THE 
 
 ENGLISH AND FOREIGN 
 PHILOSOPHICAL LIBRARY.
 
 THE 
 
 PHILOSOPHY OF RIGHT 
 
 WITH SPECIAL REFERENCE TO THE 
 
 PRINCIPLES AND DEVELOPMENT OF LAW. 
 
 DIODATO LIOY, 
 
 PROFESSOR IN THK UNIVERSITY OF NAPLES. 
 
 TRANSLATED FROM THE ITALIAN BY 
 
 W. HASTIE, M.A., B.D., 
 
 TRANSLATOR OF KANT'S "PHILOSOPHY OF LAW;" 
 
 "OUTLINES OF JURISPRUDENCE BY PUCHTA," ETC.; AND 
 
 BRUNNER'S "SOURCES OF THE LAW OF ENGLAND." 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 LONDON: 
 KEGAN PAUL, TRENCH, TRUBNER, & CO., LT'
 
 The rights of tramlation and of reprodw.tl&n are reserved.
 
 Gbts translation 
 
 REVERENTLY AND GRATEFULLY DEDICATED 
 
 of 
 JAMES LORIMER, LL.D., 
 
 DR. JUR. BOLOGNA ; HON. MEM. OF UNIVERSITIES OF MOSCOW AND ST. PETERSBURG! I 
 
 MEMBER OF THE ACADEMY OF JURISPRUDENCE OF MADRID ; ASSOCIATK 
 
 OF THE ROYAL ACADEMY OF BELGIUM ; 
 
 LATE PROFESSOR OF PUBLIC LAW AND OF THE LAW OF NATURE 
 AND NATIONS IN THE UNIVERSITY OF EDINBURGH. 
 
 Cui Pudor, et Justitiae soror, 
 
 Incorrupta Fides, nudaque Veritas 
 
 Quando ullum inveniet parcm ? 
 
 2033551
 
 " Nostris septentrionalibus eruditis acumen atque eruditionem non 
 minus apud Italos inveniri, quam apud ipsos ; imo vero doctiora et acutior 
 dici ab Italis, quam quae a frigidiorum orarum incolis expectari queant.' 1 
 LECLERC in Letter to Vico. 
 
 "But what of Italy? Italy is the land on which, since Germany 
 went on the 'war-path,' the mantle of scientific jurisprudence seems to 
 have fallen. "-PROFESSOR Lo RIMER.
 
 TEANSLATOE'S PEEFACE. 
 
 ITALY has again become the living and fruitful home of 
 the Science of Law. The ancient spirit of the " People 
 of Eight " was never dead, however it may have seemed 
 to slumber ; and it is now breathing again with all the 
 freshness and fulness of the new time. The Nineteenth 
 Century has not had anything to show more fair than the 
 achievement of Italian independence and the organisation 
 in the new national unity of Italian liberty, for this has 
 been wholly the work of the Spirit of Right in its struggle 
 with political and ecclesiastical despotism, and it has been 
 realised by the strength of essential justice, even in the 
 face of external defeat and disaster. That spirit, thus 
 quickened and deepened in itself, is now flowing in a 
 freer and richer stream through the new national channels, 
 and is beginning to mingle once more with the progressive 
 destinies of the emancipated peoples. Modern Italy has 
 thus entered anew upon her special birthright, and is 
 vindicating her claim to be not only the inheritor, but the 
 continuator, of the jural spirit of Ancient Rome. 
 
 The true glory of Ancient Rome undoubtedly lay in 
 the power of her Legislation. As Rudolph Von Ihering 
 has well observed, Rome has thrice dictated laws to the 
 world and given unity to the peoples. This was seen the 
 first time in the Ancient Roman Empire ; the second time 
 in the Mediaeval Roman Church ; and the third time in 
 the reception by the new European Nations of the old 
 Roman Law. These three outstanding historical facts
 
 viii TRANSLATOR'S PREFACE. 
 
