancient or customary form is both closer 
 and more obvious. And to early observers the uni- 
 formity of nature, so far as it was ascertainable with 
 their means of observation, would in no way seem to 
 be in contrast with human conduct, such as it was or 
 ought to have been according to the standards of 
 conduct they were familiar with, but would rather 
 offer a singular harmony with it. Anthropomorphic 
 interpretations of the common phenomena of nature 
 would seem not less but more probable by reason of 
 the phenomena being periodic and fairly constant. 
 The works of man's hands wait upon the seasons of 
 the year, and are fulfilled with their due and accus- 
 tomed ceremonies ; and man, looking out from him- 
 self into the world, finds custom and solemnity in the
 
 58 LAWS OF NATURE AND LAWS OF MAN. [n 
 
 world and the seasons themselves, and carries them 
 into his early speculations on the unseen rulers of the 
 world. Whoever reads Homer with his eyes open 
 will find that the Gods on Olympus are ruled by 
 custom and prescription almost as much as the host 
 of the Achaians before Troy. Zeus is the father and 
 master of the house ; his might is boundless, or almost 
 boundless ; but there are bonds which even he must 
 not break. It is not that the power fails him. He is 
 tempted to break the fate of his son Sarpedon, but he 
 is restrained by Hera's rebuke. The deed might be 
 done, but would be lawless and of dangerous example. 
 And as they are capable of communion and kindred 
 with mortals, the Gods also have their share in men's 
 custom and law. Poseidon takes up the feud of his 
 son Polyphemus against Odysseus, and as between 
 the Gods themselves Ares owes the adulterer's fine, 
 or rather ransom, to Hephaistos, and is released only 
 when Poseidon becomes surety for him. They are 
 the protectors of human justice, too, and Zeus sends 
 the great rain -floods in his wrath when men of 
 violence sit in the marketplace and judge crooked 
 judgment, not regarding the word of the Gods.^ But 
 they are not the authors of justice and law ; the rules 
 guarded by their power are their laws only in the 
 same sense as, in the theory of English legal writers, 
 the immemorial common law which the king's courts 
 administer is the king's law. To a Greek mind in the 
 Homeric age, and probably much later, the reign of 
 law was the same, or nearly the same, in nature and 
 
 1 II. xvi. 386.
 
 ll] LAWS OF NATURE AND LAWS OF MEN. 59 
 
 in man. On the one hand the course of nature was 
 transfigured by anthropomorphic imagination ; on the 
 other hand the freedom of human action itself was 
 but slight in comparison with the bond of custom 
 and the universal constraint of fate, beyond the G-ods 
 themselves, which formed the mysterious background 
 of the universe. The clear separation of the laws of 
 nature from the laws of man was reserved for a time 
 when many more generations had received the dis- 
 cipline of science and philosophy. We who are in 
 possession of the modern analysis shall do much 
 amiss if, like some of its expounders, we despise our 
 fathers for not having known better.
 
 60 SOME DEFECTS OF OUK [ill 
 
 III. 
 
 SOME DEFECTS OF OUR COMMERCIAL 
 LAW. 
 
 I. INVOLUNTAEY LEGISLATION". 
 
 AVho makes the laws of England ? The question 
 seems an elementary one, and most people would be 
 ready to answer off-hand, — the Queen, Lords, and 
 Commons. Those who at any time in the course of 
 their studies have entered into the labours of Ben- 
 tham and Austin may consider the matter more 
 deeply, and answer that Parliament indeed makes 
 law, but the judges make it — and sometimes unmake 
 it — also. But we are not yet at the root of things. 
 The judges are causa proxima of the law settled by 
 their decisions, but not causa efficiens. They cannot 
 lay down anything of their own motion. A judge 
 may write a legal book ; but, however much better it 
 may be than another man's book, it is equally power- 
 less to make a binding rule for future decisions. The 
 Courts can expound the law with authority only upon 
 the occasions given to them when the judicial machi- 
 nery is properly set in motion. So then we may say 
 that as cloth is made by the weaver, though the 
 machinery of the loom is beyond his comprehension.
 
 Ill] COMMERCIAL LAW. 61 
 
 the part of our law which we call " judge-made " is 
 really made by the people who start and keep going 
 the processes of litigation. These people, it is need- 
 less to say, are the suitors. It is also needless to say 
 that the declaration and amendment of the law, so far 
 as it is effected by judicial decisions, is effected at 
 the suitors' expense. The weaver is paid for making 
 cloth, but the suitor pays for making law. So far as 
 this expense enures to the benefit of the public by 
 making the law more certain, it might seem that the 
 suitors are unjustly charged with it. A man may 
 well think it hard to be first led into difficulties by 
 the imperfection of the law, and then made to pay 
 for mending it. For these and other reasons certain 
 benevolent persons have proposed that the State 
 should pay the costs. This, however, is open to 
 various objections. Besides such obvious ones as the 
 danger there might be in the temptation of going to 
 law at our neighbours' expense, there is the reflection 
 that to call in the State here is to call it in at the 
 wrong end. We should make the public pay extra- 
 vagantly for results that might have been far better 
 and more cheaply secured by other methods. The 
 State can and ought to do something for the relief of 
 suitors, not by relieving particular suitors from the 
 consequences of litigation, but by diminishing the 
 necessities for litigation arising. This appears a 
 commonplace proposition, yet it is certain that it is 
 by no means generally appreciated. 
 
 An ancient traveller relates that in a certain land 
 of the Ethiopians there was a much frequented high-
 
 62 SOME DEFECTS OF OUR [ill 
 
 way, parts of which were smooth and firm, others 
 broken and full of holes, or encumbered with heaps of 
 stones. And he marvelled much at the fashion of the 
 road, all men using it for their occasions to and fro, 
 and the land being in no wise barbarous, but full of 
 wealth, and not lacking discreet men. So he looked 
 more narrowly, and perceived the custom of the high- 
 way to be such, that when a man fell in one of the 
 holes he must call the watch to help him out and 
 make the road good. Which being done, and having 
 paid the watch for their pains, he would go on his 
 way rejoicing (as best he might, for they often had 
 shrewd knocks), that in time to come no other man 
 would fall into the same hole, at least not the self- 
 same way. But where the road was exceeding broken, 
 and there were many that fell and cried out, there 
 would come with no little ado the posse comitatus, or 
 so many of them as could be spared from bear-baiting, 
 ringing swine, and other weighty matters, and would 
 go to work to mend it ; yet in such sort that, being 
 in haste, and for the most part but middling work- 
 men, casting in stones and rubbish without order, a 
 shovelful here and a barrowful there, it was an even 
 chance but they did mar as much as they mended. 
 So that the traveller fell again to marvelling, not that 
 the road was not better, but that any part of it was 
 not worse. Then he spoke with certain of the ancient 
 men, and finding them wise and of civil conversation, 
 said that in his poor judgment it should be to the 
 great relief of the wayfarers' estate, and the saving of 
 many grievous losses and hurts and spoiling of good
 
 Ill] COMMERCIAL LAW. 63 
 
 men and cattle, if order were taken once for all to 
 repair and keep repaired the common highway at the 
 common charges of the inhabitants ; which, moreover, 
 was no new device, but a thing already seen and 
 approved for the good effect thereof in most nations 
 of any repute for policy and government. But the 
 men were amazed at his discourse, and took it much 
 amiss, jDrotesting that such new-fangled schemes were 
 clean against all their experience and practice, extra- 
 vagant in cost, and, for aught that appeared, ruinous 
 in consequence; the undertaking too great for any 
 man's skill, and the end beyond any man's foresight ; 
 whereas, the matter standing as it did, they were sure 
 at least of this, that the road would be mended where 
 it most needed mending. 
 
 The people of England — and especially men of 
 business — inhabiting a country second to none in 
 power and resources of every kind, yet walk every 
 day on a road strewn with open pitfalls, which remain 
 open merely because it is nobody's business, until the 
 mischief is done, to see that they are filled up. The 
 security of the commonest transactions of life, much 
 more of the vast and complex operations of commerce, 
 rests ultimately on the civil law. The interests in- 
 volved are assuredly not less in England than else- 
 where. Yet England is the one country in Western 
 Europe where it is most difficult for a man who is not 
 a lawyer by profession to have any clear notion of the 
 laws he lives under, and where the chances are greatest 
 that matters of serious importance will turn out to 
 be provided for inadequately or not at all. It is quite
 
 64 SOME DEFECTS OF OUR [ill 
 
 possible, but hardly relevant to our present necessities, 
 A to give an historical explanation of the manner in 
 which this state of things arose and has been con- 
 tinued. A question of more practical importance is 
 how it comes to pass that our existing condition is 
 after all so tolerable as it is. That we do bear with 
 it very patiently there is no doubt; for few tasks 
 have been found less hopeful by those who have tried 
 it than to awaken any strong general interest in 
 plans of systematic law reform. 
 
 The reasons for this are various. In the first 
 place, the evil is one that does not touch the bulk of 
 the middle classes. The common run of litigation 
 involves no doubtful law ; much of it does not even 
 involve any dispute of facts. More than half the 
 actions brought in the Common Law Divisions are 
 not defended at all, and those which run their full 
 course to trial are but a fraction of the remnant. It 
 is but a fraction of these, again, which come before 
 the judges on points of law. Thus the grievance 
 arising from the cumbrous, confused, and unorganized 
 condition of our laws is not one of those which are 
 felt as a galling pressure widely spread over the 
 commonwealth, and are shaken off by popular indig- 
 nation. When it does strike it strikes heavily, but 
 the strokes fall now and then and here and there, and 
 there is nothing to fix public attention that way. 
 Some conspicuous case of hardship may make a stir 
 for a while, but it passes off* and little or nothing is 
 done. Again, the' merits of our legal system, or 
 rather of those who administer it, do much to hide its
 
 Ill] COMMERCIAL LAW. 65 
 
 defects ; the excellence of the workmen prevents us 
 from seeing how faulty the tools are. English judges, 
 after making all allowance for narrowness in technical 
 matters, have, as a rule, been men of strong common 
 sense, anxious to do substantial justice, and to give 
 intelligible reasons for it. Even the social, economi- 
 cal, and political prejudices which have often influ- 
 enced their judgments have been prejudices common 
 to the great bulk of the educated men of their time. 
 Hence it was natural that the common law which 
 these picked Englishmen professed to expound, but 
 really made in the expounding, came to be regarded 
 as something peculiarly English, and providentially 
 fitted to the needs of this country not only in its sub- 
 stance but in its form. The conditions in spite of 
 which such good results could be produced have arro- 
 gated to themselves the merit of producing them. 
 Besides, the^ -standing fiction of case-law probably 
 imposes on the public no less than it did until quite 
 recently upon judges and lawyers themselves. An 
 unsettled point of importance is raised, argued, and 
 decided. The decision commends itself to intelligent 
 men familiar with the subject-matter as just and 
 reasonable. They praise the law which has been 
 declared, but forget that it has in truth been newly 
 made at the expense of the suitors, when it might as 
 well or better have been made beforehand. 
 
 Not that every possible case can be specifically 
 provided for beforehand. That would require an 
 infinite foresight to conceive it, a language of super- 
 human exactness to express it, and unlimited space to 
 
 F
 
 G6 SOME DEFECTS OF OUR [ill 
 
 ^^tf^"^ 
 
 set it forth. But it is none tlie less possible to lay 
 down clearly and in a moderate compass the general 
 rules which are to govern classes of cases. If we got 
 clear and authentic general rules by our present 
 method, the hardship to the parties immediately con- 
 cerned might perhaps be disregarded. But this is 
 just what we do not get, except by a windfall. A 
 few splendid opportunities may present themselves to 
 a judge who, like Lord Westbury, for example, com- 
 bines width of grasp with great logical powers ; but 
 such is not the usual course of things. In the natural 
 growth of our case-law the "ground is covered by 
 degrees with a series of decisions on minor points 
 which nibble, as it were, all round the edges of a large 
 question. The process goes on till some day it is dis- 
 covered that the combination of all these detached 
 operations gives a total result which was not fairly 
 contemplated in any of them, — sometimes one which 
 nobody would think of approving, if the field were 
 still open. Often there is a long time of suspense, 
 during which it is impossible to say with any certainty 
 what the result will be. -^ The completion of any 
 particular branch of the law depends, in short, on the 
 chances of litigation. The litigants who thus play the 
 part of involuntary legislators know little of the 
 honour thrust on them, and certainly set no store by 
 it. Suitors do not refuse compromises, or prosecute 
 doubtful appeals, in order to settle vexed questions for 
 the public good.
 
 Ill] COMMERCIAL LAW. G7 
 
 J I. ANOMALIES OF LEGAL DEVELOPMENT. 
 
 Few persons who have iiot made a special study of 
 the law can have any notion of the wonderfully 
 uneven manner in which its growth has proceeded. 
 Law being made in this country mostly through liti- 
 gation, the casual exigencies of litigation determine 
 what parts of it shall be filled up and what left 
 incomplete. The fabric of English jurisjirudence pre- 
 sents to the legal mind's eye a view not unlike the 
 visible fabric of the new Law Courts a year or two 
 ago — here pinnacles receiving the last touch, there 
 walls only rising from the ground. And, what is still 
 more curious, the gaps are by no means confined to 
 the places where one would expect them. An admirer 
 of case-law as opposed to systematic legislation might 
 prophesy beforehand that the natural growth of law- 
 suits in the commonwealth would be accompanied by 
 a process of natural selection, whereby just those 
 points would arise for decision which the convenience 
 of the public then and there required to be decided. 
 The imperfect foresight of a legislator, it may be said, 
 will provide for superfluities and omit necessities ; the 
 spontaneous working of judicial institutions will pro- 
 vide for just the right things and in just the right 
 way. It is needless to enter on a theoretical examina- 
 tion of these expectations, for it is quite certain that 
 "they are not fulfilled. All kinds of curious little 
 questions receive elaborate answers, while great ones 
 remain in a provoking state of uncertainty. Cases 
 which seem about to settle a grave doubt once for all
 
 G8 SOME DEFECTS OF OUR . [ill 
 
 take an unexpected turn and go off, perhaps, on a 
 minute point of practice. Nor is this all. It is the 
 custom of legal text-writers, and to some extent even 
 of judges, to disguise as much as possible the existence 
 of really doubtful matters in the law : there are set 
 phrases and turns of speech which mark to the 
 accustomed reader — but to him only — where the firm 
 ground leaves off. So that altogether the state of 
 laymen wishing to ascertain their rights even in 
 affairs which look as if they ought to be simple is 
 not a little perplexing. 
 
 The sale of goods is one of the commonest trans- 
 actions of life. It might seem not very rash to guess 
 that the law relating to this transaction is eminently 
 clear and well settled. Such a guess, however, would 
 be wide of the truth. Let us take • a case neither com- 
 plicated in itself nor unreasonably remote from 
 ordinary experience. Goods are sold on credit, and 
 remain in the seller's possession, the buyer undertaking 
 to remove and pay for them at a certain date. The 
 time of credit expires, and the buyer makes default. 
 What is the seller to do ? Surely this is a question 
 which one might expect a civilized system of law not 
 to leave in doubt. But, in fact, it ''is one on which 
 the law is more unsettled than any person not prac- 
 tically acquainted with the subject could anticipate." 
 So Lord Blackburn wrote more than thirty years ago, 
 and his words are to this day as true as they were 
 then. It may be considered certain that the unpaid 
 vendor is not bound to deliver the goods without 
 payment. It is also certain that he is not entitled (as
 
 Ill] COMMERCIAL LAW. 69 
 
 he is in some otlier countries) to rescind the contract 
 and hokl the goods as owner. One rational course 
 seems to be left, — to resell them at the defaulting 
 buyer's risk. Some fifty years ago the Court of 
 Common Pleas expressed a strong opinion, but was 
 not called upon to decide, that the vendor had this 
 right ; and if the point had then happened to arise 
 for actual decision, it would no doubt have been 
 settled in accordance with justice and convenience. 
 But, as things fell out, it was left open, and the Court 
 of Queen's Bench decided in 1851, and again in 1859, 
 that the unpaid vendor has no such right. According 
 to these decisions, not only must he account to the 
 buyer for the profit, if any, on a re-sale, but the act 
 of re-sale itself is a breach of contract for which he is 
 liable to an action, though, if there is no profit, the 
 damages will be nominal. Nominal damages, how- 
 ever, may be accompanied by very real costs. Is this 
 the end of the tale ? Not yet : about fifteen years ago 
 the Judicial Committee suggested that if the seller 
 gives express notice to the buyer of his intention to 
 re-sell if the goods are not removed and paid for, he 
 may perhaps not be liable to an action. The force of 
 this remark, again, must be tempered by the reflection 
 that the opinions and even the judgments of the Privy 
 Council, though deserving of great consideration, are 
 not actually binding on the Supreme Court in England. 
 Only the House of Lords can speak to English Courts 
 with canonical authority. The wisdom of the Judicial 
 Committee is good for example of life and instruction 
 of manners, but it may fail the English suitor at a
 
 70 SOME DEFECTS OF OUR [ill 
 
 pinch. This distinction was not long ago illustrated 
 by a case where the Court of Appeal deliberately 
 refused to follow a ruling of the Judicial Committee 
 admitted to be precisely in point. 
 
 Now take another question, still from the sale of 
 goods, which is also neither of a recondite kind nor 
 unlikely to occur in practice. Is the seller of specific 
 goods deemed, in the absence of express assertion 
 that the goods are his Qwn, to warrant to the buyer 
 that he has a good title to them ? Various old and 
 modern authors — including Coke, who, by inveterate 
 superstition, is regarded as all but infallible — say there 
 is no warranty. Of late years, however, it has been 
 discovered that there is no actual decision to that 
 effect to be found in any book, and the law assumed 
 by most text-writers has had grave doubts cast upon 
 it. One Chief Justice of England has said that the 
 admitted exceptions well nigh eat up the rule ; one 
 Chief Justice of the Common Pleas has very nearly, 
 but not quite, denied in set terms that any such rule 
 exists ; while a few years afterwards his successor 
 acted upon the rule as still existing. During the last 
 ten or twelve years nothing has occurred to throw any 
 fresh light upon the point, and thus we have ample 
 leisure to watch the law in a state of transition, and 
 meditate on the resulting convenience to the com- 
 mercial world. 
 
 Such is the fashion in wliich the law of England 
 grows when it is left to itself. In British India, 
 where they have not time to enjoy these refined 
 pleasures, they have enacted a new-fangled thing
 
 Ill] COMMERCIAL LAW. 71 
 
 called a Contract Act, which contains, among other 
 matters, a chapter on the sale of goods, disposing of 
 the foregoing questions, and many others, in some 
 fifty paragraphs. The whole is expressed in language 
 which, without being loose or inaccurate, is perfectly 
 intelligible to any educated man who will take the 
 same trouble to understand it that he does in his own 
 afiiiirs to understand letters or documents which con- 
 cern him. The Anglo-Indian codes are the work of 
 Englishmen, and founded on English law ; the Con- 
 tract Act, I believe, was mostly composed in Eng- 
 land. We are told, however, that what Englishmen 
 have done with success for British India they are 
 incapable of doing for themselves. Codes are only 
 fit for the coarse methods of a rough and ready 
 government administered by civilians, and we do not 
 understand our own blessings. Our adversary may 
 be certainly wrong according to morality and the 
 customs of business, and probably w^ong in law ; but 
 if our purse and patience are limited we shall do 
 well to agree w^ith him at an early stage, comforting 
 ourselves with the possibility that some more enter- 
 prising suitor may extract from the House of Lords, 
 ten or twenty years hence, an authentic, conclusive, 
 and thrice refined exposition of what would have been 
 our proper course if we had know^n, as every English- 
 man is presumed to know, the laws of our country. 
 
 III. CAPRICES OF LEGAL DEVELOPMENT. 
 
 Nature loves variety, and the growth of English 
 law, left as it has been to the natural course of litiga-
 
 72 SOME DEFECTS OF OUR [ill 
 
 tion, is full of varied surjDiises. So far as the ways 
 of nature are thus manifested, she is by no means 
 prodigal in finding distinct answers for questions of 
 practical importance. But her courses are no less 
 precipitate in some directions than they are dilatory 
 in others. There are points not intricate in them- 
 selves, and demanding rather to be settled one way or 
 another than to be settled in the best conceivable way, 
 which are still the subject of lengthened and indeci- 
 sive discussion. There are others of the most delicate 
 kind, and requiring the most careful balancing of 
 different interests, which have been decided not only 
 without adequate discussion, but without any rational 
 discussion at all. One of the vexed topics of com- 
 mercial law, or rather of general law specially in- 
 teresting to men of business, is that of contracts by 
 correspondence. When an offer is made and accepted 
 by post or telegraph, from what point of time is each 
 party bound ? This may, perhaps, be fairly con- 
 sidered one of the questions to which it is more 
 important to have some definite answer than to have 
 the best possible answer. We do not believe, indeed, 
 that in this case it is impossible to find a solution 
 which is just, convenient, and complete ; in fact, the 
 thing is done in the Indian Contract Act. However, 
 the natural evolution of our domestic jurisprudence 
 has been making an answer, with more or less con- 
 sistency of approximation, at various times in the 
 course of the present century, and has at last settled 
 it by a sort of rule of thumb, and against a protest 
 delivered by Lord Justice Bramwell, of whom we are
 
 hi] commercial law. 73 
 
 yet hardly accustomed to speak as Lord Bramwell 
 in one of his most vigorous and closely -reasoned 
 judgments. Even as things now stand, it is uncertain 
 whether a man who has accepted an offer by letter 
 can or cannot revoke his acceptance by telegraph ; in 
 other words, whether a revocation dispatched after 
 the acceptance, but reaching the other party first, is 
 or is not effectual. The reasoning used in most of 
 the cases points to the conclusion, repugnant as it 
 seems to the common sense and convenience of man- 
 kind, that such a revocation cannot take effect. This 
 is a singularly good example of the kind of difficulty 
 Ijefore which case-law, and advisers with nothing but 
 case-law to guide them, may stand helpless for years 
 together. Eesults of the same kind have been pro- 
 duced in various departments of the law of property 
 by the excessive subtilties and refinements forced 
 upon it, sometimes in the teeth of positive legislation, 
 by the Court of Chancery. The old scholastic ped- 
 antry of the common law was bad enough, but it 
 had the merit of being definite. Courts of Equity, in 
 their attempts to do perfect justice, have produced a 
 system far more rational in principle than that of the 
 common law, and far more minute and comprehen- 
 sive ; but it is also no less artificial, and in recent 
 times has become so overweighted with its own 
 growth that its working is cumbrous and uncertain. 
 The subject is too technical to enter upon here in any 
 detail. But it is well known that a vast amount of 
 property in England, both moveable and immoveable, 
 is held by trustees under wills and settlements, and
 
 74 SOME DEFECTS OF OUR [ill 
 
 accordingly the beneficial ownership of all this pro- 
 perty consists in what are called equitable as distin- 
 guished from legal interests. It is obviously of some 
 importance that third persons should know how far 
 they may safely deal with the nominal owners of land 
 or investments, and how far they are bound to inquire 
 into the existence of equitable interests which it is not 
 always easy to discover. Questions of a similar kind 
 arise in the frequent case of property being subject to 
 successive incumbrances. The doctrines of equity, 
 however, are still refining themselves, and every new 
 refinement, broadly speaking, tends to increase the 
 perils of purchasers. Add to this that the law of 
 property is of interest to all men and women who 
 have any property worth considering, and ought, 
 therefore, more than any other branch of the civil 
 law, to be plain, direct, and intelligible. It is, in fact, 
 so intricate and confused that not only no layman 
 can understand it, but it is all but impossible even for 
 the experts who do understand it to translate it as 
 it stands into anything like plain English. It must 
 be said, however, that the Court of Appeal has been 
 working hard of late years to bring equity more into 
 accordance with common sense. 
 
 Let us now find an example or two of the other 
 sort, where justice takes a leap in the dark. The 
 peculiar and harsh rule of English law that freight 
 cannot be apportioned was established without any- 
 thing like sufficient consideration, but is now so firmly 
 settled that in our own time some of our strongest 
 judges have resigned themselves to enforcing it under
 
 Ill] COMMEKCIAL LAW. 75 
 
 protest. The still harsher and more anomalous rule 
 that a payment made in advance on account of freight 
 cannot be recovered back if the goods are lost, and no 
 freight becomes payable, is derived from an anony- 
 mous and " ill -digested case" (as Lord Chief Justice 
 Cockburn called it) decided in 1683. This "some- 
 what scanty spring," in the words of another judge, 
 has given rise to a current of authority too strong to 
 be resisted — probably too strong even for the House 
 of Lords to withstand ; and thus we are saddled with 
 a doctrine which puts 1:1s at variance with the rest of 
 the commercial world, including the United States, 
 and for which nobody has a good word on its merits. 
 Again, the bankruptcy of a firm of partners raises 
 questions of great difficulty and importance as to the 
 manner in which their property is to be distributed 
 among the creditors of the firm in the partnership 
 business and the private creditors of the partners in 
 their separate affairs. There are two sets of persons 
 claiming in different rights, — the creditors of the firm 
 and those of the individual partners ; there are two 
 funds to be distributed as far as they will go, — the 
 property of the firm and the separate property of the 
 partners. What relation is to be established between 
 the two classes of creditors and the available funds, so 
 as to work out the least unsatisfactory result ? The 
 importance of these questions is self-evident ; their 
 difficulty sufficiently appears from the fact that no two 
 systems of law seem to deal with them in exactly the 
 same way, while the mercantile scheme of administra- 
 tion in such a case is different from any -legal one with
 
 76 SOME DEFECTS OF OUR ["I 
 
 which we are acquainted. There is one rule in 
 England, another in Scotland, one or more others in 
 France, — for the Codes are silent, opinions not unani- 
 mous, and practice not uniform, — and others again in 
 Germany. We are not here concerned to inquire 
 which of these rules is the best in itself, nor therefore 
 to enter into the description of any of them, but only 
 to observe how the English rule came to be established. 
 It was laid down early in the last century, when the 
 principles of partnership law were still very imper- 
 fectly understood, and with so little consideration that 
 no connected statement of reasons for it is given in any 
 book of authority, and two or three eminent judges, 
 though not dissenting from the rule itself, or suggest- 
 ing any other in its stead, have confessed that it 
 is extremely difficult to find any. Story, the great 
 American judge and jurist, who was usually very mild 
 in his observations on settled rules, criticized this one 
 in unsparing language, and pronounced its foundation 
 to be most questionable and unsatisfactory. An his- 
 torical explanation is not very difficult. The problem 
 arose at an early stage in the growth of our modern 
 commercial law, and it was obviously necessary to deal 
 with it ; this much was perceived, but the delicacy of 
 the task was overlooked. It is a well-known feature 
 of legislation in its cruder stashes to rush at undertak- 
 ings which modern statesmen touch only with the 
 greatest anxiety and reluctance ; and the same is true, 
 in a measure, of judicial law-making. So, in this case, 
 the solution provided was of the roughest kind, and 
 sadly wanting -in that flexible adaptation and precise
 
 Ill] COMMEECIAL LAW. 77 
 
 refinement of justice which, we have been taught to 
 believe, distinguishes the pure products of case-law 
 from the coarse ejBforts of law-givers. Thus our method 
 of law-making on occasion rather than on system is 
 seen to break down at the very points where most 
 merit is claimed for it. The natural course of decisions 
 provoked by litigation cannot be trusted either to 
 furnish us within any reasonable time with distinct 
 rules for men of business to guide their conduct by in 
 afiairs of importance, nor, when it does produce such 
 rules, to produce them with sufficient deliberation or 
 consistency. The first of these drawbacks is to a great 
 extent inherent in the nature of case-law, and the 
 remedy for it belongs to the province of legislation. 
 The second is largely mitigated by some peculiarities 
 of our legal institutions, and might theoretically be 
 made to disappear. But were it not for the continuous 
 traditions and education of the legal profession, the 
 limited number of tribunals whose decisions are 
 considered to lay down the law, and the subjection of 
 all these to one ultimate court of appeal, not only 
 would the omissions of case-law be perplexing, but its 
 caprices might speedily become intolerable. 
 
 IV. — DESULTORY LEGISLATION. 
 
 The institution of law-making by the results of 
 casual litigation having been found from early times 
 to be in various ways insufficient and even incon- 
 venient, the wisdom of Parliament has been from 
 time to time exercised in providing remedies for its 
 defects. The oeneral intention of these measures, if
 
 78 SOME DEFECTS OF OUR [lH 
 
 we except the cases of distinctly unjust laws passed 
 in moments of social panic, has been for the most 
 part good. Unfortunately it is a discovery of very 
 modern date that there is such a thing as method in 
 legislation itself, apart from the substantial merits of 
 particular enactments. So far as concerns the form 
 of the law, the action of Parliament has given us, 
 instead of undigested case-law alone, a mixture of 
 undigested case-law with no less undigested statutes, 
 the mutual bearings of which it is often very difficult 
 to perceive. 
 
 In order to legislate in a satisfactory manner upon 
 any given subject, several qualifications are necessary 
 in the law-giver. In the first place, he must know 
 accurately what the existing law on that subject is. 
 He must be no less clearly aware in what respects he 
 is not content with it, and why. He must further 
 have formed a clear conception of the changes in its 
 efi'ect which he wishes to produce. Nor is it enough 
 to have a distinct intention founded on exact know- 
 ledge. The law -giver must also have the skill to 
 express that intention in apt, sufficient, and unam- 
 biguous terms, which shall make his purpose plainly 
 understood, if possible, by those who have to obey the 
 law, but in any case by those who have to administer 
 it. Parliamentary legislation, however, is carried on, 
 with rare exceptions, under circumstances and in a 
 manner which effectually prevent most or all of these 
 conditions from being satisfied. The difficulty of 
 knowing the actual state of the law is on many ques- 
 tions considerable even for experts, and most laymen
 
 Ill] COMMERCIAL LAW. 79 
 
 do not SO much as know how great the difficulty is. 
 Hence well-meaning and otherwise well-informed men 
 often bring forward proposals which they suppose to 
 be improvements of the law, and which might be so if 
 the existing law were such as they suppose it to be, 
 but which, in truth, are either superfluous or inap- 
 propriate. It is likewise a common state of mind, 
 even among educated persons, to have a sense of 
 dissatisfaction or hardship without attempting to fix 
 in one's mind the real point where things are amiss. 
 And this vague feeling that something must be done, 
 somebody indemnified^ or somebody else made answer- 
 able, is a constant force tending to unconsidered legis- 
 lation. When our crudely formed and more crudely 
 executed intentions fail to bear fruit, as they naturally 
 do, we are apt to think, not that we have legislated 
 badly, but that we have not legislated enough, and so 
 blunders raise up blunders, and the stock increases 
 and multiplies. Technical skill, again, is often below 
 the mark, if not altogether wanting, especially in the 
 amendments which may seriously disfigure the most 
 artistically drawn Bill. In fact, the more artistic the 
 original composition is, the more it will suffer from 
 piecemeal alterations. The kind of skill required 
 includes many elements. First comes power of ex- 
 pressing ideas clearly, which is not so common as 
 many people think. Familiarity with the appropriate 
 technical terms is of course needful, and besides this 
 there should be knowledge of the manner in which 
 the language of statutes is looked at by those who 
 have to interpret it. There must yet be added the
 
 80 SOME DEFECTS OF OUK, [m 
 
 faculty of scientific imagination which can foresee the 
 various consequences of a proposed enactment in its 
 relations to the various persons and transactions 
 affected by it. We shall offer no insult to the intel- 
 ligence of members of Parliament in saying that most 
 of them are without these special qualifications. Nor 
 is there any expert or set of experts whose business 
 it is to guide or superintend the technical part of 
 legislation. The result is that Acts and clauses are 
 passed to which it is all but impossible to attach a 
 definite meaning, which produce unexpected and 
 absurd consequences, or which, being intended to 
 settle doubtful points, only raise up new doubts in 
 addition to the old ones. Many an Act of Parliament, 
 originally prepared with the greatest care and skill, 
 and introduced under the most favourable circum- 
 stances, does not become law till it has been made a 
 thing of shreds and patches hardly recognizable by 
 its author, and to any one with an eye for the clothing 
 of ideas in comely words no less ludicrous an object 
 than the ragged pilgrims described by Bunyan : — 
 " They go not uprightly, but all awry with their feet ; 
 one shoe goes inward, another outward, and their 
 hosen out behind ; there- a rag and there a rent, to 
 the disparagement of their Lord." 
 
 The section of the Companies Act, 1867, which 
 was the theme of so much all but barren discussion in 
 the case of Twycross v. Grant, is a fair instance of the 
 dangers we are liable to in this way. The Act itself, 
 as a whole, is a deliberately framed supplement to the 
 principal Act of 1862. But its unhappy 38th section
 
 Ill] COMMERCIAL LAW. 81 
 
 was somehow foisted in while the Bill was passing 
 through Committee, and in an evil hour was accepted 
 by the Government of the day. It has all the marks 
 of hasty amateur legislation ; it attempts to be com- 
 prehensive by being vague, and succeeds only in say- 
 ing so far too much that nobody can tell how much 
 it really means. It would be easier to tell how much 
 it has cost. The persons concerned in the case of 
 Twycross v. Grant could probably give us an approxi- 
 mate estimate of the fruitless expense, simply in hard 
 cash, which may be set down, to the insertion of this 
 one ill-penned clause. 
 
 The persons, however, who most keenly feel the 
 difficulties and dangers arising from the fragmentary 
 composition of our modern statute law are the judges. 
 Their complaints on the subject have been many and 
 bitter, and with reason. It is not too much to say 
 that they often find themselves placed by the action of 
 Parliament in the position of ha^dng to interpret the 
 law by mere guess-work. Their task, as Lord O'Hagan 
 once said, " sometimes involves the necessity of har- 
 monizing apparently inconsistent clauses," and making 
 sense of "provisions cast together haphazard by dif- 
 ferent minds differently constituted, and looking to 
 different and special objects without due regard to the 
 harmony of the whole." Well might that noble and 
 learned person express in his judicial capacity the wish 
 for a department " by which Bills, after they pass 
 Committee, might be supervised and put into intel- 
 ligible and working order." But the chance of Lord 
 O'Hagan being able, in his- legislative capacity, to
 
 82 SOME DEFECTS OF OUR [ill 
 
 assist in the carrying out of any such plan appears to 
 be as remote as ever. 
 
 It is further to be noted that the vagueness of 
 case-law and the discontinuity of statute-law constantly 
 react upon one another, each confusion making the 
 other worse, so that the whole result is far more than 
 would be given by the simple addition of the two. 
 The so-called Act to amend the law of partnership, 
 passed in 1865, is a very curious example of the 
 manner in which the uncertainty of existing law may 
 cause time and toil to be wasted in needless legislation. 
 The Act was the residuum of a scheme for introducing 
 the French system of companies en commandite ; the 
 Bill, originally due to a private member, was adopted 
 by the Government of the day, and taken charge of 
 by Mr. Milner Gibson, then at the Board of Trade. 
 The law officers (Lord Selborne, then Sir Koundell 
 Palmer, and Sir R. Collier), and other legal members, 
 took part in the debate on the second reading. The 
 debate was fairly well supported, and it was assumed 
 on all hands that the Bill would effect a substantial 
 change in the law. No backer suggested that the 
 change was too slight to be dangerous, nor any 
 opponent that it was so slight as to be superfluous. 
 In the House of Lords the Bill was opposed by Lord 
 St. Leonards, who expressed serious alarm for the 
 trading credit of the country if it were passed. Lord 
 Wensleydale thought it required material amend- 
 ments. Lord Westbury defended the change as 
 salutary and necessary. The Bill was passed and duly 
 became law, and the law so made has become at
 
 Ill] COMMERCIAL LAW. 83 
 
 various times the subject of judicial consideration. 
 The result of this consideration is the discovery that 
 the Act really adds nothing, or next to nothing, to 
 the law which had been laid down some years before 
 by an important decision of the House of Lords. The 
 Act was meant to do away with the hardship of the 
 unqualified rule that whoever shared the profits of a 
 business was liable as a partner. But that supposed 
 rule (as now appears) was, in fact, abrogated by the 
 decision in Cox v. Hickman, and the Act expressed 
 only a part of the new footing on which the law was 
 thus placed. Parliament intended to produce a sub- 
 stantial amendment of the law, and produced un- 
 awares a stray bit of codification. As an acute and 
 plain-spoken judge has since said, the effect of Cox v. 
 Hickman was not understood at the time. The 
 singular j^art of the story is that the misunderstanding 
 was shared by the law officers of the Crown, all the 
 law lords (two of whom had been parties to the deci- 
 sion in Cox V. Hickman), and, it would seem, the legal 
 profession generally. Whence the moral may be 
 drawn that the evolution of law by the unaided 
 natural process of litigation is an even more subtle 
 and excellent thing than one would imagine, seeing 
 that, as in this case, it may take not less than five 
 years for a leading judgment of the ultimate Court of 
 Apj^eal to be felt in its full eff"ect. It is hardly 
 possible to maintain that our undigested case-law is 
 certain enough for all practical purposes when the 
 wisdom of Parliament itself can be thus deceived on a 
 matter of great practical and commercial importance.
 
 84 SOME DEFECTS OF OUR [ill 
 
 V. EFFECTS OF PARTIAL LEGISLATION. 
 
 Legislation under our present want of system is 
 weighted with almost every possible disadvantage of 
 form. Defects of form, however, may be endured, 
 even if we hold that, as a matter of taste and dignity, 
 the Legislature of a great country should endeavour 
 at least to avoid gross faults of workmanship in the 
 composition of the laws. If legislation were intelli- 
 gible when we got it, we might perhaps be content. 
 But it is too often not intelligible even when we get 
 it at its best, unless to lawyers having a special know- 
 ledge of the subject dealt with ; and this, not by 
 reason of the difficulty or intricacy of the subject- 
 matters in themselves, but by the singular entangle- 
 ment of statute-law and case-law, which we shall now 
 endeavour to explain somewhat further than we have 
 yet done. 
 
 The statutory amendment of the law generally 
 proceeds in this fashion. The common law, not 
 necessarily the old common law of the books, but 
 often some modern judicial development of it, is found 
 inadequate or inconvenient. Parliament thereupon 
 provides a remedy by adding to or varying the ex- 
 isting law in certain particulars. The amended law 
 resulting from this process consists of the former case- 
 law taken together with the statutory addition or 
 variation. The amended Act is framed by persons 
 who know, or profess to know, the exact state of the 
 law as it was before the Act, and it assumes the like 
 knowledge on the reader's part. Consequently it is
 
 Ill] COMMERCIAL LAW. 85 
 
 intelligible in proportion to the truth of that assump- 
 tion, which amounts to saying that in most cases and 
 for most persons it is not intelligible without a great 
 deal of trouble. The Statute-book would be a real 
 book if the fiction that every one knows the law were 
 a fact. In that case every new statute would be in 
 itself a real and complete piece of information ad- 
 dressed to all persons concerned. But since the fiction 
 is not a fact, statutes composed on the plan above 
 mentioned are a kind of hieroglyphics to the ordinary 
 Englishman. Nor is their reading always an obvious 
 matter even to experts. There is a whole science of 
 interpretation better known to judges and parlia- 
 mentary draftsmen than to most members of the 
 Legislature itself. Some of its rules cannot well be 
 accounted for except on the theory that Parliament 
 generally changes the law for the worse, and that the 
 business of the judges is to keep the mischief of its 
 interference within the narrowest possible bounds. 
 Our modern law of real property is simply founded on 
 judicial evasion of Acts of Parliament, which, however, 
 was of such a flagrant kind as could not take place 
 now-a-clays. This kind of jealousy is by no means 
 wholly extinct ; we do not even say that under exist- 
 ing conditions it may not still be sometimes useful. 
 
 To return to our immediate subject, the growth of 
 statute law. The Legislature is fortunate if its efibrts 
 are so well considered and so skilfully executed that a 
 single Act is found sufficient to effect its purpose onoe 
 for all. More often the first amendinor Act becomes 
 the subject of interpretation, — possibly of a narrow
 
 86 SOME DEFECTS OF OUR [lH 
 
 interpretation which defeats most of the real inten- 
 tion. The law as amended and interpreted is dis- 
 covered to need re-amendment ; and upon the fresh 
 amendment the work of judicial interpretation begins 
 again. And so it goes on till we have a series of 
 statutes which to an uninitiated observer raight seem 
 to deal with their whole subject, but are really mere 
 islands scattered in an ocean of case-law. 
 
 The Factors Acts are a sufficiently good instance 
 of this operation, though probably by no means the 
 stronojest case that could be found. The Acts in 
 question extend over the space 'of about forty years, 
 the latest of them having been passed in the year 
 1877. The first of them presupposes in the reader 
 an accurate knowledge of the common law, and each 
 of the following ones presupposes, in addition to this, 
 knowledge of the efi'ect produced on it by the fore- 
 going statutory alterations and the judicial interpre- 
 tation thereof The general rule of the common law 
 was that a person dealing with the ostensible owner 
 of goods did so at his own risk. " To make eitlier a 
 sale or a pledge valid against the owner of the goods 
 sold or pledged, it must be shown that the seller or 
 pledger had authority from the owner to sell or pledge, 
 as the case might be." This was subject to an excep- 
 tion in the case of sale in " market overt," which was 
 no doubt a large exception, and may have been in 
 practice a sufficient one, so long as markets were the 
 principal means of carrying on commerce, but which 
 has become of very slight importance by the change of 
 modern habits.
 
 Ill] COMMERCIAL LAW. 87 
 
 The Courts held, after some dispute, that the em- 
 ployment of a factor does not of itself authorize him 
 to pawn or pledge goods entrusted to him ; nor did 
 the possession of documents of title give him any 
 further power in this respect, the principle of the 
 common law being that such possession could have no 
 greater value than the possession of the goods them- 
 selves. Such a state of things being intolerable under 
 the conditions of modern commerce. Parliament went 
 to work to mend it. The Factors Acts of George IV. 
 enabled persons " entrusted with " documents of title 
 to make valid sales or pledges of the goods to persons 
 dealing with them in good faith. Power to sell, but 
 not to pledge, in the usual course of business was also 
 given to agents entrusted with goods. It remained 
 unsafe to make advances on goods, or on the documents 
 representing them, to a person known to have posses- 
 sion of them only as an agent. And it was held, and 
 no doubt rightly, by several decisions both on these 
 and on the later Act, that the agency must be of a 
 kind which would in the ordinary course of things 
 cover a sale or pledge, not an agency totally distinct 
 from a factor's, such as that of a clerk, warehouseman, 
 or carrier. Then came the Act of 1842, which made 
 the power to pledge co-extensive with the power to 
 sell, but did not increase the latter. Consequently an 
 agent entrusted with goods for a purpose unconnected 
 with selling or pledging them, or even an agent for 
 sale who wrongfully retained the goods after his autho- 
 rity had been countermanded, could not make a valid 
 disposition of the goods as against the true owner.
 
 88 SOME DEFECTS OF OUR [m 
 
 It is not to be supposed that these consequences 
 were immediately or easily worked out ; on the con- 
 trary, they were the fruit of much hard-fought litiga- 
 tion. In some of the cases there was considerable 
 hardship on persons who had advanced their money 
 to apparent owners without any means whatever of 
 knowing their real position. But nothing more was 
 done till the last straw was laid on by the decision in 
 the case of Johnson v. Credit Lyonnais Company early 
 in 1877; a decision, however, which was inevitable 
 whenever the point arose, and was affirmed, after 
 mature consideration, by the Court of Appeal. That 
 case revealed to the public that large and important 
 kinds of ostensible ownership were left wholly un- 
 touched, and persons dealing with them unprotected, 
 by the existing Factors Acts. A dealer who had sold 
 a quantity of tobacco, but had been allowed to keep 
 the dock-warrants, obtained an advance on the war- 
 rants from the defendant company, who knew nothing 
 of the sale. The seller absconded, and left the buyer 
 and the company to settle it between them. It was 
 impossible to maintain that the seller was a factor or 
 agent entrusted with the dock-warrants by his pur- 
 chaser ; yet the hardship was exactly the same as if 
 he had been. Thereupon the amending Act of 1877 
 was passed, which supplied this casus omissus and 
 one or two others. 
 
 We shall assume that the law is now left, so far as 
 regards the substance of it, on a satisfactory footing ; 
 our purpose being only to call attention to the curious 
 fashion in which it has been done. We have four
 
 Ill] COMMERCIAL LAW. 89 
 
 separate Acts of Parliament whose effect cannot be 
 "Understood without an elaborate process of reading 
 between the lines. Even to a lawyer they are obscure 
 without a commentary, which is furnished by the 
 elaborate judgments delivered in sundry recent cases. 
 To a man of business they must be absolutely per- 
 plexing. The last Act recites that " doubts have 
 arisen with respect to the true meaning of certain 
 provisions of the Factors Acts, and it is expedient to 
 remove such doubts, and otherwise to amend the said 
 Acts, for the better security of persons buying or 
 making advances on goods, or documents of title to 
 goods, in the usual and ordinary course of mercantile 
 business." The interpretation of this preamble might 
 be as follows : — " Whereas it appears from divers 
 decisions of the superior Courts, and especially from 
 JohnsoD V. Credit Lyonnais Company, that the provi- 
 sions of the Factors Acts are insufficient for the 
 security of persons buying, etc., and otherwise defi- 
 cient in both matter and expression, and it is neces- 
 sary to supply such defects." The facts are, indeed, 
 fresh in the memory of the present generation of 
 merchants and brokers, but twenty years hence the 
 Act will be as great a puzzle to the lay people as its 
 predecessors. The reader will now be prepared to 
 understand how far our so-called Consolidation Acts 
 may be from really consolidating the whole law on 
 the several topics they deal with.
 
 90 SOME DEFECTS OF OUR [ill 
 
 VI. THE REMEDY. 
 
 Such is the state of our commercial jurisprudence, 
 and such are its inconveniences ; and they are incon- 
 veniences which the increase of litigation and of 
 reported cases tends, on the whole, to increase more 
 than to diminish. As yet, however, we have done 
 next to nothing to provide against them. An intel- 
 ligent observer not familiar with the w^ays of our 
 Parliament might infer from this apathy that com- 
 petent advisers had unanimously, or all but unani- 
 mously, declared the case to be hopeless. His inference 
 would be natural, but mistaken. The remedy lies 
 straight before us, and has already been applied with 
 success by the majority of civilized nations. It is the 
 statement of the law by the supreme authority of the 
 Legislature, and in an orderly and lucid form ; in one 
 word, codification. If Parliament is afraid of under- 
 taking this, it is afraid of undertaking that which the 
 Italian Parliament, the German Reichstag, and the 
 Swiss Federal Assembly have been doing without 
 fear and without failure for several years past. The 
 honour of the latest achievement of this kind belongs 
 to Switzerland. The Federal Legislature, in exercise 
 of the authority conferred on it by the Revised Con- 
 stitution of 1874, has passed a Code of the law of 
 obligations which will take effect from the beginning 
 of 1883. This code contains a little over 900 sections, 
 and covers (with certain exceptions made for special 
 reasons), the whole ground of the French and German 
 commercial codes, besides more than one topic not
 
 Ill] COMMERCIAL LAW. 91 
 
 included in tliem. The cliicf exceptions are maritime 
 law, with which Switzerland is naturally not con- 
 cerned, and the contract of insurance, which is 
 reserved for supplementary legislation. The Code has 
 peculiarities of both matter and form, as distinguished 
 from other Continental works of the same kind, which 
 make it specially interesting to Englishmen. In the 
 first place, it does not, like the French " Code de 
 Commerce," or the German " Handelsgesetzbuch," 
 assume a standing distinction between persons in 
 trade and other citizens ; nor are the dealings and 
 lawsuits of traders referred, as in France and Ger- 
 many, to the cognizance of special courts. The view 
 taken by the Swiss Legislature agrees with our own. 
 The framers of the Code thought this division of 
 citizens into classes repugnant to the spirit of Swiss 
 political institutions, and on purely legal grounds use- 
 less and unscientific. Their example and their reasons 
 should be considered by those persons in England, if 
 such there be, who really think men of business would 
 gain anything by having separate commercial courts 
 or a separate commercial code. I am not aware that 
 any competent person has openly advocated in this 
 country the sundering of civil and commercial law ; 
 and one is fain to hope that those who have now and 
 then called for it did not clearly understand what 
 they wanted. The Swiss law-makers have rightly 
 seen that the true commercial code is a code of civil 
 business applicable to the dealings and duties of all 
 citizens alike. 
 
 Another notable point is that the Swiss Code of
 
 92 SOME DEFECTS OF OUR [ill 
 
 Obligations is bilingual. It is equally " Bundesgesez 
 liber das Oblio-ationenrecht " and "Code federal des 
 obligations," ^ The German and the French were 
 drafted side by side, and both are equally original and 
 authentic. Any one who has tried his hand at pro- 
 ducino; a correct and idiomatic version of technical 
 propositions in a foreign language can appreciate the 
 nicety of the Swiss codifiers' task. Probably a bilin- 
 gual text, as distinct from an original text with an 
 authorized translation, has never before been produced 
 on such a scale. Here, then, is a grave difficulty of 
 form which the Swiss have overcome in addition to the 
 other difficulties of codification, while we stand help- 
 less before those other difficulties alone. If I may 
 borrow a comparison from Mr. Justice Stephen, it is 
 as if a man who every day carries on a trying and 
 arduous profession should be afraid of ordering his 
 own dinner. 
 
 The Swiss committee of draftsmen was favoured 
 on the other hand, by some conditions. It included 
 the late Professor Bluntschli, who probably stood at 
 the head of European experts as touching that parti- 
 cular undertaking. There is no reason, however, why 
 an English codifying Commission should not include 
 persons of the like eminence in English law, which 
 indeed has been the case as to the draft criminal 
 code. Again, the Swiss codifiers had the German 
 
 1 The law of Obligations, in the Roman and Continental meaning 
 of the term, includes all or nearly all of what an English lawyer 
 would assign to the heads of Contract and of Tort, excepting those 
 torts, such as trespass, which violate rights of property in the strict
 
 Ill] COMMERCIAL LAW. 93 
 
 commercial code before them as a pattern to be fol- 
 lowed or improved upon. In England we may derive 
 exactly the same advantage from the recent legislation 
 of British India. The Indian Contract Act, which 
 has been law for nearly ten years, embodies English 
 law with only slight alterations, and would furnish us 
 with a considerable ground- work ready made. I do 
 not say that we could adopt the Contract Act, or even 
 most of it, as it stands. Careful criticism and revi- 
 sion would be needful, and a good deal of develoj^ment 
 in some places. But it must be remembered that 
 the object of legislation is not to produce laws of 
 such perfection as to be above theoretical or verbal 
 criticism, which is impossible, but good working laws 
 which shall be substantially just and fairly intelligible. 
 This is possible, and no better reasons than ignorance, 
 timidity, and the extreme cumbrousness of our legis- 
 lative procedure, stand in the way of our doing it at 
 least as well as our neighbours have done. If any one 
 wishes to form a notion of the contrast between what 
 is and what might be, let him, as I have already 
 hinted in this essay, compare the chapter on the sale 
 of goods in the Indian Contract Act with the condi- 
 tion of the same subject in any good English text- 
 book. 
 
 One thing is certain, in any case, and forms the 
 moral I chiefly wish to point by the foregoing remarks. 
 Nothing will be done for the better ordering of our 
 laws until men of business perceive the importance of 
 it, and are strongly minded to get it done ; nor, what 
 is more, until they make it in one fashion or another
 
 94 SOME DEFECTS OF OUR COMMERCIAL LAW. [ill 
 
 unmistakably plain to Parliament that they are so 
 minded, and mean to see the thing set about in earnest. 
 Only the workmanship and details of the machinery 
 depend on lawyers. The moving force must come 
 from the men of business themselves. With vigour 
 and good-will it is conceivable that we may not only 
 improve on Anglo-Indian legislation in form, but even 
 overtake its work ; for in India things stand still for 
 the present. It would not become an outsider to dis- 
 cuss the reasons of this ; but I believe they are 
 mostly, if not entirely, connected with the peculiar 
 circumstances of Indian society, and of a political 
 more than of a strictly legal nature.
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 95 
 
 IV. 
 
 THE LAW OF PAETNERSHIP IN ENGLAND.^ 
 
 It will be a reasonable assumption, I think, that those 
 persons who have done me the honour of coming to 
 listen to this paper are more likely to be interested 
 in the practical bearings of the law of partnership in 
 its present condition than in anything I could say 
 about its history or technical development. I shall, 
 therefore, not indulge a taste for historical inquiry on 
 this occasion ; which will not be a very difficult piece 
 of self-denial to practise, as the whole early history of 
 commercial law in this country is exceedingly obscure. 
 Our present law of partnership) is fortunately quite 
 modern, by far the greater part of it having been 
 worked out by the courts within the present century. 
 I say fortunately, because its late origin has secured 
 it an almost entire exemption from the disfigurements 
 and deformities that cling to many other branches of 
 our jurisprudence. The law of partnership was born 
 too late to fall into the hands of judges who were the 
 slaves of a scholastic habit of mind, and could not be 
 
 ^ A Paper read before the Bankers' Institute, Wednesday, 20th 
 October 1880.
 
 96 THE LAW OF PARTNERSHIP IN ENGLAND. [iv 
 
 induced by any reasons of expediency to reconsider 
 their narrow principles, or abate the rigour of their 
 still narrower deductions from them. The convenience 
 of mankind and the actual usages of men of business 
 have, on the whole, prevailed in the formation of our 
 modern commercial law, so that the great bulk of it 
 only wants putting into shape to be accepted as 
 satisfactory. This is eminently the case with the law 
 of partnership. I do not mean that it is perfect ; for 
 I think it has one great want, to the consideration of 
 which we shall presently come. But I do mean that 
 it is reasonable as far as it goes ; that it is singularly 
 free from oddities and anomalies, and contains very 
 few propositions, if any, which strike a man of busi- 
 ness as absurd. There is one part of it, indeed, 
 which is still in a somewhat entangled state, namely 
 that which deals with the administration of the assets 
 of an insolvent firm and the separate property of the 
 partners. But this subject is interwoven with the 
 law of bankruptcy, and cannot be practically con- 
 sidered apart from it. We will therefore merely note 
 in passing that the liquidation of insolvent firms — or 
 (since the law strictly knows nothing of the firm) I 
 should rather say the estates of insolvent partners — 
 is governed by a kind of rule of thumb which has 
 been condemned by several high authorities, and for 
 which nobody has yet given an intelligible reason. I 
 cannot find, however, that other nations have been 
 much more successful in dealing with this problem. 
 The Scottish law of partnership is more enlightened 
 than ours on several points, but hardly shows itself
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 97 
 
 superior on tliis ; nor is there anything like a generally 
 accepted plan on the Continent. In France the law 
 and practice appear to be so little settled that a com- 
 parison with our system is impracticable. In Germany 
 they are still, I believe, more or less various in the 
 different States. Except on this one perplexed topic, 
 to which I shall not return, the English law of part- 
 nership is in substance a creditable production. Being, 
 as I have said, free from absurdities, it has likewise 
 escaped all but scot-free from statutory tinkering, — an 
 operation which has brought some other parts of our 
 law into a confusion bewildering even to lawyers. As 
 to the form of partnership law, it is just the same as 
 that of the great bulk of the law of England ; that is 
 to say, it has no definite form at all. You have to 
 pick out general rules as best you can from the mass 
 of reported decisions, and the remarks of the judges 
 who delivered them, and fill up the gaps and doubt- 
 ful places that remain by more or less probable 
 conjecture. 
 
 Such is the general nature of the materials we 
 have to deal with. We may now come to the ques- 
 tions which are of practical interest for us at this 
 moment. They may be summed up in two words — 
 consolidation and amendment. Perhaps I may take 
 it as an undisputed fact that a considerable majority 
 of business men would like to have the law of part- 
 nership expressed in a compact and easily accessible 
 form, from which any fairly intelligent person could 
 learn in outline what the rights and liabilities of 
 partners are. In other words, as I am not addressing 
 
 H
 
 98 THE LAW OF PAKTNERSHIP IN ENGLAND. iv] 
 
 an audience of lawyers, I may perliaps be dispensed 
 from going over the general arguments in favour of 
 codification, or meeting the objections to it — some of 
 tliem very subtle and curious — wliicli have been made 
 by ingenious persons. I will only say that, notwith- 
 standing all the objections, the people who have 
 already codified their laws even in a rough sort of 
 way seem to have no manner of doubt, after the 
 experience of a good many years, that it was a useful 
 and profitable thiug to do. No country which has 
 enacted complete or partial codes would now think of 
 returning to the old state of things. But in England 
 we shall never get a code, or any chapter of a code, 
 by force of pure argument. We must make it clear 
 that a strong body of persons are interested in the 
 thing being done, want it done, and see their way to 
 doing it. In the case of the law of partnership these 
 conditions are better fulfilled than in any other I 
 know of. The commercial Avorld, which I need not 
 say is a power to be reckoned with in public affairs, 
 seems to have pretty well made up its mind that an 
 authentic consolidation of the law of partnership is 
 desirable. And the law being, as I have said, modern 
 and rational in substance, affords an unusually favour- 
 able field for enterprise of this kind. The points on 
 which there is now any serious doubt are few ; those 
 on which distinct alteration is required are hardly 
 any. Thus. the problem of recasting in a legislative 
 form the effect of the present authorities is almost 
 entirely one of expression. Having tried it myself, I 
 do not pretend that it is an easy one ; but I am sure
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 99 
 
 it is not iD soluble. I will so far depart from what I 
 said just now as to notice one objection before passing 
 on. Some people ask why digests and abridgments 
 of the law by private writers should not, for all prac- 
 tical purposes, do as well as a code. The answer is 
 that there is an impassable gulf between the two 
 things. When any part of the law is consolidated 
 and declared by Parliament, the words of that Act of 
 Parliament are the law of the land, and if doubts 
 arise upon them it is because the words are ambiguous 
 or fail to meet the particular case. But in the case 
 of a text-book, or digest, or abridgment, however 
 carefully it may be compiled, and whoever the author 
 may be, even if he were at the head of the legal pro- 
 fession, his words are not the law of the land ; they 
 are only the statement of his opinion as to what is 
 the result of the authorities, and his opinion may or 
 may not be followed when a case in point comes 
 before the court. Even if, as in France and on the 
 Continent generally, text-books of a certain standing 
 had an authority co-ordinate with that of actual 
 decisions, the text-writer's authority would still be 
 only one among many. We want, then, to consoli- 
 date the law of partnership by a legislative act ; and 
 we can do it with very little substantial departure 
 from the authorities in which the law is now con- 
 tained. 
 
 But we have said that there is a great want in the 
 English law of partnership. It needs to be amended, 
 not by changes of a detail here and a detail there in 
 the rules which have been laid down by the courts.
 
 100 THE LAW OF PARTNERSHIP IN ENGLAND. [iV 
 
 but by supplying this whole missing chapter. The 
 institution of partnership en commandite, or limited 
 partnership, as we may call it in English, is unknown 
 in the United Kingdom, and in these kingdoms alone, 
 or almost alone, among all the civilized countries of 
 the world.^ Probably every one here knows, in a 
 general way, what partnership e7i commandite is ; 
 but it may as well be stated for the sake of clearness. 
 The essence of commandite partnership is the con- 
 junction of at least one managing partner who is liable 
 without limit for the partnership debts, like a partner 
 in an ordinary firm, with one or more contributing 
 partners who do not take an active part in the busi- 
 ness, and are liable only to the extent of what they 
 contribute, or have undertaken to contribute, to its 
 capital. This form of partnership has been known on 
 the Continent for many centuries. The Mediterranean 
 trade of the middle ages was carried on principally 
 by its means. In France Lewis XIV. regulated it by 
 an ordinance of 1673, which has been substantially 
 adopted in the modern commercial code. How it 
 failed to establish itself in England or Scotland I am 
 unable to say: it is not impossible that it was recog- 
 nized by the special tribunals which administered the 
 law-merchant down to the seventeenth century, but 
 of the proceedings of those courts we know hardly 
 
 ^ The Companies Act of 1867 makes an approach to the French 
 Sociite en commandite par actions, or German Kommandit-Gesellschaft 
 auf Aktien, by authorizing the formation of companies in which the 
 liability of the directors, or managers, or managing director, is un- 
 limited. Neither in reading nor in practice, however, have I met with 
 any instance of such a company being formed.
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 101 
 
 anytliing. We must also remember that for a long 
 time the foreign trade of England was almost entirely 
 in the hands of Italian or Hanseatic merchants, who 
 did not resort to the English courts of justice when 
 they could help it, but settled their disputes by some 
 domestic procedure of their own. So it was, at all 
 events, that when the law of partnership was formed 
 by modern judges and chancellors, the notion of a 
 partner with limited liability never appeared. Indeed, 
 the tendency of the courts was for a long time to hold 
 that whoever in any way shared the profits of a 
 business must be a partner in it, and liable for all its 
 debts ; and if this tendency had not happily been 
 arrested by the decision of the House of Lords in a 
 leading case, a very serious conflict between the legal 
 and the mercantile sense of justice might have been 
 the result. The North American States which were 
 colonized from England took over English law as the 
 foundation of their jurisprudence in partnership as 
 well as in other matters. Louisiana and Florida, 
 however, not being English colonies in the first 
 instance, have always had the system of partnerships 
 en commandite; and in the course of this century 
 most (I think we may say all) of the other States of 
 the L^nion have naturalized it under the name of 
 special or limited partnership. Thus we are left 
 practically alone in excluding it ; and I think there 
 is a fairly strong presumption that we lose something 
 by not possessing an institution which has been found 
 useful by so many mercantile communities. The 
 economical reasons in favour of limited partnership
 
 102 THE LAW OF PARTNERSHIP IN ENGLAND. [iV 
 
 are strong, but I do not think it necessary to enter 
 ■upon them at present.^ Not only should I be, if I 
 am not mistaken, preaching to those who need no 
 conversion, but I should go near to commit the graver 
 fault of enlarging on matters which many of my 
 audience understand better than myself. The only 
 part of the question on which I can add much to your 
 knowledge is the technical one. It may not be super- 
 fluous to give my testimony, founded on the actual 
 experiment of drafting a Bill, that the technical diffi- 
 culties of making the commandite system fit in with 
 our existing law of partnership are not of a really 
 formidable kind. 
 