 will always command the interest of the historian of 
 civilisation, but the deeper insight into the philosophy of 
 History will not fail to find in the essentially jural spirit 
 of the Roman people the inner force that determined the 
 political and ecclesiastical forms of supremacy, the unify- 
 ing factor of the whole movement, and the element in it 
 of chief significance for the modern world. The legislative 
 mission of Ancient Rome or, as it has been aptly called, 
 her " predestination to the cultivation of Right " has, in 
 fact, become a commonplace with the philosophical his- 
 torian and the scientific jurist. It constituted what was 
 most characteristic in the consciousness of the Roman 
 people. It formed the habit of their great leaders in 
 peace and war, and it stimulated the makers of their 
 colossal Empire. It animated their historians and in- 
 spired their poets; and it gave its character to all the 
 products of Roman thought. Above all, it made their 
 legislators and orators to be what they were, and authenti- 
 cated itself in the whole of their civilising work. Hence 
 it was that the System of Legislation which they created 
 and embodied in the world proved so exceptionally sub- 
 stantial and lasting, and that the Roman Jurists became, 
 in their own sphere, what the philosophers and artists 
 of Greece had been in theirs, sovereign and permanent 
 masters of the world in the department of Law. 1 
 
 The deeper students of the philosophy of history in the 
 Nineteenth Century have not estimated the greatness of 
 the ancient Roman Law less justly than their prede- 
 cessors, while they have given profounder explanations 
 of its essence and function. Following in the line of 
 Vico and Niebuhr, Hegel has grasped and elucidated with 
 characteristic vigour and originality the essence of the 
 political and legal development of the Roman People. 
 He has pointed out how the social condition of the 
 
 1 Vico has summed up this point Romani nominis gloria orta est " 
 of view in one expressive phrase : De uno univerri Juris principle, 
 "Lz hac autem juria tutela omnis elixir.
 
 TRANSLATOR'S PREFACE. ix 
 
 beginnings of the City determined the dominant note 
 of the development. Characterising its founders in the 
 severe terms already formulated by Gibbon as " a band 
 of robbers," Hegel sees in the force and deliberativeness of 
 their association the germ of the Eoman System of Govern- 
 ment and Eight. He has briefly but incisively outlined 
 the prosaic, reflective, and formal character of the Eoman 
 world, and he finds its distinctive principle in the universal 
 abstract idea of personality as the basis of right. Gans, 
 Ahrens, and others have followed Hegel's view in its essen- 
 tial points; while Ihering, with all his insight into the 
 spirit of the Eoman Law, has only formulated it in a more 
 one-sided and popular way by denning the motive of the 
 Eoman universality to be "selfishness," and designating 
 the Eoman character generally as "the System of dis- 
 ciplined Egoism." Professor Carle of Turin has rightly 
 objected to this formula that it applies too generally to 
 the peoples to be special to any one of them, and finds 
 the distinctive character of the Eoman People to lie rather 
 in their "disciplined Will." Again, Professor Bovio of 
 Naples will have it that what the Eoman world specially 
 exemplifies is the distinctive rise of " Naturalism " in his- 
 tory, and that it thus formed the transition in the gradual 
 evolution of society from the Hellenic civism to the Ger- 
 manic individualism. 1 
 
 These and kindred views cannot be followed in the 
 interest of their detail here, nor can they even be dis- 
 cussed generally, but they help us to understand and 
 appreciate both the significance and the limitations of 
 the Eoman Law and Jurisprudence. The civio life of 
 Ancient Eome was consciously founded upon a com- 
 munity of will, which was established, maintained, and 
 extended by force, as the source of all individual and 
 social right ; and from the outset the idea of liberty was 
 
 1 Hegel, Werfa, ix. p. 289; Gib- Vita del diritto, p. 170; Bovio, Som- 
 bon, ch. xlix. ; Ihering, Oeist des mario della St.ria del dirilto in 
 romischen Rechts, Bd. i. 20 ; Carle, Italia, Cap. Settimo.
 
 x TRANSLATOR'S PREFACE. 
 