 Probably some of you know that many attempts 
 to introduce the system have been made in this 
 country, and thus far none have been successful ; and 
 you may reasonably ask why this has been so. So 
 far as I have made myself acquainted with those 
 former attempts, I am disposed to ascribe their failure 
 to two causes, — that the principle of the desired 
 innovation was not always thoroughly understood by 
 its promoters in Parliament, and that, whether in 
 consequence of this or for other reasons, their efforts 
 were timid and half-hearted. It is a vital point in 
 the system that the commanditaire or limited partner 
 is not a creditor of the firm, but a real partner whose 
 liability and powers are limited. He puts a certain 
 sum into the concern, and is answerable only to the 
 extent of that sum ; on the other hand, he has not 
 
 1 They may be seen briefly stated iu Mill's Political Economy^ 
 Book V. cliap. ix. sec. 7.
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 103 
 
 the same rights of taking part in the business as an 
 ordinary partner, but is subject to certain restrictions, 
 of which the details are fixed by the law of the par- 
 ticular country. He is no more a creditor of the 
 firm than a shareholder in a company is a creditor of 
 the company; he no more lends his money to the 
 acting partner than holders of railway shares lend 
 their money to the directors. If you regard him as a 
 lender of money to the firm, who takes a share of 
 profits instead of interest, you altogether confuse the 
 true relation. Unhappily, just this confusion seems 
 to have prevailed in the attempts made in England 
 to procure legislation on the subject. The result has 
 been the so-called Act to Amend the Law of Partner- 
 ship of 1865, which was afterwards found to have 
 added little or nothing to what had been settled 
 without the aid of Parliament by the more recent 
 decisions. The most important section of this Act 
 enables persons to lend money to traders, and receive 
 a rate of interest varying with profits, or a share of 
 profits in lieu of interest, without becoming respon- 
 sible as partners. What happens in practice is that 
 the lender who advances his money for a share of 
 profits is not content to be a passive creditor. Fondly 
 supposing that the Act enables him to assume the 
 position of a partner in everything but liability, he 
 enters into an agreement by which his so-called loan 
 is completely embarked in the capital of the business, 
 and he receives in return most of the usual riohts 
 and powers of a partner as between himself and the 
 nominal borrower. Then, if the business fails, he
 
 104 THE LAW OF PARTNERSHIP IN ENGLAND. [iV 
 
 finds to his confusion that his excess of caution has 
 put him in exactly the position he wanted to avoid. 
 The Act declares that you may lend money and take 
 a share of profits without being a partner ; but it 
 does not enable you to enter into what is substantially 
 a partnership, and limit your liability by calling it a 
 loan ; and in this way it lures people into the very 
 danger it was intended to protect them from. The 
 case I have stated has nothing imaginary about it ; 
 it is the typical form of several which may be seen 
 in the law reports, and others which have occurred 
 in private practice. One practical conclusion which 
 seems to be justified is that there is a strong demand 
 in the country for some form of true limited partner- 
 ship, for otherwise people would not run so much risk 
 in order to get something as nearly like it as they can 
 devise under the present law. Perhaps it is not 
 without significance that in one reported case the 
 parties actually referred to this Act of 1865 by the 
 erroneous name of the Limited Partnership Act. 
 Moreover, loans under the Act of 1865 are not regis- 
 tered ; and this is complained of as leading to some- 
 thing like fraud on the public, as on the strength of 
 a loan of this kind a trader may with little chance of 
 discovery pass off" borrowed capital for his own, and 
 obtain credit on it. The Act provides, it is true, that 
 the lender who receives a share of profits must be 
 postponed to other creditors in case of insolvency 
 (which, however, may be thought a poor consolation 
 for them if there is not enough even so to pay a sub- 
 stantial dividend to any one) ; and I confess that I
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 105 
 
 do not see how trading with borrowed capital is to be 
 prevented, so long as lenders are willing to risk their 
 money in consideration of high interest. Still, if we 
 had a recognized system of limited partnerships, there 
 can be little doubt that most people would prefer the 
 position of a limited partner to that of a lender, and 
 that loans under the Act of 1865 w^ould go out of use. 
 At the same time I should myself think it well to put 
 a stop to them formally, by enacting that every loan 
 or agreement to lend money for a share of profits 
 should have the effect of an aOTeement for a limited 
 partnership ; in other words, I would leave no middle 
 term possible between a bare money loan for fixed 
 interest and a true partnership en commandite. 
 Limited partnerships would have to be registered in 
 some way; this, I think, is allow^ed on all hands. 
 And if the Act of 1865 were left as it is, while limited 
 partnerships were introduced, it is possible that the 
 form of a loan might be resorted to in some cases to 
 escape registration ; and these cases w^ould naturally 
 be just those in which registration is most desirable 
 for the protection of the public. On the point of 
 registration, I may observe that in France publicity is 
 given to the number of cominanditaire partners, and 
 the amount of their contributions, but not to their 
 names. The public register only shows that, in ad- 
 dition to the managing and fully responsible partners, 
 whose names are given, there are so many unnamed 
 contributors {hailleurs de fonds) answerable for so 
 much apiece. In Germany, however, and in the 
 United States, the names are put on the register ;
 
 106 THE LAW OF PARTNERSHIP IN ENGLAND. [iV 
 
 and this last course is the more likely to be taken 
 in England in the event of the commandite system 
 being adopted. At least, it has been part of all the 
 plans yet brought forward, and I am not aware that 
 any one has expressed a preference for the French 
 rule. 
 
 This brings me to the wider question of registra- 
 tion of firms in general. In the commercial world 
 there appears to be, on the whole, a strong feeling in 
 favour of introducing this in some shape. A Select 
 Committee of the House of Commons considered the 
 subject in 1872, and, after taking the evidence of a 
 considerable number of bankers, merchants, manu- 
 facturers, and other persons familiar with commercial 
 aff'airs, reported by a large majority in favour of 
 registration ; but the report had as much effect as the 
 reports of Select Committees usually have, partly for 
 a special reason which I shall presently mention. 
 Among the witnesses who gave evidence in this sense 
 were Mr. Samuel Morley, the late Mr. Kirkman 
 Hodgson, and Mr. Higley, the general manager of the 
 London and Westminster Bank. On the other hand, 
 it has been suggested that it is easy for people in a 
 large way of business to approve of compulsory regis- 
 tration, as it would cost them no trouble in compari- 
 son with what it saved them ; but that such a measure 
 would be vexatious and oppressive to small tradesmen 
 and persons forming temporary partnerships for what 
 may be called adventures as distinct from permanent 
 business. But the proposal has for many years been 
 under discussion, and I am not aware that any of the
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 107 
 
 persons who, as it is supposed, would be injuriously 
 affected by registration have in fact made these objec- 
 tions for themselves, 
 
 But there is one practical difficulty of the gravest 
 kind : the project of general registration has always 
 met with steadfast opposition from the Board of 
 Trade, and has little or no chance of being carried 
 while this opposition continues, Mr. T. H. Farrer, 
 who for this purpose is something more than the 
 official representative of the Board, gave evidence 
 before the Select Committee above mentioned, and 
 explained his reasons for disliking the plan. The 
 objections may be summed up, I think, under two 
 heads. First, compulsory registration of firms in 
 general would confer no positive benefit on registered 
 partners sufficient to induce them to register in their 
 own interest ; and consequently such a law could be 
 made effectual only by penalties which would be vexa- 
 tious and liable to great abuse. Secondly, no official 
 registration would fully satisfy the commercial world. 
 A man of business wants to know not only what 
 persons he is really dealing with, but what their 
 credit is. Now it is evidently impossible for a public 
 department to undertake a register of credit ; it could 
 only keep a register of names, which would give but 
 one half, and the less important half, of the informa- 
 tion sought. Persons and firms who have large deal- 
 ings would still be obliged to keep a sort of private 
 register of credit, as they do now ; and thus the 
 advantage of the public register would not be com- 
 mensurate with the burden and expense. As to the
 
 108 THE LAW OF PARTNERSHIP IN ENGLAND. [iV 
 
 force of tliese objections I do not feel bound to express 
 any decided opinion of my own, the question being 
 not so much a legal as an economical one. On the 
 one hand, the conveniences of registration are obvious, 
 and it is difficult to see why partners, acting or not 
 acting, in any honest business should in our time find 
 any grievance in the fact being accessible to the 
 public. Nor does the danger of evasion and fraud 
 appear to me very serious ; there would be little 
 temptation to such courses if registration were made, 
 as it easily might be, a simple and inexpensive process, 
 and. sanctioned by certain and moderate penalties 
 which could be enforced without creating a sense of 
 injustice. It has been suggested that men of straw 
 and imaginary names might be put on the register ; 
 but this would hardly be the way to attract confidence, 
 and besides, the making of false and fraudulent 
 returns would be a criminal offence. But, on the 
 other hand, one has a certain jealousy of anything 
 that would bring the legal position of commerce in 
 this country nearer to what it is in most Continental 
 States, where men of business are dealt with as if 
 they were dangerous animals, or at best a sort of 
 creatures peculiarly incapable of takiug care of them- 
 selves ; where, instead of being governed by the same 
 laws as other citizens, they have a commercial code 
 to themselves, and paternal lawgivers prescribe to 
 them how they are to keep their books. In the 
 United States private enterprise has struck out a 
 system intended to secure the advantages of a public 
 register without its drawbacks, and this is said to
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 109 
 
 answer fairly well. There are three or four mercantile 
 agencies which issue to their subscribers a book 
 recording not only the names of traders, manufacturers, 
 and bankers, but an estimate of their capital and 
 credit.^ It seems that there is no difficulty in obtain- 
 ing full information through these agencies, and that 
 it is almost always trustworthy. Perhaps it would be 
 desirable to try something of the kind in this country ; 
 so far as I am aware, it has been done only very par- 
 tially, and the great houses rely on private inquiries 
 of their own. This, at all events, is an experiment 
 which needs no aid from Parliament, while a general 
 compulsory registration must be regarded for the 
 present as unattainable. Indeed it seems to me that 
 the body of opinion which now exists in favour of 
 registration would not be inadequate, if methodically 
 directed towards that end, to put a pressure on firms 
 to disclose the names of their partners which would 
 practically be as efficient as legislative compulsion. 
 Some firms already print the names of the partners 
 on their letters and invoices. If leading houses not 
 only adopted this practice themselves, but dealt by 
 preference with customers who adopted it, the omission 
 of it would come to be thought disreputable, or at all 
 events a matter for inquiry. Thus we should have a 
 
 1 Evidence of Hon. T. W. Park before Select Committee of 1872. 
 But I am told that the working of similar agencies in Canada is not 
 well thought of by English houses who have opportunities of being 
 acquainted with it. And it was mentioned in the discussion which 
 followed the reading of the present paper that the information of the 
 private agencies which exist in England is by no means free from 
 errors, not of opinion, but of simple matters of fact.
 
 110 THE LAW OF PARTNERSHIP IN ENGLAND. [iV 
 
 self-acting system resting directly on public opinion 
 and needing no new machinery of any kind. If public 
 opinion is not strong enough to do this, I do not 
 think it can be strong enough either to procure official 
 registration or to save it from beins; ineffectual if 
 established. 
 
 I will just remind you that these remarks do not 
 apply to limited partnerships. Even the strongest 
 opponents of registration in other cases allow that, if 
 there are to be limited partnerships, they must be 
 registered. In this case the difficulty about firms 
 being willing to register does not arise, as registration 
 is the price for which they receive the benefit of 
 limited liability. If a limited firm failed to register, 
 the partners would all be liable as general partners, 
 and this would be quite enough to ensure obedience 
 to the law without any further penalty. 
 
 Thus much of the nature of the improvements we 
 may desire to see made in the law of partnership. 
 Now let us see how the prospect of putting any of 
 them in execution stands at this moment. This is a 
 matter of which I cannot give you an account without 
 a certain risk of talking too rnuch about my own 
 work. But perhaps the risk is sufficiently warranted 
 by the interest of the subject. Last year, then, I was 
 instructed by Mr. Sampson Lloyd, who sat for Ply- 
 mouth in the House of Commons, and was acting in 
 concert with the Associated Chambers of Commerce, 
 to draw a Bill for the consolidation and amendment 
 of the law of partnership. The objects aimed at were 
 three. 1. To codify the existing law, with the excep-
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. Ill 
 
 tion of that part wliicli is involved in tlie law of 
 bankruptcy. 2. To introduce tlie commandite system. 
 3. To introduce a general system of registration of 
 firms. The Bill was brought in during the session of 
 1879, but so late that practically nothing could be 
 done beyond getting it printed, and ascertaining that 
 competent persons both in and out of Parliament were 
 in the main favourably disposed. I may mention that 
 the Bill was backed by the present Solicitor-General. 
 This year (1880) it was again brought in under the 
 charge of Mr. Whitwell, the member for Kendal. We 
 all know that the year has been an unhappy one, not 
 only for private members' adventures, but for con- 
 sidered legislation generallyj and the progress this 
 Bill made was, under the circumstances, at least as 
 good as its friends had a right to expect. It attracted 
 the notice of the Board of Trade, and a certain amount 
 of semi-official correspondence and conference took 
 place, in consequence of which it was decided to drop 
 the scheme of general registration of firms, and make 
 some other smaller changes of detail. In efiect, the 
 Bill was resettled in consultation to meet the views 
 of the Board, and, having been read a second time 
 without opposition, was formally committed in order 
 to be reprinted in its new shape. It had been drafted 
 not without a view to some of the innovations having 
 to be abandoned, and the registration clauses had been 
 so arranged as to be easily cut adrift if necessary. 
 Thus the Bill did not sufi'er as a work of art by this 
 operation ; indeed, I think it was rather improved. 
 If time had sufficed, there Avas good hope that it would
 
 112 THE LAW OF PARTNERSHIP IN ENGLAND. [iV 
 
 pass tlie House of Commons ; it was recommitted, 
 and stood several times on the order of the day ; but 
 there were sundry little delays and hindrances, besides 
 the press of more urgent business, and I believe it 
 never got fairly into committee. But of serious op- 
 position there was nothing or next to nothing ; the 
 one fatal enemy was time. The measure of success 
 attained is partly due, I think, to the Bill being more 
 ambitious than its predecessors. This statement is a 
 paradox only in seeming, as I will proceed to show. 
 The Bill not only innovates but consolidates ; and to 
 oppose a measure of consolidation outright is, at this 
 time of day, a somewhat invidious thing. Besides, 
 this way of framing the Bill makes the draftsman's 
 task much more certain and satisfactory. If you try 
 to piece on an innovation like commandite to the 
 existing uncodified law, you have, as it were, no 
 definite place to start from ; and what is more, your 
 Bill will at best be intelligible only to those who are 
 familiar with the old law. But if you make the Bill 
 in the nature of a code, you expound your old law 
 before propounding your new matter, and so the Bill 
 is complete and intelligible in itself. In this Bill the 
 ordinary law of partnership is first laid down with as 
 little alteration as possible, — and there is very little 
 indeed, only the definition of a few points which are 
 not quite settled at present, — and then limited partner- 
 ship is provided for by defining what a limited partner 
 is, and in what respects his position differs from that 
 of an ordinary partner. In fact, that part of the Bill 
 was constructed by going through the rules that apply
 
 IV] THE LAW OF PARTNERSHIP IN ENGLAND. 113 
 
 to ordinary partnerships, and expressly negativing 
 those which are not applicable to a limited partner, the 
 others being left to remain in force ; thus carrying 
 out the principle I have already brought to your 
 notice, that a limited partner is nothing else than a 
 true partner in the firm whose liability and powers 
 are limited. The foreign codes were of course con- 
 sulted, but for various reasons were not found of so 
 much use as might be expected : the German is, in my 
 opinion, the best of any. As to registration, I need 
 only say that both in the original and the amended 
 form of the Bill we aimed at the utmost simplicity 
 consistent with efficiency, and we wholly eschewed 
 the cumulative penalties and disabilities which had 
 appeared in some former projects. Altogether the 
 result is far from discouraging, though it would be 
 rash to prophesy final success within any certain time. 
 It is worth remark that this Partnership Bill is a 
 serious attempt at codification by private enterprise, 
 and, so far as I know, the first of its kind anywhere ; 
 at all events, there is no other country where private 
 enterprise is likely to be foremost in such an attempt. 
 If it is ultimately carried, I think the mercantile 
 community will be entitled to feel a certain pride in 
 it. The chances must be measured by judges more 
 disinterested than myself. But perhaps it may be 
 allowable to say that we seem to be not much farther 
 ofi" from a Partnership Act than we are from the much- 
 promised Criminal Code.
 
 114 employers' liability. [v 
 
 V. 
 EMPLOYERS' LIABILITY. 
 
 The question of employers' liability for injuries to 
 their servants received in tlie course of their service, 
 and through the default of another person under the 
 same employer, has been settled for the present by 
 the Act of 1880. But the settlement is only a provi- 
 sional one. The Act is temporary, and has now no 
 more than six years to run. As the time of its expiry 
 approaches, discussion of its principles will doubtless 
 be renewed. Criticism of the principles of the sub- 
 ject, and of the law of England as it stood before the 
 passing of the Act, has therefore not lost its useful- 
 ness. 
 
 The grievance complained of on the part of the 
 workmen was that, whereas an employer was liable to 
 strangers for injury caused to them by the acts or 
 defaults of his servants in the course of their employ- 
 ment, he was not liable to one servant for injury 
 caused by the act or default of another. And the 
 history of this exception is certainly not a favourable 
 one. It appears to be rejected by Continental juris- 
 prudence, and recent legislation in Germany has 
 deliberately increased employers' liabilities in the case
 
 v] employers' liability. 115 
 
 of railways and other specified industries. In England 
 and the United States it is modern, and in Scotland it 
 was not so much adopted from England as thrust 
 upon the Scottish Courts by decisions of the House of 
 Lords. Notwithstanding its recent origin, two quite 
 different though not inconsistent reasons have already 
 been given for it. In the decision commonly cited as 
 establishing the exception for England it is not easy 
 to see what the reason was, or whether the judges 
 in any way contemplated its extension to great in- 
 dustries employing a numerous staff of managers and 
 servants in many departments and with many degrees 
 of power and responsibility. On the other hand it 
 may be said that the rule itself is an exceptional and 
 harsh one, and cannot be shown to date from an earlier 
 time than the Eestoration ; and in having no warrant 
 of positive legislation it is in no better case than the 
 exception. This topic, indeed, will seem of little im- 
 portance to those who know how much of our law has 
 been settled by judicial discussion and decision within 
 even the last generation or two, and how long many 
 questions of practical interest have remained open. 
 Almost the whole of our commercial law is modern 
 judge-made law, and a great deal of it later than the 
 immunity of employers now in question. The argu- 
 ment from novelty is altogether a dangerous one. If 
 a duty has been but recently affirmed by decided cases, 
 it is easy to say that it was never before disputed ; 
 it is still easier, when an alleged liability is for the first 
 time formally denied, to reply to the charge of inno- 
 vation that such claims were previously unheard of.
 
 116 employers' liability. [v 
 
 History apart, the broad rule of justice would seem 
 at first sight to be that a man shall answer only for 
 his own faults and omissions, or at most for that 
 which he could have prevented, not for faults and 
 omissions of others which he neither encouraged nor 
 approved. It is said, then, that if on special grounds 
 of public utility a more extensive liability is imposed 
 in some cases, this is an encroachment on common 
 right, and should be rather checked than extended. In 
 this view the distinction between strangers and per- 
 sons in a man's own emj)loyment is the mark not of 
 an exceptional immunity or privilege, but of the point 
 where an exceptional burden ceases to be imposed. 
 This line of objection to any extension of the master's 
 liability is fortified by the high authority of Lord 
 Bramwellj and it is certainly provoked by much of 
 the so-called explanation to be found in the books. 
 It may be said, further, that the rule of vicarious 
 liability is not easy to justify on any rational grounds ; 
 that its actual origin is obscure, but probably belongs 
 to a state of society and habits of mind quite difierent 
 from our own ; and that in the maritime law, where 
 its hardship is unusually conspicuous, it has been found 
 needful to mitigate it by express legislation. But this 
 counter - argument, again, is in danger of proving 
 too much. For the rule is maintained throughout 
 the civilized world, and it appears on the whole to 
 be allowed as just, notwithstanding its accompanying 
 hardships, by the common sense of reasonable men. 
 We hear of a protest only now and then, as when 
 unusually heavy damages are given against a railway
 
 v] employers' liability. 117 
 
 company, or, as in the special matter in hand, by way 
 of reprisal against attempts to extend the liability still 
 farther. That which most men feel to be just must at 
 least have some element of justice in it. 
 
 Let us consider, therefore, the grounds on which 
 a master's liability for the acts, neglects, and defaults 
 of his servants in the course of their employment may 
 be explained. It will be understood that the terms 
 master and servant are here used in the widest sense. 
 In the first place, it is commonly said that the master 
 is liable because the servant is his agent : " Qui facit 
 per alium facit per se." But this is a plain begging 
 of the question ; it states the effect of the rule, not 
 any reason for it. We can all understand that a man 
 should be liable for what he really does by another's 
 hand, — for actions which he has authorized or tacitly 
 allowed. But here the question is why he should be 
 liable for actions he has in no way authorized, just as 
 if he had authorized them, — why he should be deemed 
 to have done by his servant's hand things which he 
 has not commanded, permitted, or desired. Often- 
 times the act or neglect for which the master is held 
 to answer is wholly against his interest. It may be 
 such as to involve him in heavy loss, apart from the 
 claims of any person injured. It may be, and often 
 is, something which he has expressly forbidden and 
 done all he could to prevent. Thus, in the very com- 
 monest case, a tradesman sends out his horse and cart, 
 enjoining the driver to go at a moderate pace. The man 
 drives furiously and runs over a foot-passenger. His 
 master is liable. Again, a manufacturer has a steam-
 
 118 employers' liability. [v 
 
 engine at his works. The engineer is instructed not 
 to let the water in the boiler run too low. He does 
 let it run too low, and an explosion follows. Here too 
 the employer is liable for any damage that results to 
 neighbours and passers-by. If we say to him, " You 
 did this by the hand of your servant, therefore you 
 must pay for it," he will answer, " I neither did it nor 
 meant it to be done ; on the contrary, I charged the 
 man to do nothing of the kind." This first explana- 
 tion, then, is no explanation at all. It is merely an 
 artificial statement of the thing to be explained. 
 
 There is another way of looking at the matter 
 which may be suspected to count for a good deal in 
 the popular view. A wrong without a remedy is, in 
 theory at least, odious to the law ; but in many cases 
 the law cannot prevent the remedy from being only 
 nominal. It may compel wrongdoers to pay if they 
 can, but it cannot make them solvent ; and it must 
 now and then happen that an injured person has no 
 better comfort at its hands than a right of action 
 against a man of straw. To the popular mind a 
 remedy not substantial is no remedy at all, and a 
 result of this kind is not only unsatisfying (as it 
 must be to every honest man), but unintelligible. 
 Hence there is a natural endeavour to fix responsibil- 
 ity on some one who can pay. In the case of injury 
 suffered through a servant's negligence, the servant, 
 generally speaking, cannot pay, and the master can ; 
 and the feeling that compensation ought to be had 
 somewhere jumps at the master's liability. "Re- 
 spondeat superior " (another question-begging maxim)
 
 v] employers' liability. 119 
 
 is accepted without ado as a precept of natural justice. 
 It is assumed that the relation of master and servant 
 implies, by some evident and immutable necessity, that 
 the master is to be liable for the servant's acts and de- 
 faults. The servants and the work being his, the liability 
 must be his also. Such a view is too crude and form- 
 less to be a starting-point of fruitful discussion ; yet 
 we must beware of concluding off-hand that under its 
 crudity real and obscurely felt reasons are not strug- 
 gling for expression. Meanwhile we must seek farther. 
 Possibly analogy may help us to circumvent the diffi- 
 culties which appear to beset direct argument. 
 
 We are considering a rule which imposes liability 
 on men beyond their own acts or defaults. But it is 
 only one particular rule. Equal or greater liabilities 
 are imposed by law in various other circumstances 
 where it is even more obvious that the events from 
 which the liability arises were not under the actual 
 direction or control of the person liable. Most of 
 these cases either fall in their legal classification 
 under the general head of Negligence or belong to a 
 nearly allied class. Thus " the owner of land is 
 bound to keep it fenced ; and if his cattle get 
 into his neighbour's premises, he is liable for the 
 damage done by them, whether the escape was owing 
 to his negligence or not." Similarly an owner or 
 occupier who brings on his land for his own purposes 
 anything likely to do damage to his neighbours, such 
 as.an artificial reservoir of water, must keep it there 
 at his peril. In these cases the obligation is all but 
 absolute ; a man is answerable, though the utmost
 
 120 employers' liability. [v 
 
 diligence be used to prevent mischief, for everything 
 short of overwhelming and inevitable accident (in 
 technical language, " act of God," or vis major). 
 Again, occupiers of land or houses are bound, not 
 absolutely, but to the extent of reasonable care, to 
 keep their property from doing harm to persons who 
 are there on lawful business with the occupier's con- 
 sent, or passing by in the exercise of common right. 
 Practically the distinction between this duty and the 
 stricter duty in the case of dangerous things is a 
 rather fine one ; for the fact of an accident happening 
 throws on the proprietor the burden of proving dili- 
 gence. Thus a railway company was held liable some 
 years ago for the fall of a brick from a bridge crossing 
 a street, whereby a man was hurt ; there being 
 nothing but the fall itself to show that the bridge 
 had been left out of repair or not sufficiently inspected. 
 This decision has been followed in New York in the 
 somewhat stronger case of a building falling bodily 
 into the street ; where lay common sense will without 
 difficulty accept the remark of the Court that build- 
 ings properly constructed do not fall without adequate 
 cause. 
 
 The common feature of all these cases is that a 
 special duty is cast on a man, either in respect of his 
 ownership simply or in respect of his voluntary use of 
 his property in a particular way, which goes beyond 
 his own acts or rather is independent of them. Per- 
 sonal diligence alone will not satisfy the legal standard 
 of duty. The owner must at his peril see, as the 
 case may be, that his fields are securely fenced, or his
 
 v] employers' liability. 121 
 
 reservoir water-tight, or that all proper precautions 
 are taken to keej) his wall in repair. If, to put an 
 easy case, the handrail of a staircase leading to a 
 merchant's office is rotten, and a customer falls over 
 and breaks his leg, the merchant will not clear him- 
 self by showing that he employed an experienced 
 carpenter to mend the rail, and the carpenter scamped 
 the work. In fact, it matters not whether the actual 
 default which is the proximate cause of the mischief 
 proceeds from the owner himself, from his servants, 
 or from a third person employed by the owner, but 
 not his servant. Some applications of this rule come 
 very close to the more special rule of liability for 
 servants' negligence. In 1863 a man passing under 
 a flour-dealer's shop in Liverpool was knocked down 
 by a barrel of flour, which fell from an upper window 
 of the shop. There was no actual proof that the 
 barrel was being lowered by the flour-dealer's orders, 
 or even by any servant of his, or that it was being 
 carelessly done. But it was decided that he was 
 liable ; for "it is the duty of persons who keep barrels 
 in a warehouse to take care that they do not roll out," 
 This is responsibility for servants, and something more : 
 it seems to include taking care that persons who are 
 not one's servants shall not meddle with one's house 
 or goods in a way to endanger passers-by. Thus we 
 have in different circumstances different duties to keep 
 one's property from being the occasion of harm to 
 others, which may be arranged in degrees descending 
 from the strictest. In one class of cases we have 
 responsibility for all events and hazards which may
 
 122 employers' liability. [v 
 
 not be fairly considered as beyond human foresight ; 
 in another, responsibility for due and reasonable care 
 in the maintenance of a safe condition of things, not 
 merely on the part of the person liable and his ser- 
 vants, but of every one employed by him or aiding 
 him in the performance of his duty to the public ; in 
 yet another, which includes the ordinary cases of 
 employers' liability, responsibility only for the party's 
 own acts and omissions and those of his servants. By 
 taking this as a connected body of doctrine, we may 
 perhaps get some light on the true nature and reasons 
 of the rule of vicarious liability from which we started, 
 and which seems at first sight equally difficult to 
 attack and to defend on any satisfactory principle. 
 
 II. 
 
 An employer's liability to strangers for the acts 
 and defaults of his servants does not stand alone in 
 being a duty extending beyond acts and events under 
 the direct control of the person liable. Duties as wide 
 or wider are imposed in other cases. Is there any 
 common element present in all these cases in which 
 a reasonable ground of liability may be discerned *? 
 There seems to be this common point in all of them, 
 that a man has for his own convenience brouo;ht 
 about or maintained some state of thino-s which in the 
 ordinary course of nature may work mischief to his 
 neighbours. Whether his property be cattle grazing 
 in his field or water stored in a reservoir, or a structure 
 crossing or overhanging a public road, there is a 
 certain risk to adjoining owners or to the public which
 
 v] employers' liability. 123 
 
 necessarily accompanies the state of things so kept up. 
 It is an intelligible principle that whoever thus exposes 
 others to risk should abide the consequences if the 
 risk ripens into actual harm. One could imagine it 
 being applied to the full and unqualified extent of 
 making the owner thus using his property liable at all 
 events, without regard to any question of negligence. 
 He might be made to insure the public against all 
 risks of his undertaking. But such a rule is too harsh 
 and sweeping for modern jurisprudence ; and the 
 general principle of liability is tempered, as we have 
 seen, in various degrees. These degrees are fixed 
 according to the nature of the risk involved. The 
 owner of an undertakinsj dangerous in itself, who 
 thereby creates an extra-hazardous risk for his neigh- 
 bours, — such as the reservoir, which if it burst will 
 inevitably flood their lands, — is held to the utmost 
 diligence ; he must answer for everything but vis 
 major, however careful he may have been. So it may 
 be said of cattle that if they break out it is their very 
 nature to do damage where they stray, and hence the 
 duty to keep them in is of the strictest kind. In 
 England, however, there is some evidence that this 
 duty was once less strictly defined than it now is. 
 But in the case of things not dangerous in themselves, 
 but only likely to become dangerous if reasonable care 
 is not used, reasonable care is allowed to be the 
 measure of the owner's obligation ; and if he can show 
 that all reasonable care has been used, he is discharged. 
 Herein it is to be observed that the duty is not con- 
 fined to personal diligence : indeed, it is of another
 
 124 employers' liability. [v 
 
 kind. What the law requires of the owner is not that 
 himself in person, or any class of persons, shall take 
 reasonable care for his property being in safe con- 
 dition, but that reasonable care shall be taken. There 
 are likewise duties of this kind which arise out of 
 contracts of sale and hiring. It has been laid down, 
 to take the latest case, that one who lets out carriages 
 "is bound to supply a carriage as fit for the purpose 
 for which it is hired as care and skill," — not merely 
 his own care and skill, — "can render it." He must 
 answer for all defects which might have been remedied 
 by care and skill, whether he himself could have dis- 
 covered them or not. 
 
 Now let us turn to the case of an employer of 
 labour for any purjDose. A man's undertaking or 
 business is his property in a broad sense of the word. 
 The vehicles, plant, machinery, or other eff'ects with 
 which he carries it on are his property in the strict 
 sense. And by analogy to the cases we have already 
 considered, the use of this property, so far as it entails 
 any risk upon the public, must carry with it a pro- 
 portionate duty. If the business be extra-hazardous 
 as regards adjacent owners or the public, we should 
 expect to find strict liability. And though such 
 cases are not common, instances have occurred. Thus 
 a railway company not especially authorized by Parlia- 
 ment to use locomotive steam-engines is liable for 
 damage done in a field adjoining the line by the 
 escape of sparks, notwithstanding that reasonable 
 care has been used to prevent their escape ; whereas 
 legislative authority to use a dangerous thing is held
 
 v] employers' liability. 125 
 
 to put its use on the level of an ordinary business in 
 which reasonable care suffices, and to that extent to 
 confer immunit)^ on the privileged person or body. 
 But in the great majority of cases the risk is ordinary, 
 or such as reasonable care will provide against. A 
 tradesman's cart and horse, if carefully driven, will 
 not run down a foot passenger of average prudence. 
 Men at work on a building cannot well drop bricks on 
 the passers-by without more or less carelessness, any 
 more than the building itself will fall into the street 
 unless it is ill- built. In these cases, then, which 
 make up the general rule, reasonable care is sufficient 
 for safety and is the measure of the emjjloyer's duty. 
 But here we meet ^dth a limitation which appears at 
 first sight to be special. The master is liable for the 
 acts and defaults of his servants in the course of their 
 employment, not for those of a servant who goes out 
 of the course of his employment, nor for those of 
 a stranger who meddles with the business. Is there 
 here an anomaly, as compared with the impersonal 
 character of the duty in the other cases we have 
 observed ? The seeming anomaly will disappear on 
 closer attention. 
 
 Analogy leads us to the rule that the employer's 
 obligation is that reasonable care as regards the public 
 shall be used in the conduct of his business. Now a 
 man's business must be conducted by his servants if 
 not by himself; indeed, it is their duty to prevent 
 any one else from interfering. If a servant allows 
 intermeddling, as if a coachman lets an incompetent 
 acquaintance take the reins, this is a default on the
 
 126 employees' liability. [v 
 
 servant's part, for the further consequences of which 
 the master may be liable. So that the limitation of 
 an employer's liability to the negligence of himself 
 and his servants is hardly a real limitation of a 
 liability which might be wider, but belongs to the 
 nature of the case. But the negligence must also be 
 in the course of the servant's employment. This 
 means, broadly speaking, that a man is liable for harm 
 done by the use of his property without due care, 
 but for his purposes and in a generally authorized 
 manner, but not for harm done by the use of it in an 
 unauthorized manner and for the wrongdoer's pur- 
 poses alone. The reasonableness of this distinction 
 will hardly be questioned as a matter of principle. 
 In practice it must be admitted that the line is some- 
 times difficult to draw ; the law has certainly not 
 erred on the side of unduly exonerating employers. 
 
 AVe seem, then, to have arrived at something like 
 a rational foundation of an employer's liability to the 
 public for the acts of his servants. He is answerable, 
 not for his servants as agents, or because they are his 
 agents, but for the conduct of his undertaking with 
 due caution. And it matters not whether the under- 
 taking be for profit or not ; for the fact of the thing 
 being done by the master's orders shows that he finds 
 it worth while to have it done. He is using his own 
 means for his own purposes, whatever profit, pleasure, 
 or convenience he may have in view. All this applies 
 equally where the employer is a corporation (as in the 
 familiar case of a railway company) ; and one of the 
 strongest practical recommendations of the rule is
 
 v] employers' liability. 127 
 
 that without it a corporation could not be liable at all. 
 For a corporation, being not a real but an artificial 
 person, can be negligent only by its officers and ser- 
 vants, and a rule of duty confined to personal diligence 
 would leave it scot-free. 
 
 It is satisftictory to find that the reasoning now 
 put forward is quite in accordance with what was laid 
 down many years ago by Chief Justice Shaw of 
 Massachusetts, in a case which has ever since been 
 the leading American authority on the subject. He 
 said: "This rule is obviously founded on the great 
 principle of social duty, that every man in the 
 management of his own affairs, whether by himself or 
 by his agents or servants, shall so conduct them as 
 not to injure another ; and if he does not, and another 
 thereby sustains damage, he shall answer for it." 
 
 This is a more lucid statement than I have been 
 able to find in any English book. The same judgment 
 goes on to deal with the case not yet considered, but 
 out of which recent discussion of the whole matter 
 has arisen, namely, the extent of an employer's lia- 
 bility to the servant himself for injuries received in 
 the course of the service. On this point it must be 
 confessed that Chief Justice Shaw's language and 
 reasons are not so clear. One thing, however, is 
 tolerably plain, that he grounds the exemption of the 
 master as against a servant who takes hurt by a 
 fellow-servant's negligence, not on what is called the 
 doctrine of common employment, but on that of the 
 later English authorities. This is that the servant 
 must be presumed in entering on his employment to
 
 128 employers' liability. [v 
 
 take all ordinary risks of it, including the risk of 
 accidents happening by negligent acts or omissions 
 on the part of other persons engaged in the same 
 undertaking. And this may be taken as the only 
 ground on which the rule or exception, whichever it 
 should be called, is now capable of defence. 
 
 nil 
 
 The results so far obtained may be now summed up. 
 The liability of an employer to the public for injuries 
 caused by the acts and defaults of his servants is 
 analogous to the duties imposed with various degrees 
 of stringency on the owners of things which are or 
 may be sources of danger to others. The man who 
 conducts an undertaking of any kind, or has it con- 
 ducted by persons subject to his directions, is held 
 answerable for all operations incident to it being per- 
 formed with reasonable care. On the other hand, a 
 man who has work done for his benefit under a con- 
 tract with some one who is not his agent or servant 
 is not liable for the contractor's negligence. Take 
 the familiar instance of running-down cases. If a 
 private owner's carriage runs over a foot-passenger by 
 the coachman's negligence, the owner is liable ; if a 
 cab or a hired fly does the same, the hirer is not liable. 
 If a landowner or his agent employs labourers to build 
 a wall, and a careless labourer lets a brick fall on a 
 passer-by, the landowner is answerable. If he had 
 employed a builder who found his own workmen and 
 materials, the builder and not the owner would be 
 the person to be sued. The difierence between a
 
 v] employers' liability. 129 
 
 servant and an independent contractor, as explained 
 by high authority, is in substance as follows: — A 
 servant is one who undertakes not merely to do what 
 he is told, but to do it as he is told ; and if he obeys 
 the employer's orders the employer cannot complain 
 of the result, however ill it may turn out. The mark 
 of an independent contract is that the person for 
 whom the work is done lays down generally what 
 shall be done, but leaves a discretion to the other 
 party as to the manner of doing it ; and the person 
 who undertakes the work binds himself, not to obey 
 orders, but to produce a certain result. It is not 
 wholly obvious why this distinction should make a 
 difference in the relation of the ultimate principal to 
 the world at large. In many cases the employment 
 of an agent or of a sub-contractor is a pure matter of 
 detail, and the work of many sub- contractors who for 
 the purposes of this rule are independent, all leads up 
 to the completion of a single indivisible enterprise. 
 And indeed the law has not been settled on this 
 point without some fluctuation and difficulty. Kecent 
 authority, however, is sufficiently clear and uniform. 
 
 The truth seems to be that the division of labour 
 has carried with it a division of external responsibility 
 on grounds of social convenience. We could not 
 carry on the business of life without constantly get- 
 ting done for us by competent persons things which 
 we are not competent either to do or to supervise 
 ourselves. If the duty of answering for other people's 
 negligence did not stop at the first independent au- 
 thority, — " the first person in the ascending line," as a
 
 130 EMPLOYEHS' LIABILITY. [V 
 
 distinguished judge once put it, ''who is the employer 
 and has control over the work/' — the chain of liability 
 would be endless, and we should be involved in a 
 multiplicity of unknown risks. Besides, it is felt that 
 it would be over-harsh to make men liable not only 
 for acts which they cannot practically control in 
 detail, but for the acts of persons over whom they 
 have no control at all. In some cases there is not 
 even any choice, or real opportunity of choice, as to 
 the person contracted with. It may seem not obvious 
 why the hirer of a carriage let out by the day or the 
 week should not be liable for accidents, while the 
 owner who drives in his own carriage is. But every 
 one can see that it would be absurd to impose this 
 liability on the hirer of a cab. Even where there 
 is some choice, the vexation and hardship of includ- 
 ing in the obligation every one for whom the work 
 was done would outweigh any possible advantage. 
 The rule as it stands is supj)osed to make employers 
 more careful in their choice of servants, and in look- 
 ing to the state of the plant and instruments of their 
 business, and probably it does so to some extent. 
 This is thought worth securing at the cost of some 
 individual hardship. But the use of care in choosing 
 a contractor who is likely to be careful is too remote 
 a benefit to the community to be enforced by indis- 
 criminate penalties. It has never been suggested, so 
 far as we are aware, that the existing rule on this 
 point falls short of what is required by natural justice 
 or the safety of the public ; so that this discussion is 
 merely curious. Also it might be cut short by the
 
 v] employers' liability. 131 
 
 simple statement that business done for me by an 
 independent contractor is not my business, and there- 
 fore I am not answerable for its conduct. But the 
 inquiry is not idle ; for there are plenty of cases in 
 which it is by no means obvious to common appre- 
 hension that work done by contract as opposed to 
 service is the contractor's work, and not the ultimate 
 employer's. Moreover it is worth wdiile, before coming 
 to the point practically in dispute, to observe how the 
 rule of vicarious liability is defined and fenced about, 
 as a thing rather of positive institution than of natural 
 consequence from elementary princij^les. 
 
 So far we have spoken of the duty imposed on an 
 employer, or let us call him the owner of an under- 
 taking, as concerns the outside world. What is or 
 ought to be his duty to persons who are employed by 
 him, and are themselves, as it were, part of the under- 
 taking ? English common law (that is, the law as it 
 stood before the Act of 1880) says that he is not 
 liable to them for anything but his own negligence ; 
 for example, if he fails to use reasonable care in pro- 
 viding safe and proper materials or machinery. This 
 is objected to by spokesmen of the working-men's 
 interest as an unfair exception ; and it is not im- 
 probably regarded as a piece of class legislation by 
 some who are unaware that the Leo;islature had 
 nothing to do with it. But, when we look at the 
 whole matter with such light as we have now ob- 
 tained, it does not seem quite reasonable that the 
 owner of the undertaking should be bound to persons 
 who are inside it, so to speak, in the same way as to
 
 132 employers' liability. [v 
 
 those who are outside. A burden is imposed on him 
 for the benefit and protection of the public at large, 
 who have nothing to do with the undertaking, and 
 are exposed without any choice on their side to more 
 or less risk of injury arising from what is done in the 
 conduct of it by the owner or his servants. The case 
 is different with the servant or workman who is in 
 the undertaking, and has entered into it of his own 
 free will. It seems to me that the master's duty to 
 the servant, by analogy to the duty of a householder 
 to persons coming to his house on lawful occasions of 
 common interest to both parties, might justly be fixed 
 at this point : that the undertaking shall, to the 
 extent of reasonable diligence, be in a safe and fit 
 condition for the workman to enter upon. To the 
 public the master answers, to the extent mentioned, 
 for his undertakinoj and the whole conduct of it. To 
 the servants employed in it he is answerable only for 
 the conditions of the undertaking, not for its conduct, 
 except in the event of his own personal negligence. 
 Such is in fact, or very nearly so, the rule of English 
 common law. The master must use due diligence in 
 having proper appliances and competent servants : 
 this much the servant may claim at his hands, not 
 more. The reason for the master's duty to the public 
 is not extended to make him pay damages to the 
 servant for accidents befalling him, by no fault of the 
 master, in a matter which the servant as well as the 
 master has made his own. This is expressed in our 
 later authorities by the statement that " when a man 
 enters into the service of a master, he tacitly agrees
 
 v] employees' liability. 133 
 
 to take upon himself to bear all ordinary risks which 
 are incident to his employment, and among others 
 the possibility of injury happening to him from the 
 negligent acts of his fellow-servants or fellow-work- 
 men," In form this statement is open to the objection 
 that it assumes a fictitious contract. The real ques- 
 tion in this and many other cases is what conditions 
 the law shall annex to the contract in the absence of 
 special agreement on the point that comes in question. 
 But the habit of setting forth relations and duties 
 imposed by law under the disguise of fictitious agree- 
 ments and promises runs through whole branches of 
 English jurisprudence. It is an unfortunate one, but 
 there is nothing peculiar in its employment here. 
 
 There is one point, however, in which the master's 
 duty was by the common law too easily escaped. 
 This is where the master delegates his general au- 
 thority to a manager or superintendent. According 
 to our authorities, the manager is the fellow-servant 
 of the workmen engaged by him, and the master is 
 not liable to any of them for injury caused by his 
 negligence. Now the master is answerable to the 
 servant for due care beino; used in the choice of his 
 fellow-servants and provision of materials ; and it 
 seems strange that he should be able to cast off" this 
 duty by handing over the performance of it to a 
 superior servant. As within the larger bounds of his 
 duty to the public the master is not discharged by 
 delegating the conduct of his business to servants, so 
 within the narrower bounds of his duty to those 
 employed in the business he should not be set free
 
 134 employers' liability. • [v 
 
 by delegating his discretion and general powers of 
 government to a manager. 
 
 Again, I have suggested, as the true theory of an 
 employer's duty to servants, that he is bound to them 
 in reasonable care for the conditions as distinguished 
 from the execution of the undertaking ; that is, not 
 merely to be personally careful, but that due care 
 shall be used. This might lead to an extension of his 
 liability in some respects (apart from the question 
 of delegated authority) beyond what English authori- 
 ties have allowed. For instance, suppose there is a 
 machine in a factory which it is A's duty to keep in 
 repair and working order, and B's to attend to during 
 its work, while C is occupied in producing or shaping 
 something by its help ; A, B, and C being all directly 
 employed by the mill- owner. Now if C is injured 
 by B's negligence during the work, the owner is not 
 liable to C, and I do not think he ought to be. But 
 if A neglects the repairs of the machine, and in con- 
 sequence it goes wrong and injures C, I am much 
 disposed to think that the owner ought to be liable ; 
 for the machine is, with regard to its general state of 
 repairs and working order, one of the fixed conditions 
 provided by the owner for the conduct of his under- 
 taking. The workman should, as I incline to hold, 
 have the same right to find the machine in good and 
 safe order that a customer of the master's going to 
 his counting-house has to find the approaches to it 
 safe for him to walk in. But as the law stands it is 
 otherwise; the proposed distinction has been rejected, 
 though the cases are not many, nor of the highest
 
 v] employers' liability. 135 
 
 authority. On the other hand, I would by no means 
 go the length of a proposal which I have somewhere 
 seen, to the effect that the master should absolutely 
 warrant to the servant the safety of his plant and 
 machinery. For this strict kind of liability is else- 
 where found, as we have noted, only in the case of 
 extra-hazardous property or undertakings ; and such 
 a rule would actually put the servant in a better 
 position than strangers, which cannot be seriously 
 intended. 
 
 The suggestions above made are nearly, though 
 not quite, identical with the changes in the common 
 law made by the Act of 1880. The Act is framed in 
 a peculiar manner, and must be tough reading to 
 those whom it most concerns. But its provisions, 
 when carefully read, are clear enough, and I believe 
 there has been much lesslitigation upon them than was 
 expected. If they err, it is in being too minute and 
 making too many distinctions, which, how^ever, could 
 be scarcely avoided in a measure that was really a 
 compromise. As regards the plant and permanent 
 apparatus of the business, the workman is now entitled 
 to compensation from the employer for injury caused 
 by defects therein, provided that the defective con- 
 dition was due to the fault of the employer, or of some 
 one in his service whose business it was to attend to 
 it. By this proviso the workman's position is one 
 degree worse than that of an outsider who is lawfully 
 on the spot, such as a customer of the employer who 
 comes to the works on business. If a defect in the 
 machinery is due not to the negligence of the owner
 
 136 employees' liability. [v 
 
 or any servant of liis, but to tliat of the maker who 
 sold the machine, or of some third person who supplied 
 a special part of the machine to the seller, or in short 
 of anybody concerned in the production of it, whether 
 as a servant or as an independent contractor, the cus- 
 tomer who is thereby hurt may still hold the owner 
 liable. The workman, however, may not. Cases 
 might easily happen where this distinction would be 
 material, such as the breaking of a fly-wheel from a 
 latent flaw. No sufiicient ground can, in my oj^inion, 
 be shown for it. The aroument that the workman 
 has put himself of his own free will in a position 
 where he is exposed to such dangers applies equally 
 to every one else who comes to the works. The work- 
 man who is there all the week and the customer who 
 is there for ten minutes are alike there by the em- 
 ployer's consent, and for the common advantage of 
 the employer and themselves. If it is to make any 
 difierence that the workman is bound to be there, one 
 does not see why it should be against him. 
 
 Then the employer is made liable to the workman 
 for injuries happening from the negligence of peo|)le 
 holding positions of delegated authority or control in 
 the business. No attempt is made to define what 
 amounts to superintendence or delegation of authority, 
 but sundry common cases are specifically dealt with. 
 Under one sub-section or another of the Act the cases 
 of most manifest hardship which arose under the com- 
 mon law rule seem to be efiectually excluded. One 
 of the worst was that of the carpenter employed by a 
 railway company to do repairs in an engine-shed where
 
 v] employers' liability. 137 
 
 some of the company's porters were moving an engine. 
 Instead of seeing that the engine cleared the carpen- 
 ter's work, they let one end of it knock down a ladder 
 supporting the scaffolding, and the man was seriously 
 hurt. If the carpenter had been doing the work as 
 a tradesman, the company would have been clearly 
 liable to him. But he was paid by weekly wages, 
 and thus was the company's servant, and, as was said, 
 in a common employment with the porters. A very 
 strong Court held unanimously that the company was 
 not liable. At the present time the carpenter might re- 
 cover under the clause of the Act of 1880 which gives 
 a right to compensation where the injury takes place 
 "by reason of the negligence of any person in the 
 service of the employer who had the charge or control 
 of any signal, points, locomotive engine, or train upon 
 a railway," though it would probably be argued that 
 an engine on a turn-table in a shed was not " upon a 
 railway" within the true meaning of the enactment. 
 This kind of specification is rather clumsy, and does 
 not proceed on any satisfactory principle ; but it 
 would hardly be possible at present to obtain agree- 
 ment on any comprehensive definition. The proper 
 way of stating the law would be to declare explicitly 
 what are the master's duties, first to the public, and 
 next to his own workmen. But this means codifica- 
 tion, and is for the present unattainable. 
 
 The right of the workman to compensation is in 
 every case subject to the same conditions as would be 
 the right of an outsider in the same circumstances. 
 Practically this means that he must not have been so
 
 138 employers' liability. [v 
 
 careless himself that the accident may be considered 
 his own fault. In technical language, he must not 
 have been guilty of contributory negligence. The 
 doctrine known by this name is instructive in rela- 
 tion to the more general features of the subject, 
 and deserves some words of remark in this place. 
 
 IV. 
 
 This general qualification of liability for negligence, 
 running as it does through the whole subject, does 
 not especially affect the liability of employers as such. 
 But as concerning the immunity of employers for 
 injuries to their own servants in the course of their 
 employment, the doctrine in question appears to have 
 some bearing on the reason once assigned for that 
 immunity, but now abandoned. On the other hand it 
 is connected with rules of liability peculiar to maritime 
 law, which in their turn seem anomalous and are 
 difficult of comprehension until further considera- 
 tion has shown that the difficulties and harshness 
 of the common-law rules to which they are opposed 
 are indeed less apparent on the surface, but are hardly 
 of less magnitude. The rule of contributory negli- 
 gence is obviously just in principle, but its justice 
 is equalled only by the perplexities that arise in its 
 application. In a general way it may be stated in this 
 form, that one who has suffered hurt or loss which he 
 would not have suffered but for another's want of due 
 diligence must nevertheless not recover compensation 
 if he has materially contributed to the injury by some 
 carelessness or breach of duty on his own part. In
 
 v] employers' liability. 139 
 
 popular language, lie cannot recover if lie suffered by his 
 own fault. As the old books now and then say, though 
 not in cases of this class, " it was his own folly." That 
 common sense demands some such rule is indisput- 
 able : when we come to deal with sjDecific facts, it has 
 to be settled what relations of a man's conduct to 
 injuries received by him will make him so far a 
 contributor to his own mishap as to put him in the 
 wrong. How much of his own folly must a plaintiff 
 contribute to the total conditions of the event to 
 determine a court of justice to say that the fault was 
 his rather than the defendant's 1 If judges had been 
 left to work out this problem for themselves, it is not 
 unlikely that it would have remained a matter of un- 
 defined judicial discretion. The determination of the 
 facts in each case need not have been sharply marked 
 off from the consideration of what is the precise ques- 
 tion of fact that is legally relevant. But with our 
 jury system the jury are judges of fact ; and on the 
 other hand it is the judge's duty to put the question 
 of fact to them in the proper form, and the manner 
 in which he frames it may be, and often is, contested 
 by a dissatisfied party. Hence a particularly minute 
 and searching scrutiny is brought to bear on " ques- 
 tions of mixed law and fact," as they are expressively 
 if not quite accurately called. In the present case it 
 can hardly be said that a final result is yet arrived at, 
 nor has the rule ever been laid down in a complete 
 shape. It appears on the whole that the loss must 
 fall, whether by way of liability to pay damages or 
 disability to recover them, on that side on which is
 
 140 employers' liability. [v 
 
 found the immediate Ccause of the injury. By " im- 
 mediate cause," in itself an objectionable term, but 
 not easily replaced, we mean that negligent act or 
 omission which a reasonable man, looking at the 
 matter in a common-sense way and without preten- 
 sion to philosophical accuracy, would assign as being 
 more than any other one incident of the whole event 
 the reason of the mischief that happens. In many 
 cases the test question may be more simjily put in 
 this form : Which party might last have prevented the 
 injury by the exercise of ordinary care ? Thus, a man 
 leaves a pole across the public road opposite his house. 
 A neighbour rides furiously down the street in the 
 early twilight of a summer evening, runs against the 
 pole and is hurt. He cannot recover damages, for 
 although the defendant had no right to obstruct the 
 road, the plaintiff might with ordinary care have seen 
 and avoided the obstruction. On the other hand, a 
 man's being on the wrong side of the road is no justi- 
 fication for driving against him ; and on the same 
 principle the owner of a donkey who left him un- 
 watched on the highway was, in a well-known case, 
 allowed to recover damages asjainst the owner of a 
 waggon which, going ^' at a smartish pace," — in other 
 words, as the Court considered, a pace inconsistent 
 with ordinary caution, — ran over the donkey and 
 killed it. There is no small interest in observing 
 how all the subtilties of the theory of negligence, in 
 all its various branches, work round at last to the 
 statement of a question whether some one did or 
 failed to do what a reasonably prudent and competent
 
 v] employers' liability. 141 
 
 man might be expected to do under tlie circum- 
 stances. 
 
 Now the theory of the earlier cases on injuries 
 received by servants in the course of their employ- 
 ment, so far as any definite theory can be extracted 
 from them, is that a prudent servant has at least as 
 much power as his master of observing and control- 
 ling the conduct of his fellow-servants. In fact, it is 
 his duty, in faithfully watching his master's interest, 
 " to protect him against the misconduct or negligence 
 of others who serve him." Hence it is inferred that 
 when a servant suff'ers by the negligence of a fellow- 
 servant it is so likely to be in some considerable 
 degree by his own fault that it would be unjust to 
 hold the master liable. The rule is stated, like other 
 rules of liability which are anomalous as compared 
 with the general principles of the law, to be " founded 
 on the expediency of throwing the risk upon those 
 who can best guard against it." We are not aware of 
 any expressions in the books which would justify us in 
 saying in so many words that a presumption of con- 
 tributory negligence has been made against the servant 
 in this class of cases; but the notion in which the 
 doctrine took its rise was not very different. But in 
 course of time the doctrine was extended to cases in 
 which the possibility of mutual supervision or control, 
 as between the servant whose negligence caused the 
 accident and him who suffered from it, was absolutely 
 excluded by the facts. To such states of fact the 
 reason that it was the servants' business to look after 
 one another could not by any ingenuity be applied.
 
 142 employers' liability. [v 
 
 However, there is a refinement of the doctrine of 
 contributory negligence which is perhaps not wholly 
 unconnected with the doctrine (as it used to be called) 
 of " common employment." It has been held that a 
 passenger in an omnibus or train is in some mysteri- 
 ous manner " identified " with the owner of the con- 
 veyance in which he is travelling. The efiect or 
 meaning; of this identification is that if an accident 
 happens by the negligence of a third party, — such as a 
 collision with another omnibus, or with rolling stock 
 of another railway company, — under circumstances of 
 contributory negligence on the side of the first-men- 
 tioned conveyance, the passenger cannot recover against 
 the other omnibus owner or railway comjjany for any 
 hurt he may sustain. He finds himself in constructive 
 default by a process of reasoning which imputes to 
 him, by an unhappy alliance of theological and legal 
 supersubtilty, the negligence of the person in charge 
 of the omnibus or train to which he has committed 
 himself. I agree with the criticism that has been 
 passed in more than one quarter on the decisions, 
 fortunately not yet (in England at any rate) great in 
 number or of the weightiest authority, in which this 
 singular rule is propounded. Some remarks made 
 last year by Lord Blackburn in the House of Lords 
 afford ground for hoping that it may be ultimately 
 discredited. Such plausibility as it has appears to 
 depend on a false analogy to the community of occu- 
 pation and interest by which a servant and his master 
 are in a certain sense identified. It is this bond of a 
 common undertaking between employer and employed,
 
 v] employers' liability. 143 
 
 their union into a single familia, to use the Eoman 
 term, distinct from the outside public, that furnishes 
 the most solid reason for the distinction established in 
 Eno^lish and Ano;lo-American law between a master's 
 responsibility to the public and his responsibility to 
 his own servants ; a distinction by no means destroyed 
 in England, though modified by the Act of 1880. If 
 we attended more to verbal consistency than to real 
 convenience, we might say that, every servant being 
 " identified " with his master, and the master identi- 
 fied with his servants, fellow-servants are identified 
 with one another, and one of them cannot sue another 
 for anything done or omitted in the course of their 
 employment any more than he can sue himself. It is 
 perhaps fortunate that this particular conceit has 
 never occurred to the Courts : as it is, we may harm- 
 lessly suggest it as an illustration of the danger that 
 constantly attends the use of metaphorical language. 
 Even in strictly legal reasoning, and when the subject- 
 matter and the terms are familiar, a vigilant check 
 should always be kept upon language of this kind. In 
 considering the wider analogies of legal rules, and 
 still more in discussing the policy, in other words the 
 convenience and justice of the law, the only safe way 
 is to discard it altogether.
 
 144 THE THEORY OF PEESECUTION. [v 
 
 VI. 
 THE THEORY OF PERSECUTION. 
 
 The popular view of persecution, at least in Protest- 
 ant countries, is founded almost entirely on the 
 examples afforded by the proceedings of the Roman 
 Church during and since the Middle Ages ; and it is 
 not uncommonly thought a sufficient explanation to 
 say that persecution was invented by the priests for 
 the sake of maintaining the pre-eminence of their own 
 order. Such an explanation, however agreeable it 
 may be to ordinary minds to throw all the odium of 
 disgraceful chapters of history on a particular class of 
 men, is superficial at best. For the Church has been 
 able, with slight exceptions, to make persecution 
 effectual only by means of the secular power ; and the 
 secular power which lent itself to this purpose was a 
 joint agent, and must be held jointly responsible. 
 However eager the clergy might be to stimulate and 
 direct the anger of the faithful against heretics, their 
 efforts would have been vain if the bulk of the laity 
 had not been predisposed to persecute heretics when 
 duly pointed out. So far from persecution being 
 merely the creature of priestcraft, it would be as near 
 the truth to say that priestcraft was invented in order
 
 Vl] THE THEORY OF PERSECUTION. 145 
 
 to organize persecution. The truth is that mankind 
 are prone to persecute heretics from several different 
 motives, of which corporate ambition and the desire 
 of crushing rival sects have often taken advantage, 
 but which they are wholly incompetent to create. 
 
 The chief grounds of persecution are as old as 
 society itself ; and if we hear little of it in early times 
 it is because there was not enouo;h resistance to call for 
 any striking display of power. We may divide these 
 grounds into tribal, political, theological, and social. 
 A little examination will show us that theological per- 
 secution in the strict sense is of comparatively modern 
 origin ; while the arguments by which it has been 
 sought, even in our own times, to defend restraints on 
 023iuion in a milder form present to us a softened and 
 rationalized revival of the terrors in which the per- 
 secuting instinct has its oldest foundation. Let us 
 take the first persecutions which have acquired a 
 general historical importance, those of the Christians 
 under the Roman Empire. The accounts we have are 
 mostly imperfect or exaggerated, but we believe that 
 the following general view is substantially correct. 
 Christians were vaguely known to the multitude as a 
 set of people who refused worship to the recognized 
 gods, and to the rulers as a widely spread and spread- 
 ing society whose affairs were governed by a self- 
 appointed internal jurisdiction different from that of 
 the State ; whose ostensible objects were innocent, but 
 trifling in proportion to the extent and organization of 
 the society ; and which, although no overt act against 
 the civil authority could be laid to its charge, strictly 
 
 L
 
 146 THE THEOEY OF PERSECUTION. [vi 
 
 forbade its members to take the oath of allegiance 
 in the ordinary form. To the vulgar Christianity 
 appeared as a standing insult to the gods ; to the 
 instructed, as a standing menace to the Government. 
 The prevailing ignorance as to what the doctrine and 
 practice really were contributed an element of mystery 
 which doubtless heightened the alarm. A Eoman 
 official of averacre intellig;ence must have looked on 
 Christianity somewhat as a modern Prussian official 
 would look on a combination of the Jesuits and the 
 International. If we consider the persecutions that 
 actually took place, we shall find that they proceeded 
 chiefly from the vulgar but partly also from the 
 instructed view of the danger. They were mostly 
 connected with public misfortunes of some sort, as we 
 learn both from the general history of the times and 
 from the well-known passage of an early apologist. 
 Men sought for an account of the famine, the drought, 
 the pestilence, or the invasion of barbarians that had 
 oppressed them ; and the account was only too easily 
 found. The new and unsociable sect, the despisers of 
 Jupiter and doubtful subjects of Csesar, were always 
 with them. It was obvious that they had brought 
 the wrath of the gods on the community which toler- 
 ated them, and the remedy was no less obvious. The 
 injured honour of Olympus must be avenged, and 
 then all would go well ao-ain : CJiristianos ad leonem! 
 This is what we call the tribal motive of persecution. 
 The community which lives under the protection of 
 its peculiar and ancestral gods will forfeit that protec- 
 tion if it harbours persons who off"end the gods by
 
 Vl] THE THEORY OF PERSECUTION. U7 
 
 refusing tliem the obeisance and propitiation expected 
 by them as their due. The presence of a single 
 heretic is a constant source of imminent danger to the 
 tribe or city. From this point of view the removal 
 of the danger, — in other words the forcible suppres- 
 sion of heresy, — is not merely justifiable, but a plain 
 duty of self-preservation. 
 
 In cases of this kind the Christians often suffered 
 from outbreaks of local superstition which the magis- 
 trates, or the Emperor himself if appealed to, dis- 
 countenanced as far as they could. But they could 
 not do so completely, superstition being not only 
 violent, but having the law on its side.^ This brings 
 us to the political aspect of the matter. Where the 
 gods are regarded as in a manner the most exalted 
 officers of the State ; where their protection is invoked 
 on all public occasions, and religious ceremonies are 
 intimately bound up with the outward frame and cir- 
 cumstance of military and civil institutions ; where, 
 in short, religion is incorporated into politics, any 
 
 1 It might be difficult to ascertain for what specific ofi'ence the 
 early Christians were proceeded against in every case. The Roman 
 of&cials, apparently, did not always know themselves. Pliny's famous 
 letter to Trajan asking for instructions is so confused in this respect 
 that M. Aube seriously disputed its genuineness in the first edition of 
 his Histoire des persecutions de VEglise: he admits it in the second, 
 though not without hesitation. The Christians, however, seem to 
 have been legally exposed to punishment on three distinct grounds : — 
 1. Introducing an unauthorized new religion to the disturbance of 
 men's minds. (Paul Sen. v. xxi. 2.) 2. Belonging to an unauthorized 
 society. 3. Refusing the oath of allegiance. They were charged by 
 the popular imagination, and sometimes probably by authority, with 
 other various and monstrous crimes, including magic, which was a 
 capital offence.
 
 148 THE THEORY OF PERSECUTION. [VI 
 
 rebellion against the established gods is apt to be 
 regarded as equivalent to treason against the estab- 
 lished order of government. It is not conceived as 
 possible that those who are hostile to the gods should 
 not be equally hostile to the laws and institutions 
 under their protection. The seditious intention will 
 appear to the vulgar self-evident ; the enlightened and 
 conforming sceptic will consider that no one would 
 take the trouble and expose himself to the danger of 
 attacking the official religion unless there were some 
 sinister political object behind his professed scruples. 
 Accordingly we find that certain persecutions were 
 undertaken by the Roman government as deliberate 
 acts of State, if anything done in a panic may be 
 called deliberate. To these a tolerable parallel may 
 be found, allowing for the difference not only of the 
 cases but of modern civilization and humanity, in the 
 anti-Socialist legislation of the German Parliament 
 and our own obsolete thouQ-h not ancient statutes 
 
 o 
 
 against secret and corresponding societies. The Eng- 
 lish anti- Papal measures of earlier times are not in 
 point, as there was no mistake or mystery whatever as 
 to the reality and character of the pretensions against 
 which they were directed. The political intention on 
 both sides was undisguised. In order to understand 
 the Greek or Roman feeling on the subject, and the 
 inference, which to us appears forced, of anti-social 
 purposes from eccentric religious professions, we must 
 remember that almost all guilds and private associa- 
 tions were united by some special tie of common 
 worship and sacrifices. All societies were to some
 
 Vl] THE THEORY OF PERSECUTION. 149 
 
 extent religious, and a merely religious society was 
 exceptional. It will be seen from the foregoing 
 remarks that the political motive of persecution is, or 
 may be, to statesmen what the tribal one is to the 
 superstitious multitude ; and as the multitude, even 
 under a despotism, have some tincture of political 
 ideas, and few statesmen are wholly free from the 
 current superstitions of the time, we shall hardly ever 
 find either motive without an intermixture of the 
 other. The tribal motive, however, might be sole and 
 sufficient among people not yet civilized enough to 
 have any distinct political institutions. Any member 
 of the tribe who disputed the necessity and efficacy 
 of the medicine-man's incantations for the common 
 weal, or spoke lightly of dreams and omens, would 
 probably be knocked on the head without more ado : 
 nor would the survivors be able to say distinctly 
 whether the purpose of their summary justice was to 
 preserve the favour of the gods, or the customs of the 
 tribe, or both. 
 
 The civilization of Greece affords instances of per- 
 secution in which the tribal and political motives were 
 almost equally balanced : we mean the treatment of 
 certain of the prse-Socratic philosophers and of 
 Socrates himself, which is not reckoned by history as 
 a persecution because the number of victims was but 
 small, and in only one case, though the most illustrious, 
 was an extreme penalty inflicted. The main charge 
 against Socrates was that he imported new deities ; 
 that was the form in which his offence hit the popular 
 imagination. But there was also an uneasy feeling,
 
 150 THE THEORY OF PERSECUTION". [vi 
 
 by no means confined to the ignorant, tliat tlie new 
 brood of Sophists, of whom Socrates was the cleverest 
 and worst, were unsettling the foundations of civil 
 order. They went about questioning maxims for 
 which nobody before them had sought a reason, and 
 set their disciples questioning too. Their teaching 
 "perverted young men." Moreover, there was at 
 Athens a suspicion that philosojDliical study was in 
 some way associated with oligarchic sympathies. As 
 regards Plato and Xenophon, there was certainly some 
 colour, or more than colour, of truth in the suspicion. 
 But it is not insignificant that some time earlier 
 Anaxagoras was accused of "Medizing" as well as 
 impiety. On the popular side, again, pretensions to 
 superior physical knowledge were regarded as a kind 
 of sacrilege ; to hazard conjectures as to what the sun 
 and stars were made of was an indiscretion vermnof on 
 blasphemy. The physical inquiries of Anaxagoras 
 and the ethical and political inquiries of Socrates and 
 others were, notwithstanding Socrates' own protests, 
 hopelessly confused in the average Athenian mind, 
 which satisfied itself with the broad conclusion that 
 philosophers were a dangerous nuisance. Pericles was 
 not only powerless to stop the anti-philosophic agita- 
 tion, but was himself exposed to some danger from it ; 
 and this alone is ample proof that the inovement was 
 essentially popular. 
 
 The Greek persecution, such as it was, of j^hilo- 
 sophy, and the Roman persecution of Christianity, 
 agree to a considerable extent in what their motives 
 were, and still more remarkably in what they were
 
 Vl] THE THEORY OF PERSECUTION". 151 
 
 not. In neither case is there anything like the 
 distinctly theological incitement to persecution which 
 is given by dogmatic theories. The religions of 
 Greece and Eome had legends and rites in exuberant 
 abundance, but nothing that can be properly called 
 doo-ma. When men come to hold that one set of 
 religious beliefs is exclusively true, that adhesion to it 
 is a matter of supreme importance for each man's 
 individual soul, and that the true belief is in their 
 own possession, theological persecution in the strict 
 sense becomes possible. The nature of its motives, 
 and its justification from the theologian's point of 
 view, are already implied in this statement of the 
 conditions. 
 
 II. 
 
 When religion was considered as a matter of public 
 rather than private concern, the motives of persecu- 
 tion were naturally found in the order of considera- 
 tions which we have called tribal and political. The 
 wrath of the gods must be averted by the destruction 
 of the blasphemers who provoked it ; and the popular 
 impulse to cast out the abominable thing was rein- 
 forced by the more astute reflection that, whether the 
 gods really cared about it or not, persons who re- 
 nounced the accustomed gods of the city could not be 
 otherwise than bad citizens. Persecution on grounds 
 of this kind is essentially a measure of public safety. 
 In its petty forms it belongs to the class of useless 
 and vexatious police regulations by which it is sought 
 to enforce erroneous theories of public welfare. We 
 may compare it with the old-fashioned formalities of
 
 152 THE THEORY OF PERSECUTION. [vi 
 
 quarantine, or tlie machinery of protectionist legisla- 
 tion. In its more violent forms it is analogous to a 
 political reign of terror. But in either case it is 
 wrong, not merely because it aims at putting clown 
 particular ojjinions, but because it rests on mistaken 
 assumptions. Whether those who promote it are 
 morally to blame as individuals depends on their 
 means of knowledge and the industry and intellio-ence 
 witli which they liave used them. It was almost im- 
 possible for a Roman official of the second century, 
 with the political ideas and training of his time, to 
 entertain the ojjinion that Christians might safely be 
 left alone. 
 
 The difficulty arises from the conflict of the old 
 political conception of religion Avith the new individual 
 or theological one. In the earlier stages of civilized 
 history the tribal jealousy of strange gods is still 
 active and potent. This was broken down by the 
 increase of mutual traffic and the levelling cosmo- 
 politanism of the Roman Empire ; and the Pantheon 
 became hospitable. The Greek or Roman who bore 
 his part in the official ceremonies was free to use for 
 his private edification (subject to such police regula- 
 tion as existed, and to the general laws against 
 unauthorized associations) any respectable form of 
 worship that took his fancy. When a world which 
 had thus established, as it seemed, an arrangement 
 convenient and equitable to all parties was surprised 
 by the Eastern idea of right belief as a thing of 
 surpassing moment for each individual, it was unable 
 to receive such a disturbing element without a violent
 
 Vl] THE THEORY OF PERSECUTION. 153 
 
 shock. There was no strength left to withstand it, 
 and Oriental ardour triumphed over the intellect of 
 the Eoman world. It might have been expected, 
 perhaps, that the modern doctrine of liberty of con- 
 science should have been among the first-fruits of a 
 system in which the responsibility of the individual 
 soul for its belief was brought into unwonted promi- 
 nence. But this was not the case. A brief and fitful 
 gleam of toleration appeared at a time when the 
 victory was yet in suspense, but only to be forgotten 
 as soon as victory was assured. When the new 
 theory of religion was once fully established, it lost 
 no time in producing a new theory of persecution : 
 not that the older motives, at least the popular one, 
 b}' any means lost their force. 
 
 If the authority of princes and rulers is divine, 
 and if salvation is more important than any temporal 
 interest, and the duty of saving one's soul paramount 
 to all others, it is the manifest duty of princes and 
 rulers to do what they can to ensure the salvation of 
 their subjects. Further, if holding the true faith is 
 essential to salvation, and the one true faith is known 
 to be in the custody of the Church, it follows that the 
 prince must support the Church at all hazards in pre- 
 venting his subjects from holding any other. The 
 undertaking may be difficult, but is not impossible ; 
 and a prince who really holds the Church's view of 
 human salvation is bound to go through with it if 
 it is possible at all. It is easy to say that opinion 
 cannot be coerced. But this, in the first place, is 
 true only of the small minority of mankind who are
 
 154 THE THEOHY OF PERSECUTION. [vi 
 
 in tlie habit of thinking for themselves; and, secondly, 
 if it were true it would only show that in some cases 
 persecution is too late to be effectual. Not cure but 
 prevention is the main object. A disease may be 
 incurable as to the individual it has once fastened 
 on, and yet the infection may be cut off by sanitary 
 police or stamped out by slaughter. If heretical 
 opinions are damnable, and the infection of them 
 dangerous to the soul, the best thing the prince can 
 do is to contrive, as far as in him lies, that his faithful 
 subjects shall have no opportunity of hearing them. 
 The readiest way of doing this is to make heresy a 
 crime, and inflict penalties on all persons who either 
 publish or willingly listen to anything contrary to 
 the Catholic faith. And if heresy be a crime at all, 
 it is plainly a crime of the most heinous kind. 
 Every heretic is a centre of infection and corruption 
 infinitely more deadly than any physical pestilence. 
 Even if his own soul is stubborn beyond saving, the 
 souls of his innocent neighbours are in constant 
 danger because of him. And if temporal welfare is 
 indeed of no account in comparison of spiritual, no 
 limit whatever can be assigned to the measures of 
 repression to wdiich an orthodox ruler should commit 
 himself. Better a depopulated wilderness than a 
 garden cultivated by heretical hands ; better a poverty- 
 stricken remnant of the faithful than an outwardly 
 prosperous multitude sitting in the darkness of mortal 
 error and under an eternal ban. Extermination is 
 the only true mercy : for every life that is spared 
 many souls may be lost. It is useless to say to the
 
 Vl] THE THEORY OF PEESECUTION. 155 
 
 persecutor that if tlie truth is on his side it will 
 surely prevail in the end. Such an argument might 
 be allowed on a question of mere human knowledge ; 
 but no delay is admissible where souls are to be 
 rescued from certain perdition. How many poor 
 ignorant men may not be hopelessly led astray while 
 the doctors are exposing the fallacies of a new heresy? 
 and do we not know that heretics are encouraged by 
 the devil to a pitch of obstinacy which is proof 
 against even the elements of Catholic truth? The 
 case for theological persecution is unanswerable if we 
 admit the fundamental supposition that one faith 
 is known to be true and necessary for salvation. 
 The ease against persecution is that the persecuting 
 Sovereign must take the risk of this supposition 
 Ijeino; unfounded. To Isabella the Catholic and 
 Philip 11. , and to Catholic princes and clergy in 
 general down to a much later time, it never occurred 
 that such a risk existed. To most persons at this day 
 it appears too tremendous for any human being to 
 support. Even among devout Catholics there are 
 probably very few who really think it inajjpreciable. 
 Again, the preservation of the faith uncontaminated 
 by heretical influences is, on the thoroughgoing Catholic 
 hypothesis, a blessing for which no price can be too 
 high. But to the common apprehension of mankind 
 the hypothesis cannot be verified ; while the cost of 
 rooting out heresy is visible in the present world. 
 That cost appears to be terrible in direct proportion 
 to the success of the operation. Spain is the one 
 European country in which the policy of extermina-
 
 156 THE THEORY OF PERSECUTION". [vi 
 
 tion has been consistently applied for a time long 
 enough to produce its full results. For once the 
 Church and the Inquisition had unbounded scope. 
 The Moors and the Jews were expelled; even the 
 suspicion of Judaizing or heresy was more dangerous 
 than treason ; the Catholic faith reigned without the 
 shadow of a rival from the Pyrenees to the Atlantic, 
 and Spain was politically and intellectually ruined. 
 Similar consequences, though on a far lesser scale, 
 may be distinctly traced to the revocation of the 
 Edict of Nantes, the most modern instance of theo- 
 logical persecution deliberately designed and rigor- 
 ously executed. 
 
 It is probable, however, that no ecclesiastical per- 
 secution, not even under the Spanish Inquisition, was 
 ever unmixed as to motive or perfectly consistent in 
 its conduct. Even the most fanatical of temporal 
 and spiritual rulers are apt to be in some little degree 
 better than their creeds ; and, on the other hand, 
 they have had other reasons for persecuting besides 
 theological ones. The Inquisitors doubtless thought 
 that in burning heretics they were vindicating the 
 honour of God as well as preserving the souls of the 
 people ; and this is only a refinement of the old tribal 
 feeling that the heretic is a curse to the land, which 
 is by no means extinct even now in Catholic countries. 
 The periodical massacres of Jews which disgraced 
 every country in Europe in the Middle Ages were 
 partly due to this feeling ; and it is notable that they 
 were mostly not ofiicial but popular. In some cases 
 both civil and ecclesiastical authorities endeavoured
 
 Vl] THE THEORY OF PERSECUTION. 157 
 
 to restrain the mob, and endeavoured in vain. In 
 this respect, as also in respect of the monstrous 
 charges eagerly caught up by the multitude as a 
 reason for outrage, the position of the Jews in Catholic 
 Europe was very like that of the Christians in the 
 first two centuries of the Church. But the Jews 
 were victims not merely of superstition, but of the 
 coarsest kind of jealousy. They added to the crime 
 of infidelity that of being, in spite of vexatious and 
 oppressive laws, richer and more clever than their 
 neighbours. Superstition engendered hatred ; envy 
 inflamed it ; and envy, hatred, and the lust of plunder 
 fell back on superstition for an excuse. In England 
 the Jews, before their expulsion by Edward I., were 
 treated as a preserve of the Crown, and their religious 
 perversity, and the other crimes associated with it 
 by vulgar belief, were used simply as a pretext for 
 extortion. It is observed by a writer of the last 
 century that the Jews were not accused of murdering 
 Christian children except when the king was in great 
 want of money. 
 
 In modern times religious and ecclesiastical con- 
 troversies have become inextricably mixed up with 
 political ones, and so long as theological persecution 
 was esteemed a respectable motive, it was even found 
 convenient to put it forward as a disguise or justifica- 
 tion for animosities which were in truth merely 
 political. It is barely needful to mention, as instances 
 in English affairs, the association of Anglicanism with 
 the cause of the Crown, and Puritanism with that of 
 the Parliament, or the conjunction in the following
 
 158 THE THEORY OF PERSECUTION. [vi 
 
 century of the Pope with the Pretender. And if 
 Protestant supremacy had been doubtful at the 
 end of the sixteenth century, the Spanish Armada, a 
 gigantic and sinister hybrid of theological and political 
 ambition, would have sufficed to make it certain. 
 
 At present theological persecution is generally dis- 
 credited, partly by force of reason, but still more by 
 force of circumstance. The continued existence of 
 Protestant kingdoms has been enough to make it 
 look not only shocking but absurd ; and Catholic 
 and Protestant rulers, finding a system of perpetual 
 reprisals intolerable, were practically compelled to 
 allow existence on some terms to citizens who did 
 not accept the prevailing religion of the State. When 
 once heretics are sufi'ered to live, and the principle of 
 toleration is so far established that the terms and 
 conditions of it can be discussed, persecution is driven 
 from its hio;h theologcical OTOund. The State admits 
 that there are limits within which relio;ious belief is 
 an affair not of certainty but of probable opinion ; 
 and the repression of religious opinion, so far as it 
 survives, must be maintained, not as a necessity of 
 spiritual welfare, but by reasons of social expediency. 
 Ecclesiastical fury is no longer armed with fire and 
 sword, and the jurisdiction over opinions passes, in a 
 mild and comparatively reasonable form, to the civil 
 
 magistrate. 
 
 III. 
 
 The severer forms of persecution can, as we have 
 seen, appear justifiable only when the extermination 
 of heretics is believed to be necessary either for the
 
 Vl] THE THEORY OF PEESECUTION. 159 
 
 purpose of averting divine wrath from the community 
 or to preserve the souls committed to the Sovereign's 
 charge from the danger of a fatal infection. We now 
 have to consider a state of things in which such 
 beliefs no longer prevail. It might seem on first 
 sight that with their disappearance all plausible 
 grounds of persecution had also vanished, and that 
 the continuance of it in milder forms, which has 
 everywhere preceded the introduction of complete 
 toleration, and is far from having wholly ceased, 
 must be regarded as an irrational compromise between 
 the old principle of unqualified repression and the 
 new one of religious liberty. It is true that man, 
 though he could not be political without being 
 rational, is never completely rational in his political 
 action ; and it is doubtless the fact that compromise 
 of this kind has its share in the partial preserva- 
 tion of compulsory and restrictive laws on religious 
 matters. But it is only a share, and not the principal 
 one. No sooner does the case for persecution fail on 
 the theological ground than a fresh one is taken up 
 within the region of temporal considerations ; and the 
 position, if more confined than that which has been 
 abandoned, is all the more defensible. Absolute 
 knowledge of revealed truth and jurisdiction over 
 consciences are no longer claimed ; but it is affirmed 
 that the public weal does not suff"er certain doctrines 
 to be openly disputed. 
 
 The civil or social reasons, as we have called them, 
 in favour of moderate persecution, may be presented 
 thus. It is conceded that individual citizens must
 
 160 THE THEORY OF PERSECUTION. [vi 
 
 take care of their own souls, and tliat strict theological 
 uniformity cannot be enforced. But there is a certain 
 amount of fundamental religious doctrine, common 
 to all or nearly all persuasions, and essential for the 
 maintenance of morality and civil order. Whoever 
 does not believe this much has no rational motive for 
 being a good citizen or a good man : whoever shakes 
 these accepted beliefs is to that extent endangering 
 the stability of the commonwealth, and is just as 
 much to be restrained as if he directly incited his 
 neighbours to wickedness and sedition. For this 
 purpose it becomes needful to impose penalties that 
 shall be sufficient, but not more than sufficient, to 
 secure a decent observance for the elements of religion 
 on which the welfare of society rests. The offence will 
 consist not in entertaining difficulties of conscience 
 on the most important points of belief, nor in the 
 discreet and private discussion of them, but in openly 
 controverting the received opinions : the gist of it will 
 be, in the language of an Act of William III., " writ- 
 ing, printing, teaching, or advised speaking." This 
 Act is worth studying as a specimen of the manner in 
 which legal persecution is transformed. The preamble 
 recites, in ungrammatical but not obscure language, 
 that " many persons have of late years openly avowed 
 and published many blasphemous and impious opin- 
 ions contrary to the principles and doctrines of the 
 Christian religion" — not of the Church, be it observed : 
 the Christian religion is tacitly assumed to be the 
 common possession of several denominations of Chris- 
 tians. These opinions are further described as " greatly
 
 VI] THE THEORY OF PERSECUTION. 161 
 
 tending to tlie dishonour of Almighty God/' — here the 
 old tribal superstition is expressed in a generalized 
 form, — " and may prove destructive to the peace and 
 welfare of this kingdom : " not to the salvation of 
 souls ; the Legislature no longer provides for that ; 
 but to the peace and welfare of the kingdom. " Where- 
 fore, for the more effectual suppressing of the said 
 detestable crimes," it is enacted that any person " who 
 shall, by writing, printing, teaching, or advised speak- 
 ing, deny any one of the Persons in the Holy Trinity 
 to be God, or shall assert or maintain that there are 
 more gods than one, or shall deny the Christian 
 religion to be true, or the Holy Scriptures of the Old 
 and New Testament to be of divine authority," shall, 
 on conviction by two witnesses, be disabled from hold- 
 ing any public office for a first offence, and incur 
 sweeping civil disabilities and three years' imprison- 
 ment for a second. Note that the penalties, exces- 
 sive as they are, have a purely civil character, and do 
 not extend to life or limb. There is a qualification 
 which has the effect of excepting unconverted Jews, 
 Turks, and heathens, presumably because they can- 
 not be expected to know better, and there are not 
 enough of them to affect the public welfare in any 
 sensible degree by such disputes as they may enter 
 upon with their orthodox neighbours. It seems clear 
 that the severity of the statute outran public opinion ; 
 for no instance is known of any one having been pro- 
 secuted under it, though ample occasion was afforded 
 by the Deistic writers of the eighteenth century. But 
 its existence was not wholly forgotten. Early in the 
 
 M
 
 162 THE THEORY OF PEllSECUTION. [vi 
 
 present century it was discovered tliat Unitarians 
 were not in any way dangerous to the peace and wel- 
 fare of the kingdom, but were very decent, well- 
 behaved, and well-to-do ]3eople ; and accordingly the 
 penalties were repealed for their benefit, so far as 
 concerned persons denying the Trinity. 
 
 This last incident marks a weak point in the social 
 theory of persecution. It suggests that the legislator's 
 estimate of the indispensable elements of belief which 
 support the welfare of society is more or less precari- 
 ous. In this case there is no mixture of substantial 
 political reasons, such as we have noticed before, and 
 may notice again. No one ever supposed that Socin- 
 ians or Unitarians were dangerous to the State, except 
 so far as their denial of the Trinity was equivalent 
 to denying the foundations of religion and morality. 
 The peril of allowing their doctrines to be openly 
 maintained, whatever it might be, could not well have 
 diminished in the interval between WiUiam III. and 
 the Eegency. Yet under the Regency, at a time by 
 no means favourable in other respects to speculative 
 novelties or to the relaxation of restraints, the Legis- 
 lature had become convinced that the danger was 
 infinitesimal. Parliament had taken the risk of beinp; 
 wrong — a risk which might have issued in depriving 
 the country of the services of many good citizens if 
 public opinion had not been wiser than Parliament ; 
 and after the experience of something over a century, 
 Parliament formally admitted that it had been wrong. 
 But when the possibility of error is once allowed, we 
 cannot say within what limits it is possible. Absolute
 
 Vl] THE THEORY OF PERSECUTION. 163 
 
 bounds can be set to the scope of probable opinion 
 only if you have an infallible authority to set them. 
 Therefore, if the risk of error is not in its nature so 
 formidable when persecution confines itself to mode- 
 rate civil penalties as when it proceeds on the theo- 
 logical principle of extermination, yet it is implied 
 in the theory of moderate persecution itself that the 
 risk does exist. 
 
 Nevertheless all government and legislation what- 
 ever are founded on no surer base than probable 
 opinion.; and in order to show that repressive legisla- 
 tion is wrong, it is not enough to show that it may 
 possibly be mistaken. We must be satisfied either 
 that the assumption on which it proceeds, — namely, 
 that the publication of certain opinions is dangerous 
 to society, — is not tenable, or that, if that assumption 
 be taken as true, legislation of the kind proposed is 
 not fitted to attain the desired end. But those who 
 object to repression are, as relates to the conditions of 
 the argument, in a better plight than those who main- 
 tain it. For their purpose is served if they can make 
 out either branch of the alternative ; whereas the 
 advocate of restriction has a double burden of proof 
 on him. He must show that the alleo;ed dano;ers are 
 real, and also that legal restraints will effectually pro- 
 vide against them. These are issues which can be 
 decided only on the ground of experience ; and ex- 
 perience has, in fact, given a tolerably clear answer 
 upon both branches of the question. 
 
 First, the policy of limited restraint has had a fair 
 trial for upwards of two centuries in the most civilized
 
 164 THE THEORY OF PERSECUTION. [vi 
 
 countries of the world, and there can be no doubt that 
 it has failed. Notwithstanding the direct and indirect 
 penalties which recently were or still are attached to 
 various manifestations of heterodoxy, people who 
 really cared to publish heterodox opinions have found 
 but little difficulty or inconvenience in so doing, so 
 long as they used decent language and otherwise con- 
 formed to the ordinary law of the land. Probably it 
 has oftener been the desire to spare good men's feelings 
 and avoid controversial scandals than any dread of 
 surviving legal sanctions that has induced heterodox 
 writers in late years to express their speculations in 
 guarded, respectful, or even ambiguous terms. At 
 present it is certain that in all the Western nations 
 the public discussion of the most fundamental religious 
 questions is practically free : nor is this such a new 
 thing as many people suppose. Ever since the theo- 
 logical theory of persecution disappeared, freedom of 
 speech has been in great measure enjoyed by any one 
 who would use a certain amount of prudence and pre- 
 caution. The difference between this century and the 
 last is not so much in the boldness of particular pub- 
 lications as in the general tone of society and litera- 
 ture. The necessary precaution is now reduced to a 
 minimum, and may be said to consist in nothing more 
 than the observance of good manners. Yet, with the 
 slight exception already noticed, the law has remained 
 unaltered. Nor is it open to those who may be dis- 
 satisfied with the result to say that if the law is 
 ineffectual it should be made more stringent. In Eng- 
 land it is nominally very stringent already, and the
 
 Vl] THE THEORY OF PERSECUTION. 165 
 
 fact is that public opinion does not allow it to be en- 
 forced. The proposal is not even admissible in theory. 
 From the theological point of view penalties for heresy 
 may be increased without limit ; but from that of 
 secular expediency the limit of the severity which can 
 appear reasonable is very soon reached. If the civil 
 magistrate, acting on grounds of civil welfare, is 
 unable to suppress heresy by treating it as a simple 
 misdemeanour, he may as well renounce the hope of 
 suppressing it at all. 
 
 The same exjDerience which shows petty persecu- 
 tion to be ineffectual has also shown its purpose to be 
 misconceived. Heterodoxy has had by this time a 
 scope quite sufficient to display the mischievous re- 
 sults of toleration. Where are those results ? The 
 foundations of morality have not been weakened ; the 
 practice of it has not ceased ; respect for the law has 
 not diminished ; society is not on the brink of dis- 
 solution. The civilized commonwealths of the world 
 are not on the whole less orderly, less prosj)erous, or 
 less flourishing in any way than they were two cen- 
 turies ao-o. The disturbances and discontents that 
 have arisen from time to time are traceable to natural 
 and political causes. Orthodoxy can allege with con- 
 fidence only one evil consequence — namely, that 
 heterodoxy and unbelief have increased. To an 
 orthodox beholder this is, of course, the greatest of 
 evils ; but whether it should be an evil in the eyes of 
 the civil authority, which by the hypothesis is to 
 judge of beliefs only by their fruits in action, is the 
 very matter in question.
 
 166 ■ THE THEORY OF PERSECUTION. [vi 
 
 The tlieory of limited persecution for tlie sake of 
 public welfare is so far stronger than the older ones 
 that it rests on grounds capable of being tested by 
 experience, not on assumptions about the conduct of 
 supernatural Powers. It cannot be summarily dis- 
 missed as irrational ; but when the test of experience 
 is ap23lied, it is found to break down. Laws of this 
 kind do not work, and no harm appears to come of 
 their not workino^. The collateral evils of retainino; 
 nominal penalties and restrictions with which ]3ublic 
 feeling is not in accord have often been exposed, and 
 it is needless to speak of them here. The condemna- 
 tion of direct penalties for heresy involves the con- 
 demnation of all indirect ones which may be imposed 
 by way of condition or disability; for example, treat- 
 ing a man as unworthy of belief in a court of justice 
 because he declines to take an oath in a particular 
 form, or does not accept particular doctrines. This 
 principle has been acknowledged, though tardily, by 
 modern legislation and practice. What is here said 
 as to the inutility of legal persecution applies with 
 much the same force to the more subtle and really 
 more formidable restraints which the usage of society 
 can impose on private conversation. As the law in 
 its modern tendency and operation, if not as yet in 
 its form, regards not doctrine but only decency and 
 the public peace, so must the exchange of opinion in 
 social intercourse ultimately be limited only by the 
 rule of good manners, gentleness, and respect for the 
 feelings of those present, which equally governs 
 conversation on all topics.
 
 Vl] THE THEORY OF PERSECUTION. 167 
 
 There are still divers forms of restraint on conduct 
 and language which, though they are or may be con- 
 nected with religion, and may tend to impede the 
 manifestation of religious opinions, do not aim in the 
 first instance at that object. Whether these can be 
 dispensed with demands a separate inquiry. 
 
 IV. 
 
 Persecution has frequently been the ally of political 
 ambition, the chief moving part in the business be- 
 lonoinof sometimes to the one and sometimes to the 
 other evil spirit. Ecclesiastical zealots have purchased 
 the support of temporal arms by promises of temporal 
 gain in sovereignty and possessions ; and princes have 
 generally been eager in the detection of heresy in pro- 
 portion to the immediate advantages which might be 
 expected from the confiscation of the heretic's worldly 
 goods. The crusade against the Albigenses developed 
 or degenerated (it is of little importance to be accu- 
 rate in the degrees of infamy) into a war of mere 
 territorial conquest. And in a later age the Spanish 
 conquerors in America made the advancement of true 
 religion their pretext for rapine and cruelty which 
 excited hardly less indignation in Catholic than in 
 Protestant lands. But there are cases of another 
 kind in which acts bear a certain appearance of reli- 
 gious persecution which in truth belong chiefly or 
 wholly to secular policy or jurisprudence, and are to 
 be upheld or condemned on grounds independent of 
 religious opinion. 
 
 Thus the severities exercised against the Jesuits
 
 168 THE THEORY OF PERSECUTION. [vi 
 
 under Queen Elizabeth, whatever may be tliougbt of 
 their justice or expediency, were not in the nature of 
 a religious persecution. The Queen's Government 
 determined to treat the Jesuits as enemies of the 
 State, not because they believed in purgatory and the 
 invocation of saints, but because they taught English 
 citizens that the Pope could dispense them from their 
 allegiance. And the imposition of special disabilities 
 on Roman Catholics which continued so long after- 
 wards was founded partly on the apprehension that 
 anarchical doctrines of this kind still were or might 
 be laid down by the authorities of the Roman Church, 
 but still more on the subsequent experience of a criti- 
 cal period in which the official influence of that 
 Church had been used against the liberties of Eng- 
 land. More clear and simple instances, however, will 
 be found in later times ; and they will be the more 
 instructive as the justice of the acts in question is 
 hardly open to doubt. The British Government in 
 India professes to regard the native religions with 
 indifference, neither encouraging nor discouraging any 
 one of them. But we have put down the practice of 
 widow -burning, in spite of the strong religious sanc- 
 tion it had obtained : not because we wished to 
 enforce any particular theory as to the spiritual con- 
 dition or duties of Hindu widows, but because a 
 system of compulsory suicide was too contrary to the 
 first principles of justice and humanity to be tolerated 
 by a civilized government. It may seem a strange 
 reversal of the ancient relations between persecutors 
 and persecuted that the conceivable forms of persecu-
 
 Vl] THE THEORY OF PERSECUTION". 169 
 
 tion should include forbidding persons to burn them- 
 selves. But fanaticism can persuade men to any- 
 thing ; and there is little doubt that not only the 
 Brahmans, but a certain number of the widows them- 
 selves, were aggrieved by the prohibition. Again, we 
 suppressed the sect of Thugs, not for being devotees 
 of the goddess K^li, but because their devotion 
 assumed the form of organized murder and highway 
 robbery. It is beyond all question that they were 
 sincere in their unique superstition ; and the procedure 
 of the British Government differed from persecution 
 only in being directed, not against opinions as such, 
 but against the actual crimes produced by them. At 
 home we have to deal with the Peculiar People, who 
 deliberately omit to procure medical attendance for 
 their children on a supposed ground of religious obli- 
 gation ; and they no doubt consider themselves per- 
 secuted when they find that if the children die the 
 result of the parents' following of their peculiar reli- 
 gious lights is a prosecution for manslaughter. The 
 law is not concerned with the interpretation of the 
 passages of Scripture relied on by the Peculiar People, 
 nor does it interfere with any endeavours they may 
 make to persuade as many of their neighbours as they 
 can, and ultimately Parliament, to adopt the same 
 interpretation. But in the meantime they are not free 
 to act upon it ; for it is settled by the law of England, 
 on grounds independent of particular religious beliefs, 
 that it is a father's duty to provide necessaries for his 
 children, including medical attendance when required ; 
 and while the law is such it must be enforced.
 
 170 THE THEORY OF PERSECUTION. [vi 
 
 Provisions relating to the maintenance of an 
 established Church are of a mixed religious and poli-' 
 tical kind. They may be a cloak for persecution, but 
 they may also stand together with a very wide tolera- 
 tion of opinions. In fact, there was a time when 
 writers who advocated freedom of thought and speech 
 to the full extent assumed it to be a matter of political 
 necessity that there should be some form of public 
 worship specially ordained by law, and enjoying some 
 sort of legal preference and privileges. The reasons 
 for and against keeping up relations of this kind 
 between Church and State — at least those which in 
 our time can be used with any eflfect — are but remotely 
 connected with the general political doctrine of toler- 
 ation. But the intimate connexion between civil and 
 ecclesiastical polity which was once universal, and is 
 now relaxed only in the most advanced of civilized 
 countries, has greatly contributed to maintain the 
 belief that civil morality depends on religious opinions. 
 In the first instance the State had no choice whether 
 to be associated with the Church or not. The Church 
 was a power not merely co- extensive with the State, 
 but more extensive and better disciplined than any 
 single State or any possible alliance of States. And 
 when the State became strong enough to go alone, it 
 was so thoroughly committed by habit and precedent 
 to supporting the Church that statesmen easily brought 
 themselves to regard the alliance which had once been 
 a condition of the State's existence as a thing to be 
 continued from deliberate choice and policy. When 
 men are discontented with the government they live
 
 Vl] THE THEORY OF PERSECUTIOlSr. 171 
 
 under, and the Churcli is presented to them as a part 
 of that government, their anger is for many reasons 
 apt to be most strongly drawn towards the Church. 
 And the probability of this will be the greater in pro- 
 portion to the amplitude of ecclesiastical claims ; for 
 an institution which pretends to have superhuman 
 powers confided to it, and to exercise them under 
 supernatural guidance, cannot expect those allowances 
 which are tacitly made by all reasonable men for the 
 necessary infirmities of their governors. Eepugnance 
 to the established order in things ecclesiastical mani- 
 fests itself in divers ways, according to times and cir- 
 cumstances. Where it stops short of actual commo- 
 tion, it may be expected to assume the form either of 
 bitter sectarianism or of coarse and violent denial of 
 all religion whatever. Distinctions between specula- 
 tive tenets and the discipline by which it is sought to 
 enforce them are not always easily made by educated 
 men, much less by those on whom the weight of 
 ecclesiastical jurisdiction chiefly presses. But in such 
 troubles the Church finds a new opportunity. Men 
 become heretics or infidels because they are disgusted 
 with the behaviour of the ofiicers who represent the 
 Church, or because they hold themselves wronged 
 by an established order of things which the Church 
 officially supports. It is both natural and convenient 
 for Churchmen to invert the real order of cause and 
 efi'ect, and assign the origin of every general disorder 
 to the heresy or infidelity which is in truth only a 
 symptom of it. The political distress may perhaps be 
 represented as a divine judgment on heresy, or, at any
 
 172 THE THEORY OF PERSECUTION. [vi 
 
 rate, it will be pointed out to the civil authorities that 
 they have another conclusive instance of the manner 
 in which free-thinking breeds sedition, and a plainer 
 demonstration than ever how nearly the interests of 
 society are bound up with those of the established 
 religion. 
 
 We have said nothing as yet of the punishment 
 by law of blasphemy as distinguished from heresy. 
 Formerly the distinction was only one of jurisdiction 
 — blasphemy being a matter of temporal, heresy of 
 ecclesiastical, cognisance. In England it is believed 
 that blasphemy, as a distinct offence, was invented by 
 the judges of the King's Bench about the time when 
 the power of the ecclesiastical courts was cut short. 
 At that time it meant nothing more than the distinct 
 expression of opinions contrary to the established 
 ones. The statute of William III, which we have 
 already cited proclaims by its title the intention of 
 suppressing " blasphemy and profaneness ; " but inde- 
 cency of manner is not an ingredient in the offence. 
 " Advised speaking " against orthodox doctrine is to 
 be punished, whether temperate or not. And the 
 common law was understood to be to the same effect. 
 But at this day we should never think of calling a 
 serious and decently worded argument blasphemous. 
 The simple denial of cherished doctrines may shock a 
 believer's religious feelings ; but what we mean by 
 blasphemy is language which denies with studious 
 insult, or insults without caring to deny. Now it is 
 a broad fact of human nature that, next to men's own 
 persons and families, their religion is the point where
 
 Vl] THE THEORY OF PERSECUTION. 173 
 
 tliey are most easily touched ; and it should seem 
 that wanton offence on that point is no less fit to be 
 punished by the law than attacks on personal honour 
 and reputation. Where strife between people of dif- 
 ferent religions or sects is common, it may be neces- 
 sary for the lawgiver, looking simply to the preser- 
 vation of the common peace, to forbid mutual insults 
 of this kind with some stringency. This has been 
 done by the Indian Penal Code in perfectly impartial 
 and general terms. 
 
 If a certain belief is notoriously professed by a 
 great majority of the people, gross and wanton attacks 
 upon it will presumably give widespread offence and 
 pain, and it may be fair enough to punish them with- 
 out requiring proof that individuals have been in fact 
 offended. This is the modern rationalized theory of 
 the English law of blasphemy, which is made possible 
 by the vagueness of the early authorities. When it is 
 said that Christianity is parcel of the law of England, 
 this would naturally mean that the law of England 
 reo-ards a certain set of religious doctrines as true, 
 and makes it a crime to deny them even in becoming 
 language ; and this was no doubt the original inten- 
 tion. But it can also be made to mean that the law, 
 taking note of the fact that most Englishmen are 
 professed Christians of some denomination, will not 
 suffer the Christian religion to be assailed with gross 
 and indecent vituperation. And there is fortunately 
 no positive decision which binds an English lawyer to 
 hold that the sober and serious expression of hetero- 
 dox opinions must by the common law be deemed a
 
 174 THE THEORY OF PERSECUTION. [vi 
 
 crime. A law thus limited is reason itself compared 
 with what it has been evolved from ; but it is less 
 rational, less comprehensive, and more lialjle to abuse, 
 than such a general provision as that of the Indian 
 Code. It is difficult to sec why only the prevailing 
 religion should be protected. There are many Jews 
 and very few Buddhists in England. But it seems to 
 us that those Buddhists are no less entitled to be 
 secured against hearing gross abuse of the Buddha 
 than the Jews are to be secured against hearing gross 
 abuse of Moses. 
 
 The draft Criminal Code Bill of 1878-9 proposed 
 to make the publication of blasphemous libels an 
 offence. The task of defining a blasphemous libel 
 was wisely not undertaken except in a negative sense. 
 There is a proviso that statements or arguments used 
 in good faith are not of themselves to be punishable. 
 Subject to this, the character of the publication is left 
 to be dealt with as a question of fact in each case. 
 Juries would thus have the same power that they 
 already have by statute in other cases of criminal 
 libel, and for the same purpose, to ensure the adminis- 
 tration of the law being fairly in harmony with public 
 opinion. But public opinion may now and then be 
 carried away by a panic ; and although the proviso is 
 distinct enough, we can imagine circumstances in 
 which it would not give much security against per- 
 verse and oppressive verdicts. It would perhaps be 
 desirable to require the action or consent of the 
 Attorney-General for prosecutions of this kind. 
 
 The general result of the considerations set forth
 
 Vl] THE THEOEY OF PERSECUTION. 175 
 
 in this essay has been to show that persecution has 
 been practised on several distinct grounds, some of 
 which we can now see to be unreasonable in them- 
 selves, as assuming absolute knowledge on subjects of 
 which little or nothing can be known ; while others are 
 of a far more plausible character, and can be effectually 
 set aside only by the teaching of experience. We 
 may sum up the argument from experience by saying 
 that persecution is found to succeed only when pushed 
 to extremes ; that when it succeeds the consequences 
 are, in a temporal point of view, most mischievous, 
 and when it fails the only harm that comes of it 
 (which, however, may be great) is the disaffection and 
 irritation produced by the attempt. General argu- 
 ments concerning the sanctity of individual opinions 
 as such, or of religious opinions above others, are of 
 little use ; for the various theories of persecution deny 
 the premisses on which these arguments are founded. 
 It is not the demonstration of abstract right, but the 
 experience of inutility, that has made governments 
 leave off persecuting. We must always be careful, 
 moreover, to distinguish from persecution those meas- 
 ures of temporal police, often perfectly just and neces- 
 sary, which bear a superficial resemblance to it.
 
 176 THE OATH OF ALLEGIANCE. [vil 
 
 VII. 
 THE OATH OF ALLEGIANCE. 
 
 The natural history and antiquity of oaths in general 
 were discussed some time ago by Mr. E. B. Tylor/ 
 and those who desire to inforrd. themselves or refresh 
 their memories on the wider bearings of the subject 
 cannot do better than turn to his article. Mr. Tylor 
 has, among other interesting points, made it all but 
 certain that our English formula, " So help me God !" 
 is of Scandinavian and prae-Christian origin ; a dis- 
 covery which throws an unexpected light on the 
 much abused dictum that Christianity is parcel of 
 the common law of England, and the proposition 
 confidently advanced at a later time that the oath of 
 allegiance taken by members of Parliament is in some 
 way (notwithstanding the removal of Jewish dis- 
 abilities) a bulwark of the Christian religion. This 
 statement, however, errs only in generality and in 
 being out of date. It is perfectly true that the oath 
 of allegiance was, down to the Catholic Emancipation, 
 one of the chief statutory defences of the Protestant 
 religion, though in a political rather than a theological 
 sense ; and for many years later it contained a pro- 
 mise to maintain and support the Protestant succes- 
 sion to the Crown as limited by the Act of Settlement. 
 
 ^ Macmillan^s Magazine, "Ordeals and Oaths," May, 1876.
 
 VIl] THE OATH OF ALLEGIANCE. 177 
 
 The history of the oaths of allegiance and supremacy 
 and of the various transformations they have under- 
 gone is a varied and complex one ; and I now invite 
 the reader, if he is interested as a lawyer in a half 
 forgotten chapter of legislation, or as a historical 
 student in the minute curiosities of constitutional his- 
 tory, or, as an observer of things at large from the 
 Darwinian point of view, in the birth, development, 
 and degeneration of institutions, to trace with me the 
 thread of this story as it may be picked out from the 
 Statutes of the Realm. 
 
 Before we go back to the beginning, it may be as 
 well to look at the end. As late as 1868 the oath of 
 allegiance was reduced by the Promissory Oaths Act 
 to its present simple, not to say meagre, form, which 
 stands thus : — 
 
 I, , do swear that I will be faithful and bear true 
 
 allegiance to her Majesty Queen Victoria, her heirs and successors, 
 according to law. So help me God. 
 
 What the substance of the oath as thus reduced 
 may amount to would not be a very profitable question 
 to discuss at large. It certainly does not promise 
 anything beyond what is at common law the duty of 
 every subject, and it seems to follow that it could not 
 be broken except by some act which was otherwise an 
 offence at common law, for example, treason or sedi- 
 tion, or perhaps also the vaguely defined offence of 
 disparaging the dignity of the Crown. And it seems 
 at least a tenable view that the words "according to 
 law" not only express the limit within which the 
 Crown is entitled to obedience, but cover the possi- 
 
 N
 
 178 . THE OATH OF ALLEGIANCE. [VII 
 
 bility (a possibility, fortunately, of the most remote 
 kind) of the course of succession being legally varied.^ 
 Such is the bare residue of the formidable and elabor- 
 ate fiibric of oaths and declarations raised up by 
 Parliaments of former generations against the Pope 
 and the Pretender. We say against the Pope and 
 the Pretender ; for our modern oaths of allegiance are 
 of statutory devising, and date from Henry VIII.'s 
 assertion of the Crown's ecclesiastical supremacy as 
 against the see of Rome. The earliest point of history 
 we have to observe is of a distinguishing kind, namely 
 that the modern oath of allegiance is a thing apart 
 from the older oath of fealty, though formed on its 
 analogy. Side by side with the fealty due from a 
 man to his lord in respect of tenure, there was recog- 
 nized in England, it would seem as early as the tenth 
 century, an obligation of fealty to the Crown as due 
 from every free man without regard to tenure.^ Some- 
 times we find mixed or transitional forms. Thus there 
 is preserved among the so-called statutes temporis 
 incerti an oath taken by bishops which, translated, is 
 as follows : — 
 
 ^ There is, I conceive, notliing in law to prevent the Crown, by 
 and with the consent of the Estates of the reahii, in the ordinary form 
 of an Act of Parliament, and with the advice of responsible Ministers, 
 from rei^ealing or amending the Act of Settlement. In the event of 
 its appearing likely that there should be a failure of the persons thereby 
 defined as capable of succession, amendment would become necessary ; 
 for example, if they should not be or should cease to be Protestants 
 (see p. 190). 
 
 " It is remarkable that in the Assize of Northampton (1176) the 
 justices are directed to take the oath of fealty even from "rustics:" 
 " Item Justitiae capiant domini regis fidelitates . . . ab omnibus, 
 scilicet comitibus, baronibxis, militibus et libere tenentibus, et etiam
 
 VH] THE OATH OF ALLEGIANCE. 179 
 
 I will be faithful and true, and faith and loyalty will bear to 
 the king and to his heirs kings of England, of life and of member 
 and of earthly honour, against all people who may live and die ; 
 and truly will acknowledge, and freely will do, the services which 
 belong to the temporal ty of the Bishoprick of N., which I claim 
 to hold of you, and which you render to me. So help me God 
 and the Saints.^ 
 
 This bears considerable generic resemblance to the 
 modern oath. But it is not simply an oath of 
 allegiance in the modern sense : it includes an oath of 
 fealty in respect of a specific tenure, namely for the 
 temporalities of the see holden of the Crown. This 
 is made more evident by comparison of the common 
 forms of a free man's homage and fealty : — 
 
 I become your man from this day forth, for life, for member, 
 and for woi'ldly honour, and shall bear you faith for the lands 
 that I claim to hold of you ; saving the faith that I owe unto 
 our lord the king. . . I shall be to you faithful and true, and 
 shall bear you faith of the tenements I claim to hold of you, and 
 loyally will acknowledge and will do the services I owe you at 
 the times assigned. So help me God and the Saints. 
 
 Moreover, the ceremonies of homage and fealty have 
 in no way been abrogated or superseded by any of the 
 
 rusticis, qui in regno manere voluerint." Does this include men who 
 were not free ? In the earliest forms of the oath of fealty to the king, 
 both in England and elsewhere, the promise was to be '^fidelis sicict 
 homo debet esse domino suo." Allen {Royal Prerogative, pp. 68-71) 
 thinks this was a limitation of the subject's obedience, or reservation of 
 his right to throw off allegiance if the king failed in his duties, and 
 this is probable. But the words would likewise operate in the king's 
 interest by adding the stricter personal bond of homage to the more 
 general obligation of fealty. 
 
 ^ Bishops after consecration swore fealty only ; but on their elec- 
 tion, and before consecration, they did homage. Glanvill, Lib. 9, cap. 
 1, ad fin.
 
 180 THE OATH OF ALLEGIANCE. [vil 
 
 statutes imposing political oaths. An oath of homage 
 is to this day taken by archbishops and bishops, 
 in a somewhat fuller form than the old one above 
 cited. An oath of fealty is stated in our law-books 
 of the thirteenth century to be required from every 
 one attending the sheriff's tourn, and Coke speaks 
 of it, in Calvin's case, as if it had been still in use in 
 his time.^ There appears no reason why this oath of 
 fealty should not in theory still be due from every 
 subject at common law, though it would be doubtful 
 who had authority to administer it, and what would be 
 the legal consequence, if any, of a refusal to take it. 
 
 Shortness of time and space, however, forbid the 
 further discussion of the doctrine or history of alle- 
 giance at common law. We must pass on to the 
 additional obligations imposed by a series of statutes, 
 from which the oath of allegiance in its existing form 
 and application is lineally derived. 
 
 In the spring of 1534, when the last hopes of a 
 reconciliation with Kome were exhausted, there was 
 passed " An Act for the Establishment of the King's 
 Succession" (25 H. VIII. c. 22), the objects of which 
 
 1 Strictly there is not any oath of homage distinct from the oath 
 of fealty. The oath was always an oath of fealty, and the duty of 
 homage, where it was present, carried with it the duty of swearing 
 fealty to the lord. On the other hand there might be, and often 
 was, fealty without homage. Allen, p. 62. Cp. Hargrave's and Butler's 
 notes on Co. Litt. 68 a. Homage was the privilege of the freeliolder, 
 being " tlie most lionourable service, and most humble service of 
 reverence, that a franktenant may do to his lord." Litt. s. 85. As 
 to the common-law duty cp. Selden, Table Talk, s. v. " Fathers and 
 Sons, " Every one at twelve years of age is to take the oath of 
 allegiance in Court-leets [sk] whereby he swears obedience to the king."
 
 Vll] THE OATH OF ALLEGIANCE. 181 
 
 were to declare valid the king's marriage wdth Anne 
 Boleyn, and to limit the succession of the Crown to 
 his issue by her. It also enacted that all subjects of 
 full" age should make a corporal oath that they would 
 " truly, firmly, and constantly, without fraud or guile, 
 observe, fulfil, maintain, defend, and keep, to their 
 cunning wit and uttermost of their powers, the whole 
 effect and contents of this present Act." The oath 
 was not further specified in the Act itself, but a form 
 was at once prepared and used, and was expressly 
 authorized by statute in the next session (26 H. VIIL 
 c. 2). This, as the earliest specimen of its kind, 
 deserves the honour of being given in full with the 
 original spelling : — 
 
 Ye shall swere to beare faith truth and obedyence alonely to the 
 Kynges Majestye and to his heires of his body of his moost dere 
 and entierly belovyd laufuU wyfe Quene Anne begotten or to be 
 begotten, And further to the heires of oure said Soveraigu Lordo 
 accordyng to the lymytacion in the Statute made for suretie of 
 his succession in the crowne of this Realme mencioned and con- 
 teyned, and not to any other within tliis Realme nor foreyn 
 auctorite or Potentate; And in case any othe be made or hatlie 
 be made by you to any persone or persones, that then ye do 
 repute the same as vayne and adnychillate ; And that to your 
 connynge wytte and utter moste of your power without gyle 
 fraude or other undue meane you shall observe kepe mayntene & 
 defende the saide acte of successyon, and all the hole effectes & 
 contentes therof, and all other actes and statutes made yn con- 
 firmacion or for execucion of the same or of any thynge therin 
 conteyned ; and this ye shall do ayenst all maner of persones of 
 what estate dignyte degree or condicion so ever they be, And in 
 no wyse do or attempte, nor .to your power suffre to be done or 
 attemptid, directly or indirectly any tliinge or thinges privuly or 
 appartlye to the lette hindraunce damage or derogacion therof or 
 of any parte of the same by any maner of meanes or for any
 
 182 THE OATH OF ALLEGIANCE. [VII 
 
 maner of pretence; So lielpe you God all Sayntes and the Holye 
 Evangelystes. 
 
 Within two years the calamitous end of the mar- 
 riage with Anne Boleyn brought about a new " Act 
 for the Establishment of the Succession of the Imperial 
 Crown of this Realm " (28 H. VIII. c. 7), which, after 
 repealing the former Acts and making minute pro- 
 vision for the descent of the Crown, appointed a new 
 oath of allegiance, and declared that refusal to take it 
 should be deemed and adjudged high treason. There 
 is no variation worth noticing in the form of words, 
 save that Queen Jane is substituted for Queen Anne, 
 In the same session (c. 10) there followed an Act 
 " extinguishing the authority of the Bishop of Kome," 
 which introduced a special oath of abjuration. The 
 preamble is a notable specimen of the inflated parlia- 
 mentary style of the time. It sets forth how " the 
 pretended power and usurped authority of the Bishop 
 of Rome, by some called the Pope . . . did obfuscate 
 and wrest Gods holy word and testament a long 
 season from the spiritual and true meaning thereof to 
 his worldly and carnal afi'ections, as pomp glory 
 avarice ambition and tyranny, covering and shadow- 
 ing the same with his human and politic devices 
 traditions and inventions set forth to promote and 
 stablish his only dominion, both upon the souls and 
 also the bodies and goods of all Christian people;" 
 how the Pope not only robbed the Kings Majesty of 
 his due rights and pre-eminence, " but spoiled this his 
 realm yearly of innumerable treasure;" and how the 
 king and the estates of the realm " being overwearied
 
 VIl] THE OATH OF ALLEGIANCE. 183 
 
 and fatigated with the experience of the infinite 
 abominations and mischiefs preceding of his impos- 
 tures," were forced of necessity to provide new 
 remedies. The oath of abjuration was to be taken by- 
 all officers, ecclesiastical and temporal, and contained 
 an undertaking to " utterly renounce refuse relinquish 
 or forsake the Bishop of Rome and his authority power 
 and jurisdiction." 
 
 In 1544, however, it had been discovered that in 
 these oaths of allegiance and supremacy, though they 
 seem to a modern reader pretty stringent and compre- 
 hensive, "there lacketh full and sufficient words;" 
 and in the Act further regulating the succession to the 
 Crown (35 H. VIII. c. 1) occasion was taken to pro- 
 vide a new consolidated form to replace the two 
 previously appointed oaths. This is very full and 
 elaborate ; some of its language survived down to our 
 own times, as will be seen by the following extract : — 
 
 I, A. B., having now the veil of darkness of the usurped 
 power authority and jurisdiction of the see and Bishop of Rome 
 clearly taken away from mine eyes, do utterly testify and declare 
 in my conscience that neither the see nor the Bishop of Rome 
 nor any foreign potentate hath nor ought to have any jurisdic- 
 tion power or authority within this realm neither by God's 
 law nor by any other just law or means . . . and that I shall 
 never consent nor agree that the foresaid see or Bishop of Rome, 
 or any of their successors, shall practise exercise or have any 
 manner of authority jurisdiction or power within this realm or 
 any other the King's realms or dominions, nor any foreign 
 Potentate, of what estate degree or condition soever he be, but 
 that I shall resist the same at all times to the uttermost of my 
 power, and that I shall bear faith truth and true allegiance to 
 the King's Majesty and to his heirs and successors . . . and 
 that I shall accept repute and take the King's Majesty, his
 
 184 THE OATH OF ALLEGIANCE. [VII 
 
 heirs and successors when they or any of them shall enjoy his 
 place, to be the only supreme head in earth under God of the 
 Church of England and Ireland, and of all other his Highness' 
 dominions. . . . 
 
 Eefusal to take tlie oath is, as before, to subject 
 the recusant to the penalties of high treason. Ap- 
 parently this Act remained in force till Mary's acces- 
 sion in 1553 : one of the first proceedings of her reign 
 was to abolish all statutory treasons not within the 
 statute of Edward III., by which the offence of high 
 treason was and still is defined (1 Mar. st. 1, c. 1). 
 Thus the penalty for not taking the oath of allegiance 
 and supremacy was abrogated, and the oath of course 
 became a dead letter, though not dealt w^ith in express 
 terms. Nor was it revived in the same form when 
 the Reformation again got the upper hand with the 
 accession of Elizabeth. The first Act of Parliament 
 of her reign ^ — which, in repealing the reactionary 
 legislation of Philip and Mary, names " Queen Mary, 
 your Highness' sister," with a significant absence of 
 honourable additions — created a new and much more 
 concise oath of supremacy and allegiance, to be made 
 by all ecclesiastical officers and ministers, and all 
 temporal officers of the Crown, and also by all persons 
 taking orders or university degrees. It is short 
 enough to be cited in full : — 
 
 I, A. B., do utterly testify and declare in my conscience that 
 the Queen's Highness is the only supreme governor of this realm 
 and of all other her Highness dominions and countries, as well 
 
 ^ 1 Eliz. c. 1. In the argument in Miller v. Salomons, in the 
 Exchequer (7 Ex. at p. 478), it was erroneously stated to be the first 
 statute on the subject.
 
 VIl] THE OATH OF ALLEGIANCE. 185 
 
 in all spiritual or ecclesiastical things or causes as temporal, and 
 that no foreign prince person prelate state or potentate hath 
 or ought to have any jurisdiction power superiority pre- 
 eminence or authority ecclesiastical or spiritual within this 
 realm, and therefore I do utterly renounce and forsake all foreign 
 jurisdictions powers superiorities and authorities and do promise 
 that from henceforth I shall bear faith and true allegiance to the 
 Queen's Highness her heirs and lawful successors and to my 
 power shall assist and defend all jurisdictions pre-eminences 
 privileges and authorities granted or belonging to the Queen's 
 Highness her heirs and successors, or united or annexed to the 
 imperial crown of this realm : So help me God and by [sic] the 
 contents of this Book. 
 