 identified with privileged participation in this sovereign 
 power. While the common supreme will was thus accen- 
 tuated in the Koman State as the source of right in dis- 
 tinction from the theocratic legislations of the Oriental 
 peoples, or the arbitrary wills of their individual despots, 
 it also obtained more coherence, purity, and substantiality 
 than it had ever acquired among the mobile and versatile 
 populations of Greece from its being continually deter- 
 mined in detail by deliberative discussion and enactment 
 through carefully devised legislative organs kept in living 
 relation with all the social movement and development 
 of the people. These social and political conditions of 
 Ancient Eome not only emphasised the supremacy of the 
 human will over nature, but made manifest its creative 
 function in the formation and maintenance of human 
 society as a living world capable of being sustained 
 and perpetuated by its own strength and laws. The 
 necessities of the Eoman Citizen and the practical 
 bent impressed by them upon him thus gave special 
 reality to the civil forms of will, and in their realisa- 
 tion he found that satisfaction which the Oriental peoples 
 had found in the symbolical forms of religion and the 
 Greeks in the beautiful forms of art. But these forms 
 were entirely conventional, empirical, and conditional in 
 their origin at Kome ; and the will to which they gave ex- 
 pression had its subsistence only in the civil community, 
 so that every relation and form of right was grounded 
 upon it. Hence the abstract and external positivism 
 of the Kornan system of right, which was never truly 
 universal in its essence or applications, and the relativity 
 and contingency of all its particular rights. The indi- 
 vidual had a jural capacity and personality only in so far 
 as he happened to have his life lifted up into the sphere 
 of the civil will, and the highest purpose of that life was 
 the aggrandisement of the State and enjoyment of the 
 utilities it brought with it. The public utilitarianism 
 was only the general form of the particular self-interest
 
 TRANSLATOR'S PREFACE. xi 
 
 of the individual citizens. The extension of the original 
 jus civile by the jus gentium did not change its character, 
 and the jus naturale was only an alien philosophical 
 infusion introduced by Cicero and the Jurists into their 
 expression of the system from the schools of Greece, and 
 especially from the Stoics. 1 Thus slavery was accepted 
 and justified as an institution of the jus gentium; and 
 the extension of the citizenship was only granted on the 
 ground of expediency and not of right. The Constitution 
 of Caracalla, which ultimately extended the right of 
 citizenship to all the freemen of the Empire, was motived 
 by a selfish consideration; and it only loaded the re- 
 cipients of it with a heavier taxation without giving them 
 any effective participation in the central government. 
 The ancient system of Roman Law, founded as it was 
 upon a convention of force and maintained by a dis- 
 ciplined self-interest, never essentially realised throughout 
 its indefinite range the inherent rights of humanity or 
 the spiritual essence of liberty. With all its acute and 
 minute determinations of the external conditions of owner- 
 ship and the manifold forms of contract and obligation, it 
 never recognised the rational will as the essential basis of 
 personality nor unfolded the free relationships of the family 
 life. Although it presents the highest development of 
 the Aryan conception of Right in the ancient world, it 
 still retains the naturalistic basis of the ancient life even 
 in its " constant and perpetual will." The more it became 
 separated from the vital customs and usages of the early 
 times, and was unfolded as a logical system through its 
 unrivalled technical development, 2 the more formal and 
 
 1 The late Professor Muirhead has 2 Leibniz compares the work of 
 
 excelled all his predecessors in the the Roman Jurisconsults with that 
 
 clearness and accuracy with which he of the Mathematicians : " Dixi 
 
 has traced the development of the ssepius, post scripta geotnetrarum 
 
 Roman Law through its stages of nihil extare, quod vi ac subtilitate 
 
 the Jus civile, Jus gentium, and Jus cum Romanorum Jureconsultoruin 
 
 naturale in his Historical Introduc- scriptis comparari possit." 
 tion to the Private Law of Rome, 1 886.
 
 xii TRANSLATOR'S PREFACE. 
 