 The oath was not imposed on all subjects, aDd the 
 only penalty for refusing it was forfeiture of the office 
 in respect of which it ought to be taken. So far this 
 presents a very favourable contrast to the violent 
 legislation of Henry VIII. Under the Act of Eliza- 
 beth the sanction is the mildest one compatible with 
 the law being effectual ; indeed it is not properly a 
 penalty, but a condition. The law no longer says to 
 all sorts of men, "You must take this oath or be 
 punished as a traitor," but only to men receiving office 
 or promotion, " You must take this oath to qualify 
 vourself for holding the place." But troubles were 
 not long in gathering, and they bore their natural 
 fruit in a return to disused severities. A new and 
 more stringent anti-papal Act was passed in 1563 
 (5 Eliz. c. .1), and it seems that even sharper measures 
 had been at first proposed. The obligation to take 
 the oath of supremacy was extended to all persons 
 taking orders and degrees, schoolmasters, barristers, 
 attorneys, and officers of all courts. A first refusal
 
 186 THE OATH OF ALLEGIANCE. [VII 
 
 to take tlie oath was to entail the penalties of 'pre- 
 munire, a second those of high treason. Temporal 
 Peers were specially exempted, " forasmuch as the 
 Queen's Majesty is otherwise sufficiently assured of 
 the faith and loyalty of the temporal lords of her 
 Highness' Court of Parliament." So matters stood 
 till, early in the reign of James I., yet a new outbreak 
 of indignation and panic was produced by the Gun- 
 powder Plot. The Protestant majority was convinced 
 by " that more than barbarous and horrible attempt 
 to have blownen up with gunpowder the King Queen 
 Prince Lords and Commons in the House of Par- 
 liament assembled, tending to the utter subversion of 
 the whole State," that Popish recusants and occasion- 
 ally conforming Papists should be more sharply looked 
 after. Hence the " Act for the better discovering and 
 repressing of Popish Eecusants" (3 Jas. I. c. 4), which 
 established, among other precautions, a wordy oath of 
 allegiance, supremacy, and abjuration, which might 
 be tendered by justices of assize or of the peace to 
 any commoner above the age of eighteen ; persons 
 refusing it were to incur the penalties of j^9^'emtmiVe. 
 This oath contains an explicit denial of the Pope's 
 authority to depose the King or discharge subjects of 
 their allegiance, a promise to bear allegiance to the 
 Crown notwithstanding any Papal sentence of excom- 
 munication or deprivation, and a disclaimer of all 
 equivocation or mental evasion or reservation. About 
 the middle of it occurs for the first time the " damn- 
 able doctrine and position " clause, as we may call it, 
 which was long afterwards continued in the interests
 
 VIl] THE OATH OF ALLEGIANCE. 187 
 
 of the Protestant succession against James II. and the 
 Pretender. The words are these : " And I do further 
 swear that I do from my heart abhor detest and 
 abjure as impious and heretical this damnable doctrine 
 and position, that princes which be excommunicated 
 or deprived by the PojDe may be dej^osed or mur- 
 thered by their subjects or any other whosoever." 
 Here also we find the words, afterwards discussed in 
 relation to the admission of Jews to Parliament, 
 "upon the true faith of a Christian." They cannot 
 have been particularly intended to exclude Jews from 
 office, as Jews were at that time excluded from the 
 realm altogether. It has been plausibly conjectured 
 that their real intention was to clinch the proviso 
 against mental reservation or equivocation "by con- 
 clusively fixing a sense to that oath which by no 
 evasion or mental reservation should be o-ot rid of 
 without (even in the opinion of the Jesuit doctors 
 themselves) incurring the penalty of mortal sin." 
 For in a certain Treatise on Equivocation, of which 
 a copy corrected in Garnet's handwriting was found 
 in the . chamber of Francis Tresham, one of the con- 
 spirators named in the Act, and was much used on 
 the trial, this point of mental reservation is fully 
 discussed ; and it is laid down that equivocation and 
 reservation may be used without danger to the soul 
 even if they are expressly disclaimed in the form of 
 the oath itself. But there is this exception, that "no 
 person is allowed to equivocate or mentally reserve, 
 without danger, if he does so, of incurring mortal 
 sin, where his doing so brings apparently his true
 
 188 THE OATH OF ALLEGIANCE. [VII 
 
 faith towards God into doubt or dispute." It was 
 probably conceived by the advisers of the Crown that 
 the words, " upon the true faith of a Christian," 
 brought the statutory form of oath within this excep- 
 tion.^ A few years later, in the session of 1610, a 
 sort of confirming Act was passed (7 James I., c. 6), 
 which made minute provision as to the places where, 
 and the officers by whom, the oath should be admin- 
 istered to various classes of persons. 
 
 Shortly after the Restoration an oath declaring it 
 unlawful upon any pretence whatever to take arms 
 against the King was imposed on all soldiers and 
 persons holding military offices (14 Car. 11. , c. 3, 
 ss. 17, 18) ; and the Act of Uniformity (14 Car. II., 
 c. 4, s. 6) contained a declaration to the like effect, 
 and also against the Solemn League and Covenant. 
 A similar provision in the Corporation Act was over- 
 looked at the Revolution, and escaped repeal till the 
 reign of George I. In 1672 a revival of anti-Catholic 
 agitation followed upon Charles II. 's attempts to 
 dispense with the existing statutes, nomiually in 
 favour of Romanists and Dissenters equally, by a 
 declaration of liberty of conscience. The result was 
 that a declaration against transubstantiation was 
 added to the oaths of allegiance and supremacy by 
 a new penal statute entitled " An Act for preventing 
 dangers which may happen from Popish Recusants" 
 (25 Car. II., c. 2). After the Revolution of 1688, 
 however, a new start was taken. By the combined 
 
 1 Judgment of Baron Aldersou in Miller v. Salwnons, 7 Ex. 
 536, 537.
 
 VIl] THE OATH OF ALLEGIANCE. 189 
 
 effect of two of the earliest Acts of the Convention 
 Parliament (1 Will. & Mar., c. 1 and c. 8), all the 
 previous forms of the oaths of allegiance and suprem- 
 acy, expressly including the declaration as to taking 
 arms against the King, were abrogated, and a concise 
 form substituted, which stood as follows : — 
 
 I, A. B., do sincerely promise and swear that I will be faith- 
 ful and bear true allegiance to their Majesties King William and 
 Queen Mary, So help me God, etc.^ 
 
 I, A. B., do swear that I do from my heart abhor detest 
 and .abjure as impious and heretical that damnable doctrine and 
 position that princes excommunicated or deposed by the Pope or 
 any authority of the see of Rome may be deposed or murthered 
 by their subjects or any other whatsoever. 
 
 And I do declare that no foreign prince person prelate 
 states or potentate hath or ought to have any jurisdiction 
 power superiority pre-eminence or authority ecclesiastical or 
 spiritual within this realm. So help me God, etc. 
 
 In 1701 came the death of James II. at St. 
 Germains, and the ostentatious recognition of the 
 Pretender as King of England by Lewis XIV. Fuller 
 and more stringent precautions were again thought 
 needful, and in the very last days of William III.'s 
 life an Act was passed (13 & 14 Wm. III., c. 6), 
 imposing on specified classes of persons, including 
 peers, members of the House of Commons, and aH 
 holding office under the Crown, an oath of special 
 and particular abjuration of the Pretender's title. 
 The declaration of 1672 against transubstantiation 
 (which had been spared from the general abrogation 
 of other existing tests at the beginning of the reign) 
 was at the same time expressly continued. As the 
 
 ^ The " etc." means, I suppose, " and the contents of this Book."
 
 190 THE OATH OF ALLEGIANCE. [vil 
 
 form settled by this Act renicained substantially 
 unchanged down to our own time, it is here set 
 out : — 
 
 I, A. B., do truly and sincerely acknowledge profess testify 
 and declare in my conscience before God and the world that our 
 sovereign lord King William is lawful and rightful king of this 
 realm and of all other his Majesty's dominions and countries 
 thereunto belonging. And I do solemnly and sincerely declare 
 that I do believe in my conscience that the person pretended to 
 be the Prince of Wales during the life of the late King James 
 and since his decease pretending to be and taking upon himself 
 the stile and title of King of England by the name of James the 
 Third hath not any right or title whatsoever to the crown of 
 this realm or any other the dominions thereto belonging. And 
 I do renounce refuse and abjure any allegiance or obedience to 
 him. And I do swear that I will bear faith and true allegiance 
 to his Majesty King William and him will defend to the utmost 
 of my power against all traiterous conspiracies and attempts 
 whatsoever which shall be made against his person crown or 
 dignity. And I will do my best endeavours to disclose and 
 make known to his Majesty and his successors all treasons and 
 traiterous conspiracies which I shall know to be against him or 
 any of them. And I do faithfully promise to the utmost of my 
 jDOwer to support, maintain, and defend the limitation and suc- 
 cession of the crown against him the said James and all other 
 persons whatsoever as the same is and stands limited (by an Act 
 intituled an Act declaring the rights and liberties of the subject 
 and settling the succession of the crowai) to his Majesty during 
 his Majesties life and after his Majesties decease to the Princess 
 Ann of Denmark and the heirs of her body being Protestants 
 and for default of issue of the said Princess and of his Majesty 
 respectively to the Princess Sophia Electoress and Duchess 
 Dowager of Hanover and the heirs of her body being Pro- 
 testants. And all these things I do plainly and sincerely 
 acknowledge and swear according to these express words by me 
 spoken and according to the plain and common sense and under- 
 standing of the same words, without any equivocation mental 
 evasion or secret reservation whatsoever. And I do make this
 
 VIl] THE OATH OF ALLEGIANCE. 191 
 
 recognition acknowledgment abjuration renunciation and pro- 
 mise heartily willingly and truly upon the true faith of a 
 Christian. So help me God. 
 
 This oath was in addition to the oaths of alle- 
 giance and supremacy prescribed by the Acts already 
 mentioned of the first session of William and Mary's 
 reign, not by way of substitution for them. It will 
 be observed that the words " upon the true faith of a 
 Christian " now reappear. In Queen Anne's reign the 
 only alterations made were first to put Anne's name 
 for William's, and then to leave a blank to be filled 
 in with the name of the sovereim for the time being/ 
 The accession of George I. in 1714 gave occasion for 
 a full re-enactment of the oaths of allegiance, supre- 
 macy, and abjuration, in w^hat would noAV be called a 
 Consolidating Act (1 Geo. I., st. 2, c. 13). All persons 
 holding civil or military office, members of founda- 
 tions at the universities, schoolmasters, " preachers 
 and teachers of separate congregations," and legal 
 practitioners, were required to take the oaths ; besides 
 which, they might be tendered by two justices of the 
 peace to any one suspected of disaffection. Members 
 of both Houses of Parliament are, as before, specially 
 forbidden to vote without taking the oaths. The form 
 was settled by inserting the name of George in the 
 blank left by the last statute of Anne, but no provi- 
 sion was made in terms for substituting from time to 
 time the name of the reigning sovereign. In 1766, 
 upon the Pretender's death, the oath of abjuration was 
 
 ^ 1 Anne, c. 16, 4 & 5 Anne, c. 20 ; and as to Scotland, 6 
 Anne, c. 66 (Statutes of the Eealm, c. 14 in other editions).
 
 192 THE OATH OF ALLEGIANCE. [\ H 
 
 made appropriate to the new state of things Ijy in- 
 serting the words " not any of the descendants of 
 the person wlio pretended to be Prince of Wales," 
 etc. 
 
 In this form the oaths remained for nearly a cen- 
 tury, affected only by a certain number of special 
 exemptions. The most important of these was made 
 by the Catholic Emancipation of 1829. The Act 
 which effected this (10 Geo. IV., c. 7) allowed Roman 
 Catholics to sit in Parliament, taking instead of the 
 oaths of allegiance, supremacy, and abjuration, a single 
 modified oath containing the substance of them ex- 
 pressed ill a mildi'r form. The Catholic member 
 was required, instead of <letestiug and abhorring the 
 "damnable doctrine and position," to "renounce, 
 reject, and abjure the opinion" that excommunicated 
 princes might be deposed or murdered ; and to dis- 
 claim the belief that the Pope of Rome or any other 
 foreign prince had or ought to have any temporal or 
 civil jurisdiction, etc., within this realm. The words 
 "upon the true faith of a Christian" were for some 
 reason omitted, and the oath concluded thus : — " And 
 I do solemnly, in the presence of God, profess, testify, 
 and declare, that I do make this declaration, and 
 every part thereof, in the plain and ordinary sense of 
 the words of this oath, without any evasion, equivoca- 
 tion, or mental reservation whatsoever," This Act 
 contains, for the first time, a standing direction to 
 substitute in the form of the oath, as may be required, 
 the name of the sovereion for the time beino-. 
 
 All this time the penalties of the statute of 1714
 
 Vll] THE OATH OF ALLEGIANCE. 193 
 
 ao-ainst a member of Parliament who voted \vitliuiit 
 having taken the oaths (or, in the case of a Catholic, 
 the special oath provided by the Catholic Relief Act), 
 continued in force, and very alarming they were. In 
 addition to the pecuniary forfeiture of £500 they in- 
 cluded disability to sue in any court, to take a legacy, 
 to hold any office, and to vote at parliamentary elec- 
 tions. Disability to be an executor, which is also 
 in the list, would at this day be regarded by many 
 persons as rather a benefit than otherwise. 
 
 The next step was in consequence of the persistent 
 endeavours made through several years to procure the 
 removal of Jewish disabilities. It would be too long 
 to trace the history of this movement through its 
 various stages ; and the episode of Mr. Salomons' 
 gallant attempt to take the position by a coup de 
 main has now lost its interest for most people except 
 lawyers who have a taste for ingenious argument on 
 the construction and effect of statutes.^ In 1857 Mr. 
 Salomons, being duly elected for Greenwich, took the 
 oaths on the Old Testament, and omitting the words 
 "upon the true faith of a Christian ;" he was sued for 
 the statutory penalty, as having sat without taking 
 the oath ; and it was decided (with one dissenting 
 voice, but a weighty one) " that these words were a 
 
 ^ One of the minor points taken by Mr. Salomons' counsel was 
 that, as the Act of George III. did not authorize the insertion from 
 time to time of the reigning sovereigns' names, it expired at the end 
 of the reign, or at all events when there ceased to be a king named 
 George. 
 
 ^ Sir Samuel Martin's, then a Baron of the Exchequer, and now 
 

 
 194 THE OATH OF ALLEGIANCE. [vil 
 
 material part of tlie oatli, and could not be dispensed 
 with otherwise than by legislation. At last, in 1858, 
 a very odd and peculiarly English compromise was 
 arrived at after the House of Lords had repeatedly 
 rejected bills sent up from the Commons. By one 
 Act (21 & 22 Vict. c. 48) a simplified form of oath, 
 but still containing the words "upon the true faith of 
 a Christian" was substituted for the oaths of allegiance, 
 supremacy, and abjuration in all cases where they 
 were required to be taken. The application of this 
 enactment to clerical subscriptions was afterwards 
 more specially regulated by the Clerical Subscription 
 Act, 1865 (28 & 29 Vict. c. 122).i Then, by a 
 separate Act (21 & 22 Vict. c. 49) either House 
 of Parliament was empowered to permit by resolu- 
 tion " a person professing the Jewish religion, other- 
 wise entitled to sit and vote in such House," to 
 take the oath, with the omission of the words, " and I 
 make this declaration upon the true faith of a Chris- 
 tian." . It was also provided that in all other cases 
 where the oath of allegiance was required to be taken 
 by a Jew, these words might be omitted. Such an 
 exemption had once already been given by Parlia- 
 ment in the eighteenth century, but, after the fashion 
 of legislation in those days, only on a special occasion 
 and for a limited purpose ; and more recently to 
 
 the only survivor, as it happens, of the judges before whom the case 
 was argued. 
 
 ^ The oaths of allegiance, etc., were enforced on the clergy by 
 Charles II.'s Act of Uniformity and various other statutes. The 
 taking of theru was part of the Ordination Service until separated 
 from it by this Act.
 
 VIl] THE OATH OF ALLEGIANCE. 195 
 
 enable Jews to hold municipal offices. The Act of 
 1858, being general in its terms, is a full statutory 
 recognition of the civil equality of Jews with other 
 British subjects, which, though long allowed in prac- 
 tice, had never yet been expressly declared. 
 
 At length in 1866 we come out into the daylight 
 of modern systematic legislation. The Parliamentary 
 Oaths Act of that year (29 Vict, c. 19) swept away 
 the former legislation relating to the oaths of members 
 of Parliament, and prescribed the following shortened 
 form : — 
 
 I, A. B., do swear that I will be faithful and bear true alle- 
 giance to her Majesty Queen Victoria; and I do faithfully promise 
 to maintain and support the succession to the Crown, as the 
 same stands limited and settled by virtue of the Act passed in 
 the reign of King William the Third, intituled " An Act for the 
 further limitation^ of the CroAvn, and better securing the rights 
 and liberties of the subject," and of the subsequent Acts of 
 Union with Scotland and Ireland. So help me God. 
 
 For not taking the oaths only the pecuniary 
 penalty of £500 was retained out of the terrible list 
 enacted by earlier statutes. This Act was excellent 
 as far as it went, but it applied only to members of 
 Parliament. It is the fate of English legislation to be 
 carried on as best it can, piecemeal, and at odd times. 
 Measures which excite opposition pass through a 
 struggle in which they are lucky if they escape with- 
 out maim or grave disfigurement. As to those which 
 
 ^ It may be worth while to explain to lay readers that this does 
 not mean limiting the powers of the Crown, but defining the course of 
 the succession.
 
 196 THE OATH OF ALLEGIANCE. [vil 
 
 do not excite opposition, it is for that very reason of 
 no apparent political importance to push them on, 
 and, as it is worth nobody's while to be much inter- 
 ested in them, they have to take their chance. In 
 this case an Act of the following year (The Office and 
 Oath Act, 1867, 30 & 31 Vict. c. 75) authorized the 
 new parliamentary form of oath to be taken in all 
 cases where the oath of allegiance was required as a 
 qualification for office. Finally the Promissory Oaths 
 Act of 1868 (31 & 32 Vict. c. 72) cut down the 
 oath of allegiance in all cases to the form already 
 given at the beginning of this paper, and substituted 
 a declaration for an oath in the great majority of 
 cases where an oath was formerly required. Still the 
 work of simplification was not formally complete. A 
 repealing Act was passed in 1871 (34 & 35 Vict. c. 
 48), which struck ofi" the statute-book a long list of 
 enactments imposing oaths for various purposes on 
 various persons, and others partially amending or 
 repealing them, from the middle of the fourteenth 
 century downwards. And so the story ends for the 
 present ; we no longer stand in fear of Pope or Pre- 
 tender, and the modern oath of allegiance, devised 
 for the protection of the realm against foemen and 
 conspirators, and swollen with strange imprecations 
 and scoldings, is brought back to the more plain and 
 seemly fashion of the ancient oath of fealty. Yet our 
 ancestors were not capricious in the elaborate safe- 
 guards which they built up again and again round a 
 ceremony originally of the simplest. Every clause and 
 almost every word in the statutory oaths of allegiance,
 
 VIl] THE OATH OF ALLEC4IAXCE. 197 
 
 supremacy, and abjuration was directed against a 
 distinct and specific political danger. It is unhappily 
 true tliat examples of repressive legislation against 
 mere speculative opinions, though less common in 
 England than elsewhere, are by no means wanting. 
 But the political test oaths do not belong to this 
 class. They were framed to discover and bring to 
 punishment, or to disable and exclude from privileges, 
 not the holders of theological opinions as such, but 
 persons holding opinions of which, rightly or wrongly, 
 disloyal and seditious behaviour was supposed to be 
 the necessary or highly probable result. The attempt 
 lately made, and for the present made with success, 
 to use the Parliamentary Oath as a religious test, and 
 thereby exclude a person obnoxious to a majority of 
 the House of Commons, partly for theological, but 
 much more for political and social reasons, has nothing 
 to justify it in English history, or in the traditions of 
 English politics. It is an unhappy examj)le of the 
 ignorance and confusion of mind concerninor the in- 
 stitutions of their own country wdiich are still too 
 common among English legislators.
 
 198 THE HISTORY OF ENGLISH LAW [vill 
 
 VIII. 
 
 THE HISTORY OF ENGLISH LAW AS A 
 BRANCH OF POLITICS/ 
 
 We have become accustomed in this country to-Jiiok 
 u pon law as a subject so t ec hnica l and difficult, not to 
 say^repulsive, t hat nobo dx_biit-l4iwy£r&-ca.B-well meddle 
 w4th--it.___ Ijawyers, a gcain,__are for t he practica l pur- 
 )oses of their business concerned with the laws as they 
 are, notas the y; have Jb ^en. Consequently the his- 
 toryoTEnglish law has remained a sealed book to 
 the vast majority of educated Englishmen, and has 
 been studied by a mere handful of scholars. In other 
 words, the greater part of educated Englishmen have 
 not known, and have practically not had the means 
 of knowing, a vital part of the history of their own 
 country. To make my meaning clear on this point, 
 let me remind you for a moment what history is not. 
 Many of us, no doubt, can remember having written 
 out and learnt in our childhood lonsj; lists of dates, 
 with what are called events opposite them ; acces- 
 sions and deaths of kings, battles, pestilences, the 
 Gunpowder Plot, the Great Fire of London, and so 
 forth. That is not history ; it is only a part of the 
 skeleton of history, and not the most important part. 
 
 ^ A lecture delivered before the Sunday Lecture Society.
 
 VIIl] AS A BRANCH OF POLITICS. 199 
 
 The signing of Magna Carta, for instance, is one of the 
 events we should expect to find in any table of the 
 leading dates of English history. Well, but the table 
 of dates will not tell us what Magna Carta was ; and 
 if you go to the history-books that English school- 
 boys had to learn from till a few years ago, they will 
 not tell you much about it that is worth knowing. 
 What can we learn from the old-fashioned school 
 histories about Magna Carta ? Something of this 
 kind : King John ruled very badly, and his barons 
 rose up against him, and made him promise to rule 
 better (only it would be told in much longer words, 
 for people who write school-books seem to think that 
 the smaller a boy is, the bigger words you must cram 
 down his throat) ; and so they all met at Runnymede, 
 and he signed a charter which has ever since been 
 called the Great Charter ; and then there would be 
 some flourish about the birthright of every English- 
 man's liberties, and trial by jury, and his house being 
 his castle. That is what used to pass for history ; it 
 is a little bit more than the bare dates, but a lonef 
 way from being history still. AYe want to know how 
 and why the Great Charter was a landmark of Eng- 
 lish freedom, and why its promise waxed and grew 
 instead of coming to naught. If King John promised 
 to rule better, so have a great many princes before 
 and after him. Look at the present state of Turkey, 
 where the Sultans have been doing nothing but pro- 
 mise to govern better any time this quarter of a 
 century. If charters and promises and good laws 
 written on paper made good government, the Ottoman
 
 200 THE HISTOKY OF ENGLISH LAW [VIII 
 
 Empire would be one of the best governed states in 
 the world. Indeed, our Great Charter is a confused, 
 rambling kind of document to look at, and I dare say 
 the Turkish laws and proclamations are much more 
 elegantly written. So that, before we can say that we 
 have attained real historical knowledge, we must at 
 least begin to see our way to understanding why 
 Magna Carta is a precious and venerable monument 
 of English history, while Turkish charters are waste 
 paper. Now, to understand that, we must understand 
 something of the men who won the Great Charter 
 from King John, and of the institutions they lived 
 under. We must be able to read the Charter not 
 only with our eyes but with our wits, so as to see 
 what it really meant to the people of that time. But 
 now observe that the Great Charter is a legal docu- 
 ment. It is full of legal provisions and safeguards, 
 and if we try to make it out without knowing some- 
 thing of the legal institutions of England at the 
 beginning of the thirteenth century, we shall find 
 most of it either unmeaning or misleading. Thus we 
 are plunged into law whether we will or no ; there is 
 no help for it if we want to get to the bottom of 
 things, or anywhere near the bottom, but we must go 
 to work and master the legal facts and ideas that 
 statesmen and reformers of the thirteenth century had 
 to deal with. And this is true in a greater or less 
 degree at every stage and period of the growth of our 
 Constitution. Just now I said something about the 
 skeleton or dry bones of history. We may say with 
 more truth and fitness that law is to political institu-
 
 VIIl] AS A BRANCH OF POLITICS. 201 
 
 tions as the bones to the body. It is the framework 
 from which institutions take their form ; and it is no 
 more possible to be a serious student of history with- 
 out learning a good deal of law than it is possible to 
 draw the human figure correctly without learning its 
 anatomy. For the same reasons the study of law 
 becomes interesting when one begins to learn its 
 history, and the manner in which its growth is 
 entwined with the growth of English institutions in 
 general. And we find nowadays that our best 
 historians — I will only name one whose right to the 
 first place all competent persons acknowledge, Pro- 
 fessor Stubbs — are not frightened by the difticulties 
 of legal history ; they grapple fully and fairly with 
 the old records of the law, and, so far from being 
 content to know less about them than we lawyers do, 
 they bring out a great many important things which 
 lawyers either did not know or neglected. It is no 
 business of mine to praise their work as historians : it 
 is but a poor compliment, if it be not an impertinence, 
 for a learner to commend his masters. But as a 
 lawyer I am free to admire the diligence and accuracy 
 of their work on legal ground, and to express my 
 thanks to them for the powerful aid they have given 
 to dispel the fictions and perverse explanations of 
 facts which have too long encumbered our law books. 
 And the fact that they have done this will sufiice, I 
 hope, to remove any suspicion you may entertain 
 that I am crying up the study of legal history because 
 I am a lawyer, after the example of the shoemaker 
 who cried " Nothino; like leather."
 
 202 THE HISTORY OF ENGLISH LAW [VIII 
 
 What I should like to do to-day is to give you 
 some notion of the way in which legal institutions 
 and ideas have been a great and effectual power in 
 politics, so that our political institutions and ideas are 
 not only distinctively English, but have a distinctive 
 colouring of English law. It would, of course, be 
 impossible to do this in any detail, or over any great 
 extent of English history, in the time we have before 
 us. Perhaps the best thing we can do is to take a 
 glance at the legal aspect of English politics at some 
 of the critical periods when our institutions were 
 being most actively made or repaired. Three such 
 periods offer themselves at once : those which are 
 marked by the great constructive work that took 
 place in the twelfth and thirteenth centuries, by the 
 struggle between King and Parliament which led to 
 the Civil War and the Commonwealth, and by the 
 formation of the modern constitution after the abdica- 
 tion of James 11. and election of William III. At all 
 three points we shall find well shown, though in some- 
 what different ways, the part played by law and men 
 imbued with legal ideas in the practical work of 
 English politics. First we take the mediaeval period, 
 which at present is the least familiar to educated 
 Englishmen. Practically it was not accessible to any 
 but special students until Professor Stubbs published 
 his great work on our Constitutional History ; that 
 was only seven years ago, and besides, it must be 
 allowed that Professor Stubbs is not a popular writer. 
 I fear that the greater part of those who now read 
 his book do it having the fear of an examination
 
 VIII] AS A BRANCH OF POLITICS. 203 
 
 before their eyes. However, the matter of it is fast 
 finding its way into smaller and more popular books ; 
 but for the present we must count it among things 
 not generally known that the latter half of the 
 twelfth and the first half of the thirteenth centuries 
 were in England a time of most vigorous and able con- 
 structive work. Almost all our institutions, one may 
 say, were about that time put into a shape still easy 
 to perceive in what they are now. Not that these 
 things were unknown to scholars twenty or thirty 
 years ago, or could not be got at by taking a certain 
 amount of trouble ; but that is just what ordinary 
 readers of history never think of doing. And the 
 proof of this is the fashion in which popular writers 
 used to talk till quite lately — possibly some do it 
 still — about the Middle Ages. If one took them 
 for authorities, one would suppose the Middle Ages 
 were a time of nothing but darkness, dirt, ignorance, 
 and crime, in which nobody knew anything worth 
 knowing, or did anything worth doing. One would 
 imagine mediaeval society as divided into wicked 
 lords who lived in castles, poor wretches who were 
 oppressed by them, and hypocritical priests who 
 thought of nothing but making money out of the lay 
 people of all sorts. Anybody who thinks of the past 
 in that way must change his frame of mind before he 
 is even on the road to understand either English 
 history or any other. I am not for a moment going 
 to deny that we are more civilized, infinitely better 
 equipped with the conveniences of life, and on the 
 whole much better and happier than our forefathers
 
 204 THE HISTORY OF ENGLISH LAW [vill 
 
 were six or seven centuries ago. A little study of 
 liistory explodes the fancies of romance -writers about 
 the good old times just as much as the fancy of 
 popular teachers that the old times were good for 
 nothing. But that is in great part because we are 
 reajDing at this day the fruit of the work our forefathers 
 did according to their lights. We think it a simple 
 matter of course, for instance, that our lives and pro- 
 perty should be safe from open violence ; that justice 
 should not be bought and sold ; that on the one hand 
 no man should be punished without lawful cause, and 
 on the other hand no private man should be strong 
 enough to defy the law. But suchlike things were 
 not matters of course to the rulers and statesmen of 
 the Middle Ages ; they were things to be worked hard 
 for, now and then to be fought for ; and if they did 
 their work with a rough hand sometimes, I hardly 
 think it lies in our mouths to blame them, considering 
 what things have been done in our days by the most 
 civilized of governments. And when people say that 
 the Middle Ages invented nothing, I wonder if they 
 think it nothing to have invented Parliament, the 
 pattern of representative government which has been 
 more or less followed by all Western Christendom. 
 But the piece of work I want to call your attention to 
 now is one that came before Parliament. The time 
 was not ripe for Parliaments till there was a fairly 
 settled, strong, and regular system of order and justice. 
 And the needful settlement and strengthening were 
 brought about chiefly by measures which we should 
 now call law reform.
 
 VIIl] AS A BRANCH OF POLITICS. 205 
 
 For nearly a century after the Norman Conquest 
 executive government, as we understand it, can hardly 
 be said to have existed in England. The power of the 
 Crown, though nominally much more undefined than 
 in modern times, was less for almost all useful pur- 
 poses. It was understood to be the right and the 
 duty of the Crown to keep the peace, the king's peace 
 as it was already called.^ But this did not prevent 
 those who were strong enough from settling their dis- 
 putes by private war ; and down to the end of the 
 twelfth century this ajDpears to have been considered 
 a not unlawful proceeding. Instances of private war- 
 fare (apart, of course, from actual civil war waged for 
 political causes affecting the common weal) occur 
 much later. Then there was no general system of 
 administering justice common to the whole country ; 
 and this is the point I want you especially to mark. 
 
 ^ The technical use of " the king's peace " is, I suspect, connected 
 with the very ancient rule that a breach of the peace in a house must 
 be atoned for in proportion to the householder's rank. If it was in 
 the king's dwelling, the offender's life was in the king's hand. This 
 peculiar sanctity of the king's house was gradually extended to all 
 persons who were about his business, or specially under his protection ; 
 but when the Crown undertook to keep the peace everywhere, the 
 king's peace became coincident with the general peace of the kingdom, 
 and his especial protection was deemed to be extended to all peaceable 
 subjects. In substance, the term marks the establishment of the 
 conception of public justice, exercised on behalf of the whole com- 
 monwealth, as something apart from and above the right of private 
 vengeance, — a right which the party offended might pursue or not, 
 or accept composition for, as he thought fit. The private blood- 
 feud, it is true, formally and finally disappeared from English juris- 
 prudence only in the present century ; but in its legalized historical 
 shape of the wager of battle it was not a native English institution.
 
 206 THE HISTORY OF ENGLISH LAW [VIII 
 
 In every county and hundred there were ancient 
 popuhar courts, courts which every free man might be 
 called upon to attend, just as every free man was in 
 theory entitled to be present and have a voice at the 
 great council which before the Conquest wielded 
 supreme power together with the king, the Witenage- 
 mot or Witan, that is, meeting of the wise men of the 
 land. AVhen I speak of popular courts, you must not 
 suppose that they were popular in any modern sense. 
 It is doubtful whether the greater number of those 
 who took part in the proceedings had any effectual 
 voice, and it is certain that there was not even an 
 attempt to do speedy and substantial justice. Ancient 
 simplicity is one of the illusions that vanish before 
 historical criticism. The farther we go back in the 
 history of institutions, the more we find people 
 enslaved by formalities, and, indeed, as we should 
 now think, wholly neglecting the substance of affairs 
 for the form. And English history is no exception. 
 All these local courts had their own particular cus- 
 toms ; we know that these customs were so many 
 and different that it was thought hopeless to describe 
 them, and there is every reason to believe that they 
 were extremely technical and cumbrous, and abounded 
 in pitfalls quite unconnected with the merits of the 
 case. All ancient procedure is typified in the old 
 Roman story of a man who sued a neighbour for cut- 
 ting down his vines, and failed because the law of the 
 Twelve Tables spoke only of trees in general, and he 
 ought to have followed the very words of the law, and 
 said trees instead of vines. Similar stories are told of
 
 VIIl] AS A BRANCH OF POLITICS. 207 
 
 the old German laws, and no doubt many like things 
 happened in the old English hundred and county 
 courts. There is some evidence, too, that attendance 
 at these courts was found vexatious by the smaller 
 folk, who could ill afford to leave their own affairs for 
 them. 
 
 In the same way we used to flatter ourselves 
 that trial by jury was an ancient popular institution ; 
 perhaps it may be connected with the name of King 
 Alfred in some books that are still read. It is nothing 
 of the kind. All the details of the story are not made 
 out yet, but it is fairly certain that our modern jury 
 trials arose gradually out of a system of inquiry by 
 sworn commissioners, invented by princes chiefly for 
 the purpose of securing their own revenue, and to 
 evade the formalities and dangers of the old-fashioned 
 popular procedure. The jury, in civil cases at all 
 events, comes not at all from the popular court, but 
 from the king's court. This, however, is too long to 
 enter into now. Let us 2:0 on and see what the king's 
 court was. In the laro;er sense it was the council of 
 great men with whose advice and assistance he acted 
 in affairs of State, the provisional successor of the old 
 English Witan. In a narrower sense, it was this 
 council acting judicially, or a judicial committee of it.^ 
 Already the notion existed that the Crown had a 
 general judicial supremacy over the kingdom, — the 
 
 1 The phrase has been objected to, but I think over-captiously. 
 Anyhow, I am content to be inaccurate, if inaccuracy there is, in Pro- 
 fessor Stubbs's company. Those who wish to be precise beyond ques- 
 tion may take the alternative of " sections " suggested by Mr. Freeman. 
 — {Norman Conquest, 5, 878).
 
 208 . THE HISTORY OF ENGLISH LAW [VIII 
 
 notion expressed somewhat later by the maxim that 
 the king is the fountain of justice. But the judicial 
 power of the Crown was not exercised by any con- 
 stant or certain means. Great men in immediate 
 attendance on the court, bishops, and heads of great 
 religious houses, — any one, in short, who was high or 
 strong enough to command the king's attention or rich 
 enough to buy it, — procured their causes to be dealt 
 with in the first instance by the king's court, or 
 removed into it from the local courts ; and they 
 obtained, after great expense and delay, an admini- 
 stration of justice which, though it looks rude enough 
 to us, was probably much in advance of the proceed- 
 ings of the local courts. Much comjDlaint is now made 
 of the cost of litigation, and not altogether unjustly ; 
 but in the twelfth century it was something enormous. 
 The king's justice was one great source of his revenue, 
 and he sold it very dear. Observe that this buying 
 and selling was not in itself corruption, though it is 
 hard to believe that corruption did not get mixed up 
 with it. Suitors paid heavily not to have causes 
 decided in their favour in the king's court, but to 
 have them heard there at all. The king's justice was 
 not a matter of right, but of exceptional favour ; and 
 this was especially the case when he undertook, as he 
 sometimes did, to review and overrule the actual 
 decisions of the local courts, or even reverse, on better 
 information, his own previous commands. And not 
 only was the king's writ sold, but it was sold at arbit- 
 rary and varying prices, the only explanation of which 
 appears to be that in every case the king's officers took
 
 VIIl] AS A BRANCH OF POLITICS. 209 
 
 as much as they could get.^ Now we are in a position 
 to understand that famous clause of the Great Charter : 
 " To no man will we sell, nor to none deny or delay, 
 right or justice." The Great Charter comes about 
 half a century after the time of which we have been 
 speaking ; so in that time, you see, the great advance 
 had been made of regarding the king's justice as a 
 matter not of favour but of rio;ht. And besides this 
 clause there is another which provides for the regular 
 sending of the king's judges into the counties. Thus 
 we may date from Magna Carta the regular adminis- 
 tration of a uniform system of law throughout Eng- 
 land. What is more, we may almost say that Magna 
 Carta gave England a capital. For the king's court 
 had till then no fixed seat ; it would be now at Oxford, 
 now at Westminster, now at Winchester, sometimes 
 at places which by this time are quite obscure. But 
 the Charter provided that causes between subject and 
 subject which had to be tried by the king's judges 
 should be tried not where the king's court happened 
 to be, but in some certain place ; and so the principal 
 seat of the courts of justice, and ultimately the 
 political capital of the realm, became established at 
 Westminster. 
 
 Of course these thing-s were neither done all at 
 once nor took their full effect all at once. The king's 
 justices, for instance, had made rounds of the country 
 
 ^ Bigelow, History of Procedure in England, 153. I am not so 
 confident as Mr. Bigelow that executive writs of this kind were ever 
 really issued without some judicial consideration ; hut for the present 
 purpose this is not material. 
 
 P 
 
 L^
 
 210 THE HISTORY OF ENGLISH LAW [VIII 
 
 long before the Great Charter, and Henry 11. had 
 reduced this to something like a system ; but this was 
 in the first instance chiefly for the purposes of the 
 king's revenue. The king's court was the instrument 
 of collecting his dues as well as of doing his justice. 
 The sheriff, whose place was in those days anything 
 but a merely ornamental one, was answerable to the 
 Exchequer for the revenue of his county ; but the 
 justices and barons of the king's court went round 
 from time to time to readjust valuations, hear com- 
 plaints, and control the local authority. Gradually 
 they drew to themselves, as representing the king, the 
 administration of justice as well as of revenue 
 matters ; and at length in Magna Carta we have 
 justices who are sent out for purely judicial purposes, 
 though still with a limited jurisdiction. The powers 
 of our present judges of assize were gradually added 
 at different times. But to this day the judges of assize 
 are received with the honours due to the Queen's 
 representatives, and as such take precedence of every 
 one in the county.^ Thus the local courts were little 
 by little superseded (though in the City of London 
 and several other cities and towns ancient local courts, 
 more or less modified for the convenience of modern 
 times, have gone on down to our own day), and one 
 
 1 The technical reason of this, according to the late Mr. Justice 
 Willes, whose wide and exact knowledge of English legal history has 
 probably never been surpassed, is that, whereas the sheriff has a writ 
 of assistance directed to all archbishops, Inshops, etc., the judges of 
 assize have a like writ directed to the sheriff himself. See on the 
 whole matter of the origin and dignity of their court his judgment in 
 Ex parte Fernandez, 10 Common Bench Reports, N.S., pp. 42-56.
 
 VIIl] AS A BRANCH OF POLITICS. 211 
 
 and the same law was regularly administered in the 
 king's name. The immediate effect, no doubt, was to 
 increase the power of the Crown at the expense of 
 local potentates and jurisdictions. It was what "we 
 now call a centralizins^ measure. But another effect 
 was to make the profession of the law a distinct, 
 powerful, and dignified one, having a good deal of 
 independence even as against the Crown ; and the 
 constitutional results of this were most important 
 when the time came, nearly five centuries later, for 
 the great contest between the King and the Com- 
 mons. Nor must we forget the efi^ect the circuits of 
 the king's judges, and the pleaders who then as now 
 followed the court from place to place, must have had 
 in uniting the people of England in the possession of 
 a common stock of legal and political ideas. The 
 institution of the jury presents a remarkable parallel 
 to this. Devised at first, like the missions of the 
 travelling judges, for the convenience of the Crown in 
 securing its own rights, we see it become an instru- 
 ment of doing justice between subject and subject, 
 and at length a safeguard for the subject against the 
 powder of the Crown. 
 
 Now mark in all this the ceaseless action and 
 reaction of law and politics on one another. We 
 begin with arrangements which we should now 
 call political rather than legal, made for the better 
 or more profitable conduct of government. You 
 must remember that the distinction of professions 
 and departments was nothing like so sharp as it is 
 now ; things were, so to speak, all shaken up together,
 
 212 THE HISTORY OF ENGLISH LAW [VIII 
 
 and gradually being settled and shaped into their 
 places ; and so institutions could be transformed and 
 put to fresh uses much more easily than we can do it 
 nowadays. Then these devices expand into fixed 
 legal institutions, which in some measure we have 
 preserved to this day. Then the legal institutions 
 acquire a kind of independent existence, and afford 
 in turn a rallying-point and leverage for politics. 
 Not only there is the idea of law being supreme even 
 over the king, but the law is something visible and 
 embodied ; it has its proper organs and can make 
 itself heard, if need be, at a political crisis. When I 
 speak of the law being supreme, I mean that this was 
 fully and clearly realized by our mediaeval writers. 
 Let me tell you what was said about this by Bracton, 
 a few years after the middle of the thirteenth century. 
 Bracton wrote a great systematic treatise on English 
 law, the first of its kind, and this is what he says in 
 one place of the king : " Now the king hath one set 
 over him, that is, God. Likewise the law, whereby 
 he is made king. Likewise his own court, to wit his 
 barons and earls ; for earls are called comites, as being 
 the king's companions, and who hath a companion 
 hath a master. So if the king be without bridle, that 
 is, without law, they must put the bridle upon him ;"^ 
 and then Bracton goes on to say that, in case the king 
 and the barons should all be unrighteous together, 
 
 1 This passage was cited, but not fairly or relevantly, on the first 
 and last occasion where Charles I. had the law clearly on his side : see 
 4 St. Tr., 1009. There would be something grotesque, if the naatter 
 were less grave, in vouching Bracton to warrant the jurisdiction of the 
 High Court of Justice to try the king for treason.
 
 VIIl] AS A BRANCH OF POLITICS. 213 
 
 justice will be done upon them in the next world, if 
 not in this. And in another place he speaks thus : 
 " The king ought not to be under any man, but under 
 God and under the law, because the law makes him 
 king. Therefore let the king render to the law what 
 the law renders to him, that is, dominion and power, 
 for he is no king if his will rules and not the law." 
 In yet another place this is repeated in almost the 
 same terms. There you have in a nutshell, laid down 
 by an English lawyer of the thirteenth century, the 
 great point of English constitutional freedom, that 
 law is not merely the instrument of government, but 
 the safeguard of each individual citizen's public rights 
 and liberties. It is sad to think that nevertheless 
 there were English kino;s lono- afterwards who found 
 lawyers and judges willing to give them opinions of 
 quite another sort.^ Still they thought it needful to 
 have these opinions on their side. Even in the days 
 when the liberties of Englishmen seemed most nearly 
 forgotten, acts of tyranny had to be fortified with at 
 least a show of legality. There is one great safeguard 
 in particular which has always held its own. In this 
 country no officer of the State, however high his 
 office, can exceed or abuse his lawful authority with- 
 out being liable to be sued in the ordinary courts of 
 justice like any other wrongdoer. So much are we 
 accustomed to this right that we hardly look on it as 
 a privilege. Of course it will not do everything. In 
 bad times it could not prevent servile Parliaments 
 
 ^ One may well guess that the reprinting of Bracton in 1640 was 
 not unconnected with the political circumstances of the time.
 
 214 THE HISTORY OF ENGLISH LAW [vill 
 
 from creating oppressive authorities with oppressive 
 powers, nor could it protect tlie suitor against packed 
 juries or obsequious judges. But if we look abroad 
 for a moment, we shall see that in many other 
 countries, I think we may say in all or nearly all 
 Continental countries, no such right of the subject 
 exists at this day. Acts done by executive officers of 
 the State in the course of their functions are subject 
 to the control of the executive government only, and 
 removed from the jurisdiction of ordinary courts. If 
 we try to conceive what Englishmen would think of 
 living under such a law, we shall not find it hard to 
 appreciate the value of our own. A curious illustra- 
 tion of the English rule is afforded by an authority 
 repeatedly cited in the arguments on the great case of 
 Habeas Corpus under Charles I. Edward IV. was 
 informed by one of his judges that the king can in no 
 case arrest a subject in person, for this reason, that if 
 the arrest should not be justified, the subject would 
 lose his lawful remedy of an action of false imprison- 
 ment, as the king cannot be personally sued. 
 
 This point I have just mentioned exhibits in a 
 striking way a character of great political importance 
 for which the English race is eminent — I mean the 
 quality called law-abidingness. We and our kinsfolk 
 in America love to think ourselves a law-abidins^ 
 people. We like to have the sanction, or at least the 
 analogy, of precedent and law for whatever we do. 
 This, be it marked, is a very different thing from the 
 habit of submission to persons in authority ; our re- 
 spect is for the law, not for the persons. Now this
 
 VIIl] AS A BRANCH OF POLITICS. 215 
 
 habit of mind appears in the earliest history of EngHsh 
 law. The appeal to precedent which is the foundation 
 of our modern jurisprudence is evident in records of a 
 date soon after the Conquest. And I cannot help 
 thinking that the circumstances of the Conquest had 
 something to do with the way in which this idea took 
 root in English law and government. William the 
 Conqueror won his English crown by hard fighting, as 
 we all know ; but he did not claim it merely by the 
 right of the stronger : he maintained that he was the 
 rightful king of the English, and Harold was a 
 usurper. His case was wrong according to the 
 English constitution of that time, because Harold had 
 been duly chosen for king by the people and the 
 Witan, and William had not. Still the claim had in 
 more than one way a fair colour of right about it, and 
 William made a great point of coming in by law and 
 not barely by force. ^ There were great confiscations 
 of the lands of Englishmen who resisted, but other- 
 wise English laws and customs were observed as they 
 had been under the English kings, or as nearly as 
 might be. Thus Norman rulers had to administer a 
 system with which they were not familiar, and there 
 must naturally have been a great deal of local inquiry, 
 searching for precedents, and ascertaining usages from 
 the people on the spot who knew most about it. In 
 fact we see much of the process in the great land 
 survey known as the Domesday Book. And the 
 
 ^ The evidence is worked out in detail by Mr. Freeman in the two 
 last volumes of his History of the Norman Conquest, especially the 
 chapter on Domesday, and the notes thereto.
 
 21G THE HISTORY OF ENGLISH LAW [VIII 
 
 natural effect of tliis, again, would be to make the 
 importance of precedent and establislied custom more 
 sharply and strongly felt. We know that in British 
 India, where English judges and magistrates have 
 been set to work to administer Hindu and Mussulman 
 systems of law, the result has been to give to the 
 native laws a certainty and fixity, and even an activity 
 and binding force, which they had not before. It is 
 true that English lawyers brought their notion of 
 judicial precedents and the like to India all ready 
 made ; and native Indian laws and usages are im- 
 mensely more unlike ours than English institutions 
 were unlike Norman ones. Yet I think the analogy 
 is sufficient to be not worthless ; and I will venture to 
 say, as at least an allowable guess, that some such 
 effect was also produced in England under the time of 
 Anglo-Norman rule which followed the Conquest. 
 This feeling of the sanctity of precedent has had 
 something to do with the formalism and pedantry that 
 have been the plague of English law, and are not quite 
 got rid of yet. But we must never forget that it has 
 likewise been a most powerful weapon in the hands of 
 champions of English freedom. Its power is shown 
 by the efforts that were made to escape it. When 
 English sovereigns were reproached with unauthorized 
 and unexampled acts of despotism, they taxed all the 
 ingenuity of their servants to find in the records of 
 past reigns anything that looked like examjDle or 
 authority. So here again, if I am right, we see the 
 political circumstances of the country forming or 
 strengthening a certain habit of mind in legal matters,
 
 VIIl] AS A BRANCH OF POLITICS. 217 
 
 and this again becoming a national temper which 
 plays a great part in politics. The difference between 
 fighting for the ancient rights of one's fathers and for 
 a claim to some new right which nobody quite under- 
 stands is like the difference between having a wall at 
 your back and standing in open ground. 
 
 Before we leave the Middle A2;es there is another 
 matter of legal and historical importance to say one 
 word about. In the time we have been speaking of 
 there was a keen rivalry between the secular and the 
 ecclesiastical courts. To this day every bishop has 
 his court, but the jurisdiction is practically confined 
 to the clergy, and even so things of real importance 
 are seldom concluded there. But in the twelfth cen- 
 tury, and for centuries after, it was far otherwise. 
 The spiritual courts exercised a kind of general super- 
 vision over manners and morals, and interfered with 
 private life in almost every detail. Besides this, they 
 struggled hard for jurisdiction over almost every- 
 thing that seemed nearly or remotely connected with 
 ecclesiastical discipline or interests. For example, 
 they claimed the exclusive right of dealing with all 
 causes relating to marriage, and that with consider- 
 able success. The history is an extremely curious 
 one, but at this time I can only call attention to one 
 aspect of it. The spiritual courts had, no doubt, 
 their good side ; they could give relief in many cases 
 where, owing to the limited number of legal causes of 
 action which were then admitted, it could not be had 
 in the king's courts. But the meddlesomeness and 
 petty tyranny that could be, and frequently were,
 
 218 THE HISTORY OF ENGLISH LAW [VIII 
 
 exercised through them were such as a modern reader 
 can hardly believe ; and when one has learnt some- 
 thing of this, it becomes much easier to understand 
 why the Reformation was so much of a political 
 success in England, and why the people looked on 
 with so much equanimity at the wholesale dissolution 
 of religious houses (many of which had ecclesiastical 
 courts attached to them) and confiscation of Church 
 property. 
 
 Now I. must ask you to pass over four centuries, 
 and come to the great fight which the Commons of 
 England fought against the Stuart dynasty for the 
 better part of a century. I say the Stuart dynasty 
 with a distinct meaning. The contest which ended 
 with the downfall and exile of the last Stuart king 
 was fully and deliberately begun by the first, as I 
 shall immediately show you by one of its earliest 
 records. It is a long and momentous chapter of 
 English history, but at present we are concerned with 
 only one aspect of it, the extent to which the contest 
 was waged on legal ground and with legal arguments. 
 Down to the very outbreak of the Civil War the 
 dispute between the Crown and its advisers on the 
 one side and Parliament on the other had a distinctly 
 forensic turn. In his most high-flying claims the 
 king always professed to be maintaining no more 
 than the just and ancient powers of his predecessors, 
 and was never at a loss for more or less plausible 
 arguments to that efi'ect. In their most stubborn 
 resistance the Commons never, until actual hostilities 
 were imminent, quitted the firm ground of established
 
 VIIl] AS A BRANCH OF POLITICS. 219 
 
 rights and liberties. The great points in issue were 
 two : whether the Crown coukl levy taxes and imposi- 
 tions, on any occasions or under any name, without 
 the consent of Parliament ; and whether the king in 
 Council had a discretionary power of imprisoning 
 men, and keeping them imprisoned, without assign- 
 ing any cause beyond his own special command. A 
 third question, and one connected with very weighty 
 practical grievances, though in the later stages of the 
 conflict it rather fell into the background, arose upon 
 the assumption of the Crown to make by proclama- 
 tion without the authority of Parliament a variety 
 of rules and ordinances, amounting to petty legisla- 
 tion, in almost every department of administrative 
 government, and in some matters we now think 
 beyond the province of government altogether. All 
 through the time, covering something more than a 
 generation, between the first encroachments of James 
 and the final breach of Charles with the Parliament, 
 these things were argued as questions not of policy 
 but of existing law. There was, of course, a strong 
 sense and purpose of policy underneath the legal 
 contentions of both parties ; but both parties were 
 anxious above all things to get the law on their own 
 side. I will now read to you the very words in 
 which the Commons brought their grievances before 
 James I. as early as 1610, in the matter of imposi- 
 tions and proclamations. And let me just note in 
 passing that if you want to form a lively conception 
 of any period of history, and enter into the thoughts 
 and feelings of the men you are reading about, there
 
 220 THE HISTORY OF ENGLISH LAW [VIII 
 
 is only one sure way that I know of; and that is to 
 get hold, as far as you can, of records and documents 
 of the time itself, and not be content with what 
 other people tell you about them. It seems trouble- 
 some at first, but it saves more trouble in the end ; 
 and as regards English history at any rate it is an 
 infinitely easier thing to do than it was fifty or even 
 twenty years ago. 
 
 This is what the Commons said to James I. in 
 1610 about impositions levied without consent of 
 Parliament ^ : — 
 
 The policy and constitution of this your kingdom appro- 
 priates unto the kings of this realm, with the assent of the 
 Parliament, as well the sovereign power of making laws as that 
 of taxing or imposing upon the subject's goods or merchan- 
 dizes, wherein they have justly such a propriety, as may not 
 without their consent be altered or changed. 
 
 This is the cause that the people of this kingdom, as they 
 ever showed themselves faithful and loving to their kings, and 
 ready to aid them in all their just occasions with voluntary 
 contributions ; so have they been ever careful to preserve their 
 own liberties and rights, when anything hath been done to 
 prejudice or impeach the same. 
 
 And, therefore, when their princes, occasioned either by 
 their wars or their over great bounty, or by any other neces- 
 sity, have, without consent of Parliament, set impositions either 
 within the land or upon commodities either exported or imported 
 by the merchants, they have in open Parliament comj^lained of 
 it, in that it was done without their consents, and thereupon 
 never failed to obtain a speedy and full redress, without any 
 claim made by the kings of any power or prerogative in that 
 point. And though the law of propriety be originally and care- 
 fully preserved by the common laws of the realm, which are as 
 ancient as the kingdom itself; yet these famous kings, for the 
 
 ^ 2 SfMe Trials, 519.
 
 VIIl] AS A BRANCH OF POLITICS. 221 
 
 better contentment and assurance of their loving subjects, agreed 
 that this old fundamental right should be farther declared and 
 established by Act of Parliament : wherein it is provided that 
 no such charges should ever be laid upon the people without 
 their common consent, as may appear by sundry records of 
 former times. 
 
 We, therefore, your Majesty's most humble Commons, as- 
 sembled in Parliament, following the example of this worthy 
 care of our ancestors, and out of a duty to those for whom we 
 serve, finding that your Majesty, without advice or consent of 
 Parliament,- hath lately in time of peace set both greater impo- 
 sitions and far more in number than any your noble ancestors 
 did ever in time of war, have with all humility presumed to 
 present this most just and necessary petition unto your Majesty, 
 that all impositions set without the assent of Parliament may 
 be quite abolished and taken away. 
 
 You see how carefully and pointedly the right is 
 claimed as a matter of established law. Then comes 
 the complaint against arbitrary proclamations, which 
 is if possible yet more distinct in this respect : — 
 
 Amongst many other points of happiness and freedom which 
 your Majesty's subjects of this kingdom have enjoyed under 
 your royal progenitors, kings and queens of this realm, there is 
 none which they have accounted more dear and precious than 
 this, to be guided and governed by certain rule of law, which 
 giveth both to the head and members that which of right 
 belongeth to them, and not by any uncertain or arbitrary form 
 of government. . . . Out of this root hath grown the indubit- 
 able right of the people of this kingdom not to be made subject 
 to any punishment that shall extend to their lives, lands, bodies, 
 or goods, other than such as are ordained by the common laws 
 of this land, or the statutes made by their common consent in 
 Parliament. 
 
 This prelude marked out with sufficient clearness 
 the lines to be taken by the great struggle, when 
 Charles I. endeavoured to carry through the policy
 
 222 THE, HISTORY OF ENGLISH LAW [vill 
 
 he had inherited from his father. Seventeen years 
 after this petition of grievances was addressed to 
 James, Charles raised money by a forced loan. There 
 was a widespread feeling in the country that the 
 whole thing was against law, and many gentlemen of 
 good standing and substance wholly refused to con- 
 tribute. " I was called," one of them said afterwards, 
 "before the Lords of the Council, for what I know 
 not. I heard it was for not lending on a Privy Seal. 
 I told them, if they will take my estate, let them — I 
 will give it up ; lend I will not." In the end several 
 of the recusants were committed to prison. Five of 
 these reclaimed their liberty, and sought the aid of 
 the courts to be enlarged. As it was impossible to 
 charge them with any specific offence known to the 
 law, the question was whether they could be imprisoned 
 by the mere executive authority of the king and the 
 Privy Council. Hence arose a memorable discussion 
 of the subject's right to personal liberty, first before 
 the judges of the King's Bench, and afterwards in 
 Parliament. In court the result was inconclusive ; 
 the judges would neither go directly against the king 
 nor commit themselves to giving a decision completely 
 in his favour. But the matter was taken up in the 
 House of Commons, and that with quite as elaborate 
 and technical an apparatus of learning as had been 
 brought before the judges. If lawyers on the bench 
 were timid or servile then, and were still more servile 
 a few years later, there were lawyers enough in Par- 
 liament, and learned ones too, who could use their 
 knowledge in the cause of freedom. Both James and
 
 Vlll] AS A BRANCH OF POLITICS. 223 
 
 Charles spoke in terms of bitter complaint of their 
 opposition. And their task was a harder one than it 
 seems at first sight to a reader of the present day, 
 not only as regards the boldness it required, but as 
 regards the apparent merits of the argument. Modern 
 research has on the whole amply borne out the Whig 
 view of the controversy, if we may so call it by 
 anticipation. The claims of the Commons were not 
 only justified by policy and the common weal, but 
 well warranted on the purely historical grounds which 
 were assigned for them. Yet the case for the Crown 
 was not hopeless. The terms and the spirit of Magna 
 Carta, the repeated confirmation of it all through the 
 Middle Ages, and in general the weight of early 
 authority, were doubtless on the side of the Parlia- 
 ment. But recent practice was no less on the side of 
 the king ; and on questions of constitutional law the 
 practice of nearly a century is a formidable thing to 
 deal with. The Tudor sovereigns had frequently, if 
 not constantly, done things as high-handed and as 
 difficult to justify by law as anything Charles I. had 
 yet attempted. The difierence was that their govern- 
 ment, on the whole, had been popular, and they knew 
 where to stop. If in their time money was raised 
 irregularly, it was for genuine public purposes. If 
 men were imprisoned arbitrarily, it was not for 
 defending the rights of the whole commonalty. If 
 commands of doubtful legality were issued, it was in 
 matters of real emergency. Henry VIII. and Eliza- 
 beth would certainly have repudiated the position of 
 a modern constitutional monarch. But they sought
 
 224 THE HISTORY OF ENGLISH LAW [vill 
 
 to lead their parliaments and people, not to force 
 them ; tliey never committed the fatal mistake of 
 raising money by unparliamentary means on purpose 
 to make themselves independent of Parliament. Thus 
 the substantial answer to the precedents of the six- 
 teenth century — a good answer, I think, both in law 
 and in policy — was that, if the Tudors were allowed 
 to carry things with a high hand, it was by an 
 acquiescence confined to the particular times and 
 occasions, not by the allowance which makes a bind- 
 ing custom. In our own time we have seen how 
 executive authority may be strained to the verge of 
 legality by a popular and powerful minister, with 
 success for the time being, if not altogether with 
 subsequent impunity. This remark is not made in 
 the interest of one political party more than another, 
 for it applies equally to Mr. Gladstone and to Lord 
 Beaconsfield. If, however, a lesser man than these 
 should ever attempt to follow the precedent of bring- 
 ing Indian troops to Malta, or the abolition of purchase 
 in the army by royal warrant after a Bill for the 
 same purpose had failed to pass through Parliament, 
 he might find himself seriously mistaken. And in 
 somewhat the same fashion, only on a greater and 
 more fatal scale, Charles I. found himself mistaken 
 when he tried to wield the sceptre of the Tudors. 
 
 The rights of the Crown and of the subject were 
 argued in the House of Commons, as I said, by mem- 
 bers who were among the first, lawyers of the day — 
 such men as John Selden and Sir Edward Coke. 
 And after this argument the House passed the fol-
 
 VIIl] AS A BRANCH OF POLITICS. 225 
 
 lowing resolutions on the pressing question of personal 
 freedom :^ — 
 
 1. That no free man ought to be detained or kept in prison, 
 or otherwise restrained by the command of the King or Privy 
 Council, or any other, unless some cause of the commitment, 
 detainer, or restraint be expressed, for which by law he ought to 
 be committed, detained, or restrained, 
 
 2. That the writ of Habeas Corpus may not be denied, but 
 ought to be gi*anted to every man that is committed or detained 
 in prison, or otherwise restrained, though it be by command of 
 the King, the Privy Council, or any other, he praying the same, 
 
 3. That if a free man be committed or detained in prison, or 
 otherwise restrained by the command of the I^ng, the Privy 
 Council, or any other, no cause of such commitment, detainer, 
 or restraint being expressed, for which by law he ought to be 
 committed, detained, or restrained, and the same be returned 
 upon an Habeas Corpus granted for the said party, then he 
 ought to be delivered or bailed. 
 
 That is expressed almost in the form of a legal 
 opinion, most carefully and strictly worded — a very 
 different sort of thing from rhetorical declarations of 
 supposed natural rights of man. Against the levying 
 of taxes without the consent of Parliament the protests 
 already made were yet more strongly and concisely 
 renewed. The resolution on this head ran thus — 
 
 That it is the ancient and indubitable right of every free 
 man, that he hath a full and absolute property in his goods and 
 estate ; that no tax, taillage, loan, benevolence, or other like 
 charge, ought to be commanded or levied by the King or any of 
 his Ministers without common consent by Act of Parliament. 
 
 Two months after this the Petition of Rioht was 
 
 o 
 
 sent up to the king, and after another month had 
 
 ^ 3 iitate Trials, 82. The date is March 29, 1628. 
 Q
 
 226 THE HISTORY OF ENGLISH LAW [vill 
 
 been occupied by attempts on his part to put off the 
 Parliament witli an evasive answer, it received his 
 assent in due form. This great instrument of English 
 liberties is too long to quote ; not that it is very long 
 in itself, but that every clause would need a com- 
 mentary. It is a recital of grievances committed 
 against established laws, and ends with the prayer of 
 the Lords and Commons that they may be removed, 
 "All which they most humbly pray of your most 
 excellent Majesty as their rights a-nd liberties accord- 
 ing to the laws and statutes of this realm." But it 
 was many years before the Petition of Eight was 
 allowed to take any substantial effect ; indeed, sixty 
 years were to pass before its work was fully done and 
 its harvest reaped — the harvest of just and settled 
 liberties for the people of England, of exile and 
 ignominy for the Stuarts. After giving his assent to 
 the Petition, Charles dissolved the Parliament in 
 indignation, and for eleven years ruled without sum- 
 moning another ; and the claim to levy taxes by the 
 sole power of the Crown was revived in a new form 
 in ship-money. In the great case between the Crown 
 and Hampden we find as boldly advanced as ever the 
 argument already used in the revenue cases of the 
 former reign, that the king has two sorts of power — 
 his ordinary prerogative, which is known to the law 
 and defined by it ; and an absolute or sovereign 
 power, which is above the common law, and even 
 above Acts of Parliament. From the use of such an 
 argument to the open defiance of law may seem to us 
 at this day to be but a step ; but it was a step that
 
 VIIl] AS A BRANCH OF POLITICS. 227 
 
 Charles dared not or would not take. He was still 
 as anxious to be despotic by law as tlie Commons 
 were to withstand him by law. The bench had been 
 brought, by judicious dismissals and promotions, to 
 be pretty well of one mind with the king and his 
 counsellors, and a majority of the judges pronounced 
 for the Crown against Hampden. One of the first 
 acts of the Long Parliament was not merely to pro- 
 test against Charles's proceedings in the matter of 
 ship-money, but to declare this judgment void and 
 bad in law. Here, we may say, is about the last 
 point at which the legal character of the battle 
 between King and Parliament is maintained. The 
 Grand Remonstrance, presented by the Parliament in 
 1641, is distinctly a political manifesto. It covers, 
 no doubt, all the ground covered by the Petition of 
 Right, besides a great deal more ; but it is impos- 
 sible to turn from the Petition of Right to the 
 Remonstrance without feeling that one has passed 
 from a distinctly legal to a distinctly political atmo- 
 sphere. It is worth remark that the one act which 
 more than any other made the Civil War inevitable, 
 the king's attempted arrest of the five members early 
 in the following year, was also the first act on his part 
 which was manifestly and flagrantly illegal. It was 
 unlawful, one may say, in every possible way. I am 
 not aware that any sort of legal justification or excuse 
 for it has ever been so much as attempted. In fact, 
 Charles I.'s earlier proceedings were endeavours to 
 wrest the Constitution, then still more or less pliable, 
 to his own sense ; his aim in the matter of the five
 
 228 THE HISTORY OF ENGLISH LAW [vill 
 
 members was an undisguised cowp d'etat, and if it 
 had succeeded he had made every preparation to pose 
 as the saviour of society. 
 
 We said that it took sixty years for the Petition 
 of Right to come to its full effect. The lapse of those 
 sixty years brings us to the flight of James II. from the 
 country whose freedom he had neither the strength to 
 crush nor the prudence to propitiate with even a decent 
 show of respect. Once more, and happily for the last 
 time, an English Parliament counted up against an 
 English king the tale of wrongs inflicted and pro- 
 mises broken. The same Bill of Rights which declared 
 the abdication of the government by James 11. and 
 the acceptance of the throne by William and Mary 
 set forth point by point the offences of James against 
 the liberties of the nation, and point by point declared 
 his acts illegal. In this the Lords and Commons 
 explicitly professed to be doing as their ancestors in 
 like case had usually done, and to claim and insist 
 upon all the heads of grievance " as their undoubted 
 rights and liberties." Here a question suggests itself, 
 which may have occurred to you already when we 
 spoke of the Petition of Right, and which we may 
 usefully stop awhile to consider. The Bill of Rights, 
 the Petition of Right, the Great Charter itself, all 
 purport to do no more than make a solemn affirmation 
 of rights already allowed. In every case the existing 
 title of the subject to these rights was claimed, as I 
 believe, in perfect good faith (though it does not follow 
 that to some extent it might not be opposed in good 
 faith also), and the claim was well made out. Yet
 
 VIIl] AS A BRANCH OF POLITICS. 229 
 
 historians tell us, and there is no doubt of the fact, 
 that every one of these instruments is a landmark in 
 the history of the Constitution, Since the Revolution, 
 in particular, government has been altogether on a 
 new footino^. How can these facts be reconciled ? 
 How can political institutions be developed and trans- 
 formed by putting on record existing legal rights ? 
 From a merely legal or a merely political point of 
 view it seems a puzzle. The answer is to be sought 
 in the interaction of politics and law which I have 
 endeavoured to keep in view throughout this lecture. 
 In legal theory the binding force of all laws is the 
 same. The lawyer, as such, knows nothing of the 
 political reasons which dictated them, the practical 
 effects of their application, or the readiness or other- 
 wise of the persons concerned to obey them. But 
 their operation is in fact modified in infinite degrees 
 by all manner of social and political conditions. 
 There are laws that wake and laws that slumber, laws 
 that are strictly followed, laws that are evaded, and 
 laws that are quietly neglected. The very same 
 written law will take quite a different complexion by 
 change of times, persons, and administration. Every 
 school has its own comment on the text. The judges 
 who were James II. 's instruments could not meddle 
 with the Petition of Right in its actual terms, but they 
 sent peaceful citizens and honourable women to exe- 
 cution on trifling or infamous evidence of imaginary 
 treasons. Though far more despicable and servile 
 than any of their predecessors under Charles or the 
 first James, they could not repeat their performances
 
 230 THE HISTORY OF ENGLISH LAW [vill 
 
 in the matters of impositions and sliip-money ; but 
 tliey discovered that the king had a supreme dispens- 
 ing power which enabled liim to undo for all practi- 
 cal purposes the work of the Reformation. The Bill 
 of Rights was the declaration of a people whose long- 
 suffering was exhausted that these things and such as 
 these should no longer be. It was an exercise of 
 political power to ensure that the legal securities for 
 freedom and good government should be fully, fairly, 
 and actively maintained in force. It was the deter- 
 mination of England that the laws which guarded the 
 liberties of Enolishmen should thenceforth wake and 
 
 O 
 
 not sleep. To a great extent they had slept under 
 the Tudors; they might have slept for generations 
 more if Elizabeth had been succeeded by a ruler of 
 men instead of a perverse pedant ; even after the 
 Commonwealth they might have again fallen into 
 lethargy if Charles 11. had learnt any lesson of states- 
 manship from his misfortunes, or James II. had been 
 possessed of common prudence. Ha^Dpily for the 
 nation the accumulated follies of the Stuarts made 
 this impossible. The Bill of Rights takes up the 
 interrupted note of the Petition of Right, and is the 
 last word of a nation who had trusted and had been 
 deceived till they could trust no more. Legally there 
 is nothing new, or hardly anything ; politically there 
 is the difference between taking a man's word and 
 taking security. 
 
 But when we say that legally there is nothing new, 
 this must not be understood in too large a sense. 
 When you define a rule that existed in a less definite
 
 VIIl] AS A BRANCH OF POLITICS. 231 
 
 shape before, you cannot help adding something to it. 
 Do what you will to make your statement a faithful 
 interpretation and nothing more, still it is an inter- 
 pretation, and thenceforth you have the new interpret- 
 ation besides the old text, if text there was. More- 
 over, the interpretation is hardly ever the only possible 
 one ; it may be clearly the best, but the case must be 
 exceptionally clear if no other can make anything like 
 a fair show. A choice which was held more or less in 
 suspense is fastened upon one reading or one shade of 
 meaning in preference to another. The right or usage 
 itself may be as ancient as you please, but the new 
 statement gives it a new fixity and force. Such a 
 process is carried on every day by courts of justice in 
 deciding disputed points of law. Their object is to 
 ascertain what the legal rule is, not to add to it or 
 alter it ; but they cannot declare the rule without 
 putting something more into it, and fixing, as it were, 
 a new starting-point. Most of our law has been 
 gradually built up in this fashion ; and Acts of Parlia- 
 ment, so far from superseding this operation, make it 
 more necessary than ever, since even the most care- 
 fully framed piece of legislation is sure to leave some 
 room for doubt as to its application to the facts of 
 particular cases. The Bill of Eights and the Petition 
 of Plight may be regarded as parliamentary definitions 
 or interpretations of the more ancient instruments and 
 customs on which the liberties of Eno-landwere acknow- 
 ledged to rest. This is the more easily conceived when 
 we reflect how much of the modern workino- of our 
 Constitution depends on understandings which have
 
 232 THE HISTORY OF ENGLISH LAW [VIII 
 
 never been defined by any positive authority. The 
 Sovereign is still perfectly entitled, so far as positive 
 law is concerned, to refuse assent to Bills sent up by 
 the estates of the realm. No such body as the Cabi- 
 net, and no such person as a Prime Minister, is in any 
 way known to the law. There are Privy Councillors, 
 and there is a First Lord of the Treasury ; the 
 Cabinet is a wholly informal committee of the Privy 
 Council, and the First Lord of the Treasury is in an 
 equally informal manner its chief. When Lord 
 Beaconsfield described himself in the Treaty of Berlin 
 as First Minister of England, it was remarked as a 
 thing without precedent even in diplomatic documents. 
 Our positive constitutional law takes no notice of the 
 existence of parties or their leaders. It is a legal 
 principle that the Crown can act only through Min- 
 isters who are responsible to Parliament ; but the 
 manner in which those Ministers are chosen, which is 
 an extremely important part of the practical machinery 
 of government, is outside legal definition and beyond 
 legal control. There is not even any positive rule 
 that Ministers who are not peers must have seats in 
 the House of Commons. One might go on by the 
 hour putting examples of things which would probably 
 or certainly be unconstitutional in the sense of running 
 counter to some of the understandings on which 
 government is carried on, but which certainly would 
 not be illegal. With this system of understandings 
 the Constitution has worked smoothly for nearly half 
 a century, and so long as it goes on working smoothly 
 there will be no need for further definition. It is
 
 VIIl] AS A BRANCH OF POLITICS. 233 
 
 conceivable, however, that the necessity for it might 
 somehow arise. In such a case it might happen that 
 the Cabinet, like other committees of the Privy 
 Council which began in an informal way, like the 
 superior courts of justice themselves, should come to 
 acquire a legal existence. A similar process, though 
 not quite the same, is being exemplified before our 
 eyes in the House of Commons. The positive rules 
 of debate are so framed as to leave an immense latitude 
 to members and give immense opportunities for delay. 
 They were framed, and long acted upon, on the as- 
 sumption that members of the House of Commons 
 would behave themselves as reasonable men and 
 gentlemen, and would not obstruct public business 
 for obstruction's sake. But in the last three or 
 four years certain ingenious members have invented 
 the policy of obstruction for the set purpose of 
 bringing the whole proceedings of Parliament to a 
 dead-lock, and thus intimidating the House into 
 compliance with their demands. What is the result 
 of this ? After all the House is master of its own 
 rules, and will not allow them to be notoriously 
 abused. The understanding founded on trust hav- 
 ing broken down, positive regulation becomes need- 
 ful. One or two partial remedies have already been 
 tried, and other and more stringent measures are in 
 prospect. ■• 
 
 Thus far we have been considering the political 
 aspect of actual laws and legal institutions. But legal 
 ideas of a more abstract kind have also made their 
 mark on politics, and a greater one than might be
 
 234 THE HISTORY OF ENGLISH LAW [VIII 
 
 expected. One instance must suffice to illustrate this, 
 but it shall be a striking one. AVe have just been 
 speaking of the Revolution and the Bill of Rights. It 
 may seem hardly serious to say that a considerable 
 number of those who, after being more or less troubled 
 with legal and other scruples, determined that their 
 allegiance was no longer due to James II., were 
 mightily fortified in their resolution by a legal fiction. 
 Yet such is the plain fact. The Convention Parlia- 
 ment declared that James had " endeavoured to sub- 
 vert the Constitution of the kingdom by breaking the 
 original contract between king and people." This 
 original contract, called by later writers the Social 
 Contract, was nothing else than a supposed compact 
 on which society and government were founded. It 
 is hardly needful to state that such a compact is 
 purely fictitious. It is a putting of the cart before 
 the horse. There can be no contract until there are 
 laws and government ; and this theory seeks to explain 
 the force of law by founding it on a prior contract. 
 Men living in a state of individual independence are 
 supposed to come together and agree to form a society, 
 whereas we now know that individual rights and inde- 
 pendence become possible only when society has 
 reached a fairly advanced stage. It is the fallacy of 
 carrying back modern legal notions to times and cir- 
 cumstances where the facts to which they are applic- 
 able do not exist. But it would be out of place here 
 to discuss the doctrine of the Social Contract at any 
 length, and the more so as it has been excellently 
 treated by Mr, Leslie Stephen in his History of Eng-
 
 VIIl] AS A BRANCH OF POLITICS. 235 
 
 lish TJiought in the Eighteenth Century. The curious 
 point I wish to call your attention to is that this 
 theory, being distinctly the offspring of speculative 
 minds under the influence of legal training, was 
 eagerly seized upon for the service of practical politics 
 by our statesmen of the Revolution/ The express 
 engagements of the coronation oath might seem at 
 first sight to give a better reason for declaring James 
 in default. This, however, was suggested only to be 
 put aside, ostensibly on the technical ground that the 
 king is as much king, and therefore as much entitled 
 to the subject's allegiance, and bound in turn to 
 govern according to law, before he is crowned as 
 after. ^ No doubt it was felt that a broader position 
 must be taken as against the doctrine of absolute 
 divine right. It may now seem to us incomprehen- 
 sible that rational men should adopt or act upon such 
 a doctrine, but at the time it had a real power, and 
 troubled the consciences of many good men who were 
 no friends of tyranny. To combat it with effect a 
 counter theory was necessary, the time and the men 
 not being ripe for a frank appeal to public utility. 
 The happy fiction of the social contract was ready to 
 hand, and smoothed over the difficulty. But though 
 it deserves to be called happy to that extent, it is a 
 
 ^ Hooker, wliose authority Locke is glad to put forward on his 
 side, appears to be the first considerable English author in whom the 
 idea is found. It occurs in the Parliamentary debates of 1628, and 
 in the trial of Charles I. There, however, the coronation oath is as 
 much or more insisted upon. 
 
 ^ Lord Clarendon's speech, 5 Pari. Hist. 76.
 
 236 THE HISTORY OF ENGLISH LAW. [VIII 
 
 still happier thing that the original contract, though 
 it was prominent in the declaration of the two Houses, 
 somehow did not find its way into the Bill of Rights. 
 Had it been emboclied in the Act which established 
 the Protestant succession, it might have become for 
 English citizens at large what it really was for a time 
 to the Whig party, a political article of faith. 
 
 In the fragmentary view I have given you of some 
 of the leading epochs in English politics, I have tried 
 to make it plain to what an extent the forms of legal 
 institutions, conceptions and claims of strictly legal 
 right, and even the fictions of legal speculation, have 
 entered into the very bones and marrow of the history 
 of our country. We have at the same time, perhaps, 
 obtained a glimpse of a much wider truth which also 
 has its political significance, namely, that law and the 
 machinery of law, like all other human institutions, 
 grow and cannot be made to order. And if I have 
 succeeded in bringing it home to any one of you that 
 in the light of these ideas the critical and historical 
 study of the laws of England is far from being the 
 dry and crabbed business which most Englishmen 
 still suppose it to be, I shall count my pains well 
 rewarded.
 
 IX] THE SCIENCE OF CASE LAW. 237 
 
 IX. 
 
 THE SCIENCE OF CASE-LAW. 
 
 I. 
 
 Much has been said and written lately about making 
 English law more scientific in various ways : as to 
 the form by processes of definition and consolidation, 
 as to the substance by getting rid of archaisms and 
 anomalies. And, besides those who do or suggest 
 good work of this kind, there are those who expound 
 a so-called science of law which on examination ap- 
 pears to have little to do with science, and less with 
 the law of England. But not much attention has 
 been paid to the scientific character of the methods 
 by which a great part of English law has actually 
 been built up, and by which it is still administered 
 and developed. We mean that part which is made 
 not by enactments but by decisions, and which is to 
 be sought in the records of decided cases. It once 
 bore the unhappily chosen name of unwritten law : 
 modern writers call it after its source by the more 
 convenient and accurate name of case-law. This 
 system of case-law might be described in hostile 
 popular language as a servile following of precedents 
 tempered or supplemented by transparent fictions — a
 
 238 THE SCIENCE OF CASE-LAW. [iX 
 
 sort of hand-to-mouth scrambling work at best. It 
 is true that the results are ill-arranged and difficult 
 to get at. The state of English case-law as a whole 
 might be not unfairly described as chaos tempered by 
 Fisher's Digest. Hence it is assumed by a not un- 
 natural fallacy that there must have been something 
 bungling and unscientific in the operations by which 
 the results themselves were produced. What we now 
 seek is to show that these operations have a truly 
 scientific character, and that English case-law may 
 fairly claim kindred with the inductive sciences. 
 
 The ultimate object of natural science is to pre- 
 dict events — to say with approximate accuracy what 
 will happen under given conditions. Every special 
 department of science occupies itself with predicting 
 events of a particular kind. Note also that each 
 science occupies itself only with those conditions which 
 are material for its own purposes. The object of 
 legal science, as we here understand it, is likewise to 
 predict events. The particular kind of events it seeks 
 to predict are the decisions of courts of justice. Like 
 the other sciences, it selects its own sets of conditions 
 to deal with. Let us consider for a moment an event 
 which has both physical and legal consequences. If 
 A strikes B, then the effect of the blow on B's equili- 
 brium is a matter of mechanics ; the effect on his 
 organism is a matter of physiology ; the effect of 
 giving him a right of action is a matter of law. For 
 the scientific examination of the event in each of these 
 several aspects we want to know and to deal with the 
 several appropriate sets of conditions, and those only :
 
 IX] THE SCIENCE OF CASE-LAW. 239 
 
 thus if B struck A J&rst, this is irrelevant to the 
 mechanical question, but relevant to the legal ques- 
 tion. The legal result is as definite and capable of 
 prediction as either the mechanical or the physiological 
 one ; the needful thing in each case is that the riglit 
 set of conditions be rightly observed. So far, then, 
 natural science and legal science aim at like objects. 
 Let us go on to consider the likeness of the means by 
 which those objects are accomplished. 
 
 In natural science we need an all-embracing funda- 
 mental assumption before we can take any step to- 
 wards prediction ; in other words, before we can have 
 any science at all. This assumption is that nature is 
 uniform. We act on the belief that whenever the 
 same conditions are repeated they will give the same 
 result, and we refuse to entertain any supposition to 
 the contrary. How we came by this axiom of the 
 uniformity of nature, or whether it can be justified 
 otherwise than by its results, we have not now to ask : 
 all we need remark is its place as the corner-stone of 
 science. It is plain that without it we could make no 
 use whatever of past experience. 
 
 Turning now to legal science, we find that an 
 assumption of the same kind is no less needed. In 
 order to predict physical results, we must suppose 
 that the same thing always happens under the same 
 conditions ; and in the same way, in order to pre- 
 dict legal results, we must suppose that the same 
 decision is always given on the same facts. We 
 must have a fundamental axiom of the uniformity 
 of law corresponding to the fundamental axiom of
 
 240 THE SCIENCE OF CASE-LAW. [iX 
 
 the uniformity of nature. But here a notable dis- 
 tinction at once strikes us. We cannot make nature 
 uniform ; we can only gradually discover that as a 
 matter of fact we succeed or fail in our undertakings 
 just in so far as we remember or forget to act con- 
 sistently on the assumption that nature is uniform. 
 But law is made by man, and man can do as he 
 pleases with it. Here it is in our power to make our 
 fundamental axiom approximately true ; we say ap- 
 proximately, but of this afterwards ; for the present 
 we neglect the approximate character of legal as well 
 as of physical prediction. The object is to ensure 
 the same decision being given on the same facts. In 
 English case-law this object is attained by what seem 
 the most obvious and direct means, namely, an under- 
 standing that the court shall follow the authority of 
 decisions formerly given on similar facts. 
 
 Now if there were but one court, or branch of a 
 court, administering the same system of law and bound 
 by its own decisions, that would be adequate to pro- 
 duce in course of time a consistent body of case-lav 
 which could be used as materials for scientific predif 
 tion ; but, as a matter of fact, we have several c - 
 ordinate courts, and we have to prevent them fro;x' 
 making different and inconsistent bodies of la,w. Here, 
 again, we have chosen, or rather evolved, the most 
 direct of various possible ways that might be thought 
 of. We have a court of appeal whose decisions are 
 binding on the courts of first instance, and a court of 
 last resort whose decisions are binding on all other 
 courts and on itself. This last principle, that the
 
 IX] THE SCIENCE OF CASE-LAW. 241 
 
 decisions of an ultimate court of aj)peal are binding 
 on itself, is seen from our present point of view to be 
 indispensable in order to keep up the fundamental 
 assumption of uniformity. Apart from this considera- 
 tion, it might seem anomalous ; and it was not for- 
 mally enounced — perhaps we might even say not 
 followed in practice — by the House of Lords till within 
 quite modern times. It is also seen to be necessary 
 that there should be only one court of last resort for 
 the same system of law. Without discussing the 
 exact nature of the authority of the Judicial Com- 
 mittee of the Privy Council as bearing on the general 
 system of English case-law, it may be said that this 
 condition has hitherto been not perfectly satisfied, as 
 we have had one ultimate Court of Appeal for points 
 of English law arising at home and another for points 
 of the same law arising in colonies where English law 
 prevails. It is further to be observed that from the 
 scientific point of view it is desirable that appeals 
 should not be left altogether to the option of the par- 
 ties. As it is, there is no security against lawyers 
 being perplexed for years together (as they frequently 
 are) to reconcile or choose between the conflict- 
 ing decisions of co-ordinate courts. The best thing 
 (speaking always in the interests of pure science) would 
 be that suitors should be moved by pure zeal for the 
 advancement of legal science to make a point of 
 carrying such cases to an ultimate appeal ; but this 
 they naturally are not. The next best thing would be 
 a compulsory appeal ; but this is ol^viously impractic- 
 able. To some extent it might be possible to get 
 
 E,
 
 242 THE SCIENCE OF CASE-LAW. [iX 
 
 such cases heard by the Court of Appeal sitting as a 
 court of first instance as regards the particular case, 
 but in effect on appeal from the authority called in 
 question ; but for various reasons — such as the difti- 
 culty of foreseeing at any early stage on what point a 
 case will ultimately turn — this would be only a partial 
 remedy. As another alternative, it might be made 
 somebody's business to call the attention of the Court 
 of Appeal to difficulties of this kind from time to 
 time, and to submit cases to it for the purpose of 
 obtaining judicial opinions, which should be of the 
 same authority as the actual judgments of the court. 
 Such matters would, of course, have to wait till the 
 court could deal with them after the actual appeals of 
 suitors ; and at present we have no legal officer who 
 could be expected to undertake the task of selecting and 
 preparing the cases. Some such proposal may become 
 practicable when (if ever) we have a Ministry of Jus- 
 tice, Legal Department, or what else it may be called. 
 Yet another way of removing such doubts is direct 
 legislation. Except by rare luck, this way must be the 
 clumsiest and least satisfactory, at least with our 
 present fashion of legislating ; and as regards the order 
 of things we are now considering, it is not a natural 
 operation at all, but a catastrophic interference. To 
 prevent misunderstanding, I may say that such inter- 
 ference is desirable, not to say urgently called for, in 
 more than one branch of English law. The difficulty is 
 that such business, having nothing to do with party poli- 
 tics, does not interest Parliament ; and it seems almost 
 hopeless with our present parliamentary system either
 
 IX] THE SCIENCE OF CASE-LAW. 243 
 
 to get a hearing for any scheme of codification, or if it 
 does get a hearing, to secure its being competently and 
 adequately worked out. The Criminal Code exists as a 
 finished draft, but its enactment seems as far off as ever. 
 The system of judicial precedents, themselves kept 
 uniform by a supreme court of appeal, being thus 
 chosen as the means of keeping up the assumption of 
 uniformity, the system of reports follows as an indis- 
 pensable auxiliary. As the man of science has to 
 predict what will happen under new conditions from 
 what is known to have happened under more or less 
 similar conditions, so the man of law must jDredict the 
 decision of a new case from what is known to have 
 been decided in more or less similar cases. In order 
 to do this, they must both have at hand the recorded 
 results of former experience. For the lawyer those 
 results are to be found in the reports. There is yet 
 another parallel. A vast number of scientific obser- 
 vations are made for practical purposes which add 
 nothing to our powers of prediction, but simply con- 
 firm what is known already. In law, too, a vast 
 number of cases are decided which settle the rights of 
 the parties, but add nothing to the general body of 
 law, and these cases are not or ought not to be re- 
 ported.^ Like the repeated experiments and regular 
 observations of science, they answer their own practical 
 ends, and also give the expert that sort of familiarity 
 
 ^ My own opinion, in which I believe I am not singular, is that 
 the bulk of our current series of authorized Law Reports is at least 
 double what it ought to be. Much stricter control ought to be exer- 
 cised both by the general editor and by the judges.
 
 244 THE SCIENCE OF CASE-LAW. [iX 
 
 with the principles and methods of his art which can- 
 not be attained except by constant handling of the 
 sort of particular examples on which the general prin- 
 ciples are based. Again, the hundredth or thousandth 
 observation which (as we say) illustrates a scientific 
 truth is, of course, in itself as good as the first obser- 
 vation which (as we say) established it. In the same 
 way unreported cases are in theory no less binding on 
 the court than reported ones. But here the difference 
 also comes in. The science of case-law being wholly 
 conventional, we might, if we chose, absolutely limit 
 the field of observation to reported cases, as it now is 
 practically limited with trifling exceptions, or even to 
 the authorized Law Eeports, without any loss to the 
 scientific character of our work. Whether it would 
 be in fact a good thing to forbid the citation of any 
 but the authorized reports is a minor question of con- 
 venience, not to be discussed here. 
 
 It must not be forgotten that our English system 
 of precedents and reported cases is by no means the 
 only one by which a system of case-law might be con- 
 structed. For instance, it might happen, from the 
 want of permanent trained judges or for other reasons, 
 that the opinions of eminent lawyers should have 
 more weight with the judges themselves and with 
 their profession generally than any decisions actually 
 given. In such a state of things there might grow 
 up a body of reported opinions instead of reported 
 judgments, and this would produce a system of case- 
 law scientific to a considerable extent, though the 
 danger of internal conflict would be much increased
 
 IX] THE SCIENCE OF CASE-LAW. 245 
 
 by the want of a final appeal, and the actual adminis- 
 tration of the law would correspond less closely to its 
 ideal scientific aspect than on our plan. Something 
 like this did happen at Eome/ A system of case-law 
 grew and flourished there which was founded not on 
 decisions but on opinions. And for such reasons as 
 above~grven it became in course of time so unmanage- 
 able that the violent remedies of legislation had to be 
 called in, first to set u^ a kind of parallel to courts of 
 appeal by enacting that the opinions of certain writers 
 should be preferred, and then to give a definite and 
 exclusive authority to a select compilation from the 
 whole mass. This compilation w^e still have in the 
 Digest, which is a kind of petrified case-law. The 
 great difference from our own case-law is that the 
 elements of which it is composed are not the judicial 
 decisions of real cases, but the opinions of advocates 
 and text-writers on cases either real or supposed. We 
 should add that the Code gives us something more 
 analoo;ous to our own case-law, containino; as it does 
 not only the legislative acts of emperors, but their deci- 
 sions in a judicial capacity. To this day the interpret- 
 ation of the Codes in the Continental States which 
 have codified their law, and of the modern Roman law^ 
 in those which have not done so, depends on a mixture 
 of decisions and opinions in which the opinions of the 
 leading writers have, if anything, the greater weight. 
 
 ^ Something like it is also happening now, I believe, in the United 
 States ; at any rate, authorities are criticized there with a freedom 
 which seems to an English lawyer to imply a gro'wing sense that after 
 all it is a matter of opinion, and nothing more.
 
 24G THE SCIENCE OF CASE LAW. [iX 
 
 II. 
 
 We have now seen that case-law has a scientific aim, 
 namely, the prediction of events by means of past 
 experience, and that the possibility of such prediction 
 rests, as in other sciences, on a fundamental assump- 
 tion of uniformity. We have seen also that in the 
 science of law this assumption is a conventional one — 
 that is to say, one which it is in our own power to 
 make approximately true, and how that purpose is 
 served by some of the most characteristic parts of our 
 legal system. Let us now continue the parallel be- 
 tween the method of case-law and scientific method in 
 general. 
 
 Consider what the man of science does when he 
 comes to deal with a new set of facts. He has before 
 him a complex phenomenon. The first thing is to 
 form a clear conception of the facts, and to select those 
 which are material for the kind of result he wants to 
 predict. Next, he makes a provisional guess (subject 
 to correction, if need be, at a later stage), at the kind 
 of uniformity likely to be found in the particular case, 
 and he considers what is known of this kind of uni- 
 formity. He consults the records of actual experience 
 and of the consolidated results of experience (namely, 
 established scientific truths expressed in a general 
 form). If he finds the work done to his hand in the 
 shape of consolidated results it is well ; if not, he pro- 
 ceeds to collect and compare such instances as arc 
 most like the one before him, noting the special points 
 of likeness and difference ; and from the results which
 
 IX] THE SCIENCE OF CASE-LAW. 247 
 
 have been known to happen under these various sets 
 of conditions he finally draws an inference as to the 
 result which may be expected under the conditions 
 now before him. ]\Ioreover, if in the course of his 
 inquiries he finds any particular observation incon- 
 sistent with some uniformity that is already w^ell 
 established by observation and verified by fulfilled 
 prediction, he concludes without hesitation that the 
 observation was wrongly made or wrongly recorded. 
 
 Let us turn now to the lawyer who advises on a 
 new case. We shall find that our description of the 
 process followed by the man of science really includes 
 the description of the process followed by the lawyer. 
 For we can get a description of the lawyer's method 
 by substituting the special terms of his art for the 
 general terms we used in the last paragraph : con- 
 versely, we can get a general account of what the man 
 of science does by generalizing our statement of wdiat 
 the lawyer does. His first step is to get a clear con- 
 ception of the facts of the case ; such facts, that is, 
 as are likely to be material to the legal result. (In 
 practice the sifting of the facts is not all done by one 
 hand, but this we may neglect.) He will then guess 
 provisionally to what department of law the case 
 belongs. The rightness of the guess may at this 
 stage be a matter for any degree of belief between 
 perfect certainty and extreme doubt, according to the 
 complexity of the facts. He will then know where- 
 abouts to look, either in a text-book or in his memory, 
 for the law which seems to he applicable. In one or 
 other of these stores of knowledge, or partly in the
 
 248 THE SCIENCE OF CASE-LAW. [iX 
 
 one and partly in the other, he will find some general 
 proposition, together with a reference to one or more 
 reported cases on which it is founded. It may happen 
 that this general proposition is one of those which are 
 so well established that it is thought needless to discuss 
 the original authorities for them, and it may also 
 happen that being of this nature it is obviously appli- 
 cable to the case in hand. When this is so the lawyer 
 will seek no farther. But if the rule is either not 
 perfectly settled and ftimiliar, or not obviously appli- 
 cable, then if he is a sound lawyer he will attend as 
 little as possible to the form in which the general 
 proposition is expressed, but will proceed to study the 
 particular cases from which it is collected, examining 
 their points of likeness and unlikeness to the case 
 before him. He considers the legal results of the 
 various sets of facts already decided upon in the 
 reported cases, making various provisional hypotheses 
 if need be, and correcting them as he goes along, and 
 finally he draws an inference as to the probable legal 
 effect of the facts he is desired to advise upon, and 
 expresses that inference in his opinion. At this final 
 stage, again, the state of his mind may, according to 
 the nature of the case, be anything from extreme 
 confidence to extreme doubt ; moreover, if he finds a 
 great many cases tending to a certain uniformity of 
 result — or, in technical language, a "current of autho- 
 rity " — and one or two stray cases of not more than 
 co-ordinate authority which give an opposite result, 
 he dismisses those stray cases from his consideration 
 as having been wrongly decided. He does not let
 
 IX] THE SCIENCE OF CASE-LAW. 249 
 
 them modify the conclusion derived from the rest, but 
 strikes them out of account altogether : in technical 
 language, he says they are not law. 
 
 It will be seen that the success of these operations 
 depends on the manner in which the work of selection 
 and comparison is performed in each case. The 
 inquirer must first discern rightly which are the 
 material conditions of the question, and then he must 
 assign the question to its proper class ; in other words, 
 he must select the right kind of cases for comparison 
 with the case before him. And, lastly, he must 
 observe the right points of likeness and unlikeness in 
 the cases he compares. Failure in any one of these 
 things may lead him to a wrong conclusion. The 
 faculty of doing them rightly is not to be acquired by 
 rule (at least, by any rule yet known), but only by 
 familiar handling of the subject-matter of each par- 
 ticular science. Experts acquire an unconscious habit 
 of looking at the matters of their own art in the right 
 way, which may almost be called an instinct. Great 
 general powers of reasoning and observation will make 
 it easier for a man to learn a new science, Ijut will not 
 qualify him to deal with particular questions of a 
 science he has not learned. If he attempts this he is 
 almost sure to go wrong. On the other hand, experts 
 are often tempted to extend their special way of 
 lookino; at things to matters that are in truth 
 altogether outside their art ; and when they do so 
 they are likewise almost sure to go wrong. Both, 
 these dangers are exemplified in a very striking and 
 instructive manner by the mistakes of both laymen
 
 250 THE SCIENCE OF CASE-LAW. [iX 
 
 and lawyers with regard to legal science. For 
 instance, there has been no more fruitful source of 
 erroneous political and social theories than the 
 application of systematic legal conceptions to states 
 of things in which those conceptions are foreign or, 
 in the strict sense, preposterous. The figment of a 
 social contract is the standing example of this kind 
 of mistake. 
 
 Hitherto we have, for the sake of clearness, con- 
 sidered only the work of the consulting lawyer who 
 predicts legal consequences which he cannot directly 
 control. If the case ever comes before a court for 
 decision, it is the business of the court to determine 
 what those consequences shall actually be. But this 
 determination has to be not arbitrary, but regulated 
 in such a manner as to keep up the fundamental 
 assumption of uniformity, and to make scientific pre- 
 diction possible. We have already said that this is 
 ensured by an understanding that the judgment of 
 the court shall be guided by authority. Let us now 
 examine the meaning of this a little more closely. 
 For our present purpose it means that the court itself 
 assumes the position of a scientific inquirer, and goes 
 through a process which is the same in kind as the 
 advising counsel's. It is true that the court deals 
 with materials abeady put into shape by counsel, and 
 the scientific value of their work is recognized by tlie 
 form of speech in which judges are wont to acknowledge 
 the " assistance given to the court " by an able argu- 
 ment. But this is only assistance : the court may, and 
 sometimes does, seek out authorities which had been
 
 ix] THE SCIENCE OF CASE-LAW. 251 
 
 overlooked, or take a view of the whole case which 
 had not occurred to the advocates on either side. The 
 court, then, following on the whole the same process 
 as the advising counsel, makes a scientific prediction 
 with reference to an ideal standard, The reasons 
 given for the judgment of the court express the 
 grounds on which this prediction was made, and the 
 judgment itself (unless reversed on appeal) ensures 
 the prediction coming true. It might seem at first 
 sight simpler to avoid the mention of an ideal standard 
 by saying that the judgment of an inferior court is a 
 prediction of what would be decided by the court of 
 last resort. But this would not be correct, inasmuch 
 as the court of last resort itself pursues the scientific 
 method, and not only holds itself bound by its own 
 decisions, but is guided by an ideal standard of 
 scientific fitness and harmony. This is rather a 
 matter of fact than a matter of theory or even of 
 convention, and is the natural result of the judges 
 having been long trained in legal habits of mind. 
 The ideal "standard is, in fact, nothing else than the 
 objective side of the legal habit of mind itself, when 
 considered as independent of the particular individuals 
 in whom the habit is formed. It cannot be found in 
 any one book or in any one lawyer, but only in the 
 collective opinion of legal experts. Now the decisions 
 of the courts do gradually and within certain limits 
 react on the ideal standard, and may in course of time 
 modify it considerably. However, in modern times 
 the tendency has been to narrow these limits : that is 
 to say, courts are nowadays disposed to enforce an
 
 252 THE SCIENCE OF CASE-LAW. [iX 
 
 antiquated or inconvenient rule as it were under 
 protest, rather than invent exceptions until the rule 
 is " well nigh eaten up " with them, or get rid of it by 
 such other devices as are well known to readers of law 
 reports. But here we touch on the ground of the 
 historical relations of case-law and legislation, which 
 Sir Henry Maine has made his own. On the whole, 
 the effect of the mutual reaction of professional opinion 
 and decided cases is to prevent the ideal conceptions 
 and the actual results from ever becoming incon- 
 veniently remote from one another. Now the fiction 
 of a perfect and uniform system of law which is 
 gradually discovered by the judges has been the 
 subject of much criticism and some contempt. But 
 it is in truth only a strong and somewhat crude way 
 of representing this same ideal standard of case-law, 
 which is, indeed, slowly modified from time to time, 
 but may be taken as nearly constant for the time 
 over which the search for authorities practically 
 extends. This time varies in difii"erent branches of 
 law, but on the average we may roughly call it three 
 generations or thereabouts. It would be easy to 
 find examples from natural science to show that an 
 uniformity which is known to be relative and ajiproxi- 
 mate may nevertheless be of great practical worth ; 
 thus in dealing with terrestrial gravity we neglect, 
 among other small matters, the diminution of a body's 
 weight as the distance from the earth increases. That 
 is, we work with an assumed rule which we know not 
 to be exactly true, but which we find near enough to 
 the truth for the purpose in hand. But it may serve
 
 I.V] THE SCIENCE OF CASE-LAW. 253 
 
 Ijetter to take an instance from another quarter. 
 Statistics give us a number of averages which are 
 known to depend on varying conditions, and those, 
 too, within human control to some extent. Such are 
 l)irth and death rates, annual averages of crime, 
 illegibly addressed or unaddressed letters, and the 
 like. But although we know more or less what most 
 of the conditions are, and even in what directions 
 they are varying at a given time, the empirical 
 uniformities represented by the averages remain so 
 far constant over moderately short periods that for the 
 purposes of predicting events within such periods they 
 are more trustworthy than our present imperfect 
 knowledge of the conditions. 
 
 III. 
 
 ' / At the point we have now reached it maybe objected 
 that the comparison of case-law with natural science 
 breaks down, inasmuch as the legal order of things has 
 only a relative and limited uniformity, whereas the 
 order of nature has an absolute uniformity. The short 
 answer to this is that we do not know the order of 
 nature to be al^solutely uniform.^ "We only know that 
 the departures, if any, from the assumed uniformity 
 are not discoverable by any means of observation we 
 now have. The difference between a uniformity not 
 known to be absolute and a uniformity known not to 
 
 * Even if the uniformity of nature is accepted as a necessity of 
 thouglit, our empirical knowledge of any particular law of nature 
 still cannot be absolute. The distinction is acutely discussed by Mr. 
 Shad worth Hodgson in his Philosophy of Reflection.
 
 254 THE SCIENCE OF CASE-LAW. [iX 
 
 be absolute is a difference of degree ; we can only say 
 that the correspondence is much more close in the one 
 case than in the other. Another and really more 
 important difference has already been pointed out at 
 the beginning. In case-law the fundamental assump- 
 tion is conventionaL It is expedient for purposes of 
 general policy that law should be uniform and legal 
 decisions capable of prediction, and one chief aim of 
 our judicial system is to make them so. But then 
 the conventional character of our fundamental assump- 
 tion does not affect the scientific character of the 
 subsequent steps. We may find something not unlike 
 this in science, if not in what is called natural science. 
 The whole system of symbolical algebra rests on a 
 conventional assumption. In arithmetical algebra we 
 find that certain operations with symbols give certain 
 results, expressed in like symbols, when the symbols 
 have certain definite and limited meanings. In sym- 
 bolical algebra we assume that the same operations 
 will have the same results when the meaning of the 
 symbols is extended beyond the limits that originally 
 determined the form of the operations ; and we assign 
 such a new meaning to the operation as will make that 
 assumption true. In arithmetical algebra we get the 
 rules of operation from the known meaning of the 
 symbols ; in symbolical algebra we find new meanings 
 for the symbols to fit the assumed universality of the 
 rules ; in other words, we assume a conventional uni- 
 formity of results. This is not offered as having any 
 close analogy to the conventional uniformity of case- 
 law ; but analogies of a certain remoteness may be not
 
 IX] THE SCIENCE OF CASE-LAW. 255 
 
 the least suggestive. Moreover, we must add that the 
 more refined sort of legal uniformity which is con- 
 nected in the manner explained above with the exist- 
 ence of an ideal standard, and for which we lack a 
 word equivalent to the Roman elegantia, cannot be 
 deemed merely conventional in so far as it springs 
 from unconsciously formed legal habits of mind. 
 
 Another difficulty seems to arise, not upon the 
 nature of the general uniformity, but upon the ap- 
 proximate and uncertain character of particular pre- 
 dictions in case-law. Now this uncertainty, so far as 
 it is peculiar to legal science, depends partly on the 
 imperfection of our arrangements for realizing the 
 ideal standard, partly on external disturbing conditions. 
 On the one hand, the want of a complete and homo- 
 geneous system of appeals leaves room (as we have 
 already said) for conflicts and inconsistencies ; on the 
 other hand, judges and lawyers are human, and their 
 legal judgment is sometimes influenced by unscientific 
 motives. But, after allowing for these and such like 
 errors, the general answer to the objection is that our 
 comparison is not the worse but the better for the 
 confessedly approximate character of legal predictions. 
 For no general proposition of science is known to be 
 more than approximately true, nor is any prediction 
 known to be more than approximately accurate. In 
 the sciences called exact the approximation is very 
 close indeed ; in the still rudimentary science of 
 politics it is exceedingly rough ; in the science of 
 case-law it is much rougher than in the exact sciences, 
 but much closer than in politics. Perhaps we may
 
 256 THE SCIENCE OF CASE-LAW. [iX 
 
 even say that the methods of any science are not the 
 less but the more scientific in proportion as they 
 recognize the approximate character of all scientific 
 assertion, and avoid the appearance of ascribing to 
 general propositions a value different in kind from 
 that of the particulars which they sum up. In case- 
 law these scientific marks are prominent. Except in 
 the simplest cases, lawyers are most careful to make 
 their inductions from particulars to particulars, to 
 beware of general propositions and to express their 
 opinions in a more or less qualified form. Legal 
 maxims afford a good instance of the true character of 
 general propositions in law. They are for the most 
 part mere symbols, which are useful to the lawyer as 
 a kind of technical shorthand, suggesting definite 
 groups of legal facts, but which are only misleading if 
 they are supposed to mean anything else. One often 
 sees legal maxims hopelessly misapplied by people who, 
 not understanding their real value, make them the 
 starting-point of deduction for purposes quite foreign 
 to their true scope. Of course we meet with certain 
 uniformities in this as in other sciences, which are so 
 extensive and of such long standing that they have 
 been consolidated into a kind of minor fundamental 
 assumptions. Yet it is significant that even these are 
 seldom to be found enunciated in a dogmatic form. 
 One might read through a good many volumes of 
 reports without finding it anywhere laid down in so 
 many words that it is an offence to steal, or that men 
 ought to perform their contracts. Even when judges 
 or counsel profess to deduce their opinions from pro-
 
 IX] THE SCIENCE OF CASE-LAW. 257 
 
 positions expressed in general terms, they really think 
 not so much of the general proposition as of the 
 decided cases by which they suppose it to be justified, 
 so that the rio-htness of the actual result does not 
 
 O 
 
 depend on the form in which the general proposition 
 is expressed. Lawyers fully recognize that it is un- 
 safe to rely on a general statement of law, however 
 solemnly adopted by the court, which is "not neces- 
 sary to the decision." In other words, they admit the 
 inductive method alone as valid. Here, also, we see 
 that this is one way in which we may get a right 
 decision on wrong grounds : a correct induction may 
 disguise itself, perhaps even unconsciously, in the 
 shape of an incorrect deduction. We believe that men 
 of science may readily find parallels to all these pro- 
 cesses in their own departments. 
 
 Let us now see if we cannot find a scientific par- 
 allel even to the besetting fault of English case-law. 
 The fault it has been most constantly charged with is 
 its technicality. This complaint is made partly with 
 and partly without reason. It is unreasonable to this 
 extent, that no science can well exist without a certain 
 amount of technicality. For every science has its own 
 peculiar ideas, which must be expressed either by 
 peculiar words or by common words used in a peculiar 
 sense, and it is not reasonable when people complain 
 that these strange words and meanings of words are 
 not intelligible to a person avIio has not learned them. 
 It is advisable for many reasons that the legal use of 
 lano'uage should be not very widely removed from the 
 popular use, but the two can never be made one 
 
 s
 
 258 THE SCIENCE OF CASE-LAW. ['^ 
 
 unless we will have the law much less accurate or can 
 make men's common speech much more accurate. 
 Exactly the same complaints are made by the ignor- 
 ant, and sometimes by those who ought to know 
 better, of the special language of every branch of 
 science. But the complaint may be reasonable in 
 another way. The technical terms of every language 
 are convenient symbols, but their very convenience is 
 dangerous, and the facility given by them is always in 
 danger of abuse. When one is operating with symbols 
 it is often a good thing to forget what the symbols 
 mean during the process, but one must always be pre- 
 pared to remember it at the end. Now a fixed habit 
 of operating with a certain number of symbols is apt 
 to induce one to forget this very thing, the result of 
 which is that the operator becomes the slave of his 
 symbols instead of their master, and thinks he is 
 thinking when he is only playing with counters. In 
 short, scientific forms of speech are liable to get worn 
 out till people can talk fluently in a technical language 
 which does not express any real thought. It is a 
 slight evil, if evil at all, when experts speak a language 
 others do not understand, but it is a serious evil when 
 they speak a language they do not understand them- 
 selves. This is the besetting disease of scientific 
 vocabularies, and the only remedy is to recast and 
 simplify them from time to time. The terms must be 
 defined afresh, or new ones must be made as need 
 requires. Something of this kind is now doing for 
 mathematics and mathematical physics. In our case- 
 law there has been a good deal of this kind of diseased
 
 IX] THE SCIENCE OF CASE-LAW. 259 
 
 teclinicality. The test of sound technical language is 
 that it is capable of being put into sensible English, 
 and there is no denying that a good deal of English 
 case-law has been made at one time and another which 
 cannot be put into sensible English. In the common 
 law this state of things has been, on the whole, 
 effectually remedied by the Common Law Procedure 
 Acts, and by the determination of the judges in recent 
 years to discourage all mere trifling with words. The 
 technical language of equity jurisprudence still leaves 
 much to be desired in this respect. There are too 
 many words and phrases which have a sort of mystical 
 value attached to them, and which do not sufficiently 
 correspond to any definite ideas : but in this depart- 
 ment also there are considerable signs of improvement. 
 It seems reasonable to hope that the better acquaint- 
 ance of common law and equity may make it needful 
 for the followers of the two systems to be at more 
 pains than heretofore to be understood by each other, 
 and that, inasmuch as the shortest way of doing this 
 will be to speak plain English as much as possible, we 
 shall thereby find ourselves helped towards the further 
 end of keeping English law reasonable, intelligible, 
 and consistent — in one word, truly scientific. 
 
 We have purposely forborne to complicate the 
 discussion by trying to make statute law fit into our 
 comparison. Acts of Parliament might at first sight 
 be likened to catastrophic events which cannot be pre- 
 dicted ; but it is easily seen that this would be a 
 hasty and imperfect simile. For their actual opera- 
 tion is not to produce catastrophic results, but to
 
 260 THE SCIENCE OF CASE-LAW. [iX 
 
 introduce new sets of conditions which must be taken 
 into account in future predictions. Moreover, a good 
 part even of our existing statute-law may be regarded 
 as consolidated case-law. This consolidation, com- 
 monly treated as one of the minor functions of legis- 
 lation, is in truth one of its highest. On a large 
 scale it is codification. And, inasmuch as I found 
 when this essay was first published that some of its 
 expressions were liable to be perverted by enemies of 
 codification to uses they were never meant for, it may 
 not be amiss to say now that I am a strong believer in 
 codification, and have given my reasons for it in some 
 detail elsewhere.
 
 X] THE CASUISTRY OF COMMON SENSE. 261 
 
 X. 
 
 THE CASUISTRY OF COMMON SENSE 
 
 I. 
 
 In the foregoing essay we have endeavoured to show 
 that the practical branch of legal knowledge which is 
 concerned with the decision of new cases has all the 
 characters of inductive science, and proceeds on the 
 scientific method. We traced certain analogies be- 
 tween the leading assumptions made by men of science 
 and by men of law, the objects and conduct of their 
 inquiries, and the nature of the results which those 
 inquiries bring out. Starting from the ground thus 
 gained, we wiil now try the further experiment of 
 adventuring in the same direction on a field where 
 our ways must be more dark and precarious, inasmuch 
 as the subject is altogether in a less settled and 
 scientific condition. The proposed topic of our con- 
 sideration is the practical aspect of Ethics as an 
 inductive science, or, as perhaps it is better to say, 
 an art working by the method of inductive science. 
 It should be scarcely needful to premise that the 
 parallel between law and morahty is already to a 
 certain extent familiar. It is implied in the use of 
 such common phrases as " the moral law," " the 
 verdict of conscience." It has been more or less dwelt 
 upon l^y ^Titers on jurisprudence, but from the legal
 
 262 THE CASUISTRY OF COMMON SENSE. [x 
 
 point of view and for the purpose of marking differences 
 rather than developing resemblances. They are natu- 
 rally concerned with it only so far as it helps them to 
 explain what Positive Law is not. Little use, if any, has 
 been made of the parallel to the end of throwing light on 
 the solution or arrangement of the problems of ethics. 
 Taking legal science in its widest extent, we find 
 that it has different branches aiming at distinct 
 objects. The first great division is between the 
 theory of legislation on the one hand, and on the 
 other hand jurisprudence, including the theory of 
 positive law, and what is called legal learning in a 
 special sense. The theory of legislation deals with 
 the matter of law, and shows us how we may know 
 what laws are the best in themselves, or to be desired 
 by reasonable men ; in shorter terms — which, how- 
 ever, we cannot well use for our present purpose, on 
 account of the ambiguity of the principal word — 
 what ought to be the law. We might make the 
 names more uniform by calling this Final Juris- 
 prudence, by analogy to Final Cause, a philosophical 
 term which, though perhaps not very convenient, is 
 generally understood. ■ Jurisprudence proper deals in 
 the first instance with the form of law, and shows 
 us the general characters of existing laws and legal 
 institutions, which is the theory of positive law, and 
 by means of this theory conducts us to the scientific 
 handling of the matter of law for practical purposes, 
 making us the better able to understand or expound 
 in an accurate and orderly manner what the law 
 actually is ; and this is the learning of lawyers in the
 
 x] THE CASUISTRY OF COMMON SENSE. 263 
 
 special sense. This learning again has two divisions 
 or aspects. In its theoretical aspect it especially 
 belongs to teachers and students, and considers any 
 system of law, such as the laws of England, as a body 
 of rules existing at a given time and place. This 
 may be grouped together with the theory of positive 
 law by the name of Statical Jurisprudence. In its 
 practical aspect it belongs to the work of the lawyer, 
 as an adviser and advocate, and shows us how we 
 may predict with varying degrees of probability the 
 judicial decision of particular new cases as they 
 arise. This is the theory of case-law, which we might 
 call Dynamical Jurisprudence. And it is to be 
 observed that all these branches are in some measure 
 independent of one another. A statesman may have 
 very just notions of legislation with little technical 
 knowledge of law, while a great law}^er's notions of 
 legislation may be exceedingly narrow and perverse. 
 Again, a man may be a master of jurisprudence in its 
 general or historical aspects, w^hile his opinion on a 
 particular case would be less trustworthy than that of 
 a counsel skilled in case-law, or the special department 
 of it under which the case falls ; and at the same 
 time the legal conceptions and knowledge of this last 
 counsellor in matters outside his own special experi- 
 ence may perhaps be very crude and defective. The 
 wider knowledge is nevertheless to be sought, if 
 possible, in every case, and if other conditions are 
 equal, the man who has most of it is likely to do best 
 even in his own department. 
 
 Now we say that the like divisions have place in
 
 264 THE CASUISTRY OF COMMON SENSE. [x 
 
 the doctrine and practice of ethics. To the theory of 
 legisLation there corresponds that part of ethical 
 philosophy which considers what moral ordinances or 
 standards are the best in themselves, and which has 
 in itself nothing to do with the particular moral rules 
 which may be current at a given time and place. To 
 jurisprudence and its applications there correspond 
 the science and art of ethics, in so far as they deal 
 with actually existing standards of morality. As 
 there is or may be a theory of positive law, so there 
 is or may be a theory of positive morality giving a 
 scientific account of the general elements and charac- 
 ters universally present in ethical feelings and motives, 
 which Mr. Grote in his Fragments on Ethical Sub- 
 jects has happily called the Form of Ethics. The 
 theory will naturally go on to give after the same 
 manner a classified account of the leading heads or 
 institutions of ethics, as jurisprudence does with 
 regard to law ; to borrow a term which has no precise 
 equivalent in English, it treats of Sitten-Instituten as 
 the science of law treats of Rechts-Instituten. There 
 are certain general topics and conceptions common to 
 all civilized systems of law, such as Status, Domicil, 
 Contract ; and under each head we find sets of rules 
 in the several systems which have a certain family 
 likeness, however much the corresponding rules of 
 different systems may conflict with one another in the 
 detail of their contents. So there are general heads 
 of conduct common to the morality of all civilized 
 nations, and forming as it were an ethical ius gentiwn; 
 and an adequate and connected analysis of these would
 
 x] THE CASUISTRY OF COMMON SENSE. 265 
 
 forin a scientific treatise on Positive Morality. This 
 again would enable us, as in the analogous case of 
 law, to put into a scientific form our knowledge of 
 any particular moral system. By a moral system we 
 mean all the rules of conduct which as a matter of 
 fact are enforced at any given time on the members 
 of an existing community by the sanction of common 
 opinion. Moreover, we find, as before, the twofold 
 aspect of knowledge as theoretical and practical, or as 
 science and art. On the one side it deals with moral 
 rules and institutions as an existing body of facts 
 which may be known ; on the other side, it has to 
 deal with new problems in conduct as they arise — 
 that is, to decide questions as to the moral duty of 
 an individual in particular circumstances. This last 
 branch of ethics corresponds in its scope and method 
 to case-law, and we shall call it by the name of 
 Casuistry, not seeing why a useful word should be 
 condemned to disuse by reason of having acquired 
 invidious associations, and being herein emboldened 
 by the example of the late Professor Maurice, though 
 not usino; the word altogether as he used it. We 
 mean by this word, we repeat, simply that art, which 
 we all have to exercise more or less, of applying 
 ethical knowledge to the solution of new ethical 
 problems in practice. We may further make, if we 
 please, a division of ethics into Final, Statical, and 
 Dynamical, corresponding to our division of juris- 
 prudence. It is not without importance to note that 
 here, nearly or quite as much as in law, we find the 
 knowledge and skill proper to these departments to
 
 266 THE CASUISTRY OF COMMON SENSE. [x 
 
 be in a manner independent of one another. A man 
 may be blameless and even punctilious in his life 
 according to the moral standard of the society he 
 lives in, but quite incapable of seeing that the 
 standard itself is faulty. This is especially the case 
 mth such rules as may be called moral customs 
 rather than moral laws, being observed only by 
 particular sections of a community. In the last 
 century, for example, the so-called laws of honour 
 which made illegal homicide a social duty in certain 
 events were often obeyed by those whom they affected 
 with far more zeal and less reflection than most of the 
 precepts of common morality. Again, a man's com- 
 petence to decide on a particular case of conscience is 
 by no means necessarily in proportion to his scientific 
 knowledge of ethics. There are many persons whose 
 judgment on the morality of a proposed course of 
 conduct one might almost implicitly trust, but who 
 know nothing whatever of moral philosophy. This is, 
 indeed, very much more conspicuous in opinions on 
 moral questions than in the analogous case of opinions 
 on legal questions. For it is too notorious to dwell 
 upon that while the theory of ethics is as yet even 
 sought only by a few, the practice is widely spread, 
 and the certainty that we have but a handful of moral 
 philosophers, and for some time to come cannot look 
 to have any great number, does not make us fear a 
 dearth of good citizens. And the reasons of this are 
 strong and manifest ; for the formal handling of ethics 
 is infinitely more difficult than that of law, wherefore 
 the theoretical judgment is more scarce ; and, on the
 
 X] THE CASUISTRY OF COMMON SENSE. 267 
 
 other hand, no citizen can grow up to man's estate 
 without becoming in some degree an expert in 
 casuistry as we have above defined it, wherefore the 
 practical judgment is more abundant. 
 
 If we look at the manner in which ethical subjects 
 have hitherto been discussed, we shall find that the 
 parallel still holds. A good deal of attention has been 
 paid to Final Ethics, or the problem of finding an 
 ultimate test of the worth of results, and some, though 
 not so much, to Statical Ethics, or the task of giving 
 an account of existing results ; but very little to 
 Dynamical Ethics — that is, the process by which new 
 results are in practice obtained, and the existing body 
 of results as it is found at any given time has been 
 largely built up. We said in the former discussion 
 that the object of the science of case-law, as of natural 
 science, is to predict events ; the class of events this 
 science seeks to predict being the decisions of courts 
 of justice. Every legal opinion given on a new case 
 aims at foretelling an expected or imagined decision. 
 May we say that in like manner it is the object of 
 casuistry to predict events, and that when we form an 
 opinion on the moral duty which will arise in a given 
 state of circumstances we are foretelling a decision 1 
 It appears to us that we may, though not without 
 further search and explanation. We have to compare 
 somewhat more closely the assumptions on which the 
 legal and the moral judgment proceed, not forgetting 
 to take note of differences as well as resemblances ; 
 and in doing so we may perhaps at the same time get 
 some insight into the specific character of the ethical
 
 268 THE CASUISTRY OF COMMON SENSE. [x 
 
 process, and its gradual operation on the standard of 
 Positive Morality. 
 
 II. 
 
 The predictions of natural science rest on the 
 assumption that nature is uniform, or that whatever is 
 knownto happen here and now under certain conditions 
 will happen again under the like conditions at all times 
 and places within the range of man's experience. The 
 predictions of that part of legal science which is called 
 Case-law rest on the assumption that within the 
 range of the particular system of law the same legal 
 judgment will be passed by every competent court 
 upon the same facts. Here the assumption is con- 
 ventional — it depends, that is, upon a settled under- 
 standing that courts of justice are to be bound by 
 former decisions. It further presupposes an expecta- 
 tion that this understanding will in fact be observed, 
 which expectation is not conventional, but depends on 
 our belief in wider uniformities of human conduct in 
 general. Why such an understanding is desirable is 
 one of the questions belonging to that other branch of 
 legal science which is called the Theory of Legislation. 
 