 mechanical did it become, and the more clearly did the 
 necessity of an equitable tempering of its inherent limita- 
 tions appear. The more widely, too, it was spread with 
 the extension of the Empire, the more it obliterated the 
 distinctive nationalities under the sway of its own uni- 
 formity, and the more rigidly it was administered by 
 the trained officials, the more did it lose its relation 
 to the moral elements of the social life and to the 
 higher ends of the individual. It thus formed no real 
 barrier to the social corruption of the Empire, which 
 it could neither humanise nor organise nor save, not- 
 withstanding all the external adaptation of the political 
 mechanism. When the original strength of the com- 
 mon will from which it had sprung was dissolved by 
 the very luxury and indulgence which it had pro- 
 tected and fostered, the Eoman Law lost its spring 
 and spontaneity. The evolving power of the mere civil 
 will was exhausted, and the Jurists could only do the 
 formal work of analysing, classifying, and summaris- 
 ing the masses of inherited details in the Komano- 
 Byzantine Codes, without opening up deeper fountains 
 of Eight. The succession and form of the government 
 became always more subject to chance and caprice. 
 The provincial municipalities, fainter reflexes of Eome 
 itself, became ever more isolated and enfeebled ; and the 
 hungry demoralised mob at Eome became always more 
 callous and degenerate. Without representative govern- 
 ment and with a senile Senate, the military despots 
 naturally reverted to mere brute force, which wore itself 
 out in selfish and lawless conflicts; and the Empire at 
 last lay divided and paralysed in itself, with its essential 
 life worn out, an easy prey to the barbarians who were 
 pointed from all its frontiers along its highways to Eome. 
 Eome had thus to bear the penalty of an immoral do- 
 minion which had trampled down liberty in the name of 
 liberty, subordinated every interest of society to itself,
 
 TRANSLATOR'S PREFACE. xiii 
 
 and trusted to the unsubstantially of an external civilisa- 
 tion supported only by formal law. 1 
 
 The Eoman Law could not save the Empire, but rather 
 precipitated its fate by the aggressive and outward ambi- 
 tion which it stimulated ; yet it remained as a perpetual 
 possession to the world, and in the Middle Ages, whatever 
 power and vitality it had, entered into the seething and 
 formless chaos out of which the new peoples were to arise. 
 In those ages not merely of historical but of essential 
 mediation, when, amid confusion and violence, the modern 
 world was spiritually begotten by Christianity upon the 
 virgin life of the Germanic race, the Eoman Law became 
 the schoolmaster of the young peoples, and trained and 
 disciplined their wild spirits into the forms of a new social 
 order. The " Germanists " have lamented the subjection 
 of the young Germanic world to the old Roman Law, and 
 the English Constitutional Jurists have congratulated their 
 countrymen upon its limited and indirect influence upon 
 England, but it cannot be doubted that its operation was 
 beneficent, progressive, and liberating on the whole. The 
 new Eeligion which had come to renovate and moralise 
 the inner life soon took on the externality and ambition 
 of the old Empire, and fell into fatal conflict with the new 
 Empire which had arisen in the name of Eome beyond 
 the confines of Italy. When the supreme Pontiffs of 
 Christianity saw the ideal of its crucified Founder in the 
 great Emperors holding the stirrups of the greater Popes, 
 the old Eoman Law became the educator and protector of 
 humanity aruid this outrage of Eeligion, which was worse 
 than the old Paganism. And no less did it help to with- 
 stand Feudal oppression and the violence of undisciplined 
 
 1 Much has been written during connection with the project of a 
 the past three centuries on the char- German Civil Code and the publica- 
 acter and value of the ancient Roman tion in 1887, after fourteen years' 
 Law which cannot be referred to labour, of the results of the Imperial 
 here. It is interesting, however, to Commission on the subject. An ex- 
 note that the keen strife between the tensive juristic literature is gathering 
 ''Gennanists" and the "Romanists" around the subject, 
 has again broken out in Germany in
 
 xiv TRANSLATOR'S PREFACE. 
 
 individuality. The cultivation of the Komau Law revived 
 and shed new intellectual glory on Italy, and the Spirit of 
 Right lived again in the free and nourishing Municipalities 
 and Communes. 1 Italy, the battle-ground of the forces 
 contending for the mastery of the world, the goal and prey 
 of every conqueror, the mingling point of all the great 
 currents of human life, although oppressed, dismembered, 
 alienated, still remained true to herself in her intellectual 
 love and reverence for the beneficence and majesty of Law. 
 Amid the interminable and chaotic strife of Guelfs and 
 Ghibellines, the two greatest thinkers of their time arose 
 again in Italy to advocate the ideals of human right. 
 Thomas Aquinas, the greatest of the Christian Philoso- 
 phers, and Dante, the greatest of the Christian Poets, 
 unfolded the ideals of the Church and the Empire respec- 
 tively as the conditions of the salvation of society. The 
 thought of both of them was shaped and moulded, although 
 to counter issues, by the ancient Spirit of Eight in a 
 deepened Christian form, and they laid the foundations of 
 all modern political science. But neither of them solved 
 the problem of the organisation of liberty, although the 
 great poet, haunted by the phantom of the Empire, gave 
 prophetic anticipations of its coming. The Italian genius 
 found its highest political, as well as its highest poetical, 
 expression in Dante. 2 
 