 Let us now see what is implied in our moral 
 judgment of any particular case. It is obvious that 
 we assume some kind of uniformity, for otherwise 
 there could be no considered judgment at all, but 
 only passing impressions of like or dislike. More- 
 over, this uniformity is not to be sought only in the 
 single mind that forms the judgment, but in an 
 external standard. When I call an action right, I
 
 X] THE CASUISTRY OF COMMON SENSE. 269 
 
 mean that it excites in me a feeling which simihir 
 actions have excited in the past and will excite in the 
 future. But I mean also something more — namely, 
 that I judge not merely as an individual expressing 
 my personal feeling as to things which concern my 
 own good or harm, but as a citizen expressing a 
 fellow-feeling as to things which concern the good or 
 harm of my fellow-citizens. I assert a claim to their 
 sympathy and support in the view I take of the 
 matter, on grounds quite apart from any particular 
 interest they may take in me. In simple cases, 
 which are the vast majority of the whole number that 
 occur in practice, my expectation of their support is 
 confident ; I have no doubt that whenever this or a 
 like action is brought to their notice, they will feel 
 about it as I do. In less simple cases I may have 
 doubts, possibly grave doubts ; but still I think on 
 the whole that I am saying what the community 
 would say. There are also more complex cases where 
 my own judgment stands not for the decision likely 
 to be given by my neighbours as they are, but for a 
 decision imagined as likely to be given by my neigh- 
 bours if they were such as I wish them to be ; but 
 we are not yet ready to deal with this. We may say, 
 then, that the moral judgment is, or at least includes, 
 the prediction of like judgments in like future cases, 
 founded on an assumjDtion of uniformity. In legal 
 judgments this assumption is, as we have just said, in 
 the first instance conventional, but ultimately em- 
 pirical. But here it is wholly empirical, inasmuch as 
 by the nature of the case no convention is possible,
 
 270 THE CASUISTRY OF COMMON SENSE. [x 
 
 the absence of tlie organized discipline by which con- 
 ventions are carried out being the very mark of 
 positive morality as distinguished from positive law. 
 There is not and cannot be any explicit understand- 
 ing that society as a whole shall be bound by pre- 
 cedents and decide on fixed principles. Nevertheless, 
 it is observed as a matter of fact — and we wish to 
 state it simply as a fact, and quite apart from any 
 grounds of social history or psychology by which it 
 may be accounted for — that the moral judgment of an 
 average right-minded man does, on the whole, follow 
 precedents, and is guided by settled principles. And 
 the result is a broad and general uniformity of moral 
 judgment^ subject to gradual variations in the manner 
 we shall afterwards consider, but very nearly constant 
 within such limits of time and place as give us for 
 practical purposes a sufficient range of observation. 
 This is every man's experience, and we dwell upon it 
 just because it is so familiar that there is some little 
 difficulty in consciously reflecting upon it. When we 
 appeal to the moral sense of mankind — meaning 
 thereby the civilized part of mankind whose character 
 and circumstances are like enough to our own to 
 make their opinions worth considering — or more 
 specially, as we sometimes do, to the moral sense of 
 Englishmen, we mean that there is a certain way 
 of thinking on questions of morality which we expect 
 to find in a reasonable civilized man or a reasonable 
 Englishman taken at random, and from which we may 
 infer with some probability what his judgment wdll 
 be in a given case.
 
 X] THE CASUISTHY OF COMMON SENSE. 271 
 
 But as this uniformity is merely natural, not con- 
 ventional, so we have to take it as we find it, and 
 must forego any such means as in the analogous case 
 of positive law may be furnished by judicial institu- 
 tions and the conventions of legal doctrine and pro- 
 cedure for keeping it whole and unbroken. In our 
 highly developed system of law we get each new case 
 that arises decided by a court whose decision is bind- 
 ing hereafter on itself and all courts of equal or 
 less rank, subject to the higher authority of the Court 
 of Appeal, and ^-ith an ultimate resort to a tribunal 
 whose judgments are binding on itself and on all other 
 courts which administer the law of England. Beyond 
 this, again, we have in the Legislature an unlimited 
 power of removing doubts by consolidating, explain- 
 ing, and recasting the law that exists, or making new 
 laws, or combining these processes as it may think fit. 
 Even vdih all these provisions the result is only an 
 approximation to certainty. But in the system of 
 positive morality no such apparatus exists. There 
 are no courts and no legislature ; we cannot appeal 
 from the opinion of one set of men to that of another 
 set of men with the knowledge that the judgment of 
 these last is competent to overrule that of the first 
 and set aside its consequences, or else to confer upon 
 it, by aflii'ming it, a distinctly higher authority than 
 it had before. The ethical decisions of the community 
 have no express mouthpiece. Our only tribunal is an 
 ideal and abstract one ; the practical judgment, as 
 Aristotle saw long ago, must measure itself by the 
 imagined judgment of the reasonable man. It must
 
 272 THE CASUISTRY OF COMMON SENSE. [x 
 
 here be noted that we are speaking to Englishmen, 
 and of the state of things which we find in EngLand. 
 AVe do not forget that at sundry times and in sundry 
 ways attempts have been made, and that one at least 
 is still being made on a large scale, to set up a kind 
 of ethical judicature, and to put ethics on the footing 
 of positive law. Thus a large party in the Roman 
 Church regards the Pope as being in a strict and 
 proper sense the final judge (if not also a legislator) in 
 questions of morality, and his formal decisions on such 
 questions as being indisputable all the world over in 
 like manner as the decision of the House of Lords on 
 a point of English law is indisputable in England. 
 And this kind of assumed jurisdiction has l)een by no 
 means without effect in human affairs ; but the moral 
 and political instincts of laymen have almost every- 
 where been against it with all their might, and even 
 where they have not, as in England, decisively cast it 
 off, have forced it to be content with a dominion very 
 far short of its professed aims. Here in England this 
 opposition is so strong that at the present day we may 
 well esteem it a constituent part of the English moral 
 sense. There is settled in the English mind a deep 
 and peculiar repugnance to the scholastic and quasi- 
 legal method of dealing with ethical questions which 
 follows as of course from the assumption that they are 
 to be disposed of in the last resort by some definite 
 and organized authority. This being so in common 
 experience, we shall proceed, as we have set out, upon 
 the footing of the Greek and English understanding of 
 etliical knowledge ; to wit, that ethical judgments are
 
 X] THE CASUISTRY OF COMMON SENSE. 273 
 
 not organized, and that we do not expect tliem to 
 become so. 
 
 Yet these judgments, being neither formally given 
 nor formally preserved, do nevertheless make up a 
 l^ody of fairly uniform tradition, of whose contents 
 any reasonable man has a kind and amount of know- 
 ledge which is useful, and in the main sufficient, for 
 the guidance of his life. We may be helped to under- 
 stand this state of things by comparing it, not with 
 tne refined and artificial completeness of our English 
 system of case-law, but with the working of such legal 
 systems as exist in France and other Continental 
 countries, where the law is not conclusively settled 
 beyond the particular case by the judicial decisions of 
 even the highest court. The courts not being bound 
 l)y precedent as they are with us, decided cases do 
 not make case-law such as we understand it. Still 
 the decisions of the courts are reported and discussed, 
 and mingle Tvith traditional ways of thinking preserved 
 by the text-writers, and from time to time enriched 
 and modified by their comments and speculations, to 
 form a more or less ascertained body of opinion which 
 has great w^eight. The French advocate can no more 
 aff'ord to neglect the jurisj^rndence, as it is called, of a 
 particular branch of the law than an English barrister 
 can afford to neglect the reported cases ; and one may 
 say, speaking generally, that the working of the two 
 systems is to a considerable extent alike. On this 
 plan the only final test of any conclusion is its general 
 acceptance by the best professional opinion ; the last 
 resort, just as in the natural sciences, is not to any 
 
 T
 
 274 THE CASUISTPtY OF COMMON SENSE. [x 
 
 specific authority, but to tlie collective judgment of 
 experts. The method that guides a French lawyer is 
 in the eyes of an English lawyer exceedingly vague 
 and uncertain compared with his own ; nevertheless 
 it exists, and does useful work. This gives us a much 
 closer analogy to the process of ethical judgment ; the 
 less formed method of Continental jurisprudence 
 stands between the fully formed system of prediction 
 in the practice of English law and the entire absence 
 of form in the practice of ethics. ■ The standard of 
 ethics is to be found, in fact, at any given time in the 
 general result of a mixed mass of decision, practice, 
 and discussion, and the last resort is to a collective 
 opinion. But we must not speak here of the collective 
 opinion of experts, because, as we said above, every 
 right-minded citizen is an expert. This is the reason 
 why the ethical judgments of the commonwealth are and 
 must remain informal, and why we resent, as likewise 
 we said, all attempts to set up a formal jurisdiction in 
 morals ; for right-minded Englishmen do not choose 
 to have any man set over them to treat them as 
 mere laymen in the art of conduct. The results thus 
 obtained are not so certain, or so capable of being 
 made certain, as if they could be settled by any formal 
 appeal ; but there is nothing to prevent them from 
 being certain enough to be of the greatest practical 
 use, and this is found to be the case, though by 
 a natural illusion we often fail to perceive it. For 
 as, in thinking of law, most men are apt to dwell too 
 much on the difficult cases where disputes arise, and 
 too little on the plain cases w^here disputes are pre-
 
 X] THE CASUISTRY OF COMMON SENSE. 275 
 
 vented, so, in thinking of moral rules as they exist in 
 practice, one is apt to dwell too much on open and 
 unsettled cases of conscience, and too little on the 
 innumerable matters of daily conduct where duty is 
 quite plain, and the only difficulty is to do or to get 
 done what is perfectly well known as the thing that 
 ought to be done. When a new case does present 
 itself, it has to be dealt with in just the same w^ay 
 that a lawyer or physician deals with a new case that 
 arises in his practice ; as Mr. Grote has it, "a man is 
 forced to put together in his mind the various analo- 
 gies which his former experience has presented to him, 
 and to apply the result to the case before him ; " only 
 the experience which is consulted is not proper to any 
 special class, but common to all men living in society. 
 This process, however, is not always consciously per- 
 formed, and it may be no w^orse, or even better per- 
 formed when it is unconscious ; and this is borne out 
 by what we know of the judgment of experts in the 
 special practical sciences, who constantly form their 
 opinions without being able to give an account of the 
 process. This habit of instinctive moral judgment, 
 acquired by living in society, and analogous to the 
 instinct of the expert in a particular branch of know- 
 ledge, is what we specially denote as the moral sense. 
 The foregoing considerations may perhaps help to 
 throw light on the practical or dynamical aspect of 
 positive morality, and the manner of its work in men's 
 daily life. We have now to call to mind that all this 
 time we have assumed, for simplicity's sake, that 
 ethical judgment proceeds merely on the rules of
 
 276 THE CASUISTRY OF COMMON SENSE. [x 
 
 positive morality, conceived as being in fact estab- 
 lished under the social sanction. But this is not 
 exactly true, and we have yet to take account of 
 other elements which are derived from the conception 
 of an ideal standard of morality as distinct from the 
 actual standard at the time and place. To this com- 
 plex conception we must next address ourselves, and 
 in so doing we shall seek further aid from the same 
 analogies we have heretofore made use of. 
 
 III. 
 
 The ethical judgments of mankind, or of the more 
 thinking part of them, are framed not only upon the 
 existing standard of positive morality, which alone we 
 have hitherto considered, but also with regard to an 
 ideal standard ; so that a man who is thoughtful as 
 well as right-minded will himself obey moral rules 
 which differ somewhat from those commonly recog- 
 nized in society, whether as being more extensive and 
 precise or as being, in some exceptional cases, in 
 actual conflict with them. He will often say. Thus I 
 ought to do, though the common voice would not 
 blame me for leaving it undone ; and sometimes he 
 may have to say. Thus I ought to do-, though the 
 common voice bids me not do it. Let us try to 
 understand more closely this notion of an ideal 
 standard, and see liow it is built u]3. It contains two 
 distinct elements which are inevitably mixed up in 
 practice, but which we must now keep apart in 
 thought. First, there is an ideal which is developed 
 from within by means of the princij)les of existing
 
 X] THE CASUISTRY OF COMMON SENSE. 277 
 
 positive morality, and in the practical work of solv- 
 ing new problems in conduct. All men have not the 
 same power of perceiving analogies and following out 
 consequences, and when admitted principles have to 
 be applied to a complex particular case the conclu- 
 sions of right-minded men may well differ. Hence 
 there is a discrepance of moral judgments within cer- 
 tain limits ; and here, if we mistake not, the com- 
 parison of case-law will still be helpful. Again, 
 there is another kind of ideal which is set wp, as it 
 were, outside existing moral rules, and is formed by 
 the assumption of certain principles or ends as being 
 the best in themselves, so that the rules of every 
 particular society are good or bad in proportion as 
 they follow or swerve from the direction thus laid 
 down. This ideal is an ultimate assumption in so 
 far as it bears on positive morality. For this pur- 
 pose it is taken as paramount, although it was itself 
 obtained by one or more of several ways which are 
 themselves open to discussion, and have been very 
 much discussed ; for some hold that a number of 
 general rules are or may be intuitively known, or are 
 given by some absolute external authority ; others, 
 on the contrary, say that all rules are to be tested 
 by reason according to their tendency to further or 
 hinder, in the society governed by them, an end vari- 
 ously defined ; and these opinions admit of subdivi- 
 sions, combinations, and compromises on which we do 
 not now dwell. Thus we have two kinds of ideal 
 standard, the one practical, the other speculative. 
 The first standard is wholly within the range of what
 
 278 THE CASUISTRY OF COMMON SENSE. [X 
 
 we have called Dynamical Ethics ; the second, or 
 speculative one, is wholly without it, and belongs to 
 what we have called Final Ethics. There is no formal 
 connexion between the two, nor is there any difficulty 
 in conceiving them to be in actual conflict ; for ex- 
 ample, the tendencies as well as the actual contents 
 of social morality in a Protestant country must seem 
 to an Ultramontane citizen of that country to be 
 different in many ways from what they ought to be. 
 
 We must now return to our comparison for the 
 further working out of these points. In the decision 
 of a new case by a court of justice, or the opinion 
 formed upon it by a legal adviser, there is something 
 more than the application of specific authorities and 
 analogies. The judgment is more or less determined 
 by a wider and yet a subtler kind of thought — a 
 feeling rather than insight springing from the con- 
 solidated impressions of an experience acquired by 
 the individual or handed down by the tradition of 
 books and professional converse, of which experience 
 the several particulars are too scattered, extensive, 
 and remote to be distinctly recalled. This massive 
 undistinguished feeling is always present when the 
 reason is exercised on professional topics, and gives 
 rise to a certain continuous drift of thought which is 
 called the legal habit of mind : and every new piece 
 of specific experience adds something to the consolid- 
 ated stores of memory, so that the sum of mental 
 resources which plays the like part in dealing with 
 the next instance is not exactly the same. As the 
 habit counts in determining each judgment, so does
 
 X] THE CASUISTRY OF COMMON SENSE. 279 
 
 each judgment react on the habit ; we see plainly 
 that this must needs be so when we reflect that the 
 habit was formed in the beginning by the accumula- 
 tion of separate judgments, though we cannot say 
 that it is now so formed in any one man's mind, 
 inasmuch as a large part of it is taken over by him 
 ready-made in the course of his learning and practice. 
 Accordingly the particular judgment is framed in 
 accordance with the legal habit of mind thus present 
 in the individual ; and this alone would sufiice to 
 beget the notion of a general type or standard to 
 which, no less than to the rules of law that may be 
 distinctly applicable to the case in hand, every par- 
 ticular decision has to conform. But again, this habit 
 is formed not in one man only, but in a great number 
 of men of different tempers and capacities, a great 
 part of whose business is to discuss one another's con- 
 clusions. Every man's professional judgment will be 
 more or less coloured by ways of looking at things 
 which are peculiar to himself ; there is a " personal 
 equation " for the perceptions of the reason as well as 
 for those of the eye and ear. Partly because of these 
 peculiarities, partly because of the difficulties inherent 
 in the subject, and the occasions of error which are 
 common to all processes of reasoning, opinions are 
 found to differ widely; the diff'erences become known, 
 and a choice has to be made between them. The 
 choice is ultimately determined by judicial decisions, 
 but may be provisionally determined by a prevailing 
 consent among those who give their minds to the 
 point ; a question may be open, but yet so that there
 
 280 THE CASUISTRY OF COMMON SENSE. [x 
 
 is a '' better opinion," as the books have it ; and this 
 weight of professional opinion is, in fact, not the least 
 of the elements to be reckoned with (in certain 
 branches of law, for special reasons, a very important 
 element) when the question does come to be decided 
 by authority. In this manner there goes on a gradual 
 and steady convergence of individual judgments under 
 the guiding pressure partly of decisions and partly of 
 the collective opinion of experts ; this convergence, 
 moreover, will mostly have at any given time and on 
 any given topic a definite tendency which may be 
 discovered by the competent observer. The collec- 
 tive opinion which thus overrules and corrects indi- 
 vidual opinions is not to be found in any one man or 
 group of men ; for even a court of final appeal is 
 bound by it, and the power of directing its further 
 growth which such a court does undoubtedly jDossess 
 belongs not to the men but to their office. And thus 
 we have the notion of an ideal standard set above the 
 judgment of any single expert as a test whereby its 
 rightness or wrongness in the particular case may be 
 shown. Again, the common drift of convergent pro- 
 fessional thought to which this notion corresponds is 
 grounded on a mass of common experience, just as, 
 when we regard the habit of mind in the individual 
 alone, we perceive it to l^e grounded on the mass of 
 his own experience ; and this active sum of experi- 
 ence, as in the case of the individual, is itself enriched 
 and modified by the result of each new instance to 
 which it is applied. It will be observed that much 
 of the foregoing description is in perfectly general
 
 X] THE CASUISTRY OF COMMON SENSE. 281 
 
 terms, and holds equally good of every kind of know- 
 ledge. But tlie fiict that it is true of legal knowledge 
 is important to us in a special manner, for this reason, 
 that law determines, so far as it goes, a practical art 
 of conduct ; and we have seen how an ideal standard 
 is here constructed by the natural working of decision 
 and discussion within the region of positive law, and 
 without reference to any external test. 
 
 Now it is really matter of common experience that 
 much the same process goes on in the construction 
 and enlargement of positive morality, and the steps of 
 it might be described by an almost verbal repetition 
 of what has just been said. The chief differences are 
 these. In the case of law the process which overrides 
 individual opinion and fixes the common standard is 
 artificially hastened by the organized methods and the 
 conventional authority of judicial decisions. In the 
 case of ethics we have no such means, nor can we 
 wish to have them, for the reasons already given. 
 Another difference is that the profession here in ques- 
 tion is not a special one ; it is the calling of every 
 citizen, and no member of a permanent society can 
 escape from practising it well or ill from the time that 
 he attains years of discretion. The former diff'erence 
 is more or less conspicuous, as we take for comparison 
 a highly-wrought system of law, such as our own, or 
 one where method and convention are less fixed ; the 
 latter is constant and fundamental as far as we are 
 now concerned, though both alike might be found to 
 vanish in those archaic states of society where law 
 and morality are imperfectly distinguished or undis-
 
 282 THE CASUISTRY OF COMMON SENSE. [x 
 
 tinguishable. Hence the directing j)Ower of ethical 
 opinion is comparatively loose and diffused, and the 
 " margin of conduct involved in obscurity and per- 
 plexity," as Mr. H. Sidgwick calls it, is larger than in 
 the case of other practical arts depending on special 
 knowledge. Still, for the very reason that the stand- 
 ard is less certainly fixed, the new ideas contributed 
 from time to time by practice and opinion are enabled 
 to react upon it all the more surely and quickly. The 
 process of development cannot be curbed by authority ; 
 there can here be no fear lest the decision of a court, 
 afraid of new things or embarrassed by precedents, 
 should arrest the widening and improvement of old 
 rules according to the needs of the time. 
 
 For the same reasons it is hardly possible in the 
 guidance of one's own conduct, or in discussing that 
 of others, to keep this practical ideal distinct from the 
 speculative ideal, which in one form or another is 
 assumed explicitly by some few men — namely, students 
 of moral philosophy — and implicitly by most, as the 
 ultimate test in ethical questions. In a case of any 
 real doubt we can seldom inquire whether an action 
 conforms to the existing moral rule without likewise 
 inquiring what the rule ought to be, not only accord- 
 ing to the analogies of existing morality, or as mea- 
 sured by the practical ideal, but according to our 
 opinion of the worth of moral rules in themselves, or 
 what they ought to be as measured by the speculative 
 ideal. The two inquiries run into one another from 
 the first, the more freely because we are dimly con- 
 scious that speculation reacts upon practice. And we
 
 X] THE CASUISTRY OF COMMON SENSE. 283 
 
 may note tliat even in the case of English law, not- 
 withstanding express protests of judges and books to 
 the contrary, we find that practice is in fact worked 
 njDon within certain limits by that kind of speculation 
 which we have ventured to call final jurisprudence. 
 It is constantly said that judges are not to decide 
 what ought to be the law, but must leave that task to 
 the legislator — informed or not informed, as the case 
 may be, by some more or less reasonable theory of 
 legislation ; but it is constantly found that they do 
 so decide when positive law, so far as already ascer- 
 tained, is silent or ambiguous. The same thing hap- 
 pens in the unorganized judgments of positive morality, 
 but with less disguise and without assignable bounds. 
 It is difficult to measure the relative importance 
 of the speculative and of the practical standards in the 
 formation of particular moral opinions. The tendency 
 of moral philosophers has perhaps been to exalt 
 somewhat unduly the speculative standard at the 
 expense of the practical ; and the authority of vener- 
 able names may be vouched even for the opinion that 
 it is the normal function of the individual conscience 
 to protest against rather than to follow out the dictates 
 of the common judgment, and that casuistry is not 
 the minister but the opponent of positive morality. 
 Statements of this kind, although they contain truth 
 in so far as they affirm by implication that gradual 
 interaction between established results and novel 
 instances of which we have spoken, yet appear to us 
 to be on the whole unfortunate. For a little reflection 
 will show us that anything like actual conflict between
 
 284 THE CASUISTRY OF COMMON SENSE. [x 
 
 the existing standard of positive morality and the 
 speculative standards of moral and political philosophy 
 cannot be found on a large scale, or as a persistent 
 state of things. We need not for this purpose enter 
 upon the historical analysis of the manner in which 
 existing ethical rules have in fact grown up ; nor 
 would this method be competent to show more than 
 an agreement in general scope and intention between 
 the various courses taken, consciously or unconsciously, 
 by the social motives and actions of the forefathers to 
 whom living generations owe it that moral feelings 
 and the moral sanction have risen to their present 
 pitch. And such an agreement admits the widest 
 divergences as to the means that may be chosen at 
 different times and places, or by rough practice on the 
 one hand and deliberate speculation on the other, as 
 best fitted to further the supposed common end. But 
 so long as we confine ourselves to one society, or even 
 to a number of societies bound together by a common 
 heritage of knowledge, feelings, and interests, as are 
 at this time all the civilized peoples of the world, it 
 may be seen that more powerful and immediate causes 
 are at work. First, there is this same constant inter- 
 action of opinion and practice, which is furthered by 
 the spread of knowledge and by increased means of 
 communication. Next, any speculative standard of 
 morals which may be proposed as the final test is itself 
 the work of human and social intelligence. The 
 philosopher who frames it has himself been brought 
 up among ethical associations, and has acquired strong 
 ethical habits of mind long before he is able to reflect
 
 X] THE CASUISTRY OF COMMON SENSE. 285 
 
 112^011 them. Hence it is only in the rarest cases that 
 it is at all possible for him to construct in earnest and 
 offer to his fellow-men as a guide to conduct an ideal 
 morality, from whatever premisses it may purport to 
 be deduced, which shall in substance contradict the 
 leading rules or the general tenor of the morality to 
 which they have been accustomed. He will rather 
 seek to establish a theoretical foundation for the pre- 
 cepts which all admit in word, and with more or less 
 shortcoming obey in deed ; on minor and unsettled 
 points speculative opinion is free, but it will hardly 
 wander outside that margin of unsettled questions 
 within which, as we have seen, the purely practical 
 opinion is likewise free. Again, the same reasons 
 which make the existence of eccentric speculative 
 standards unlikely will still operate, whenever such 
 standards do come to exist, to make it still more 
 unlikely that they should obtain any general accept- 
 ance. Men will not suddenly barter their inherited 
 maxims of right and wrong for philosophic ideals. 
 Even cultivated men are as a rule unwilling to meet 
 moral jDaradoxes with argument ; they simply say the 
 philosophy which gives such results must be wrong ; 
 and on the whole they are quite right. We are fully 
 aware that there are on record all kinds of imagined 
 novelties in ethics, or mixed ethics and politics, from 
 Plato's Commonwealth downwards, even as we now 
 have imaginary geometries, where parallels ultimately 
 meet, and space is of four or more dimensions. But 
 we have here nothing to do with mere exercises of 
 intellect which no one has seriously attempted to
 
 286 THE CASUISTRY OF COMMON SENSE. [x 
 
 carry into practice. And we seem to be justified in 
 concluding that the plain right-minded man, who 
 takes positive morality as he finds it, and acts upon 
 it to the best of his lights, will at the last be justified 
 by philosophy, and that the fruits of his life, no less 
 worthy though nurtured with less art than those of 
 the philosopher, will surely be gathered into the firm 
 and ancient treasure-house of the knowledge of right 
 and wrong, wherein is the safety of cities and the 
 most excellent wealth of nations.
 
 XI] ETHICS AND MORALS. 287 
 
 XI. 
 ETHICS AND MORALS. 
 
 T. SPECULATION AND PRACTICE. 
 
 One remarkable feature of the revival of interest in 
 speculative problems that has taken place in the last 
 few years is the special attention given to their ethical 
 bearings. Or perhaps we should say that by means 
 of these ethical bearings philosophy has become inte- 
 resting to large numbers of thinking English people, 
 who were formerly accustomed to look on such studies 
 as mere abstruse trifling. A certain number of com- 
 petent instructors, in the first rank of whom must be 
 mentioned with all honour and regret the late Mr. 
 G. H. Lewes, have taken the pains to make philosophy 
 and the history of its fortunes speak the common 
 language of educated Englishmen. Having thus learnt 
 that philosophy is more than a speciality, and has to 
 do with matters affecting the conduct of life, our 
 reading pubKc has fairly cast ofi" the old indifi'erence, 
 and is only too eager to hear what philosophy has to 
 say, and chiefly on those matters which come home to 
 men's work and conscience. The difiiculty is now, not 
 to create an interest in j)hilosophical questions, but to 
 get the ideas of philosophy translated into plain Eng- 
 lish fast enough to supply the demand with genuine
 
 288 ETHICS AND MORALS. [xi 
 
 wares. Meanwhile the market is crowded with retailers 
 of counterfeit or obsolete ones, and few of the pur- 
 chasers are in a position to know the difference. 
 
 And the difficulties are increased by the direction 
 which men's interest naturally takes. Moral philosophy, 
 as it is the most attractive branch of speculation and 
 the easiest to maintain plausible arguments upon, is 
 also the most perplexed, being not only very difficult 
 in itself, but liable to infinite confusion from prejudice 
 and bias of every sort. It is exposed to all the fallacies 
 common to philosophical inquiry in general, and like- 
 wise to others peculiar to itself. One of these, of which 
 we now propose to make some examination, is very apt 
 t'-* run through the discussion, not only of moral prin- 
 ciples as such, but of those principles of pure philo- 
 sophy or mental science from which consequences 
 bearing on action may be deduced. This fallacy con- 
 sists in confounding the logical connexion and expo- 
 sition of opinions with the actual manner and motives 
 of their formation, or in regarding man as a philoso- 
 phical rather than a social animal. It is assumed that 
 our character and conduct are materially determined 
 by the theories we may adopt concerning the origin 
 and nature of moral duties ; and on this assumption 
 we are warned in every tone of deprecation and alarm 
 against the terrible things which may be expected to 
 happen if particular theories are admitted to philoso- 
 phical citizenship. This attitude is mostly found in 
 the defenders of systems which have been officially 
 accepted, and have a kind of presumption in their 
 favour by possession. So far from being enabled hy
 
 Xl] ETHICS AND MORALS. 289 
 
 this advantage to look around them calmly, and 
 measure their strength with that of the new-comers, 
 they fall into extravagant apprehensions, and waste 
 their power on appealing to the terrors of the ignorant. 
 An ancient and favourite line of argument in ethical 
 controversy is to make out that your opponent's prin- 
 ciples lead to conclusions inconsistent with the common 
 moral judgments and behaviour of good men. And 
 this is fair enough so far. For, whatever view may 
 be taken of the origin of moral beliefs, nobody can 
 deny that great weight must be given in the mean- 
 time to the prevailing opinion of the society in which 
 we live. If we refer morality to a source above expe- 
 rience, a widely spread moral sentiment is presumably 
 traceable to that source, though it may possibly not 
 have escaped corruption. If we refer morality only 
 to experience, then such a sentiment bears witness to 
 the results of long experience, though by possibility 
 the experience may have been ill understood. The 
 disturbing force of artificial education is another pos- 
 sible source of error, but is equally so on either 
 hypothesis. Either way, therefore, the burden of 
 proof lies on the theorist who undertakes to show that 
 a generally accepted opinion in morals is wrong ; and 
 in some cases the burden is manifestly so enormous 
 that we rightly consider it not capable of being seri- 
 ously and soberly undertaken. 
 
 But the zeal of controversy very seldom stops at 
 the point here indicated. Not only violent feats of 
 dialectic are performed in the way of deducing con- 
 clusions repulsive to common morality from philoso- 
 
 u
 
 290 ETHICS AND MORALS. [xi 
 
 phical doctrines unacceptable to the disputants' private 
 judgment, not only are the doctrines themselves often 
 distorted and exaggerated, but whoever shall accept 
 the obnoxious theory, whatever it may be, is threat- 
 ened with the ruin of his personal virtue and happiness. 
 " I have shown you," cries the officious moralist, " that 
 on my theory the foundations of morality and the 
 reasons for being a good man are so and so. I have 
 further shown you that the speculations of this impious 
 innovator destroy my foundations and leave no room 
 for my reasons, which, as I have told you, are posi- 
 tively the only sufficient ones. If, therefore, you accept 
 such principles as are now offered by my adversary, 
 you have, by all the rules of logic, no title whatever 
 to be a good man. Be warned in time, lest by listening 
 to the deceiver you become wicked and miserable." 
 In this form, however, the argument is something 
 musty. Divers ingenious persons holding opinions 
 contrary to the official ones on divers matters of faith 
 and speculation have, in sundry times and countries, 
 perversely and obstinately continued to be good men, 
 good companions, and good citizens. Instead of 
 exhibiting in action the wickedness which ought to 
 have flowed from their principles, and dying in tor- 
 ments of remorse, they have lived in charity with their 
 neighbours, and (when they were allowed) died in 
 peace. And, what is worst of all, these facts have 
 been too notorious to be in any way got over. The 
 argument from fear is therefore presented nowadays 
 in a more refined shape. "It is very true," say our 
 would-be champions of morality, " that individuals
 
 Xl] ETHICS AND MORALS. 291 
 
 who rejected our principles have been good men. But 
 that was because they had the inestimable advantage 
 of learning practical morality in a society where our 
 principles were accepted. Their virtue is a mere con- 
 tinuance of the habits formed in our authentic mould. 
 Once let their ideas become current enough to leaven 
 a whole generation ; once let our only true and original 
 mould be broken, and then you shall see how morality 
 will go to pieces. A truly painful duty is ours, indeed ; 
 we would hurt nobody's feelings for the world. Our 
 only comfort is that we have warned you in time : 
 you may not be wicked and miserable yet, but if you 
 go on at this rate your children will be." 
 
 This kind of argument is much more plausible than 
 the other ; and, to judge by the frequency of its repe- 
 tition, it appears to be thought successful. But if we 
 test the projjhecy by history, we shall hardly find it 
 better warranted on the larger than on the smaller 
 scale. Its plausibility rests on the general ignorance 
 that prevails, even among educated people, as to civi- 
 lizations and systems of belief difierent from their own. 
 The truth is that civilized morality, in all essentials 
 as we now understand it, has been professed for ages 
 by bodies of men holding the most widely discordant 
 speculative opinions. Let us take, for example, a Jew, 
 a Stoic, and a Buddhist, say in the second century 
 after Christ : assuming, as is only f^iir, that each 
 system is taken at its best. Probably we should be 
 safe in adding a disciple of Confucius ; but three are 
 sufficient for the purpose. We shall find that all these 
 agree in the cardinal points of human duty. They all
 
 292 ETHICS AND MORALS. [xi 
 
 set before themselves as the rule of life the exercise of 
 justice, truthfulness, temperance, love to one's fellow- 
 men, and forgiveness of injuries. On sundry lesser 
 matters they differ, but rather in addition than in 
 omission. The Jew and the Stoic attach more or less 
 importance to ritual and ceremonies ; the Buddhist 
 holds it a dangerous delusion to rely on such things. 
 The Jew and the Buddhist make a point of abstaining 
 from things which to the Stoic are indifferent. The 
 Stoic and the Buddhist agree, as against the Jew, in 
 setting a much lower value than he does on the com- 
 mon enjoyments and amenities of life. Their answers 
 would also be undecided or discrepant on one or two 
 points which modern society has defined. But in the 
 main we should recognize them all as partakers in our 
 common morality. Now they represent three distinct 
 views of the constitution of the world, its relation to 
 man, and man's purpose in life, which are as divergent 
 and inconsistent as they can possibly be. They would 
 all allege perfectly different motives for a righteous 
 way of living ; and, if asked how they knew which 
 way was that of righteousness, they would no less 
 return wholly different answers. We must conclude 
 either that very similar moral precepts may be deduced 
 with equal cogency from very dissimilar speculative 
 doctrines, or that the moral precepts are not really 
 adopted on the strength of the speculative beliefs. 
 
 One of these conclusions would serve our turn as 
 well as the other for controversial purposes. But, if 
 we would understand the fallacy thus exposed and the 
 strength with which it haunts men's minds, we must
 
 Xl] ETHICS AND MOUALS. 293 
 
 proceed to note that the first alternative is not, on the 
 face of it, probable. By dismissing this and pursuing 
 the second, we shall perhaps get some light on the 
 formation of moral theories. What really happens is 
 testified by common experience in both individuals 
 and nations. The general notion of duty or obedience 
 to a rule of life is acquired, and the general precepts 
 under which particular cases of duty fall are settled, 
 before any attempt is made to explain what duty is, 
 or why one's duty in the particular case should be thus 
 and not otherwise. When man reaches the stage of 
 philosophical questioning, and communes with himself 
 of morals as of other things in general, he comes to 
 the task with morality ready-made and in full work. 
 His real object is not to find speculative principles and 
 deduce morality from them as if morality had to be 
 invented for the first time, but to assign principles on 
 which to give a rational account of the morality already 
 familiar to him. A system of ethics is a scientific 
 hypothesis for the explanation of existing facts. But 
 this is often not clearly understood. The framers of 
 early theories knew nothing of the distinctions between 
 fact, hypothesis, and dogmatic assumption. In the 
 absence of critical training men who are accustomed 
 to view facts in the light of a particular hypothesis 
 come to think that the facts cannot do without it. 
 And in the case of morality this illusion is greatly 
 fostered by the current belief that the opinions and 
 sentiments of mankind are not to be treated as natural 
 phenomena. The moral feelings and perceptions that 
 prevail in a community are really just as much facts
 
 294 ETHICS AND MORALS. [xi 
 
 in its natural liistoiy as the temperament, health, and 
 length of life of its members ; nor will they be altered 
 by our ability or inability to find adequate reasons for 
 them. 
 
 For the better marking of the distinction here 
 pointed out, I propose to appropriate the term 
 " Ethics " and its derivatives for the scientific analysis 
 and exposition of conduct, whether it be on historical, 
 physiological, or psychological grounds ; and on the 
 other hand to keep "Morality" and the kindred 
 group of words for the region of precept and com- 
 mand. Thus an art of morality exists, and is culti- 
 vated with more or less success, in every society of 
 men sufiicientlv advanced in the art of livinof to hold 
 together at all. A science of Ethics comes into exist- 
 ence, and is cultivated with more or less success, only 
 when the society becomes sufiiciently civilized to pro- 
 duce men who think systematically. That the art 
 exists before the science is obvious ; for morality must 
 be well established before that security and leisure 
 can be found which make ethical speculation possible. 
 And ethical speculation arises just because morality is 
 there as a subject-matter to be accounted for. Mor- 
 ality and its precepts are not dependent on Ethics, 
 and the practical success of mankind in developing 
 morality cannot depend on the amount of success that 
 may attend philosophers in their endeavours to give 
 an account of the process. Even if we supposed that 
 as soon as a man begins to philosophize he casts away 
 all his former habits and experience and governs him- 
 self wholly by philosophical reasoning, this would
 
 XJ] ETHICS AND MORALS. 295 
 
 apply at most to a small minority ; but the supposi- 
 tion is manifestly contrary to fact. The science of 
 ethics arises in a moral community as the science of 
 optics arises among men who see, and the science of 
 physiology among men who breathe and eat and are 
 nourished. I am far from saying that ethical theory 
 has, or should have, no influence on moral practice. 
 From optics we have got spectacles and telescopes, 
 and from physiology rational medicine ; and from 
 ethics we may learn much that is profitable for educa- 
 tion and government. But a man of normal sight 
 does not want optics to make him see ; a man of sound 
 organs does not want physiology to make him breathe 
 and digest ; nor does a riQ;ht-minded man want ethics 
 to make him know right from wrong. On the other 
 hand, if abnormal sight is corrected by lenses, or 
 abnormal conditions of organs by medicine and regi- 
 men, or moral infirmities by education and reforma- 
 tion, the result of the process depends on the know- 
 ledge and competence of the persons who apply it, or 
 by whose instruction it is used, not of those for whose 
 benefit it is applied. 
 
 What, then, will take place if a well-conducted 
 man, or a number of well-conducted men, find the 
 theory of morals hitherto accepted by them to be no 
 longer tenable? Are we to believe, according to the 
 denunciations of our augurs, that they will straight- 
 way plunge into immorality? We think better of 
 mankind than to believe anything of the sort. Some 
 distress and discomfort of mind may be sufi'ered in the 
 supposed case ; it is always unpleasant to give up a
 
 296 ETHICS AND MORALS. [xi 
 
 theory, even when its interest is purely scientific. 
 But the conclusion arrived at, on the whole, will be 
 not the illegitimate one that morality is a delusion, 
 but the legitimate one that the former theory was 
 erroneous or inadequate. The bolder minds will strike 
 out a new doctrine, the less enterj)rising will alter and 
 patch up the old one. There may be partial unsettle- 
 ment for a season, but in the long run the practical 
 cultivation of morality will fare none the worse. In 
 course of time, unless men are unusually vigilant and 
 open-minded, the new theory may be thought as in- 
 dispensable as the old one, and will be dressed in its 
 trappings of authority till the process has to be re- 
 peated. Not that the real working principles remain 
 fixed and unchangeable. Changes in those principles 
 do take place from time to time; but, so far from 
 being determined by changes in the accepted theories 
 of ethics, they precede and determine them. One 
 great moral advance made good almost in our own 
 days is the establishment of the principle that slavery 
 is wrong. It is a commonplace that nothing like a 
 distinct condemnation of slavery is to be found in any 
 document or tradition which Christians accept as 
 binding ; and only three centuries ago the most 
 orthodox of nations were foremost in enslaving Indians 
 and negroes, not merely without scruple, but actually 
 in the name of religion. But when persons more 
 advanced in morality than their fellows began to feel 
 strongly that slavery was wrong, they discovered that 
 it was inconsistent with Christian principles. In 
 other words, they expanded their ethical theory to fit
 
 Xl] ETHICS AND MORALS. 297 
 
 the new development of their moral sense. Just as 
 the law which is enounced in deciding a new case is 
 by an inevitable fiction conceived as having alw^ays 
 been the law, so the moral rules proceeding from the 
 invisible and informal judgment- seat of righteous men, 
 which yet is more powerful than any prince or legis- 
 lator, are referred to doctrines originally based on a 
 far narrower foundation. » 
 
 II. THE SANCTIONS OP MORALITY. 
 
 We shall now examine another fallacy commonly 
 found in company with that which has just been dis- 
 cussed. 
 
 Theories of ethical obligation, especially those 
 which claim some authority greater or other than that 
 of scientific probability, may and often do include 
 specific doctrines touching the motives and sanctions 
 of right conduct, in so far as it is considered in the 
 light of obedience to a law. Now it is said that if we 
 discredit a current theory of ethics we thereby dis- 
 credit the existing motives and sanctions of morality, 
 and incur the risk of morality itself being destroyed. 
 And, what is perhaps more important, this or some- 
 thing like it is thought by many persons who do 
 not say it, and influences the thoughts and habits of 
 others who do not consciously entertain it as a distinct 
 opinion. We shall observe, in the first place, that this 
 proposition, and all propositions of the same form and 
 tendency, run counter to an ethical maxim of the first 
 importance and of the largest application. The maxim 
 in question is that truth is to be sought at all hazards :
 
 298 ETHICS AND MORALS. [xi 
 
 and the proof of it is tlie whole history of civilized 
 mankind. Disinterested searching after truth has, in 
 one way or another, given us a large proportion of the 
 benefits we enjoy ; while indifference and hostility to 
 free inquiry have produced infinite mischief of all sorts. 
 Hardly a single capital discovery in science, hardly a 
 single fruitful idea in philosophy, has escaped attack 
 as dangerous to religion and morals. Had these objec- 
 tions always prevailed, not only small-pox might at 
 this day be decimating us unchecked, but we might 
 be ofi'ering human sacrifices to propitiate the peculiar 
 demon of the disease. But we proceed to a more 
 particular answer. 
 
 The moral alarmist says that our morality consists 
 in obedience to certain precepts, which is determined 
 by the motives and sanctions expressed in current 
 ethical theories. He places it, in other words, in 
 current religious beliefs ; for most people have no 
 ethical theory save what may be contained in the 
 religion they profess, or may have been deduced from 
 it by its expounders. He further says that if these 
 motives and sanctions be removed there will be no 
 morality left. This involves two assumptions of some 
 extent. First, that right conduct is nothing but 
 obedience to a law ; whereas it is a great deal more, 
 or rather obedience to a law is not right conduct, but 
 only a step towards it. Eighteous men are not they 
 who obey moral precepts, but they whose conduct is 
 the foundation of moral precepts : and the wisest and 
 best of men have always said that obedience to pre- 
 cepts is not righteousness, but only the beginning of
 
 XI] ETHICS AND MORALS. 299 
 
 righteousness. Next it is assumed that the motives 
 and sanctions of the existing body of moral hiws are 
 completely given by the current theory which happens 
 to prevail ; whereas the most important motives and 
 sanctions are those which operate without being per- 
 ceived, and consequently are not expressed in popular 
 theories. The assumptions thus made are in truth 
 not only untenable but extravagant. Let us consider 
 a little more nearly the nature of the moral law and 
 its sanctions. The general notion of sanction is now 
 pretty familiar to educated English readers, but it may 
 be as well to recall it to mind. Sanction is that which 
 gives point to a command ; and sanction and command 
 go together to make uj) law in its fully developed 
 form. The command is addressed to subjects of whom 
 obedience is required, and the sanction is some evil 
 which they are to exj)ect if they disobey. It is ad- 
 mitted that the precepts of morality on the one hand 
 are not laws in the strict sense, and on the other hand 
 have considerable analogy to laws. Whether they are 
 in any and what sense commands must be left open 
 for the present ; but that evil-doing brings evil con- 
 sequences is the common theme of all moral teachers. 
 The apprehension of these consequences will have just 
 the same effect as if they had been threatened by a 
 superior power able and minded to inflict them in the 
 contemplated event. They are therefore in the nature 
 of sanctions. In this sense, indeed, the so-called laws 
 of nature have their sanctions ; for, though it be quite 
 indifi'erent to the universe whether I put my finger in 
 the candle or not, it is certain that if I do put my
 
 300 ETHICS AND MORALS. [xf 
 
 finger in the candle I shall burn it. And if I say to 
 a child, "Do not put your finger in the candle, or you 
 will burn it," I make my knowledge of the natural 
 law, coupled with the child's presumed belief in my 
 knowledge, a real sanction by which my command is 
 pointed. Observe that in considering individual 
 motives belief in the sanction is material. In the 
 theory of legislation this point of view does not occur, 
 because the legislator will take care to provide sanc- 
 tions which are notoriously real and substantial ; and 
 real and notorious facts are, on the average and in 
 the long run, believed in. But for the individual a 
 sanction may be wholly neutralized by delusion ; as if 
 a Mussulman fanatic murders an English officer, 
 supposing that he will be supernaturally rescued, or 
 else, which will do as well, expecting to be hanged 
 but also to be conveyed immediately thereafter to 
 Paradise. On the other hand an imaginary sanction, 
 so long as it is believed in, will be quite as efficacious 
 as a real one. Some sects of orthodox Hindus are 
 taught that the man who eats flesh-meat will in future 
 lives be eaten in turn by every one of the animals 
 whose flesh he has consumed. The Hindii who really 
 believes this obviously has the strongest possible 
 motive for abstaining from a flesh diet ; and the be- 
 lief might even be competent to produce in the course 
 of generations an apparently instinctive abhorrence. 
 But it is also obvious that such a belief could never 
 have arisen among habitual eaters of flesh -meat. 
 Being wholly devoid of evidence, it could gain accept- 
 ance only in the traditions of people predisposed to
 
 Xl] ETHICS AND MORALS. 301 
 
 receive it. Whatever effect it may have in later 
 times in maintaining the believers in the same disposi- 
 tion, it is one of those artificial bulwarks of custom 
 which in their inception are plainly afterthoughts. 
 A little consideration may show us that the example 
 comes much more nearly home to ourselves than we 
 are apt to suppose. 
 
 We have admitted that an imaginary sanction may 
 be as efficacious as a real one. The conclusion may be 
 suggested that it is a rash and unadvisable thing to 
 discredit imaginary sanctions as long as any one 
 believes in them, or even to attempt the task of dis- 
 cerning the real from the imaginary ones. But let us 
 go back to our Hindu, and let it be assumed for the 
 argument's sake that climatic, economical, or other 
 conditions exist which might reasonably appear to an 
 unprejudiced observer to furnish good and sufficient 
 reasons against Hindus eating flesh. Supposing it to 
 be a probable opinion that on these grounds it would 
 be against the interest of the Hindii community to 
 adopt an animal diet, let an unprejudiced European 
 observer be asked whether it is desirable that Hindiis 
 should go on holding their dogmas of transmigration, 
 including the retaliation to be inflicted on flesh-eaters, 
 or that they should acquire more rational view^s of the 
 constitution of the world and the relative importance 
 of moral duties, even at the risk of a certain number 
 of Hindus departing from their ancestral food, and 
 being (as we suppose) the worse for it. Very few 
 Europeans, probably none, w^ould answer that Hindus 
 had better go on believing that whoever eats beef will
 
 302 ETHICS AND MORALS. [xi 
 
 ill turn be eaten by the ox in a future life ; and 
 certainly none would venture to say that it is the 
 duty of enlightened Europeans to offer any particular 
 opposition to the decay of this belief. A Brahman 
 might find many plausible reasons for challenging the 
 answer of the supposed intelligent stranger. Why 
 not maintain, he might say, an ancient fiction which 
 does no harm, and which, by the hypothesis, is 
 directed to a useful end and may possibly do good ? 
 The European, if he is a man of strong common sense 
 and moral feelings, will probably rejoin at once that 
 it does no man good to believe a lie. If he has 
 patience to go farther, he will observe that the main- 
 tenance of imaginary sanctions for precepts of any 
 kind is not only immoral but impracticable. The 
 fiction will in spite of all precautions be sooner or 
 later found out ; and the more pains have been taken 
 to conceal its real character, the greater will be the ill 
 effects of the discovery. The more you seek 'to 
 enforce wholesome precepts by fictitious reasons, the 
 less, in all probability, will the real reasons be 
 attended to ; and when at last the fictitious reason 
 breaks down, the greater will be the danger of the 
 precept itself being involved in its ruin. But perhaps 
 it is disputed whether the reason be fictitious or no. 
 Very good ; if it be fictitious the sooner it is aban- 
 doned the better ; if it be real it has everything to 
 gain by full discussion. But perhaps the mere fact 
 that the sanctions of morality are discussed may un- 
 settle people's moral convictions ; discussion is for the 
 robust, and we must not tempt the weaker brethren.
 
 Xl] ETHICS AND MORALS. 303 
 
 To this we say that the man whose moral convictions 
 are liable to be thus unsettled has not attained real 
 morality at all. He must be one to whom morality is 
 a law and nothing more, and he must be willing if not 
 eager to find an excuse for breaking it. And if he 
 does not find his excuse in one way, he will find it in 
 another. It is no reason whatever for being faint- 
 hearted in the search for truth that foolish persons 
 may peradventure wrest the truth itself to their own 
 confusion. 
 
 If there is any real danger it is of the alarmist's 
 own making. He has cried long and loud that the 
 whole frame of society and morality hangs upon the 
 acceptance of certain disputable and disputed proposi- 
 tions ; and if he cries loud and long enough, it may 
 well be that a certain number of mankind will believe 
 him. So believing, they may live to see the weaken- 
 ing or the downfall of the doctrines on which they 
 have been artificially taught to pin their moral faith ; 
 and in this manner it may come to pass that their last 
 state is a good deal worse than their first. The sowers 
 of pious fiction reap hunger and emptiness, and then 
 cry out against honest men for taking away their con- 
 solation. They sit whining and bickering over the 
 ashes of their dead illusions, fit to be likened only to 
 the Athenian survivors of the plague described by 
 Lucretius as wrangling over the funeral piles of their 
 kindred — rixantes potius quam corpora desererentur. 
 There is only one remedy, which is to discard all 
 fiction and all connivance at fictions — to seek for such 
 grounds of morality as are clear and certain, and to
 
 304 ETHICS AND MOEALS. [xi 
 
 hold those fast. It is not a very difficult matter for 
 men who are able to put themselves on free and care- 
 ful inquiry to see that the sanctions of moral conduct, 
 so far as it is within the range of sanctions, need not 
 be derived from any region beyond common ex- 
 perience, but are im^Dlied in the constitution and the 
 very existence of society itself. With this inquiry 
 let us proceed. 
 
 Concerning the sanctions in question we have seen 
 that their immediate efficacy depends on their being 
 believed in, and that consequently whenever the belief 
 in a particular sanction is impaired the sanction is to 
 that extent inefficacious. Hence it is of the first 
 importance that in common thought and discourse, 
 and more especially in education, we should dwell 
 upon those sanctions of morality which are both real 
 and certain. A standing and effectual sanction must 
 be real ; for if it is not, it will sooner or later be found 
 out. Also it must be certain ; for if, though possibly 
 it may be real, its existence is open to doubt, and 
 likely to be doubted by any considerable number of 
 persons, its effect will be variable and j^recarious. 
 Moreover, it must be general ; that is to say, it must 
 not be in its nature dependent on the beliefs, habits, 
 or institutions of the particular community which we 
 consider as subject to a body of moral rules. For 
 when mankind begin to distinguish the notion of 
 morality from that of tribal or national custom, they 
 also begin to conceive of morality as something cos- 
 mopolitan and belonging to all reasonable men of 
 what country or kindred soever ; or rather these are
 
 Xl] ETHICS AND MORALS. 305 
 
 two ways of describing one and the same process. 
 We shall therefore endeavour to find a sanction which 
 fulfils the conditions thus laid down ; repeating, never- 
 theless, to prevent misconception, that morality is 
 infinitely more than a body of rules guarded by 
 sanctions. Even if it were to appear, on strict inquiry, 
 that moral duties were not merely of imperfect obliga- 
 tion in a legal sense, as not being enforceable by a 
 definitely appointed authority, but that they were 
 not enforceable at all, moral conduct would still be 
 intelligible as the normal function of men living 
 together — the activity of sound minds in sound 
 bodies. Living together would still be the necessary 
 pm'suit of mankind, and morality would be necessary 
 as the condition of it. Virtue would still be health, 
 and vice would still be disease. And it would still 
 be reasonable to prefer righteousness to wickedness ; 
 just as nobody would choose to be deformed, to be 
 lame, or to squint, though no special punishment 
 attaches to those conditions. 
 
 We may first dismiss the whole class of super- 
 natural sanctions, of which an extreme specimen was 
 given in the Brahmanical doctrine of the retribution 
 upon flesh-eaters in other lives. The schemes of these 
 sanctions adopted by difi'erent races and nations are 
 so many and so inconsistent that, to say the least, 
 they cannot all be real. Then, as matter of history, 
 they are not certain, being frequently doubted and 
 disputed, not only l^y the adherents of rival systems, 
 but by thoughtful and competent persons within their 
 own spheres of action, and on ground where every- 
 
 X
 
 306 ETHICS AND MORALS. [xi 
 
 thing except reason is in their favour. Least of all 
 are they general. The more we trace them to their 
 historical origin, the more we find them, in their first 
 and authentic forms, to be attached to systems of 
 doctrine and discipline in which law and morality, 
 conduct and ceremonial, substance and form, are 
 mingled in one undiscriminated mass ; the formal and 
 ceremonial parts being often treated as of more 
 importance than those which we now see to be 
 of jDermanent and general value. Doubtless much 
 accommodation and refinement is eff'ected by the 
 ingenuity of later generations. But what the sanc- 
 tions gain in reasonableness by these modifications 
 they are apt to lose in force and precision, until they 
 evaporate in the colourless proposition that in some 
 other world, in some manner unspecified and unknown 
 as to time, place, and circumstances, good men will 
 be rewarded and evil men punished. AVhether the 
 fear of this indefinite kind of retribution is likely to 
 prevent anybody from doing wrong (and we are now 
 considering the belief only in that light), it is hardly 
 necessary to discuss. On the other hand, so far as 
 supernatural sanctions retain any real power, they 
 retain it very much in the old way and with the old 
 incidents, and thus have the mischievous eff'ect of 
 hampering the substance of morality with a burden 
 of obsolete ceremonial precepts, and obscuring the 
 real importance of moral conduct. They also tend to 
 keep morality itself in an archaic state and hinder 
 its development, since the precepts supposed to be 
 enforced by superhuman sanctions are naturally
 
 XI] ETHICS AND MORALS. 307 
 
 regarded as complete and incapable of revision. We 
 are told, for example, how difficult it is to get 
 uneducated Italian Catholics to regard cruelty to 
 animals as a sin. They say "they are not Christians," 
 and think that is a conclusive answer. Morality does 
 nevertheless get developed on the whole, and then the 
 ingenuity of jDrofessional interpreters is marvellously 
 fertile of compromises. But the study of their doings 
 is not to the present purpose. 
 
 Now let us see whether we can discover a more 
 certain and operative sanction in the natural conse- 
 quences of conduct. Taking consequences on a large 
 scale and in the long run, it may be said that 
 happiness follows on right - doing, and misery on 
 wrong-doing. Indeed this is almost a necessary truth 
 if we do not admit any transcendental account of the 
 nature of right and wrong. For if the conceptions of 
 right and wrong have been formed by experience, 
 they must have been formed with reference to the 
 observed or presumed effects of different kinds of 
 actions on the common weal of the society in w^hich 
 they took place. The risk of such observations or 
 presumptions being erroneous, which in early stages 
 of society is a very serious one, does not call for 
 special mention in this place. Now the general 
 consequences of human action are sometimes regarded 
 as the chief sanction of morality, as for instance in 
 the common proverb, " Honesty is the best policy." 
 But this sanction, though real and general, is wanting 
 in certainty. The really important consequences of a 
 particular act are often too remote to be evident to
 
 308 ETHICS AND MORALS. [xi 
 
 tlie intelligence of ordinary men ; and, what is perliaps 
 a still graver drawback, they very often do not affect 
 the individual agent, but visit his wrong-doing on his 
 family, his descendants, or the community at large. 
 We require something that shall come home with 
 immediate force to the person himself. And if it is 
 to do this with certainty, it would seem that it must 
 be associated with and involved in the very growth of 
 moral ideas. Not that we can expect its operation 
 to be infallible. The most stringent and dreadful 
 sanctions of positive law, including death itself, are 
 often insufficient to prevent disobedience to its com- 
 mands. We must be content with a sanction capable 
 of restraining most men in most circumstances. 
 
 The natural sanction, as we may call it, is a vast 
 and grave one ; in its gravest form it is death, not of 
 individuals, but of nations and races. Vice is weak, 
 and the vicious are ultimately rooted out. But this, 
 as we said, is too vast and remote for common use. 
 It is brought home to the individual through the 
 action of society, which applies it in the form of a 
 collective moral judgment. The community, observ- 
 ing and weighing the results of conduct, forms a 
 common public opinion concerning the acts as right 
 or wrong. This opinion, besides defining right and 
 wrong for the particular community, provides a 
 sanction along with the rule. Public esteem and 
 disesteem are the reward and punishment appropriate 
 to the moral law. Trained in his first notions of 
 right and wrong by his parents and masters, and 
 dependent for his happiness on their approval, the
 
 Xl] ETHICS AND MOEALS. 309 
 
 individual gradually enlarges liis view of tlie social 
 bond, and looks for tlie rule of conduct in a wider and 
 more perfect consent. He aims at satisfying the 
 judgment of his friends, his city, his nation ; and, 
 lastly, of an ideal tribunal composed of the best and 
 wisest of men, and representing the moral teaching of 
 all times and countries. Some such ideal tribunal is 
 appealed to even when a man's moral judgment 
 dissents from those around him ; he regards his own 
 opinion not as peculiar to himself, but as what public 
 opinion ought to be. The nature and importance of 
 this social sanction of morality, and the manner in 
 which it completes the analogy between positive 
 morality and positive law, were pointed out by 
 George Grote in writings which saw the light only 
 after his death ; and, if not for the first time, yet 
 with a clearness and exactness not attained by any 
 previous ethical writer. Now this sanction of public 
 opinion has all the qualities which we require. It is 
 real, inasmuch as no human being is wholly indifierent 
 to what his fellow-men think of him. It is certain, 
 being notorious, in constant exercise, and always 
 ready to operate. It is general in the highest degree, 
 being coextensive with the social life of man and 
 inseparable from morality itself. On the points of 
 certainty and generality there occurs, indeed, an 
 obvious objection. Public opinion cannot be ex- 
 pressed on any action unless the action is known ; 
 the efficacy of public opinion as a sanction would 
 therefore seem to depend on the probability of the 
 action becoming known, which may be in itself very
 
 310 ETHICS AND MORALS. [xi 
 
 small, or may in some cases be indefinitely climinished 
 by precaution. But man's social feelings are too 
 powerful and subtle to be thus evaded. The sanction 
 once impressed upon the mind follows it even into 
 solitude. In the ideal form which we call conscience 
 the common moral sense of mankind passes upon our 
 deeds and even our thoughts a more strict and severe 
 judgment than could be passed by any actual public 
 opinion. This tribunal is too fully informed to give 
 us the benefit of any doubt, and every circumstance 
 of aggravation is known to it without proof. Hence 
 a right-minded man will expect more of himself than 
 is expected of him by his neighbours. And this 
 elaboration of the moral rule in the musings and 
 self - questionings of men who have a genius for 
 righteousness finds expression in their outward speech 
 and conduct, is first admired and then imitated, is 
 gradually taken up into the actual moral judgments 
 of the society, and thus raises the moral standard for 
 following generations. So that conscience is not 
 only a guide and judge for the individual, but an 
 active power, if rightly used, for the improvement of 
 society. Moreover it is not a conviction, or anything 
 put into the mind by teaching, but an ingrown 
 organic habit ; and therefore its reign is indefeasible. 
 Were this populous earth to be devastated by some 
 new fury of nature, and but one man left on its face, 
 he would yet not be alone. Though no more duty or 
 service were possible for him, though in the heavens 
 and on the earth there were no eye to see him, yet so 
 long as thought and will remained uncrushed the
 
 Xl] ETHICS AND MORALS. 311 
 
 common voice of man would live and bear witness in 
 tliat one survivor, and tlie dignity of mankind be 
 enthroned in tliat solitary soul. 
 
 It is true that imagined publicity is not altogether 
 equivalent to actual publicity : the chance of escaping 
 notice is always an addition to temptation, and at 
 times makes it irresistible. But it is to be noted 
 that the power of the social sanction asserts itself even 
 in the cases where it seems to be disregarded. Very 
 few men dare to be individual in their vices or even 
 in their crimes. They mostly strengthen themselves 
 by setting up against the judgment of the community 
 the opinion of some particular class or faction to 
 which they belong ; which opinion, however perverse, 
 is a common social bond to those who share it, and 
 may be a counter-sanction of great power. Thus, 
 while the law of the land and common morality both 
 condemned duelling, the so-called law of honour 
 strongly enjoined it in particular circumstances ; and 
 for many men the law of honour — in other words, of 
 their particular class in society — had a stronger 
 sanction than that of the commonwealth. Common 
 morality, again, forbids drunkenness ; but its com- 
 mand is paralysed in societies where carousing is 
 fashionable. In our own time we have unhappily 
 seen how a low tone of commercial morality en- 
 courages the perpetration of actual and flagrant frauds 
 on a large scale. In all these cases it is the failure or 
 laxity of the social judgment that makes individual 
 faults so easy. As regards downright crime, the fact 
 that it is not occasional and anomalous, but has a
 
 312 ETHICS AND MORAT.S. [xi 
 
 regularity capable of being reduced to statistics, 
 depends on tlie existence of a habitually criminal 
 class ; and this class holds together in a crooked bond 
 of its own, and makes a law within itself against the 
 law. The thief is not a being without conscience, 
 but a man of perverted conscience ; the approbation 
 of the thieves' kitchen for a successful exploit out- 
 weighs with him the disapprobation of society and the 
 terrors of justice. In a larger field of action, the 
 successful breaker of public law relies on the vulgar 
 worship of success to protect him from the sentence 
 that is his due, and hopes to drown the avenging 
 voice of just men in the shouts of the flatterers who 
 hail the saviour of society. 
 
 Perhaps we may suspect that the social sanction 
 is really operative, even when some other is put 
 forward. When the pious Hindu starves rather than 
 eat flesh, is he really more afraid of being himself 
 eaten in a future life, or of being shunned 1)y his 
 family and friends as a wretch who has broken his 
 caste ? When excommunication was a real and 
 terrible penalty, did the sharpness of it consist 
 more in the spiritual loss and deprivation it was 
 believed to entail, or in being presently cut off" from 
 the fellowship and esteem of all good Catholics ? Is 
 it really a more grievous thing to be under a threat of 
 future damnation (however sincerely deemed to be 
 genuine), or to be regarded by one's kinsfolk and 
 townsmen and accustomed companions as a heathen 
 and under a ban ? At all events a supernatural 
 sanction, as long as it is commonly believed in, carries
 
 Xl] ETHICS AND MORALS. 313 
 
 with it by the nature of the case the social sanction 
 also, it may be in an intense form ; and, so far as the 
 effect of controlling conduct is actually produced, it is 
 impossible to ascribe it to the supernatural sanction 
 alone. 
 
 Note. — -Since tl^is essay was ■written and first published, I liave 
 found that one of its leading ideas was anticipated by Mr. Sliadwortli 
 Hodgson in 1870, and it seems to me only just to quote his words. 
 He says in his Theory of Practice, vol. ii. p. 499 : — 
 
 " Vain are the fears of the danger to arise from overturning doc- 
 trines which have hitherto been believed. Turn to the various religious 
 systems of the world ; what do we see ? The same human nature 
 working everywhere to similar results, with similar conceptions, simi- 
 lar emotions, and through similar stages of development. It is not the 
 doctrines held from time to time, though they may be felt at the time 
 as an indispensable embodiment of the morality and the religion, 
 which are the guarantee of its permanence and of its progress. It is 
 the human nature, their parent, which is the guarantee. Those who 
 complain of new theories as dangerous to religion or morality do too 
 much honour alike to the new theories and to their own. To the new 
 as having power to alter the course of nature, to their own as essential 
 to its maintenance. If the course of nature establishes religion and 
 morality, they are establislied beyond the power of any theory to over- 
 turn ; if it does not, no theory has power to establish them. . 
 The same nature, the same mental constitution and laws of its work- 
 ing, which lead us to make virtue and truth, morality and religion, 
 important matters, will also secure their development. It is upon this 
 constitution as it really is that the development depends, not upon the 
 philosophical theories which may be formed of it." 
 
 Qu.ite lately M. Renan has said in the same spirit : — " Les croyances 
 necessaires sont au-dessus de toute atteinte. L'humanite ne nous 
 ecoutera que dans la mesure oil nos systemes conviendront h ses devoirs 
 et a ses instincts" (Revue des Deux Mondes, Feb. 15, 1882, p. 750).
 
 314 MARCUS AURELIUS AND THE [xil 
 
 XII. 
 
 MARCUS AURELIUS AND THE STOIC 
 PHILOSOPHY. 
 
 It costs us some effort to realize the full importance 
 of philosophy to the Greek or Roman citizen who had 
 received a liberal education. For him it combined in 
 one whole body of doctrine all the authority and in- 
 fluence which nowadays are divided, not without 
 contention, by science, philosophy, and religion in 
 varying shares. It was not an intellectual exercise or 
 a special study, but a serious endeavour to gather up 
 the results of all human knowledo;e in their most 
 general form, and make them available for the practi- 
 cal conduct of life. We know that Greek philosophy 
 had its full share in the bloodless victories won by 
 Greece over her conquerors ; and that the Stoic system 
 was especially congenial to the Roman character, and 
 had a considerable majority of adherents among cul- 
 tivated Romans. We know that the lives of illustrious 
 rulers and statesmen, and of him not least among them 
 of whom we are now to speak, were formed upon the 
 discipline of that system ; and if evidence is ever to 
 be trusted to connect men's actions and character with 
 their professed beliefs, we have abundant and trust-
 
 Xll] STOIC PHILOSOPHY. 315 
 
 worthy evidence in this case. These facts are almost 
 too commonplace for express mention ; but it is per- 
 haps not so easy to remember, what nevertheless is 
 undeniable, that for every name which has made 
 Stoicism remarkable in history, there must have been 
 many, now scarcely noted or wholly forgotten, among 
 the men who did the abiding work of the Eoman 
 empire in provinces where the follies and revolutions 
 of the palace had little effect. I have called their 
 work abiding, for it is to be remembered that Eome 
 not only kept peace and order throughout an immense 
 dominion inhabited by all races and conditions of men, 
 and governed some parts of the world much better 
 than they have been governed before or since, but set 
 a stamp on the whole frame of the civilized world 
 which in many respects remains to this day. The 
 Stoic philosophy was in no small measure the source 
 of the moral influences under which this work was 
 done. Moreover, its hand can be distinctly traced in 
 the development of legal conceptions and of the law 
 itself. 
 
 It is therefore a matter of considerable interest to 
 understand how Stoicism presented itself to the men 
 in whose hands its teaching bore such fruit ; nor is 
 this altogether so easy as might be supposed, for it 
 is one thing to have the tenets of a system laid down 
 in works of professed exposition or discussion, and 
 another thing to seize those elements which really 
 commend the system to those who adopt it in prac- 
 tice. In the case of Stoicism we have abundant ac- 
 counts of its theory, but for the most part at second-
 
 31 G MARCUS AURELIUS AND THE [xil 
 
 hand. Nothing has come to us straight from the 
 founders or leaders of the original Greek school. In 
 the latter time Seneca can hardly be counted for more 
 than a retailer. Of Epictetus we have only notes and 
 reminiscences put into shape after his death ; and 
 Epictetus, after all, is an official preacher. And this 
 increases the difficulty of rightly apprehending the 
 real working contents of the Stoic philosophy. But 
 the difficulty is happily much lessened by our posses- 
 sion of an almost unique piece of evidence — the note- 
 book of an emperor who was likewise a philosopher, 
 or at least a very apt learner in philosoj^hy. The 
 Commentaries of M. Aurelius Antoninus, as the edi- 
 tions call them for the want of a better name, have 
 all the appearance of notes freely set down for the 
 writer's own use, and without any thought of publi- 
 cation. They are constantly abrupt, unfinished, or 
 hardly grammatical ; some passages are evidently mere 
 jottings of topics for further writing or reflection, the 
 exact meaning of which can be only guessed at. How 
 or when they were first made public is not known. 
 We have here, then, the substance of the Stoic philo- 
 sophy considered as a working rule of life, and so con- 
 sidered by a disciple whose opportunities of testing it 
 could not well be surpassed. For although it is com- 
 monly taken for granted that men's moral principles 
 are best judged in adversity, one may well doubt 
 whether a position of great eminence and weighty 
 duties does not put them to a more perfect trial. 
 
 In Marcus Aurelius, then, it seems to me that we 
 may find the safest guide to the knowledge of the
 
 XIl] STOIC PHILOSOPHY. 317 
 
 Stoic morality in its practical as|)ect and in its relation 
 to the general system of which it was part. The 
 intrinsic beauty of the morality set forth by him, both 
 in substance and in temper, has been constantly 
 admired ; but we are apt to forget that Marcus 
 Aurelius was not a solitary apparition of virtue, but 
 the disciple and representative — an illustrious one, 
 no doubt — of a settled and widely -spread doctrine. 
 I am unable to agree with JM. Eenan that Marcus 
 Aurelius does not distinctly belong to any school. He 
 seems to me, to use M. Eenan's own comparison, to 
 have been as thoroughly imbued with Stoicism as the 
 author of the Imitation of Christ was with Catholi- 
 cism. Doubtless his book lives by its human and not 
 by its dogmatic elements, but the dogmatic elements 
 are there. Marcus Aurelius is as much devoted by 
 temper to the philosophic life, though unable to prac- 
 tise it completely, as the author of the Imitation was 
 to the religious life. He was too much of a philoso- 
 pher, indeed, to be a strong ruler of men : he was so 
 loth to punish, and so ready to believe in the goodness 
 of mankind, that much evil-doing of those who 
 governed under him went unpunished. I hope to 
 show presently in some detail how much Marcus 
 Aurelius goes into special points of Stoicism ; and I 
 think that for the good things to be found in the 
 Commentaries too much personal credit has been 
 given to Marcus Aurelius, and too little to the school 
 which he represents. I hope also to shoAv that the 
 general doctrine of that school, notwithstanding its 
 singularities, or sometimes by reason of them, comes
 
 318 MARCUS AURELIUS AND THE [xil 
 
 nearer to our own ways of thinking, and lias more 
 lessons for us, than aj)pears at first sight. 
 
 Before we examine any specific points of the Stoic 
 philosophy, it may be as well to pause and see what 
 were its aims. It is in some sense true that all philo- 
 sophers are in search of the same end ; yet it is in 
 practice very difiicult for a philosopher even to an- 
 nounce his object without showing what method he 
 intends to follow and what sort of results he expects 
 to get. Now the objects of the Stoics were eminently 
 practical ; they strongly held that knowledge is for 
 the sake of action, and that the worth of philosophy 
 consists in its power to guide the conduct of life. 
 Among other illustrations and comparisons which seem 
 not very pointed to a modern taste they likened 
 philosophy to a fertile field, logic to the fence round 
 it, and ethics to the crop grown in it. They further 
 said that the knowledge by which action is to be 
 guided is a knowledge derived from experience ; and 
 they said it in terms which fixed no bounds to the 
 possible bearing of experience and knowledge upon 
 action. Chrysippus, who was considered to have 
 settled the Stoic system in its finished form, is reported 
 to have stated his ideal of life to this eff'ect : — " A 
 virtuous life is the same thing as a life agreeable to 
 experience of what happens in the course of nature ; 
 for the nature of each of us men is part of the nature 
 of the world." ^ How the Stoics conceived of experi- 
 ence we learn from Plutarch ; experience, they said, 
 
 1 Ritter and Preller, Hist. Grmc. et Rom. Phil, \). 36.3, 3d ed. We 
 are expressly told that with ChrysipjDus tlie commoner Stoic form of
 
 XIl] STOIC PHILOSOPHY. 319 
 
 is by the multitude of similar (or uniform) perceptions/ 
 Thus the knowledge that is to serve us in life is 
 founded on an observed order of things, which order 
 is thought of as something belonging to the whole 
 world, and equally present in every part of it. Now 
 this is exactly such a general conception of knowledge 
 as in these times is growing upon us as we become 
 more familiar with the methods and results of science. 
 And we have here no mere verbal coincidence gathered 
 from scattered sentences ; the testimony of M. Aure- 
 lius will show that the parallel is a real one. The 
 conception of the world as orderly does not only lie 
 at the root of the Stoic system, and explain, as will 
 presently be seen, many of the things that appear 
 strangest in it ; we find it constantly treated as some- 
 thing to be kept actively present in the mind, and 
 capable of affording present support and guidance. 
 This it does in two ways : the first bearing imme- 
 diately upon action, the other more remotely, but not 
 less steadily, through contemplation. First, a right 
 understanding of the external order of things {fi toO 
 oXov (f)V(Tt<;) is in a manner needful for right conduct. 
 It points out to us not indeed duty itself, but the 
 conditions of our duties. It cannot tell us what our 
 actual duties are ; that depends on the specific charac- 
 ter of man as distinct from other creatures, and more 
 especially upon his social nature. But it can guide 
 us in judging the circumstances and consequences of 
 
 speech — " a life according to nature " — was synonymous with tliis (lb. 
 388). 
 ^ 'E/xTretpta yap icTTi to Tajv o/xoetSwv (^avraa-iMV TrXrjdos (lb. 368).
 
 320 MARCUS AUEELIUS AND THE [XII 
 
 which we must be in possession in any particular case 
 before we can tell what is really the question of con- 
 duct that arises ; it docs not solve moral problems, 
 but enables us to know what we are about in settling 
 their data. " See whither nature leads you, the uni- 
 versal nature by means of that which happens to you, 
 your own by means of that which you have to do."^ 
 Obstacles and difficulties present themselves to man's 
 intentions ; but he has reason given him that he may 
 find out what is the best thing practicable, and do 
 that ; nay, reason has the power to compel the stub- 
 born thino;s of the world to her own ends, as fire con- 
 verts all sorts of fuel to itself. A right purpose 
 guided by right understanding cannot be really dis- 
 appointed.^ But this is hardly so important as the 
 more contemplative aspect of the universal order, 
 which is dwelt upon by Marcus Aurelius with striking 
 force and frequency. The mind that learns to recog- 
 nize a fixed order and connexion in the changing 
 appearances of the world also learns to take a certain 
 intellectual pleasure in that order considered in itself, 
 apart from the pleasurable or useful character of its 
 operations in their particular effects. Everything has 
 a fitness in its own place, and almost everything may 
 thus be a source of contemplative pleasure to him 
 
 1 Marcus Aurelius, VII. 55. References hereafter given without 
 an author's name are to the book and section of his work. 
 
 2 IV. 1 ; VII. 68 ; VIII. 32,35 ; X. 31, 33. In an extreme case 
 the general Stoic doctrine allowed the final way of escape («f aywy?)) 
 by suicide. But M. Aurelius, though he nowhere controverts this, 
 seems to hold that there is no case in which there is not something 
 satisfactory to be done.
 
 XIl] STOIC THILOSOPHY. 321 
 
 " who has become truly familiar with nature and her 
 works." ^ 
 
 Again, all things are ever changing and passing 
 away ; one comes in another's place and no single 
 thing endures. Perpetual change and renewal is the 
 first law of nature, and everything is in a manner but 
 the seed of that which shall be made of it ; ^ existence 
 is a river in constant flow, a torrent sweeping every- 
 thing before it ; the operations of all forces consist in 
 manifold and unceasing change,^ and this change is 
 indeed the very condition of the being and perfection 
 of all finite creatures.* Every part of the world is 
 mutable and subject to decay; but these things are so 
 in order that the world, thus made up of ever perish- 
 ing parts, may itself be ever the same and ever young.^ 
 But man is himself part of the universal scheme, and 
 his specific character as man, although it is distinct 
 and important (and by no one has its distinctness and 
 importance been more dwelt upon than by the Stoics), 
 is in the last resort determined by the conditions of 
 the universal order. We may therefore think of our- 
 selves as belonging to the whole order of the world 
 and bring ourselves into a certain sympathy with it. 
 And this habit of thought will help us to lift ourselves 
 
 ^ III. 2 ; a remarkable pasfage, wliich seems to place the content- 
 ment of the scientific mind on gronnds independent of the ordinary 
 Stoic teleology. 
 
 2 IV. 36 ; comp. VIII. 6. 
 
 ^ V. 23 ; IX. 29 ; ^et/^appovs i) tmv oAojv oiVi'a* Travra (fiipei. 
 
 4 VII. 18. 
 
 ^ VII. 25 ; XII. 23. Cp. Spinoza's " facies totins luiiversi, quae 
 quamvis infinitis modis variet, manet tamen semper eadem" (^jj. 66, 
 ad fin.) 
 
 Y
 
 322 MARCUS AURELIUS AND THE [xil 
 
 above the common passions that vex us with surprise 
 and discontent when events fall out so as to cross our 
 individual desires. No thin gj can befall us that is not 
 in the nature of things capable of being understood 
 and reckoned with, and it is our business to master 
 circumstances by understanding them/ As for those 
 things which it is not in the power of man to alter or 
 avoid, we are to accept them as being part of that 
 order in which we ourselves are a part, and in which 
 all things, however wide asunder in seeming, are in 
 truth conjoined, and work together for the whole.^ 
 " Consider the courses of the stars as one running the 
 same course with them, and think constantly upon the 
 changes of the elements into one another ; for by the 
 perception of these things the grossness of our life on 
 earth is purged away:" " nothing is so fitted as this 
 to besi;et hisrhmindedness." ^ Thus we are led to one 
 of the features which is most prominently put forward 
 by the Stoics, at any rate by Marcus Aurelius, in set- 
 ting forth the ethical ideal. Not only does the fruit 
 of skill and understanding belong to the mind that 
 knows the beginning and end of things, and the 
 reason, that pervades and rules all existence ; * not only 
 does the wise man acquiesce in the decrees of the 
 universal order, knowing that they cannot be other- 
 wise ; he meets events with a contented and cheerful 
 assurance, and his maxim is " to welcome everything 
 that happens." ^ AVhatever comes to us, however 
 
 ^ VII. 47, 68 ; VIII. 15 ; comp. XIL 10, 18. 
 2 IV. 40 ; VI. 36, 38 ; VII. 9. » yn. 47 ; X. 11. 4 y. 32. 
 ^ dcnrd^edOuL to. <riyx/3atvoi'Ta or Trdv to criyx/Jatvoi', III. 16 ; IV. 
 33 ; and many other places.
 
 XIl] STOIC PHILOSOPHY. 323 
 
 hard it may seem, is prescribed by nature, and is no 
 less for the health of the whole than the remedies 
 prescribed by a physician are for the health of the 
 patient. If we repine at anything that happens in 
 the course of nature, we are striving, so far as in us 
 lies, to maim the perfection and unity of the world.^ 
 So that the rightly instructed man will say to Nature, 
 the giver and taker of all things : " Give what thou 
 wilt : take what thou wilt." ^ Epictetus bade his 
 hearers never to say that they had lost anything, but 
 that they had returned it.^ And Marcus Aurelius, 
 going far beyond simple resignation or acquiescence, 
 lifts up his voice in a hymn of adoration (for one can 
 hardly call it otherwise) which is among the most re- 
 markable utterances of ancient philosophy. 
 
 Everything harmonizes with me which is harmonious to thee, 
 Universe. Nothing for me is too early or too late which is in 
 due time for thee. Everything is fruit to me which thy seasons 
 bring, Nature ; from thee are all things, in thee are all things, 
 to thee all things return. The poet says, dear city of Cecrops ; 
 and wilt not thou say, dear city of Zeus 1 ^ 
 
 The last words bring out the speculative founda- 
 tion of that cosmopolitan character which has always 
 been remarked as prominent in the Stoic system. 
 The Stoics shared, however, with other post- Aristote- 
 lian schools a strong cosmopolitan tendency, which is 
 accounted for by the social and political circumstances 
 of the time, and in particular by the decay of local 
 independence, and therewith of the old Greek patriot- 
 
 1 V. 8. 2 X. 14. 3 Epict., Ench. 11. 
 
 * IV. 23 (Mr. Long's tiauslatioii).
 
 324 MARCUS AURELIUS AND THE [xil 
 
 ism, coinciding with a great enlargement of commerce 
 and intercourse between different parts of the world. 
 
 It is not my purpose to enter on the task of com- 
 paring Stoicism with modern philosophies. But one 
 cannot help being struck by the resemblance of the 
 line of speculation which I have just endeavoured to 
 trace in M. Aurelius, and which seems to me to have 
 been a very central one with the Stoics, to that which 
 is struck out by Strauss in his latest work. English 
 readers may find an even closer parallel to the Stoic 
 nature-worship in a place where few, perhaps, would 
 think of looking for it ; I mean in Mr. Swinburne's 
 Songs before Sunrise. 
 
 It will be observed that the mood of reverent 
 acquiescence, or something more, with which a Stoic 
 looked upon the order of the universe includes ele- 
 ments which do not seem to belong to a purely 
 scientific contemplation. As yet we have not taken 
 account of these, although the foregoing statement 
 could not be kept clear of them. The Stoics had, in- 
 deed, the conception of natural order as a thing 
 ascertained by experience, and worth knowing and 
 making the best of simply because it is there and 
 cannot be otherwise. But they sought to reinforce 
 this idea by a creed of dogmatic pantheism with which 
 their doctrine of the Kosmos was closely knit. And 
 this pantheism was associated with, and to a large 
 extent rested upon, a no less dogmatic teleology. 
 Some, at least, of the Stoic leaders appear to have 
 pushed their reflections on final causes into details 
 which nowadays must aj^pear ludicrous to every one.
 
 XIl] STOIC PHILOSOPHY. 325 
 
 I do not mean that these dogmas were adopted of set 
 purpose ; existing habits of thought and Language 
 must have suggested them with almost irresistible 
 force. '' Qui dit loi dit ordre ; qui dit ordre dit fina- 
 lite : tons ces termes s'impliquent logiquement," says 
 a writer of our own day.^ To a Greek all this was 
 implied in the one word Kosmos, as M. Aurelius does 
 not fail to note. The Stoics asserted that the world 
 is a product of reason, and that all the laws of nature 
 aim in the long run at reasonable ends. That which 
 partakes less of reason exists for the sake of that 
 which has a greater share of it ; so that, without 
 saying exactly that the world was made for man, a 
 Stoic might easily take an anthropomorphic, or rather 
 anthropocentric view of it. Again, the earlier Stoics 
 were not content with the uniformity of nature as an 
 observed similarity of results in similar conditions, 
 but by a strangely fantastic addition they imagined 
 the conditions themselves as recurring on a vast scale. 
 They held, in common with the Pythagoreans, that 
 the world is periodically destroyed and regenerated. 
 Internal evidence and tradition both tend to show 
 that the Pythagoreans got this doctrine, together with 
 that of the transmigration of souls, from India. It is 
 true that the details of the Pythagorean teaching are 
 not sufl&ciently known. But both doctrines are set 
 forth at some length in mythical fashion by Plato ; 
 the recurring cycles of the world's life in the Politicus, 
 the transmigration of souls in the Phcedrtis. And in 
 both places, especially the latter, the points of like- 
 
 ^ M. E. Vacherot, in Revue des deux Mondes, Aug. 1, 1876, p. 503.
 
 326 MARCUS AURELIUS AND THE [xil 
 
 ness to Indian belief are almost too many to be ac- 
 counted for by coincidence. Probably botli Plato and 
 the Stoics borrowed from the Pythagoreans, though 
 M. Aurelius exhibits one curious coincidence in detail 
 with the language of Hindu philosophy which suggests 
 at least a possibility of later independent communica- 
 tions with the East.^ Be this as it may, the Pytha- 
 goreans, followed by the Stoics, proceeded to better 
 their instructors (whom they had perhaps misunder- 
 stood) by asserting that not only was the world to be 
 destroyed and renewed when the perfect period of all 
 things, or annus magnus, should be fulfilled, but that 
 the former conditions were to be exactly reproduced, 
 and the whole course of events repeat itself in the 
 minutest details. (This is not only foreign to the 
 Brahman cosmogony, but inconsistent with it.) The 
 only modern parallel I can now call to mind is in a 
 book of no special philosophical pretensions, entitled 
 Peter Sim]_:)le, where Mr. Muddle, the carpenter, as- 
 sures the captain, with unconscious Stoicism, that he 
 found the very same fault with him on that same 
 quarter-deck 27,672 years ago. Among the later 
 Stoics, Pansetius and some others rejected this 
 absurdity ; but there is nothing to warrant the belief, 
 
 ^ " One is tlie sun's light, tliougli dispersed by walls, mountains, 
 and other things without number. One is the substance of all things, 
 though dispersed in bodies withoiit number, each of a determinate 
 species [the term in the original, iSiws ttoiov, is a technical one]. One 
 is reasonable mind (voepa xl'v^rj), though it seems to be divided," XII. 
 30. The simile of the sun is a commonplace of Indian philosophic 
 poetry, and may have become kno\vn to the Greeks. But the Stoic 
 pantheism has in the main very little in common with that of the 
 Hindus.
 
 XIl] STOIC PHILOSOPHY. 327 
 
 wliich one would be glad to entertain if one could, 
 tliat Marcus Aurelius did so. He alludes to the doc- 
 trine several times without dissent, and with only 
 such slight indications of doubt as to leave it possible 
 that he may have thought the question an open one, 
 but of no practical importance.^ 
 
 Again, there is another quite distinct kind of re- 
 flection which is apt to be mixed up with the scientific 
 notion of uniformity, and may even simulate it in 
 expression. Moralists of almost every age and school 
 have dwelt uj^on the common and monotonous char- 
 acter of human life as a reason for not setting one's 
 heart on the usual objects of desire. " There is 
 nothing new under the sun." This commonplace is 
 certainly to be found in M. Aurelius,^ and when he 
 says that he who has seen the present has also seen 
 the boundless past and future,^ and speaks elsewhere 
 to the like effect, he may mean only to repeat the 
 
 ' V. 13, 32 ; VII. 19 ; IX. 28 ; X. 7 ; XI. 1. In VII. 19,7roVovs 
 r/S)^ o alCov XpvcrtTTTroiis, TToarovs 'IEiTtlkttJtovs KaraTreTrwKe, viay only 
 mean, as far as the words go, " How many such as Chiysippus and 
 Epictetus have lived and died." So M. Barthelemy St. Hilaire takes 
 it in his recent translation, which, however, has no pretension to exact- 
 ness in detail. But it is too like the phrase, doubtless a regular one 
 in the schools, in which the current figment has been preserved to us : 
 ecrecrdai TrdXtv ^WKpar-qv Kal IXAdrtova Kal eKacrrov twv dvdpcoTrwv 
 K. T. A. Nemesius ap. Eitt. and Pr. 381. On the whole matter see 
 Zeller's note, Phil, der G^nec/iew, III. pt. i. 141. Assuming the material 
 universe to be finite and to consist of indestructible atoms, and the 
 course of nature to depend in the last analysis on the relative position 
 of those atoms, and on that alone, the position at a given moment 
 might well be conceived as sooner or later recurring ; and the cycle 
 once set up would be perpetual. But there is no reason to believe that 
 the Stoic dogma was founded on any such consideration. 
 
 2 For example, IX. 14. 3 VI. 37.
 
 328 MARCUS AURELIUS AND THE [xil 
 
 same thing ; and very possibly the official teaching of 
 Stoicism put it forward as a deduction from the idle 
 fancy just noticed. Still one is tempted to think he 
 had in his mind the greater conception of an order with- 
 out assignable bounds in time or space, so complete 
 and unbroken that from a perfect knowledge of the 
 condition of the whole system at any given moment 
 there might be deduced an accurate account of its 
 condition at any time before or after. Certainly in 
 another passage he seems to imagine a " reign of law," 
 as we now say, both in the coexistence and in the 
 succession of things. There is a rational connexion, 
 he says, in the sequence of events ; it is not like a 
 mere enumeration of particulars in an arbitrary order. '^ 
 M. Aurelius appears to affirm, again, that either there 
 is no reason at all in the world (and for him, as a 
 Stoic, reason and order are synonymous), or every- 
 thing that happens must be the determinate result of 
 an original and universal order : but the passage is 
 far from clear. ^ It is worth noting that his concep- 
 tion of uniformity, whatever it was, applied no less 
 to human affairs and conduct than to any other class 
 of events.^ This is no more than one would expect, 
 as the Stoic philosophy is well known from other 
 sources to have been wholly determinist.^ The tech- 
 nical name for the necessity or universal law govern- 
 ing the world was ec/xapfievT}. " Fatum autem id 
 
 ' IV. 45. Mr. Long gives "a necessary sequence" for to KaTrjvay- 
 KacTfjihov. But in modern iisage that is necessary whicli is the result 
 of law ; whereas the dvdyKr] here contemplated is the opposite of law. 
 
 ^ VII. 75 ; see Mr. Long's note. 3 VII. 49. 
 
 ^ See Zeller, Phil, der Griechen, III. j)t. i., 144-155.
 
 Xll] STOIC PHILOSOPHY. 329 
 
 appello," says Cicero, abridging or paraplirasing, as it 
 seems, from the Stoic Posidonius, " quod Graeci el/xap- 
 fievTjv, id est ordinem seriemqiie causariim cum causa 
 causae nexa rem ex se giomat. Ea est ex omni aeter- 
 nitate fluens Veritas sempiterna. Quod cum ita sit, 
 nihil est factum, cjuod non futurum fuerit, eodemque 
 modo nihil est futurum, cuius non causas id ipsum 
 efficientes natura contineat."^ 
 
 It is remarkable that this general tone of cosmical 
 and scientific contemplation did not bring the Stoics 
 into conflict with the popular creed. This was one 
 of the most striking points of ojDposition between 
 their school and the Epicurean. Marcus Aurelius 
 himself gave not only a decent but a zealous and 
 lavish support to the observances of the State religion 
 which his position required him to take part in. The 
 supposition that he merely conformed in a spirit of 
 philosophic indifi'erence is not consistent with his acts, 
 or with the effect they produced on spectators at the 
 time. His masters not only offered no opposition to 
 the rites and superstitions of the unlearned, but they 
 found reasons in their philosophy to support them. 
 Especially they defended the art and mystery of divi- 
 nation long after it had become the subject of doubt 
 or open disbelief elsewhere ; and they attempted to 
 give their defence the appearance of a serious argu- 
 ment on scientific grounds. Their system forbade 
 them to afiirm special interferences with the course of 
 nature, such as signs and wonders were commonly 
 esteemed. The events foretold by omens and victims 
 
 ' De Div., I. 125.
 
 330 MARCUS AURELIUS AND THE [XII 
 
 were indeed, they said, unchangeable and determined 
 from the first, as links in the chain of an eternal order. 
 But the omens and victims were also links in the same 
 order/ The fact of the connexion was abundantly 
 estal)lished by experience ; and as for the part of the 
 gods in the matter, they did not change the order of 
 things, but knew the hidden causes and signs of events 
 better than men, possessing as they did a higher in- 
 telli<?ence. What could be more natural and reason- 
 able than that they should be moved by goodwill to 
 man to impart some of their knowledge to him ? Argu- 
 ments were constructed exhibiting the truth of divina- 
 tion as a necessary deduction from the existence of 
 gods :^ and the prophecies of the soothsayer were re- 
 presented as analogous to the scientific predictions of 
 the astronomer. The Stoics had not invented the art of 
 tying knots after a spiritual manner with the help of 
 the fourth dimension of space ; but they would not have 
 found much to learn in principle from the defenders 
 of sundry pseudo-scientific positions in later days. 
 On this point Pansetius again stands out in honourable 
 dissent ; he ventured (to the no small scandal of his 
 colleagues) to cast doubt on the efticacy of divination.^ 
 We have yet to remark the greatest speculative 
 paradox of the Stoic philosophy. It exalted Eeason 
 as the source of the world's order, the one ruler and 
 judge of all things, the sole fountain of good to every 
 creature, and especially the sole origin and measure 
 
 1 Cicero, op. cit., I. 118. ^ Qic_^ oj?. cit., I. 82 ; II. 101. 
 
 3 Cic, op. cit. I. 6. On the subject generally, Zeller, Phil.der Gr.^ 
 III. pt. i., 313, seqq.
 
 XIl] STOIC PHILOSOPHY. 331 
 
 of morality for man. And at the same time it was 
 frankly, nay grossly materialist ; no whit less so than 
 the rival school of Epicurus, and probably more so 
 than any modern school has been. The Stoics asserted 
 in set terms that nothing really exists but matter, 
 and that the soul is material {aSfjua r/ -^/^fx^).-*^ Even 
 the world-soul, which they identified with Zeus or 
 the supreme God, was regarded as a kind of finer 
 matter endowed with special qualities of penetration 
 and difiusion — the elemental fire as they sometimes 
 called it. They would have hailed the luminiferous 
 ether as an even more valuable contribution to theo- 
 logy than to physics. To give one concrete example 
 of this materialism, Marcus Aurelius gravely notes 
 and considers the question (not unhkely to have been 
 a current one) how there can be room in the air for 
 all the souls of the dead?^ I am not aware that 
 either the materialism or the superstition of the Stoics 
 had any sensil^le effect on their moral doctrines or 
 practice ; but it was impossible to omit mention of 
 these things, as the omission might have been mis- 
 leading. It is likewise hardly possible to forbear 
 noticing the signal example here given of the danger 
 there is in affecting to hold either schools or particular 
 men to what are called the logical consequences of 
 their opinions. We hear a good deal nowadays of the 
 mischievous tendencies of materialism and pantheism 
 and their incompatibility ^dth a high moral ideal ; 
 
 ^ They described the intelligible or predicable relation (Acktov, 
 KaTrjyop-qfia) between material things as immaterial (axrw/xaToi'). 
 
 2 IV. 21. 
 
 %
 
 332 MAHCUS AURELIUS AND THE [xil 
 
 and this not only from those who scatter materialism 
 and pantheism as vague terms of abuse, but from men 
 who have a distinct meaning for their words. In the 
 philosophy of the Porch we find that, as a matter of 
 fact, a most lofty and ideal morality — which indeed so 
 much abhorred all weakness, compromise, and conde- 
 scension, that it has been called even by a wise and 
 generous historian harsh and impracticable — was asso- 
 ciated with both pantheism and materialism in their 
 crudest forms. We also hear a good deal of the abso- 
 lute necessity of the doctrine of free-will (in one or 
 another sense, for the champions are but ill agreed 
 among themselves) for the support and the very exist- 
 ence of morality. Those who use such language surely 
 forget that Marcus Aurelius, in common with all the 
 moralists of his school, was an uncompromising deter- 
 minist. It would seem that on the whole it is more 
 or less unsafe to rely on any supposed necessary con- 
 nexion between metaphysics and morals. 
 
 It is true that the Stoics conceived matter itself, 
 or at least that which composed the finer elements, to 
 be in its own nature active, so that their physics, as 
 Zeller puts it, were dynamical rather that mechanical. 
 And it may also be said that the contrast between 
 materialism and idealism had not then been sharply 
 defined as it is now. They may be said therefore, in 
 a certain sense, not to have been pure materialists.^ 
 But the same may be said, for the same or other 
 reasons, of most of the writers to whom the name 
 is applied in modern times. 
 
 ^ Lange, Gesch. des Materialismus, I. 72, 2(1 ed.
 
 XIl] STOIC PHILOSOPHY. 333 
 
 The ethical theory of the Stoics can be understood 
 only by keeping in mind its connexion with the 
 general view of the world of which we have en- 
 deavoured to give some sketch. Taken by itself, the 
 language of their fundamental maxims is exceedingly 
 vague ; and some well-known expositions of them, 
 which are classical as literature but of secondary rank 
 in philosophy, may be vague enough to justify the 
 surprise and even contempt expressed by some modern 
 writers. " Live according to Nature," is at first sight 
 the most ambiguous of precepts. But the Stoics had 
 a definite meaning for it, and were at some pains to 
 explain it. They held, as we have seen, that every- 
 thing is subject to one universal order, which is itself 
 settled by, or rather is conceived as being, a supreme 
 and all -pervading intelligence. This order being 
 determinate and irresistible, every agent and event in 
 some way or other fulfils it. Even those who think 
 to hinder it are against their own conceit working for 
 it, and we may say of them " Of these too the world 
 had need." ^ On this ground there is obviously no 
 foundation for ethical distinctions. But when we so 
 far quit this universal point of view as to consider any 
 particular species in relation to the whole, we see that 
 it has certain constant relations to the rest of the 
 world, which in fact determine its specific character, 
 and which in the case of living creatures the life of 
 the species is occupied in maintaining. Every 
 creature has some normal function as part of the 
 general order of the Kosmos ; ^ what those functions 
 
 ^ VI. 42. ^ e/cao-Tov Trpos Tt yeyovev, VIII. 19.
 
 334 MARCUS AURELIUS AND THE [xil 
 
 are for each kind is to be ascertained by experience. 
 They must always include, however, the preservation 
 of the species ; otherwise it could not exist as a 
 species : thus the impulse of self-preservation, which 
 the Stoics ascribed to every creature as the first spring 
 of action, is not only common, as a matter of fact, 
 to all active beings, but is an integral part of the 
 common order of the world. Every act of an indi- 
 vidual which belongs to the proper function of its 
 species as thus understood is, in the Stoic language, 
 according to Nature as regards that species — that is, 
 according to its specific nature {IZia ^vac^) ; and 
 inasmuch as it is an instance of the general law which 
 fixes the normal place and action of the species in the 
 great concert of the Kosmos, it is also said to be in an 
 eminent manner according to Nature, taken in the 
 general sense as the universal order [kocvt) (pvats;). 
 Now man, as well as other creatures, has his specific 
 function, or nature in the Stoic sense, as part of the 
 cosmical plan. But, unlike other creatures, he can 
 fulfil it with conscious intelligence and choice. He 
 may know his station in the world, and know also that 
 in maintaining it he is fulfilling the purpose of the 
 supreme Reason. By the very fact of being addressed 
 to an understanding agent the command "Live 
 according to Nature " becomes " Live according to 
 Reason." This reason, as expressed in the constitu- 
 tion of man and his relations to the world, his 
 capacities, his achievements, and his aspirations, 
 furnishes a type or pattern of life which may be 
 sufiiciently known by those who choose to model
 
 Xll] STOIC PHILOSOPHY. 335 
 
 tlieir conduct upon it. Actions conformable to this 
 type are morally right, and rightmindedness is the 
 conscious striving to attain it (we neglect for the 
 moment the minuter points of Stoic doctrine) ; it is 
 in this sense that moral goodness is the fulfilment of 
 man's proper nature. The architect or the physician 
 has his proper art, which, if he is competent in it, he 
 conducts according to fixed principles ; but every man, 
 simply as a man, is in the same case ;^ and man, like 
 every other creature, is judged by his fitness for the 
 work for which he is destined.^ " What is your 
 business in the world? To he good." ^ This then is 
 the calling imposed upon man by the supreme Reason ; 
 a fact to be observed which implies a law to be obeyed. 
 Eighteousness consists in fulfilling the duties imposed 
 by it with a cheerful obedience of discipline.^ 
 
 Some points must be noted here in which the 
 Stoics difiered much from the moralists of later times, 
 not so much in their solution of ethical problems as in 
 their conception of the problems themselves and of the 
 province of ethics as a science. A modern reader is 
 tempted to ask where is the sanction in the Stoic 
 scheme of morality ? How does it answer the ques- 
 tion which some regard as the very first that moral 
 philosophy is bound to answer — why should I do 
 right ? It may seem strange to us, but so it is, that 
 the Greek philosophers, and especially the Stoics, 
 
 ^ VI. 35. 2 yi 1(3 3 XL 5. 
 
 * The disobedient and dissatisfied are compared to runaway slaves, 
 X. 25, and more oddly to a pig that kicks and s([ueaks when it is 
 sacrificed, X. 28. Modern readers may be inclined to agree with the 
 pig.
 
 336 MARCUS AURELIUS AND THE [xil 
 
 troubled themselves very little to find a direct reply. 
 The question seems hardly to have occurred to them 
 in that form ; they rather assumed that a doctrine of 
 ethics is addressed to learners who are in the main 
 willing to be taught, and it is far from certain that 
 they were wrong in so doing. It may be fairly 
 doubted whether it is the business of moral philosophy 
 to establish the existence of its own subject-matter. 
 There is no topic on which one may not bring argu- 
 ment to a standstill by pushing obstinate denial far 
 enough. It may be that a man who will not admit 
 that there is such a thing as moral duty thereby 
 removes himself out of the reach of philosophy, and 
 is amenable (supposing his opinion to be sincerely held 
 and acted upon) only to other kinds of discipline. 
 After all, the modern way of supporting the moral 
 law with sanctions only puts the difficulty back ; for 
 what if a perverse man should say, I do not care for 
 your sanction ? We know that the most stringent 
 sanctions have in fact been deliberately set at defiance 
 on several occasions. All visible terrors of this world, 
 all imaginable terrors of another, have failed to 
 restrain men who fully knew or believed them from 
 following the impulse of their passions. Do we say, 
 then, that sanctions are of no account ? Certainly 
 not ; their part in a historical inquiry concerning the 
 growth of morality, or in the consideration of the 
 state of morals existing at any given time and place, 
 is of the utmost importance ; but this belongs to the 
 practical side of the matter, and does not show that 
 duty can be exhibited by way of demonstration to any
 
 XIl] STOIC PHILOSOPHY. 337 
 
 recalcitrant individual. As a matter of pure logic, 
 you cannot demonstrate a categorical imperative. Mr. 
 A. J. Balfour has well pointed out that no amount of 
 reasoning can end in a command, much less a com- 
 mand sure to be obeyed. But to return to the Stoics : 
 whether it was a real omission or not, they did not 
 consider the groundwork of ethics in this light. In 
 Marcus Aurelius there is very little about the con- 
 sequences of right or wrong actions to the individual 
 agent. It is worth mentioning, however, that in one 
 passage of Epictetus we find a clear enough expression 
 of what is now called the sanction of self-esteem.^ 
 He distinctly says that we are to weigh against the en- 
 joyment of a present pleasure, on the one hand the 
 future pain of repentance and self-reproach, on the other 
 hand the future pleasure of a satisfied conscience. And 
 the Stoics asserted no less stoutly than any one else, even 
 the Epicureans, that virtue is the only true happiness, 
 though they denied that virtue is morally preferable 
 because it gives happiness. Even this, however, is 
 not prominent in Marcus Aurelius ; and it is needless 
 to repeat here that the Stoics required virtue to be 
 above all things disinterested. One instance may be 
 given : " When thou hast done a good act and another 
 has received it, why dost thou still look for a third 
 thing besides these, as fools do, either to have the 
 reputation of having done a good act or to obtain a 
 return." ^ Of the optimism of their ethics we must 
 say a word more presently. 
 
 ^ Epict. Ench. 34. 
 ^ VII. 7.3 (Mr. Long's translation) ; and see IX. 42, cited below. 
 
 Z
 
 338 MARCUS AURELIUS AND THE [xil 
 
 Now this assumption, which I think is tacitly made 
 all through the Stoic teaching — namely, that there is 
 such a thing as a rule of right conduct binding one 
 man as well as another, and that the average man, so 
 far, at any rate, as philosophy has to deal with him, 
 is willing to follow that rule if it is properly explained 
 to him — brings us almost at once to the famous Socratic 
 position, that virtue can he taught ; or obversely, that 
 vice is mere ignorance. If (among the nations which 
 have produced philosophers at all events) men were 
 not on the whole able and willing to do right oftener 
 than not, it is difficult to see how moral philosophy 
 would be possible. In so far as a man is able and 
 willing to do right, he can do wrong only by mistake 
 or misapprehension ; and it is readily perceived that 
 much wrong has been and is done in the world for 
 pure want of knowledge. The Stoics, dwelling exclu- 
 sively upon this view, referred all wrongdoing to this 
 head ; and the doctrine had great practical importance 
 in their school, as we see in Marcus Aurelius, as an 
 argument for joatience and equanimity in bearing mis- 
 behaviour at the hands of one's fellow-men. Eeflect, 
 he says in substance, that it is the deed of your fellow 
 and kinsman, not knowing the law of his own nature;^ 
 ask yourself what is his mistake f his wrong is in 
 truth involuntary f it is the inevitable result of his 
 erroneous notions as to what is good and desirable,* 
 his mind being, as it were, jaundiced.^ It is more 
 than once added that rather than waste time in anger, 
 
 1 III. 11. 2 V. 22 ; VII. 26. 3 yil. 22, 63; X. 30; XIL 12. 
 
 4 VIII. 14. 5 yi. 57.
 
 XIl] STOIC PHILOSOPHY. 339 
 
 you should teach him to know better/ Other reasons 
 are also given in the same and other passages, but none 
 so characteristic of the Stoic system. Once it is said, 
 " It is proper to man to love even offenders."^ Again, 
 the immortal gods have to put up with worthless men 
 through all time, and take it not amiss ; how much 
 more then shall you endure them for a little lifetime, 
 being even such an one yourself?^ 
 
 From this digression, which seemed needful by 
 way of exjolanation, we go back to the positive con- 
 ception of morality as held by the Stoics. Virtue does 
 not, in their view, consist in action directed consciously 
 to the attainment of some ulterior advantage, but in 
 the normal and healthy exercise of an active function* 
 belonging to the proper constitution of man as a species 
 (IBia (jivafi). The question then presents itself, what 
 is this specific constitution? What are the charac- 
 teristic qualities of man that make him a moral being? 
 The answer, often and in many forms reiterated in the 
 teaching and writing of the school, is that man is 
 reasonable and social ; there is no lack of other autho- 
 rities on this point, but the constant occurrence of the 
 topic in Marcus Aurelius is significant as confirming 
 them. Here again it is to be observed how the Stoics 
 made use of their cosmical and teleological ideas as a 
 background for ethical theory. The world itself being 
 
 ^ X. 4 ; XT. 1 1 ; XI. 1 8 (in this last passage most of the precepts 
 for such occasions are summed up). 2 YU. 22. 
 
 ^ VII. 70 ; compare with this the legend of Abraham and the fire- 
 worshipper. 
 
 ■* The man of sound judgment perceives that his own good lies in 
 his own activity (t'Stav irpa^Lv), VI. 51.
 
 340 MARCUS AUEELIUS AND THE [xil 
 
 conceived as rational, and man being the eminently 
 rational creature, the agreement of man's Ihla cf>v(rt,<i 
 with the KOLvr] ^vcrL<;, or general law of the universe, is 
 presented with an air of self- evidence/ It is likewise 
 assumed as axiomatic (so, at least, it appears in Marcus 
 Aurelius) that the only rational life for man is a social 
 life. When man consults his reason it clearly and 
 imperatively bids him live with his fellow - men ; 
 human reason itself is constantly called social (^,0709 
 KOLvo3viKo<i, sometimes irokLTLKO'^). '.' He is a deserter 
 who abandons the social reason. ... he is a fragment 
 torn from society who tears his own soul from the 
 soul of reasonable creatures, which is one." ^ As will 
 be seen by this last quotation, the pantheism of which 
 we have already spoken is brought in to give a meta- 
 physical reason for the social bond ; the souls of men 
 being conceived as pieces or quantities of the same 
 stuff. Man is social, and is entitled to sociable treat- 
 ment at the hands of his fellow-man because he is 
 reasonable.^ Each man is to the community as a 
 member to an organism, not as a mere part to an 
 aggregate;* so the man who commits an unsocial 
 action is a mutilator of the body politic, in that he 
 cuts himself off from it ; but, as Marcus Aurelius or 
 his original quaintly, yet finely, adds, the limbs of this 
 body have the special gift of being able to reunite 
 themselves to it.^ Further, as a branch cut off from 
 
 ^ For the reasonable animal (man) action "according to nature" 
 and "according to reason" are identical, VII. 11. 
 
 2 IV. 29. 3 VI. 23. 
 
 * VII. 13. There is an untranslatable pun on jieXos and fiepos. 
 ' VIII. 34 ; XI. 8.
 
 XIl] STOIC PHILOSOPHY. 341 
 
 the next branch must needs be cut off from the whole 
 tree, so a man at strife with his neighbour is cut off 
 from the whole fellowship of men/ The whole of 
 man's action is to be directed to social ends, and to 
 the good of his fellow-men/ and such action, being 
 the exercise of man's proper energy and the fulfilment 
 of his truest nature, is its own sole and sufficient reward. 
 Does the eye seek a recompense for seeing, or the feet 
 for walking ? Likewise the man who has done aught 
 towards the common weal has done that which he is 
 set in the world to do, and in doing it receives his own.^ 
 It is even said that every deed that does not bear 
 directly or remotely on the chief end of the common 
 welfare is of the nature of dissension and sedition.* 
 One passage, in which the duty of sociableness is 
 enforced, first by various supposed physical analogies 
 in the elements, and then by the exam^^le of the gre- 
 garious and social animals, concludes with the remark 
 that no man can be wholly unsocial even if he tries : 
 nature is too strong.^ It is said, too, that the ruling 
 principle in man's constitution is that of society.'' In 
 all this there is, at the same time, a notable absence 
 of any distinct reference to political activities and 
 duties ; the city from which all the older Greek ideas 
 of religion and morality took their spring and strength 
 has become expanded to the bounds of the inhabited 
 world, and man owes duties to his neigbour, not as his 
 fellow-citizen, but as his fellow-man. For the iroXtrt- 
 Kov ^Mov of Aristotle the teachers of Marcus Aurelius 
 
 » XI. 8. ' VII. 5 ; IX. 23. 3 IX. 42. 
 
 4 IX. 23 5 IX. 9. « VII. 55.
 
 342 MARCUS AURELIUS AND THE [xil 
 
 had substituted kolvwvlkov. This is, indeed, one of the 
 most familiar marks of the post- Aristotelian philosophy 
 in general. In some ways the cosmopolitan turn of 
 ethical conceptions was a real advance, though both 
 its origin and its development exhibit clear signs of 
 weakness. But in considering the effect of Stoicism 
 on the Eoman world, it is proper to bear in mind that 
 the feeble side of its cosmopolitan doctrine was just 
 that to which a Eoman disciple, accustomed to take 
 part in affairs of state, would be likely to bring suffi- 
 cient correction from his own resources. A Roman 
 commander or administrator guarding the frontiers of 
 the Empire against fierce and barbarous tribes could 
 never be a mere citizen of the world ; and it is not 
 insignificant that we find Marcus Aurelius, who was 
 himself thus engaged during part of the time that he 
 set down his notes, more than once giving a marked 
 place in his reflections to his duties as the first of 
 Eoman citizens. " Being Antoninus, I have Eome to 
 my city and country ; being a man, the world. The 
 weal, then, of these cities, is the sole measure of good 
 for me."^ Before passing on we may note that the 
 ^ connexion between the social morality of Stoicism and 
 its cosmical theory is well given in a single sentence 
 by Cicero : " They (the Stoics) are of opinion that the 
 world is governed by the power of the gods, and is in 
 a manner a common city and polity of men and gods ; 
 of which world each one of us is a member. Whence 
 this follows in course of nature, that we set the com- 
 mon weal before our own."^ 
 
 1 VI. 44. 2 cic, De Fin., III. 64.
 
 Xll] STOIC PHILOSOPHY. 343 
 
 The next question may seem to be of this kind : 
 All this being so, how did the Stoic morality provide 
 for dealing with the problems of conduct that arise in 
 actual life ? The foundations of the work beino; thus 
 laid, by what rule were the details assigned ? And if 
 it is indeed a material part of the business of moral 
 philosophy to tell people what is right and wrong in 
 given circumstances, there is no doubt that Stoicism 
 must be found sadly wanting. There is very little in 
 Marcus Aurelius that could be used to throw any 
 direct light on particular cases of conscience. But 
 there is another view of the office of moral philosophy 
 not wholly without supporters, which is that this task 
 is exactly what moral philosophy should not attempt. 
 According to this opinion the office of ethical science, 
 so far as it has a practical bearing on conduct, is not 
 to solve special problems, but to form a habit of mind 
 fit to solve them in action. The object is to impart 
 not bare precepts, but moral habits which may bear 
 the good fruit of right intention guided by trained 
 judgment ; not to teach men what actions are right, 
 but to make them rightminded. A healthy moral 
 constitution may be trusted to deal with the particular 
 cases as they arise. You cannot make yourself 
 righteous by working out a set of fixed rules ; on the 
 contrary, when you want to know how to apj^ly the 
 rule in a new instance you must take the judgment of 
 the righteous man. This conception, more familiar 
 perhaps to the Greeks than to most of ourselves, is 
 often present in Aristotle, and there are indications, 
 at least, in Marcus Aurelius that it was practically
 
 344 MARCUS AURELIUS AND THE [xil 
 
 adopted Ly the Stoics. We fiud the healthy moral 
 sense expressly compared to the healthy sight or taste 
 of bodily sensc.^ It is well known that the ideal wise 
 man of the school was conceived as infallible in his 
 moral judgment ; this, however, jDroves nothing as to 
 the supposed character of the process of judgment it- 
 self. But I do not think the process is anywhere 
 represented as one of calculation from rules, save so 
 far as an accurate knowledge of the circumstances and 
 consequences is dwelt upon as necessary to right 
 action ; and this last has to do with the conditions of 
 the problem rather than with the actual solution. 
 Neither is the self-sufficient and necessary rightness of 
 the Wise Man's conduct, as conceived by the Stoics, a 
 mere paradox. The highest morality of all times has 
 regarded obedience to precepts as but the rudimentary 
 and subordinate part of righteousness. The state 
 which the soul eager for righteousness endeavours to 
 attain is that of being a law to itself; and therefore 
 Dante makes Virgil declare to him, after he has passed 
 through Purgatory, that, being purified of sin and 
 error, he is his own priest and king. There are no 
 greater words than these in all modern poetry: — 
 
 Non asj)ettar mio dir piu, iie mio cenno ; 
 Libero, dritto, saiio h tuo arbitrio, 
 E fallo fora non fare a suo senno ; 
 Perch' io te sopra te corono e mitrio. 
 
 It is true that some of the Stoics appear to have 
 committed themselves to what is now called casuistry, 
 and not to have escaped the kind of odium which has 
 
 1 X. 35.
 
 XIl] STOIC PHILOSOPHY. 345 
 
 become attached to the like inquiries in later times. 
 And certainly some of their results, as handed down 
 to us (if we could be sure that they are fairly repre- 
 sented), are not altogether edifying. But the dis- 
 pleasure they gave was due in great measure to their 
 adopting from the Cynics an open and offensive dis- 
 reo;ard of men's common feelinejs. There was an 
 
 CD O 
 
 original connexion between the Stoic and the Cynic 
 schools, and though the Cynic elements of the Stoic 
 doctrines were gradually thrust into the background, 
 or explained away by the more enlightened leaders, 
 yet there was always a Cynic w^ing, as we might now 
 say, of the Stoics, and Cynical propositions held their 
 ground as commonplaces long after they had ceased to 
 be consistent with the developed and active social 
 morality of the school. We find several times in M. 
 Aurelius a vein of coarse and exaggerated depreciation 
 of all ordinary objects of desire, where the argument, 
 such as it is, consists in exhibiting them as resolved 
 into elements which are separately worthless or dis- 
 gusting.^ These passages can be accounted for, I 
 think, only as a residue of Cynic traditions. They 
 have no real affinity with the lofty cosmical disdain 
 with which, as has already been seen, the Stoics 
 endeavoured to look down upon the slight and mutable 
 things of this world, but which is consistent with an 
 earnest purpose of doing the best one can, however 
 little it may be, and not despising one's work for not 
 
 1 VI. 13; VIII. 24, 37; IX. 36; XL 2. M. Bartlielemy St. 
 Hilaire's phrase, " erudite etonnante ," is not at all too strong.
 
 346 MARCUS AURELIUS AND THE [xil 
 
 being greater/ and wliicli sought contentment not in 
 violent self-deceptions, but in an even mind. It is no 
 Cynical prompting that bids men pray, not for the 
 objects of desire, but for a soul free from desire.^ 
 Developed Stoicism is equally remote from the crudity 
 of the Cynics on the one hand, and from asceticism on 
 the other. Man's physical well-being (77 w9 ^(oov ^uVt?) 
 is not to be suppressed, but rather cultivated, in sub- 
 jection however to the demands of his reasonable and 
 social well-being (v^ 0)9 ^coov \oytKov (}>vai<;, to XoyiKov Kol 
 irdXiTiKovj.^ 
 
 The Stoic optimism and its curious consequences 
 are perhaps the most generally known parts of the 
 system. The Stoics, holding that the universe was 
 governed by immutable law, which law was the ex- 
 pression of perfect reason and the pattern of all good, 
 were necessarily optimists. They looked upon the 
 universe as good in a human and ethical sense, and 
 the Wise Man was the purposed crown and glory of 
 creatures. And they had accordingly to face the 
 question which every scheme of benevolent teleology 
 has to face in some way — namely. Why do good men 
 suffer evil in the world ? The answer they gave de- 
 serves admiration for its boldness. They simply 
 denied the fact. They said that the supposed evils 
 are not evils at all ; the common objects of desire or 
 aversion, in so far as they do not involve ethical merit 
 
 ^ Compare IX. 28 witli the following section, ^ IX. 40. 
 
 ' X. 2. The Cynics, it has been well remarked, were not ascetics; 
 for they sought not to mortify desires, but to reduce them to the least 
 number, and satisfy them in the cheapest and coarsest way.
 
 XIl] STOIC PHILOSOPHY. 347 
 
 or demerit in the person enjoying or suffering, are 
 neither good nor bad, but indifferent. This is the 
 celebrated doctrine of AdiapJioria, which the Stoics 
 maintained against all comers with great zeal and 
 pertinacity ; yet they had to admit that for practical 
 purposes there must he such a thing as a rational pre- 
 ference among these indifferent things, if only be- 
 cause the Wise Man must needs make some choice 
 among them ; and they saved a contradiction in terms 
 by ingenious distinctions and refinements, on the 
 particulars of which we need not enter here. The line 
 of thought by which the main doctrine was reached 
 is no matter of conjecture : it is distinctly given, for 
 instance, by M. Aurelius, when he says that nothing 
 can be really good or bad which befalls good and bad 
 men alike. ^ The topic was considered by the Stoics 
 as one of importance on account of its practical value 
 in strengthening the mind against the common tempt- 
 ations of the world, and the deliberate cultivation of 
 Adiaphoria, the attitude of pure indifference towards 
 the whole contents of the neutral field, "between 
 virtue and vice," was recommended as a point of 
 moral discipline.^ The same optimism led in much 
 the same way to the well-known Stoic paradoxes con- 
 cerning the blessed state of the Wise Man. Since no 
 real harm can befall the man who possesses true wis- 
 dom and virtue (it will be remembered that with the 
 Stoics these were synonymous), and he who does not 
 possess them possesses no real good, it follows that 
 the wise man alone is entitled to all the honourable 
 
 ' IV. 39. 2 Yii. 31,
 
 348 MARCUS ATJRELIUS AND THE [xil 
 
 additions wliicli men are accustomed to bestow indis- 
 criminately ; to liim alone belong freedom, wealth, 
 and kingship — even personal beauty was not omitted 
 from the catalogue/ 
 
 These and kindred propositions were not taken by 
 the Stoics in the way of rhetoric or metaphor ; we 
 are told, indeed, that the school was averse to rhetori- 
 cal expansion. They were seriously maintained as 
 literal truth, and defended with the utmost rigour 
 of dialectic.^ Still, it is difficult to believe that 
 Stoic teachers always resisted their capacities for 
 rhetorical treatment. Cicero has left us some speci- 
 mens in this kind, and in particular a little book 
 entitled Paradoxes, where he sets forth the Stoic 
 maxims in a poj^ular manner. It may be convenient 
 to give the heads — they are as follows: 1. Moral 
 good \to koXov, ho7iestum] is the only good. 2. Virtue 
 suffices for happiness. 3. There are no degrees of 
 wrongness or rightness in actions. 4. Every fool [ = 
 iiot-ivise in the Stoic sense] is mad. 5. The wise man 
 alone is free, and every fool is a slave. 6. The wise 
 man alone is rich. 
 
 Outsiders naturally found here a tempting field for 
 ridicule, and were not slow to make the most of it. 
 Serious argument was not so easy as it might seem at 
 
 1 See, for example, Cic, De Fin., III. 75 ; Hor., Ep., Li. 106 ; 
 Sat., II. iii. 45 (the whole Satire is an illustration of the paradox, 
 Tras a(f)p(Mv /xaiveTai, No. 4 in Cicero's list). 
 
 2 Cato autem, perfectus mea sententia Stoicus . . . in ea est 
 haeresi quae nullum sequitur florem orationis neque dilatat argumen- 
 tum ; minutis interrogatiunculis, quasi punctis quod proposuit efficit. 
 — Cic. Parad., Prooem. Cicero speaks also of the school as cultivating 
 condusiunculae.
 
 XIl] STOIC PHILOSOPHY. 349 
 
 first sight, for the Stoic could meet any appeal to 
 facts by explaining that there was not a real Wise 
 Man to be found in the world. It was certain that 
 there had been very few altogether, and it was an 
 open question whether any one had come quite up 
 to the mark in historical times. Socrates and one or 
 two others were commonly admitted, and some of the 
 Eoman Stoics ventured to add Cato.^ But here, again, 
 they made a compromise with practical needs. Strictly 
 speaking, one must either be in the perfect light of 
 wisdom, or in an outer darkness wherein there were 
 no degrees. A miss is a miss, they said, whether the 
 shaft goes a hair's-breadth or a mile beside the mark. 
 Yet they devised the notion of a certain 2^'^^ojimency 
 towards real excellence, which might approximate 
 indefinitely to it in its eff"ects, though it could never 
 be the same thing ; a kind of ethical asymptote to the 
 unattainable ideal. All this was likely enough to 
 degenerate into quibbling and mere verbal puzzles, 
 
 ^ The sii:gnlar parallel between -w-isdom in the Stoic philosophy 
 and the state of grace in Augustinian theology is pointed out by Zeller 
 {op. cit. 235). It extends even to the detail of the transition or con- 
 version from utter darkness to perfect enlightenment being the work of 
 a moment. It will be noted that the number of the elect is much 
 more narrowly limited by Stoicism than by even the most rigid forms 
 of Calvinism ; there may not be a single ivise man in many centuries. 
 But then the consequences of exclusion were comparatively slight. There 
 is a coincidence of a higher kind with Christian thought when Marcus 
 Aurelius bids himself lead a new life from every moment, " as one that 
 is dead, and whose past life is now finished," (VII. 56) ; "thou shalt 
 be a new man and enter upon a new life " (X. 8). A not less striking 
 parallel may be found in the Buddhist Nirvana, if we regard it with 
 Mr. Rhys Davids and other good authorities as a state of passionless 
 perfection, theoretically attainable even in the present life.
 
 350 MAKCUS AURELIUS AND THE [xil 
 
 especially under the influence of tlie fondness for the 
 curiosities of dialectic which was characteristic of the 
 school. The paradoxical and polemical aspects of the 
 system acquired undue prominence in the eyes of 
 critics and outside observers, and, I think, have re- 
 tained it in modern times. It is remarkable that 
 there is hardly a trace of them in Marcus Aurelius. 
 So far as one can guess from his writing, Horace's 
 jesting notice of Chrysippus's dictum that the Wise 
 Man, if he chose, would be the best of cobblers, must 
 have fallen quite harmless upon him. May we not 
 suppose that the men who, like Marcus Aurelius, took 
 up Stoicism not as a literary profession but as a guide 
 to the conduct of active life were content to leave 
 this kind of discussion alone, or even in their hearts 
 despised it as mere verbal trifling ? 
 
 It will readily be understood, but perhaps I should 
 expressly repeat it, that the object of the foregoing 
 pages is not to give an exposition of the Stoic system, 
 such as it was, or may have been, ofiicially set forth 
 by the founders and masters of the school, but to 
 trace the substance and connexion of the doctrines 
 Avhich appear to me to have contained its working 
 power for Marcus Aurelius and those of whom he is 
 the type. The history of Greek philosophy is a 
 magnificent and weighty subject, which yet remains 
 to be worthily treated by an Englishman. My pre- 
 sent endeavour is not only within narrow bounds in 
 extent, but altogether in a narrower sphere. But no 
 inquiry can be worthless which may throw any light 
 upon the character and moral training of the men
 
 Xir] STOIC PHILOSOPHY. ,/->''| 351 
 
 whose arts and arms, maintained by Eoman energy, 
 and touched with the fire of Greek intellect, established 
 the empire and the peace of Rome, and created the 
 civilized world. 
 
 Note, — I may add a word here about editions of Marcus Aurelius. 
 No author wants a commentary more, but Marcus Aurelius bas been 
 strangely neglected ia this respect. There is, I believe, no annotated 
 edition later than Gataker's, which dates from the middle of the 
 seventeenth century. The text is often difficult, or corrupt, or both ; 
 the condition of some places is probably hopeless. Besides other 
 scholars, Coraes and Schultz have done good work upon it, but much 
 yet remains to do. The Tauchnitz reprint of Schultz's text (which is 
 practically the only available edition for ordinary purposes) has critical 
 notes, but the absence of all discriminating marks in the text itseK is 
 a drawback. A field of no small interest and opportunities is open to 
 any scholar who will equip himself, in addition to general critical 
 training, with a competent knowledge of the vocabulary of the post- 
 Aristotelian schools. I will give one example. In VI. 38 we read as 
 follows — TpOTTOV yap nva iravra dAAvyXots eTriTre— AcKrat, /cat iravro. 
 Kara tovto ^t'Aa aAA^Aots ea"Tf Kat yap aAAw ciAAo JA^s ecrri" 
 Tovro 8e Sia rrjv roviKrjv [vulg. T07ri/<r)v] fKovrjo-iv Kal a-vfjiTrvoLav, 
 Kal Tr]v evwcrtv t'^s ovo-t'as. Schultz rightly prefers tovlki^v, the 
 reading of the Vatican codex, and notes Kovt^criv as corrupt. He 
 proposes crvvvqcrLV or the like. Another suggestion is kolvwctlv. But 
 I think we need have little doubt in replacing KLvr]crtv, for tovlkt] 
 KLvrja-Ls was a regular Stoic term, Zeller, op. cit. 189, note, rdvos was 
 the vivifying action of the elemental fire pervading the world, see 
 Stobseus ap. Ritter and Preller, p. 379. 
 
 For English readers the want of a commentary is, to a considerable 
 extent, supplied by Mr. Long's excellent translation ; not altogether, for I 
 think, with all deference to the taste of a master in criticism, that the 
 Greek has, if not exactly a charm, yet enough of a " distinct physiog- 
 nomy" to keep one from leaving it on the shelf One can only regi-et 
 that Mr. LonQ;'s notes are so few and brief
 
 352 MR. spencer's DATA OF ETHICS. [xill 
 
 XIII. 
 
 MR. SPENCER'S DATA OF ETHICS.^ 
 
 Few readers will think that an apology is needed 
 for the appearance of a volume on Ethics by Mr. 
 Spencer in an order which is premature as regards the 
 scheme of a system of philosophy which he has spent 
 so many years in working out. Like other philoso- 
 phers who have undertaken elaborate and far-reaching 
 constructions, Mr. Spencer has from the beginning 
 had, as he now tells us, an ultimate ethical purpose 
 running all through his work. Doubting — for reasons 
 which all students of philosophy must regret — whether 
 it be possible for him to carry out his scheme in its 
 order as first planned, he has thought it the safer 
 course to make sure to some extent of that part to 
 which all the rest is intended to lead up. In so doing 
 he will have the intellectual as well as the personal 
 sympathy of those who have followed his work thus 
 far ; for there can be no doubt that it is the ethical 
 side of the problems of philosophy which excites the 
 widest and deepest interest. One might indeed lay 
 it down as a rule subject to few exceptions that, 
 
 ^ The Data of Ethics. By Herbert Spencer. London : Williams 
 and Norgate. 1879.
 
 XIIl] MR. spencer's data OF ETHICS. 353 
 
 whenever a question appearing to be purely philoso- 
 phical is the subject of particularly keen discussion, 
 an ethical question will be found underlying it. 
 Through its ethical interest philosophy is linked with 
 our actual life, and establishes a practical claim on 
 our attention. 
 
 It is by no means an uncommon belief that a 
 system of ethics resting on either theological or philo- 
 sophical foundations is needful for the security of 
 practical morality. And this belief, though not exactly 
 in its commonest form, is adopted by Mr. Herbert 
 Spencer, who affirms that " the establishment of rules 
 of right conduct on a scientific basis is a pressing 
 need." We cannot helji thinking this statement too 
 broad and positive. It seems to im^jly that nations 
 are made moral by systems of ethics ; whereas people 
 make ethical systems (as we submit) because they are 
 already moral. A theory of ethics is an attempt, 
 which may or may not be successful, to make explicit 
 that which is implicit in practical morality. Its 
 failure, if it fails, does not affect the worth of practical 
 morality or ordinary men's conviction of it. The 
 scientific basis of working morals is not in any form- 
 ulated rules or propositions, but in the mass of con- 
 tinuous experience half- consciously or unconsciously 
 accumulated and embodied in the morality of common 
 sense. Any one who thought so ill of the morality 
 of common sense, the sum of current moral rules and 
 feelings by which ordinary well-conducted men govern 
 themselves, as to be utterly dissatisfied with it and 
 want to get rid of it, would naturally enough go in 
 
 2a
 
 354 MR. spencer's data OF ETHICS. [xill 
 
 quest of a new scientific basis. But this is not at all 
 Mr. Herbert Spencer's position ; and his opinion as 
 to the necessity of putting ethics on a new scientific 
 footing seems to mix uj) to some extent the theoretical 
 explanation of moral rules with the grounds on which 
 men in ordinary life obey them. Notwithstanding 
 Mr. Spencer's emphatic language, and notwithstanding 
 also that of moral alarmists who cry out in far other 
 interests and for far other purposes about the dangers 
 of ethical sj^eculation, we think it prudent and right 
 to bring to the consideration of ethical theories just 
 the same disinterested curiosity that we bring to any 
 other philosophical discussion. 
 
 What Mr. Spencer understands by ethics is a 
 scientific account of right and wrong conduct ; where 
 by conduct is meant the sum of all acts consciously 
 adjusted to ends. We say consciously — an addition 
 to Mr. Spencer's own phrase which appears to be in 
 strictness required, although it is true that the dis- 
 tinction between conscious and unconscious adjust- 
 ment does not arise till we consider organisms of a 
 fairly advanced type. Adopting the general theory 
 of evolution, we must expect to find the process of 
 evolution manifested in conduct, as in all other 
 phenomena of life ; and in fact we shall find that 
 according as that process has been carried farther 
 or less far in the general development of a given 
 organism, the adjustment of acts to ends is more or 
 less various and complete. The more highly evolved 
 conduct is the more successful conduct. But in order 
 to compare the conduct of difierent living beings in
 
 XIIl] MR. spencer's data OF ETHICS. 355 
 
 respect of success we must have the idea of a common 
 ultimate end which is aimed at by their actions as a 
 whole. A ruined man who jumps into deep water 
 with the intention of drowning himself, and is drowned 
 accordingly, is successful as regards his immediate 
 purj^ose, but is not called successful in a general way. 
 The end to which the actions of living creatures as a 
 whole tend to be adjusted is the maintenance of life. 
 In measuring the perfection of the adjustment, or the 
 degree of evolution of conduct, we have to take into 
 account the quality as well as the duration of life 
 which is attained ; an oyster may live more days than 
 a cuttle-fish, but for the cuttle-fish a day contains 
 fuller and more various life than for the oyster. 
 Further, the adjustment has to be race-maintaining 
 as well as self-maintaining; and development, as a 
 rule, proceeds under both these aspects at once, the 
 self-preservation of the individual and that of the race 
 working into one another. And this, Mr. Spencer 
 adds, is not all ; the evolution of conduct includes 
 those modifications of it which enable adjustments to 
 be made by one creature without interfering with the 
 adjustments of others. In other words, the tendency 
 of development in conduct is to reduce as far as pos- 
 sible the dependence of the agent on a struggle for 
 existence with other creatures. In social life this line 
 of determination passes from the negative phase of 
 non-interference to the positive one of co-oj)eration. 
 Here Mr. Spencer assumes, if we rightly understand 
 him, that increase of " the totality of life," not merely 
 with regard to a given individual or race, but when
 
 356 MR. spencer's data OF ETHICS. [xill 
 
 we take the whole sum of life in the world, is a mea- 
 sure of the progress which the evolution of conduct 
 has made. And when we remember that our divisions 
 of species and races are in the last resort artificial, 
 this may not appear illegitimate. 
 
 Thus far the notions of good and bad have not 
 been introduced. Mr. Spencer now proceeds to ex- 
 amine them, and finds that we call things good or 
 bad in common speech in so far as they are well or ill 
 adapted to some known or assumed end. And we can 
 pass from purely non-ethical to purely ethical judg- 
 ments by almost insensible gradations, this Jinal char- 
 acter (if we may so call it) of the epithets good and 
 bad, or right and wrong, persisting all through. A 
 good knife is a knife that will cut ; the right key is 
 that which opens the lock. Here we are quite off 
 ethical ground. It is good to eat wholesome food in 
 due season ; it is wrong to act rashly in important 
 business ; here the judgment is of a semi-moral kind. 
 At the other end of the scale w^e have abstract moral 
 propositions, such as that it is right to deal fairly 
 with all men, or that pride is a bad passion, in which 
 the reference to an end aimed at by human conduct 
 as a whole is so generalized and faint that it easily 
 escapes notice. But an end is, in truth, always referred 
 to — namely, the completeness of human life. This natu- 
 rally raises the question — completeness with reference 
 to what ? For it must not at this stage be assumed, 
 nor does Mr. Spencer assume, that the desirableness 
 or moral excellence of life is to be measured by the 
 natural history scale of development. The naturalist
 
 XIIl] MR. spencer's data OF ETHICS. 357 
 
 calls this animal higher and that lower, and can give 
 a scientific explanation of those terms. But whether 
 the higher animal is always the better, and if so,, in 
 what sense, is the very question to be cleared up. 
 Thus we have still to seek the definition of good and 
 had on the largest scale. Life is good if well adjusted ; 
 bad if ill adjusted — to what 1 Mr. Spencer, thus con- 
 fronted with the venerable question of the sumtnum 
 honum, ingeniously attacks it by a turning movement. 
 The controversy between optimists and pessimists, 
 wdiich happens just now to be prominent, will show 
 what mankind really value in life. Is there anything 
 which the pessimist denies of life and the optimist 
 affirms, and of which they both admit that its presence 
 or absence is conclusive ? " Yes," says Mr. Spencer, 
 " there is one postulate in which pessimists and opti- 
 mists agree. Both their arguments assume it to be 
 self-evident that life is good or bad according as it 
 does or does not bring a surplus of agreeable feeling. 
 The pessimist says he condemns life because it results 
 in more pain than pleasure. The optimist defends 
 life in the belief that it brings more pleasure than 
 pain. Each makes the kind of sentiency which ac- 
 companies life the test." In other words, all men are 
 at bottom hedonists ; " pleasure somewhere is the 
 tacitly implied ultimate end " on any view of life ; 
 and " if we call good the conduct conducive to life, 
 we can do so only with the implication that it is con- 
 ducive to a surplus of pleasures over pains," An 
 intuitionist's natural reply will be that the end and 
 standard of moral conduct is not necessarily that which
 
 358 MR. spencer's data OF ETHICS. [XIII 
 
 all men in fact desire. That pleasure is desired by all 
 men does not prove it solely or supremely desirable 
 in an ethical sense. But the objection is of minor 
 importance as against Mr. Spencer, as we presently 
 find. For with Mr. Spencer hedonism is not a " method 
 of ethics " at all, but a psychological fact. Again, the 
 ultimate coincidence of the maximum of pleasurable 
 feeling with the highest phase of evolution is, in his 
 view, capable of proof; but neither of these is to be 
 made an object of direct pursuit in the conduct of life. 
 Mr. Spencer's " method of ethics," so far as yet dis- 
 closed, appears to be much less summary and infallible 
 than most that have been propounded by former philo- 
 sophers ; which, as we need hardly say, is to the 
 scientific reader a strong point in its favour. Mean- 
 while he afiirms that the judgment of moral common 
 sense as to the goodness of conduct coincides with the 
 judgment of natural history as to the degree of its 
 evolution. " Other things equal, well-adjusted self- 
 conserving acts we call good ; other things equal, we 
 call good the acts that are well adjusted for bringing up 
 progeny capable of complete living ; and, other things 
 ec[ual, we ascribe goodness to acts which further the 
 complete living of others." It is not explained whether 
 or how far the " others " of the last clause extends 
 for practical purposes beyond others of our own kind. 
 Mr. SjDcncer does not so distinctly break with old- 
 fashioned utilitarianism as some of his readers may 
 have hoped or expected. His own account of the 
 difference is that he aims at a rational, not an em- 
 pirical, utilitarianism. It is not enough to ascertain
 
 XIIl] MR. spencer's data OF ETHICS. 359 
 
 that ill fact certain kinds of conduct produce hap- 
 piness and others produce misery ; the function of 
 morality as a science is " to determine how and wh)/ 
 certain modes of conduct are detrimental, and certain 
 other modes beneficial," Scientific propositions about 
 conduct are to be deduced " from the laws of life and 
 the conditions of existence." Here we agree with Mr. 
 fSpencer in principle, though we are not prepared to 
 admit that the utilitarianism of J. S. Mill, or even of 
 Bentham, is so merely empirical as his criticism as- 
 sumes. We may add that the ascertainment of the 
 sorts of conduct which promote the welfare of society 
 or the contrary is just what the common experience of 
 mankind has been doing for all the time that men 
 have lived tos^ether. There is no occasion for moral 
 philosophers to do it over again, and no reason to 
 suppose that they would do it better. The collection 
 of moral axioms arrived at by experience may be 
 a useful undertaking, but it is not ethical science. 
 On the other hand, the deduction of an ethical 
 system from the fundamental principles of human 
 nature is not a thing unattempted. In particular, 
 it was undertaken two centuries ago by Spinoza, 
 no doubt with materials to some extent imperfect ; 
 and his work has, on the whole, steadily risen in 
 the esteem of competent persons. Even hostile 
 critics have scarcely disputed the value of his theory 
 of the passions. And at a much earlier time the 
 Stoics (whom Mr. Spencer once or twice mentions 
 in a rather slighting way and not quite accurately, 
 we presume on the strength of second-hand accounts)
 
 360 MR. spencer's data OF ETHICS. [xill 
 
 had made good a sensible progress in tlie same 
 direction. 
 
 It is worth considering whetlier Mr. Spencer's 
 treatment of pleasure is not the true point of differ- 
 ence between his doctrine and most previous forms of 
 hedonism. Instead of taking pleasure and pain as 
 ultimate facts, and defining welfare in terms of 
 pleasure, Mr. Spencer explains pleasure as the general 
 form of feeling which, on the whole and in the long 
 run, is correlated witli actions conducive to the wel- 
 fare of the organism ; where ivelfare is equivalent to 
 conversation or maintenance. That " every pleasure 
 increases vitality ; every pain decreases vitality " — is 
 not only a physiological fact, but a necessary condition 
 of life going on. If pleasure -giving acts were not in 
 the main life-sustaining acts, sentient life could not 
 sustain itself at all. Pleasure, the good in immediate 
 feeling, is the index of preservation or welfare, the 
 good in the history of the individual and the race as 
 it would appear to a scientific observer. Of course the 
 felicific quality of pleasure (to use Mr. Sidgwick's 
 word) is subject to apparent exceptions, though it is 
 at least arguable, and has been ingeniously argued by 
 Mr. Grant Allen, that pleasure, as such, is always to 
 some extent good for the organism. At first sight 
 Mr. Spencer ma)^ possibly be accused of arguing in a 
 circle. He seems to say that life is good because it 
 tends to a surplus of pleasurable feeling, and then 
 that pleasure is good because it makes for a complete 
 life. But his real position, we conceive, is something 
 as follows : — The pleasurable or good in feeling is, as
 
 XIIl] MR. spencer's data OP ETHICS. 361 
 
 feeling, ultimate, and no justification of our desiring 
 it either is or can be given. To show that pleasure is 
 desirable would be an irrational and idle task. But 
 we can tell what pleasure is and why we desire it, 
 since the equivalence in the long run of pleasure-giving 
 and life-sustaining acts is involved in the conditions 
 of life. The process of evolution in living things is 
 the maintenance and adjustment of life, and pleasure 
 is the consciousness of increased life. Thus the goal 
 of evolution and the goal of hedonism are one ; and 
 if we could set up an ideal of evolution as somehow 
 desirable in and for itself (to which eager disciples of 
 Mr. Spencer and Mr. Darwin have now and then been 
 tempted) it would make no practical difference. 
 
 Mr. Spencer proceeds to trace the evolution of 
 conduct under its various aspects, including in the 
 psychological aspect the origin and nature of the 
 moral sense. The criticism of adverse schools will 
 probably say that these chapters, however interesting 
 and ingenious, are not morality, but natural history. 
 Certainly they are not the kind of moral science that 
 intuitionists demand ; but then Mr. Spencer does not 
 profess to furnish us with a transcendental system of 
 ethics. Those who are content with a scientific 
 analysis of moral phenomena in terms of human 
 experience may fairly call on the transcendentalists to 
 produce something better and more complete them- 
 selves. Transcendentalists, on the other hand, may 
 perhaps welcome Mr. Spencer's criticism on the 
 hitherto current methods of utilitarianism, which is 
 unsparing. The direct pursuit of happiness is alto-
 
 362 MR. spencer's DATA OF ETHICS. [xill 
 
 gether rejected as a guide for conduct. Eational utili- 
 tarianism " does not take welfare for its immediate 
 object of pursuit, but takes for its immediate object 
 of pursuit conformity to certain principles which, in 
 the nature of things, causally determine welfare ; " in 
 accordance with the law, found to prevail in the whole 
 of conduct, " that each later and higher order of means 
 takes precedence in time and authoritativeness of each 
 earlier and lower order of means." In criticizing 
 Bentham Mr. Spencer goes so far as to say confidently 
 that justice is a much simpler and more intelligible 
 notion than happiness. Few students of the philo- 
 sophy of law will admit this. 
 
 The conflict between egoism and altruism is dis- 
 cussed in some chapters which are the most generally 
 interesting in the book, and are perhaps also the best 
 in style and dialectic. Impatient persons will, how- 
 ever, be disappointed by the conclusion here as else- 
 where in Mr. Spencer's work ; for the result is, in 
 short, that the evolution of morality tends to reconcile 
 the claims of altruism and egoism, but that the 
 reconciliation can be complete only when morality 
 attains an ideal state. This leads to the enunciation 
 of an important doctrine as to the function and scope 
 of ethical science. Mr. Spencer holds that theoretical 
 ethics, like theoretical mechanics, must deal with an 
 ideal state of things, and work out results which can 
 be only approximately true with regard to the actual 
 world ; the ideal moral state of society, however, 
 being one which tends to be realized, and to which an 
 indefinitely near approximation may in course of time
 
 XIIl] MR. spencer's data OF ETHICS. 363 
 
 be made. Morality, like meclianics, can be made 
 rational only by neglecting in the first instance the 
 complications that occur in nature. These complica- 
 tions — the actual moral and social conditions of a 
 given time and country — belong to " relative ethics " ; 
 in fact, the practical side of Mr. Spencer's " relative 
 ethics " is what other writers have called positive 
 morality. On the other hand, the system of rational 
 or " absolute ethics " is an ideal construction of human 
 conduct such as it would be in an ideal society. The 
 standard thus obtained will often be inapplicable as a 
 working rule in particular stages of " relative ethics," 
 but will help us to estimate the amount of develop- 
 ment which particular societies and systems have 
 attained. At this point Mr. Spencer leaves us for the 
 present. We need hardly say that his book offers far 
 more matter for consideration than we have been able 
 to dwell upon. It shows Mr. Spencer's constructive 
 power at its best, and takes rank in the highest order 
 of philosophical writings, — those which give us not 
 only arguments but ideas. 
 
 We now propose to carry somewhat farther the 
 reflections arising from Mr. Spencer's discussion of 
 the nature and ethical import of pleasure. One 
 result of it is to abolish once for all the crude form 
 of hedonism with which utilitarians are commonly 
 charged by their critics, and which has really been 
 maintained by a few writers. It is no longer possible 
 to start a serious argument on the old ground of the 
 Chief Good. Without perhaps exactly aiming at it, 
 Mr. Spencer has greatly cleared the field of dispute
 
 364 MR. spencer's DATA OF ETHICS. [xill 
 
 concerning the moral end of action. He shows that 
 all mankind are in a certain sense hedonists, and his 
 ]3roof requires the determination of that sense in a 
 particular way. Now this way is the definition or 
 specification of pleasure by that which is the true 
 constant property of all things we call pleasant — 
 namely, preferable consciousness, or to be more exact 
 in language, preferahleness in consciousness. This 
 again involves a proposition belonging rather to 
 metaphysic, or to the metaphysics of ethics, than to 
 ethics proper — namely, that whatever is preferred or 
 preferable is so in consciousness and not out of con- 
 sciousness. It may seem to persons unversed in 
 metaphysics a truism to state this ; but the philo- 
 sophical reader will not fail to see its importance. 
 If its truth is allowed without difficulty, so much the 
 better. We need not inquire here how far it may be 
 ultimately consistent with Mr. Spencer's theory of 
 the Unknowable. Enough that for ethical and 
 practical purposes he assumes its solidity. The 
 statement that Pleasure is the Chief Good, as analysed 
 by him, becomes not so much an affirmation as a 
 critical condition of proceeding to affirmations. It 
 excludes the supposition that what is preferable can 
 be out of consciousness. The end of human action, 
 whatever it may be, is in and for consciousness. 
 
 This being so, we are able to see that the real and 
 practical question left before us may be put thus : 
 What kind of consciousness is prrferahle ? This does 
 not admit of any dogmatic or off-hand answer. 
 Every man is indeed the judge, and the only judge,
 
 XIIl] MR. spencer's data OF ETHICS. 365 
 
 of what his own actual preference is at a given 
 moment. But this is of no philosophic significance. 
 A man may say, " My pleasure is my good," meaning 
 simply that he is minded to do as he likes without 
 regard to other people's wants or likings. If he acts 
 on this intention, his pleasures, and peradventure his 
 desires too, may be cut short ; but moral science has 
 little to learn from that.^ Preferable, in the sense of 
 our question, means preferable with regard to some 
 general standard. That such a standard exists is 
 shown by the existence of society and morality. The 
 question is how to investigate it. A right-minded 
 man does in fact prefer certain modes of action and 
 feeling to others, and feels that he ought to prefer 
 them. What does this mean ? Some say that the 
 sense of duty is given by an intuition or " categorical 
 imperative " which is in its nature antecedent to 
 human experience, though of course it is not so in 
 the experience of any individual man. And they 
 endeavour, or should endeavour if they went on 
 to construct an ethical system, first to define the 
 transcendent principle or principles thus given, and 
 then to deduce from them the actual contents of 
 morality as applied to man's conduct in the world. 
 Others, distrusting this method, or wholly denying 
 its legitimateness, try to account for the sense of duty 
 as itself a product of experience. They show how 
 men living together may be expected, apart from any 
 
 1 The degrees of amenability to etliical reason are infinite, down to 
 that extreme obstinacy for which, by the laws of this realm, the only 
 remedy is the herb Pantagruelion ; the application whereof concerns 
 not the moral philosoplier but the sheriff.
 
 366 MR. spencer's data OF ETHICS. [xill 
 
 transcendental supposition, to acquire the form of 
 morality — that is, a feeling, which in our mature 
 experience is peculiar in kind, of the distinction 
 between right and wrong, and the matter of morality 
 — that is, a more or less full and coherent body of 
 opinion as to the Tightness and wrongness of par- 
 ticular kinds of action. In this view the main 
 contrast would seem to be not between the intuitionist 
 and the utilitarian school of ethics, but between an 
 intuitionist or dogmatic school on the one side and an 
 historical one on the other. Utilitarianism does not 
 necessarily belong to either of these. Utility may be 
 assumed as a kind of transcendental principle, and in 
 fact has been : as if one says, " We ought to do the 
 will of God, and God wills the happiness of his 
 creatures." And a historical moralist might quite 
 well arrive at some standard different from that of 
 utility, or differently expressed. 
 
 I have used the word historical with a purpose. 
 The modern doctrine of evolution has been expected 
 to produce great results in the moral sciences. There 
 have been enthusiastic hopes and some disappoint- 
 ment among its friends, and these have given occasion 
 for some scoffing among enemies, which, for the rest, 
 it is quite strong enough to bear. It has been some- 
 what overlooked that the way of considering things 
 produced by Mr. Darwin's and Mr. Spencer's work in 
 the natural sciences, and extended by Mr. Spencer to 
 the whole field of knowledge, had to some extent 
 been anticipated in the moral and political ones. 
 Early in the present century the historical school of
 
 XIIl] MR. spencer's data OF ETHICS. 367 
 
 thinkers began their work, chiefly in Germany. 
 Wearied of dogmatism and precarious deduction, they 
 sought to make sure how ideas and institutions had 
 in fact come to be what they are. Hence the modern 
 development of historical scholarship, and, one may 
 almost say, of a new historical science. At the same 
 time, it must not be forgotten, what we now call the 
 doctrine of evolution was already budding into life. 
 The two movements of thought were substantially 
 parallel, though in the natural sciences the movement 
 was longer in ripening, and broke on the world in its 
 maturity with a shock of surprise. Future historians 
 will not omit to note that Mr. Darwin's Origin of 
 Species and Sir Henry Maine's Ancient Lciw were 
 made public within a year or two of each other. 
 Diverse as these works are in matter and form, they 
 are akin in spirit and in method. The historical 
 method was the foreshadowing of evolution in the 
 political sciences, and the theory of evolution is the 
 frank application of the historical method in natural 
 science. 
 
 Our English school of ethics and j)sychology, not- 
 withstanding the dogmatic pedantry to be found in 
 one or two of its expounders, is in the main historical 
 in its procedure and its tendencies. Thus it was 
 ready to assimilate from the side of natural history 
 whatever the doctrine of evolution had to give it. 
 But for the same reason the process had to be natural 
 and gradual, not revolutionary. The moral philosophy 
 of the English school could suffer no fundamental 
 disturbance in receiving ideas w^hich after all were so
 
 368 MR. spencer's DATA OF ETHICS, [xill 
 
 kindred to those which had long been at work in its 
 own sphere. George Grote passed for a representa- 
 tive of the old-fashioned utilitarianism. But his 
 Fragments on Ethical Subjects are thoroughly histori- 
 cal in tone and treatment. It seems to me that they 
 fit in exceedingly well to Mr. Darwin's contributions 
 to ethics in the early chapters of his Desceiit of Man, 
 and may be taken as forming a link between the older 
 and the newer expositions of the English school. 
 There is no discontinuance of the philosophical tradi- 
 tion, no abandonment of the ground already won, and 
 flying off with some new kind of wings, as some of us 
 once dreamt. Workers in ethical inquiry are using 
 new light like workers in any other science. It is 
 their business neither to be dazzled by it nor to 
 neglect it. Meanwhile it is too early to demand all 
 its results at once. 
 
 Those who expected evolution to jDroduce a new 
 system of ethics are naturally disappointed ; those 
 who imagine that all or most evolutionists expect to 
 do this find herein a tempting ground for criticism. 
 One criticism of this kind, well representing what we 
 may call a moderately transcendental view, may be 
 found in a volume of Studies in Philosophy and 
 Literature, published by Professor Knight of St. 
 Andrews in 1879. It may be instructive to take 
 some note of it. The doctrine of evolution, as a 
 scientific doctrine, is accepted by Professor Knight 
 with little reserve. If not actually proved, " it has 
 been rendered the almost inevitable conclusion of the 
 scientific intellect." The nature of the evidence is
 
 XIIl] MR. spencer's data OF ETHICS. 369 
 
 well understood, and the commonplace objection from 
 " missing links " is dismissed with something like con- 
 tempt. The problem is not to make out a complete 
 series of forms with the least possible difference be- 
 tween each one and the next to it. " Demonstration 
 of the theory will not be accomplished even by a dis- 
 covery of all the missing links, but by a scientific use 
 of the links which w^e possess, and by warrantable 
 inferences from them." Further, Professor Knight 
 allows that " the growth of ethical sentiment and 
 dogma out of pre-historic elements " must be taken as 
 an established fact. But he adds, and with correct- 
 ness as far as the purely dialectical aspect of the 
 matter goes, that this makes no difference to the ulti- 
 mate question of the nature of the moral faculty, 
 which belongs to the metaphysical as distinguished 
 from the practical side of ethics. The general objec- 
 tions to all derivative or historical theories of morals 
 remain much as they were, and Professor Knight 
 thinks them insuperable. His chief difficulty is that 
 any such theory leaves us "in a helpless position . . . 
 in the exercise of moral approbation and disapproba- 
 tion." We confess that we cannot see how or why the 
 historical morahst is left helpless. It is said that, if 
 morality be derivative and evolved, there is no abso- 
 lute standard of right and wrong ; and it is inferred 
 that in the absence of such a standard moral judg- 
 ment must be at fault. Now Mr. Herbert Spencer 
 has, in the work of w^hich we have just spoken, met 
 this objection by showing that the theory of evolution, 
 as applied to ethics, may be conceived as furnishing us 
 
 2b
 
 370 MR. spencer's data of ethics. [xiii 
 
 with an absolute standard in a certain sense, though 
 a standard applicable only with allowances to the 
 existing relations of men in existing societies. But, 
 even granting that no absolute standard can be found, 
 we do not want an absolute standard to guide us in 
 the exercise of moral approbation and disapprobation. 
 All that we need is a standard sufficiently adapted to 
 the conditions of life in which we act and judge for 
 the time being. Our present conception of right con- 
 duct is more refined and stringent— ^in some consider- 
 able respects, at least — than that of our ancestors even 
 two or three centuries ago. Some centuries hence we 
 hope that the morality of our descendants may in turn 
 be more refined and stringent than our own. We 
 mean the average working rules of morality as actually 
 enforced by society. And what then ? We fail to 
 see any ground for dissatisfaction. Again, Professor 
 Knight seems to think that on any derivative theory 
 we are bound to admit that the moral judgments of 
 mankind (how many and which of them ?) at a given 
 time are always relatively right ; in his own words, 
 " on the principle of evolution, all the j)hases through 
 which the ethical sentiment has passed were of equal 
 validity for the j)articular stage which human nature 
 had reached in its upward career." We do not under- 
 stand what is meant by " equal validity." Moral feel- 
 ing is, on the historical theory in its English form, 
 and especially when evolution is taken into account, 
 the resultant of certain social feelings and tendencies 
 of man, guided by ancestral and individual experi- 
 ences of utility. But experience must ha interpreted
 
 Xlll] MR. spencer's data OF ETHICS. 371 
 
 before it can be applied ; and right interpretation is 
 itself a matter of long and painful experience. A 
 moral judgment is, in ultimate analysis, a judgment 
 as to what kinds of action help or hinder social or 
 individual welfare. But the judgment is liable to 
 error, and sometimes does err ; the feeling which em- 
 bodies habitual processes of judgment may be affected 
 with the same errors, and may also suffer from organic 
 weakness or perversion. Experience shows us, what 
 we should otherwise expect if the doctrine of evolu- 
 tion be true, that a general relaxation of moral senti- 
 ment is a possible occurrence, and fraught with 
 mischief to the man or the nation in whom it takes 
 place. The mischief is the same in kind, whatever 
 be the particular contents of existing positive morality. 
 There is an amount of moral perversion which entails 
 corruption and destruction on the society in which it 
 prevails. And it is to be noted that with increasing 
 culture and civilization the margin of comparatively 
 harmless aberration becomes narrower; the interaction 
 of men's lives and thoughts being quicker, more exten- 
 sive, and of graver consequence. 
 
 When, therefore. Professor Knight says that, 
 according to recent evolutionists, " the verdict of 
 society, based on the unconscious perce23tions of utility 
 transmitted through a thousand generations, makes a 
 thing either right or wrong," and again where he 
 speaks of " a conventional rule of expedient action " 
 as being the only rule for the moralist of the empirical 
 or historical school, he misses a point of exceeding 
 importance. The verdict of society does not make
 
 372 MR. spencer's DATA OF ETHICS. [xill 
 
 right and wrong ; it embodies the prevalent opinion 
 of society as to what is right and wrong. This 
 opinion is derived — not by "unconscious perceptions," 
 but by the partly unconscious and partly conscious 
 consolidation of a vast number of perceptions of a 
 pretty striking kind — from a great body of antecedent 
 experience of things turning out well and ill. Gener- 
 ally speaking, there is some presumption in favour of 
 the rules thus established ; in many cases it is irresist- 
 ible. The burden of proof lies on him who alleges 
 that an existing moral rule is unreasonable. The 
 evidence he may conceivably adduce is of various 
 kinds ; for example, that the origin of the rule can 
 be traced with certainty to a particular superstition, 
 that it is not admitted by other equally civilized 
 societies in similar circumstances, or that it is repug- 
 nant to other moral rules of equal or greater authority. 
 What is the effect of a particular course of conduct 
 is a question of fact ; and, if the historical moralist 
 reduces ethical problems to questions of fact, he must 
 for that very reason be the last of all men to be con- 
 tent with conventional solutions. He will admit that 
 the positive morality of a given society at a given 
 time is, in a certain sense, provisional ; but that 
 is quite another thing. 
 
 Neither do we understand how moral rules of 
 action, however analysed and accounted for, can 
 be called conventional. Positive laws are conven- 
 tional, and so are all express rules made by persons 
 having authority to make them — such as the by-laws 
 of a, corporation, or the orders of a clul) committee.
 
 XIIl] MR. spencer's data OF ETHICS. 373 
 
 Morality and good manners (which last is only a 
 name of the morality of everyday life) command us 
 to observe those conventional rules which concern us. 
 There may be excej)tions of necessity or higher duty, 
 but under ordinary conditions w^e need not think 
 of them, and had better not. But the rule of morals 
 or manners is not itself conventional. A convention 
 is by its nature express ; a moral rule is not express. 
 If a certain number of persons — for example, a religious 
 order — formulate rules which they intend to observe as 
 being moral, their expression of those rules is binding 
 on them as a convention, and not otherwise. Suppose 
 the express rule is pitched higher than the average 
 standard of the community, then a member who 
 breaks it will be justly blamed, not for failing to be 
 better than the general conscience of his neighbours 
 expects men to be, but for not performing an obliga- 
 tion he willingly undertook. Suppose the rule merely 
 sets forth a moral duty as generally understood ; in 
 that case it may be good for the individual as a form 
 of pious resolve, but the duty itself is just where 
 it "was. There may also be societies, and even religious 
 societies — the Thugs, for example — whose rules are 
 contrary to common morality. In such a case their con- 
 vention avails nothing in the eyes of the community. 
 The wrongdoer is blamed according to the common 
 rule ; nor does he get any credit for keeping his j)er- 
 verse convention, since it is thought that he should 
 have known better than to make it. But perhaps a 
 conventional rule means, in the lanmiaae of transcen- 
 dental moralists, only a rule which does not claim
 
 374 MR. spencer's DATA OF ETHICS. [XIII 
 
 absolute and universal validity. In tliat case, the 
 objection implied in the epithet has already been 
 answered. Or if it means a rule depending on a con- 
 sent which may be tacit and informal, this has been 
 answered too ; for we said that the consent of society 
 establishes and enforces moral rules, but it does not 
 make them what they are. 
 
 It is perfectly true that the historical treatmeut of 
 ethics, reinforced or not reinforced by the doctrine of 
 evolution, cannot explain the peculiar quality of the 
 sense of duty. The conditions upon which the moral 
 sentiment arises, and the manner in which it is fostered 
 in men and nations, are in its province and power. It 
 can give, or may be conceived to give, a sufficient 
 account of these. It cannot account for the specific 
 nature of the feeling as we experience it. And of 
 this a great point is made both by the old-fashioned 
 intuitionists and l^y the newer transcendentalists of 
 the critical school. It is a point they are entitled to 
 for its full worth. Only they seem to forget that the 
 case is not unique. Every feeling is, as feeling, 
 ultimate and unaccountable. We know that the 
 sensation of red arises when the retina is excited 
 by vibrations of a certain wave-length, and the sensa- 
 tion of violet by vibrations of a certain other length. 
 But why the specific sensations of red and violet should 
 he what they are, and not otherwise, is a thing passing 
 the wdt of man to tell. As little do we know why 
 sensations of light and of sound should be in kind what 
 they are, and differ from one another as they do : nor 
 are we like, as it seems at present, ever to know more.
 
 XIIl] MR. spencer's data OF ETHICS. 375 
 
 Again, biology may do much to explain the conditions 
 of pleasure and pain, and their significance with 
 regard to the welfare of the organism in which they 
 are felt. But the pleasurable or j)ainful quality 
 of this or that impression, as we actually feel it, is a 
 primary fact of consciousness, and admits of no 
 explanation. In like manner the sense of aesthetic 
 satisfaction or dissatisfaction will hardly be main- 
 tained by any one at this day to be otherwise than 
 exceedingly complex — we mean from a historical point 
 of view. Yet this too, such as it is present in feeling, 
 is peculiar in kind, and not reducible to terms of any- 
 thing else. It is worth remark, and has been more 
 than once remarked, that the aesthetic and the moral 
 sense have curious affinities. Thus there are kindred 
 feelings of repugnance in dwelling on ugliness and 
 on wickedness ; there is a kindred apprehension in 
 the healthy taste and the healthy conscience that 
 to dwell on such things is not wise or safe. In fine, 
 this ultimate and irreducible property of the moral 
 sense appears, if we carefully examine it, to be 
 nothing else than the property of all feeling, so far 
 forth as w^e consider it simply as feeling. And to 
 expect of the moralist to be ready with an explana- 
 tion of it in this sense is to expect that which in all 
 other departments of human knowledge is admitted 
 to be impossible. It appears at least oj)en to reason- 
 able doubt whether this be a sure ground for build- 
 ing up schemes of the Categorical Imperative and 
 doctrines of the Practical Reason. 
 
 In this and other ways most of the current objec-
 
 376 MR. SPENCEll's DATA OF ETHICS. [xill 
 
 tioDS to the historical school of ethics appear to us 
 misconceived or beside the point. Nevertheless we 
 hold that there is ample scope for an analytical inves- 
 tigation of human action which may be fitly called 
 the metaphysic of ethics. The proposition already 
 made use of, that the end of action, or that which is 
 preferable, is in consciousness and not out of con- 
 sciousness, belongs to this inquiry. Questions in the 
 same region of thought may be readily devised. Such 
 are these, for example : Whether desire, pleasure, and 
 pain are necessary elements of action, and whether 
 an active intelligence apart from those elements is 
 conceivable ? Whether the end of action is to be 
 conceived as single ? Whether, if single, it is to be 
 conceived as in fact attainable ? If not attainable, 
 whether it is to be thought of as an ideal which shifts 
 in the act of being realized, like happiness as com- 
 monly conceived, or as a fixed mark to which in- 
 definite approximation, but only approximation, is 
 possible, like the perfection of the Stoic Wise Man, 
 or Mr. Herbert Spencer's " absolute morality " ? Evid- 
 ently the historical method will not help us here. 
 Yet these questions must be allowed to be legitimate, 
 and to have a certain speculative interest. 
 
 The nature and place of this branch of ethical 
 speculation may perhaps be illustrated by the analogy 
 of jurisprudence. It stands to historical and practical 
 ethics in much the same relation as the analysis of 
 ultimate legal notions, such as law, duty, right, status, 
 liability, does to the study of legal institutions as they 
 exist, and of their origin and growth in the past.
 
 XIIl] MR. spencer's data OF ETHICS. 377 
 
 History is fertilized by analysis, and analysis is 
 guided by history, but each works in its own way. 
 The results of each method stand side by side, of 
 equal validity on their own ground. As the history 
 of Parliament does not explain the nature of legal 
 duty, so the history of morality does not explain the 
 nature of conscience. As the analysis of legal duty 
 will not serve for an index to the Statutes, so the 
 analysis of conscience will not much help us to know 
 the bidding of morality here and now. Both methods 
 have their uses and their proper field of inquiry. 
 They are in a manner apart, yet it is best to know 
 how to work in both ; and those whose work lies in 
 one only will do well not to neglect the other.
 
 INDEX. 
 
 Abjuration, oath of (see Supremacy). 
 Act of Settlement, 176. 
 Adiajihoria, 347. 
 Allegiance, oath of, 176 sqq. 
 Alleu, Grant, on utility of pleasnre, 360. 
 Altruism, Mr. H. Spencer on, 362. 
 Analogy, use of in moral decision, 275. 
 Antoninus (M. Aurelius), 314 sqq. 
 a ty]iical Stoic, 317. 
 
 zealous in religious observances, 
 
 329. 
 
 effect of official duty on his 
 
 philosophy, 342. 
 
 editions and text of, 351. 
 
 Appeal, ultimate Court of, bound by 
 its own decisions, 240. 
 
 Assize, justices of, 210. 
 
 Austin, John, his work in Jurispru- 
 dence, 2. 
 
 Bankruptcy of partners, 75, 96. 
 Bill of Rights, 228. 
 Bishops, ancient oath of, 178. 
 Blackstone's Commentaries, viii. 7. 
 Blasphemy, legal punishment of, 172. 
 
 treatment of in Criminal Code 
 
 Bill, 174. 
 Bracton, Henry de, on limits of the 
 
 Cro'wn's power, 212. 
 Burke, Edmund, on the authority of 
 
 laws, 30. 
 
 Cabinet, unknown to the law, 232. 
 Case-law, the irregular growth of, 66. 
 
 mixed with statute-law, 84. 
 
 science of, 237 sqq. 
 
 may be founded on opinions as 
 
 well as decisions, 244. 
 
 modified form of on Continent, 
 
 273. 
 Casuistry, legitimate meaning of, 265. 
 
 • • object of, 267. 
 
 of Stoics, 344. 
 
 Catholics in Parliament, special oath 
 
 provided for by Emancipation Act, 
 
 192. 
 
 Charter, the Great (see Magna Carta). 
 
 Charles I., his conflicts with the Com- 
 mons, 221, 223. 
 
 Christian, Edward, on distinction be- 
 tween natural and human laws, 42. 
 
 Christians, position of under Roman 
 Empire, 145. 
 
 on what grounds pimishable, 147. 
 
 Chrysippus, his definition of virtuous 
 life, 318. 
 
 Church and State, 170. 
 
 Cicero, M. Tullius, his Paradoxes, 348. 
 
 Codification as remedy for confused 
 state of the law, 90. 
 
 by f)rivate enterprise, 113. 
 
 ComviandUe, partnership in, 100, 105. 
 
 Commercial Codes, 91, 108. 
 
 "Common employment," doctrine of, 
 137, 141. 
 
 Commons, petition of, to James I., 220. 
 
 resolutions of, on liberty of the 
 
 subject, 224. 
 
 Conduct, Mr. Spencer's definition of, 
 354. 
 
 evolution of, 355, 361. 
 
 Conquest, the Norman, eff"ect of in 
 defining precedent and custom, 215. 
 
 Conscience, 310. 
 
 Consciousness, relation of the end of 
 action to, 364. 
 
 Consolidation, advantage of combining 
 Vfith new legislative proposals, 112. 
 
 Constitution, modern English, informal, 
 231. 
 
 Contract, Anglo-Indian law of, 70, 72, 
 93. 
 
 theory of the oi'iginal or social, 234. 
 
 Contractor, independent, distinguished 
 from servant, 129. 
 
 Convention distinguished from moral 
 rule, 373. 
 
 CorresiJondence, contracts by, 72. 
 
 Court, the king's, 207. 
 
 separated from courts of justice, 
 
 209. 
 
 Courts, popular, 205.
 
 380 
 
 INDEX. 
 
 Courts, local, superseded by judges of 
 assize, 210. 
 
 secular and ecclesiastical, 217. 
 
 Crown, executive power of is modern, 
 
 205. 
 Custom, origin and justification of, 54. 
 
 the Gods in Homer bound by, 58. 
 
 Cynics, connection of witli Stoics, 345. 
 
 Dangerous tilings, liability of their 
 
 owners, 119, 123. 
 Digests of law, unauthentic, 99. 
 Divination defended by Stoics, 329. 
 Dogma foreign, in proper sense, to 
 
 paganisn, 151. 
 Duty, practice of, comes before theory, 
 293. 
 
 the sense of, explanation of it, 
 
 365. 
 
 its 2>eculiarity, 374. 
 
 Duties, so-called absolute, 12. 
 
 Egoism and altruism, 362. 
 
 Employers' Liability Act, 1880, 114, 
 135. 
 
 Employers, liability of, 114 sqq. 
 
 — — why answerable to the public for 
 their servants' acts, 126. 
 
 duty of, to their own servants, 
 
 131. 
 
 delegation of authority by, 133. 
 
 Epictetus, 316, 337. 
 
 Equity, modern refinements of in Court 
 of Chancery, 73. 
 
 Equivocation, oath of abjuration and 
 supremacy framed to exclude, 187. 
 
 Ethics, an inductive science, 261 sqq. 
 
 form of, 264. 
 
 distinguished from morality, 294. 
 
 deductive and empirical, 359. 
 
 absolute and relative, 363. 
 
 metaphysic of, 376. 
 
 Ethiopia, manner of repairing highways 
 in, 61. 
 
 Evolution, measure of, in conduct, 355. 
 
 doctrine of, compared with his- 
 torical method, 366. 
 
 Experts, instinct of, 249. 
 
 judgment of as final standard, 
 
 274, 280. 
 
 Factors' Acts, history of, 86. 
 
 Farrer, T. H., his objections to com- 
 pulsory registration of partnershi^is, 
 107. 
 
 Fealty, common-law duty of, 178, 180. 
 
 Feelings, specific character of, unac- 
 countable, 374. 
 
 Firms, partnership, registration of, 106. 
 
 Five Members, arrest of the, 227. 
 Formality of ancient procedure, 206. 
 Freight, anomalous rules of English 
 law concerning, 74. 
 
 Germany, treatment of general juris- 
 prudence in, 7. 
 
 Good, Mr. Spencer on the notion of, 356. 
 
 the chief, 357, 363. 
 
 Grand Remonstrance of 1641, 227. 
 
 Grote, George, historical character of 
 his work in ethics, 368. 
 
 Gunpowder Plot, 186. 
 
 Habeas Corpus, the case of, 222. 
 Habit, intellectual, relation of to sj)ecific 
 
 judgments, 278. 
 Hall, W. E., his International Law, 
 
 30 sqq. 
 Hedonism universal, according to Mr. 
 H. Spencer, 357. 
 
 relation of to evolution, 361. 
 
 Heresy, duty of princes to extirpate on 
 
 Catholic theory, 154. 
 symptom, not cause, of disorder 
 
 ill the Church, 171. 
 Hindus, future punishment of, for 
 
 eating flesh, 300. 
 Historical method, 366. 
 History, a string of dates is not, 199. 
 
 to be studied in originals, 219. 
 
 Hodgson, Shadworth H., on permanence 
 
 of morality, 313. 
 Holland, Prof. T. E., his Elements of 
 
 Jurispmdence, 1 sqq. 
 Homage, oath of, 179. 
 Huxley, Prof. T. H., on laws of nature, 
 
 45. 
 
 Ignorance, the only cause of vice 
 
 according to Stoics, 338. 
 Imperative, the Categorical, 365. 
 Imprisonment by authority of king and 
 
 Privy Council, 219, 222. 
 Indian Contract Act, 70, 72, 93. 
 Indian Penal Code protects all religions 
 
 from insult, 173. 
 International Law, 32. 
 
 James L, protest of the Commons to, 
 219. 
 
 Jesuits treated as public enemies by 
 Queen Elizabeth, 167. 
 
 Jews, their treatment in Middle Ages, 
 156. 
 
 admission of to House of Com- 
 mons, 194. 
 
 protection of by modern Russian 
 
 law, 48.
 
 INDEX. 
 
 381 
 
 Judicial Committee of Privy Council, 
 
 aiithority of, 70. 
 Judge and jury, 139. 
 Judges, their troubles in construing 
 
 statutes, 81. 
 Jurisprudence, what is it ? 3. 
 
 assumes morality and society as 
 
 ultimate facts, 26. 
 
 divisions of, 262. 
 
 general, analogy of to metaphysic 
 
 of ethics, 376. 
 Jury, origin of, 207. 
 
 King, subject to the law, 212. 
 Kinglake, A. W., on international 
 
 usage, 35. 
 Knight, Prof. William, his criticism of 
 
 derivative theory of morals, 368. 
 Kosmos, Stoic idea of, 819, 325. 
 
 Law, definition of, 9. 
 
 customary and judiciary, 10. 
 
 public and private, 13. 
 
 substantive and adjective, 13. 
 
 social conditions of its existence, 
 
 23. 
 
 moral duty of obedience to, 25. 
 
 international, nature of, 32. 
 
 sanctions or quasi-sanctions of in- 
 ternational, 33. 
 
 uniformity of, 47. 
 
 the importance of precedent in, 50 
 
 (and see Case-lmo). 
 
 of England, at whose cost made, 
 
 61. 
 
 underlies politics and history, 200. 
 
 supremacy of in England, 212. 
 
 modified in practice by political 
 
 conditions, 229. 
 
 analogy of moral precepts to, 299. 
 
 Legislation, what to be expected of, 93. 
 
 Legislator, qualifications of, 78. 
 
 Liability for events beyond one's con- 
 trol, 119. 
 
 Libels, blasphemous, 174. 
 
 Liberty of the person, right of English 
 subjects to, 222. 
 
 Lorimer, Professor James, his Insti- 
 tutes of Law, 1 8 sqq^. 
 
 Machinery, masters' liability for con- 
 dition of, 134. 
 
 Magna Carta, 199, 200, 209, 223. 
 
 Maine, Sir Henry, his criticism of 
 analytical definition of law, 10. 
 
 Man, social nature of, according to 
 Stoics, 339. 
 
 Markby, William, his Elements of 
 Law, 9. 
 
 Marcus Aurelius. Sec Antoninus. 
 
 Master. See Employers. 
 
 Materialism of Stoics, 331. 
 
 Maxims, legal, 256. 
 
 Metaphysic of ethics, 376. 
 
 Middle Ages to be studied with respect, 
 
 203. 
 Moral sense, aflSnity of, to the aesthetic, 
 
 375. 
 Moralists, the alarmist school of, 290, 
 
 298, 303. 
 Morality, standard of, not formulated, 
 
 266. 
 social character of judgments in, 
 
 269. 
 
 no court or legislature in, 271. 
 
 all citizens experts in, 274. 
 
 existing and ideal standards of, 
 
 276, 282. 
 positive, its process of construc- 
 tion, 281. 
 
 its relation to casuistry, 283. 
 
 relation of speculation to practice 
 
 in, 284, 287 sqq. 
 established rules in, weight of, 
 
 289. 
 
 sanctions of, 297, seq. 
 
 fictions to be rejected in, 303. 
 
 sanctions of, what are effectual, 
 
 304. 
 perversion of in particular classes, 
 
 311. 
 not in need of scientific basis, 
 
 353. 
 
 form and matter of, 366. 
 
 rules of, not conventional, 372. 
 
 Nature, laws of, their analogy to 
 human laws, 42 sqq. 
 
 imiformity of, 239, 253. 
 
 — — laws of, their sanction, 299. 
 
 • Stoic conception of, 319. 
 
 acquiescence in order of, 323. 
 
 Stoic idea of life according to, 
 
 333. 
 Naturrecht expounded by Professor 
 
 Lorimer, 19. 
 Negligence of servant, liability of 
 master for, 117. 
 
 contributory, 138. 
 
 ultimate question of fact in theory 
 
 of, 140. 
 Neutrals, rights and powers of, 35. 
 Nirvdna, analogy of to Stoic wisdom, 
 
 349. 
 
 Oath of allegiance, 176 sqq. Sec 
 
 Supremacy. 
 Obligations qimsi ex delicto, 17.
 
 382 
 
 INDEX. 
 
 Obligations, Swiss Code of, 90. 
 Oi^timism of Stoics, 346. 
 
 and pessimism both hedonist, 357. 
 
 Ownership of dangerous things, special 
 duty attached to, 119, 122. 
 
 Pantheism, Stoic form of, 824. 
 
 Parliament, Acts of, spoilt in commit- 
 tee, 80. 
 
 Partnership, the Act to amend the 
 law of, 82, 103. 
 
 the law of, in England, 95 sqq. 
 
 ■ en commandite, 100. 
 
 Bill to consolidate and amend the 
 
 law of, introduced in 1879 and 1880, 
 110. 
 
 Peace, the king's, 205. 
 
 Persecution, motives of, classified, 145. 
 
 ■ political motives, 147. 
 
 theological, 153. 
 
 social or civil, 159. 
 
 • inutility of, 166. 
 
 Persons, the law of, in ancient and 
 modern systems, 14. 
 
 Pessimism, 357. 
 
 Petition of Right, 225. 
 
 Philosophy, popular agitation against, 
 at Athens, 150. 
 
 Pleasure, Mr. H. Spencer on definition 
 of as i^referable consciousness, 360, 
 364. 
 
 Politics, action of legal ideas upon, 
 211. 
 
 Pojje of Rome, vituperation of, in 
 statutes of Henry VIII., 182. 
 
 " Positive Law," transcendental mean- 
 ing of, 21. 
 
 Precedent, reasons for authority of, 
 52. 
 
 appealed to by children, 55. 
 
 appearance of following, in course 
 
 of nature, 57. 
 
 important at an early date in 
 
 English law, 214. 
 
 value of in politics, 216. 
 
 Priestcraft does not explain persecu- 
 tion, 144. 
 
 Proclamations by Crown witliout autho- 
 rity of Parliament, 219, 221. 
 
 Punishment, the State's right to inflict, 
 29. 
 
 Pythagoreans, doctrines of, adopted by 
 Stoics, 325. 
 
 Qui facit per alium facit per se, 117. 
 
 Registration of partnerships, 106. 
 Religion, established, civil laws relat- 
 ing to, 170. 
 
 Religious opinion, modern freedom of, 
 
 164. 
 Reuau, Ernest, on permanence of mor- 
 ality, 313. 
 
 on M. Aurelius, 317. 
 
 Reports, relation of, to judicial system, 
 
 243. 
 Respondeat superior, 118. 
 Revenue derived from fees of suitors in 
 
 Anglo-Norman times, 208. 
 Right and wrong declared, not made, 
 
 by human experience, 371. 
 Righteousness more than obedience, 
 
 298. 
 — the ideal of, 344. 
 Rights, legal, definition of, 11. 
 
 normal and abnormal, 13. 
 
 Rome, the peace of, 315, 351. 
 
 Sale of goods, uncertainty in the law 
 of, 68. 
 
 Sanction of human laws, precarious- 
 ness of, 48. 
 
 of moral rules, 299, 304. 
 
 of law, relation of faith to, 300, 
 
 304. 
 
 wanting in Stoic scheme of moral- 
 ity, 335. 
 
 Sanctions, imaginary, to be rejected, 
 302. 
 
 supernatural, 305. 
 
 natural, 307. 
 
 social, 309. 
 
 Science, general propositions in, 255. 
 
 Self-esteem, sanction of, considered by 
 Epictetus, 337. 
 
 Ship-money, the case of, 226. 
 
 Society, moral judgment of, 308. 
 
 Socrates, of what accused, 149. 
 
 Spain, success of persecution in, 155. 
 
 Silencer, Herbert, his Data of Ethics, 
 352 sqq. 
 
 State and Church, 170. 
 
 Status, Professor Holland on, 13. 
 
 Statute-book, why unintelligible, 85. 
 
 Stoics, 314 sqq. 
 
 their practical concejrtion of 
 
 knowledge, 318. 
 
 their notion of the order of 
 
 nature, 320. 
 
 cosmopolitanism, 323. 
 
 pantheism and teleology, 325. 
 
 annus magnus, 326. 
 
 — — determinism, 328. 
 
 defence of popular beliefs, 329. 
 
 materialism, 331. 
 
 ethical theory, 333. 
 
 vice regarded as ignorance, 338. 
 
 nature of virtue, 339.
 
 INDEX. 
 
 383 
 
 Stoics, sociability of man, 340. 
 
 dealing with special probleras,343. 
 
 affinity with Cynics, 345. 
 
 optimism, 346. 
 
 the Wise Man, 348. 
 
 Stuarts, conflict of with Parliament, 
 218. 
 
 Succession to the Crown of England, 
 limitation of, 180, 182, 183. 
 
 Summum bonum, 357, 363. 
 
 Supremacy, oaths of allegiance and, 
 181, 183, 184, 186, 188, 190, 192. 
 
 Switzerland has codified law of Obliga- 
 tions, 90. 
 
 Symbols, use and abuse of, 258. 
 
 Taxation without consent of Parlia- 
 ment, 219, 220, 225. 
 
 Teleology in Stoic system, 324. 
 
 Thugs, superstition of, 169. 
 
 Toleration, political necessity of, 1 58. 
 
 attempts to limit, on grounds of 
 
 temporal convenience, 163. 
 
 effects of, 165. 
 
 "Transitory conventions," 40. 
 
 Transubstantiation, declaration against, 
 188. 
 
 Treaties, value of, as evidence of law 
 of nations, 32. 
 
 Truth, duty of seeking, 297. 
 
 Tudors, exercise of prerogative by, 223. 
 
 Uniformity, uses of approximate, 252. 
 
 of nature in Stoic philosophy, 328. 
 
 Unitarians, toleration of, 162. 
 United States, limited partnershijj in, 
 101. 
 
 private registration of firms in, 
 
 108. 
 Utilitarianism, Mr. H. Spencer's rela- 
 
 tiou to, 358, 361. 
 may be transcendental, 366. 
 
 ViETUK, the doctrine that it can be 
 taught, 338. 
 
 Stoic theory of, 339. 
 
 Vis tiuijor, 120, 123. 
 
 Vitality, relation of pleasure to, 360. 
 
 War, just and unjust, 34. 
 
 laws of, 36. 
 
 analogous to " self-helj) " in mu- 
 nicipal law, 38. 
 
 William III., statute of, against blas- 
 phemy and profaneness, 160, 172. 
 
 Wise Man, the ideal, of Stoic system, 
 347, 349. 
 
 Witenagemot, the, 206. 
 
 Printed by R. & R. Clark, Edinburgh.
 
 S J