 The Middle Ages struggling through the dualism of the 
 
 1 Savigny is still the great autho- ope emendati per C. Witte ; Halis, 
 
 rity on the History of the Roman Sax., 1863-71). The Summn and 
 
 Law in the Middle Ages. The the Divina Commcdia also adum- 
 
 best work on the Communes is by brate the political doctrines of their 
 
 Karl Hegel, son of the philoso- authors. Professor Frohschammer 
 
 sopher. of Munich has published an excel- 
 
 The views of St. Thomas Aqui- lent work on the Philosophy of 
 
 nas are expounded in the D& regi- Thomas Aquinas ; a good summary 
 
 mint principum, of which L. i.-ii. of his ethical doctrine is given by 
 
 c. 4 are generally recognised as his, Dr. Luthardt in his " History of 
 
 the remainder being attributed to Christian Ethics," vol. i. (T. & T. 
 
 his disciple, Tolomei di Lucca. Clark). There is a thoughtful 
 
 Dante s I)e Monarchia was written, article on the " Theolo^v and Ethics 
 
 according to Boccaccio, in 1310 of Dante," by Professor Edward 
 
 (best edition : Dantis Alligherii Caird, in the Contemporary Review, 
 
 le Monarchia, Libn tres MSSorum June 1890.
 
 TRANSLATOR'S PREFACE. xv 
 
 Church and the Empire, Feudalism and Municipalism, 
 Caesarism and Nationality, authority and independence, 
 faith and reason, the ideal and the real, passed through 
 all the pain of the collision, differentiation and com- 
 mingling of the elements of liberty. While the free 
 impetuosity of the German race emancipated it as with a 
 bound, the practical ineffectiveness of the Eenaissance 
 and the suppression of the spirit of the Reformation pro- 
 longed the struggle for three centuries in Italy. The 
 hectic flush of Italian Art only bloomed over political 
 decay. The seventeenth century saw the deepest degra- 
 dation of Italian life and character ; and even the great 
 outburst of popular liberty in the French Revolution 
 found but a feeble echo in the land of the Tribunes. 1 
 This slow and uncertain passing from mediaeval twilight 
 to the clear modern day was the period of the Political 
 Writers who followed in the footsteps of Dante and 
 Petrarca in the search for a principle of social organisa- 
 tion, and whose most characteristic expression was given 
 through the gifted but ill-fated Florentine Secretary. 2 
 Macchiavelli, with what Macaulay not inaptly calls his 
 "cool, judicious, scientific atrocity," marks at once the 
 despair and the futility of this abstract political specula- 
 tion. Subordinating all thought and action to the hunger 
 of an unsatisfied patriotism, and scorning equally the 
 bastard theocracy and the broken spirit of the people, the 
 student of Livy and observer of the Italian Courts sought 
 to substitute for Dante's dream of a restored empire au 
 artificial and intellectual policy of intrigue and dissimu- 
 lation as the only available means left for reaching a real 
 
 1 M. de Sismondi's great Uistoire given an excellent sketch of Italian 
 
 des Rtpubliqucs Italiennes du Moyen History in the L'ncyctopazdia JJritan- 
 
 Age (in 16 vols., 1809-19) is still the nica. 
 
 most complete and readable work on - Ferrari has given a vigorous and 
 
 its subject. It is more interesting eloquent account of these writers 
 
 than ever to compare its almost de- in his Corso suyli scrittori politici 
 
 spairing conclusion with the rapid Jtaliani, 1863. In an Appjndix lit; 
 
 progress now being made. Mr. gives a chronological list of I2OO 
 
 Symmonds has written admirably Political Writers, mostly Italian, 
 
 on the Italian Renaissance, and has who wrote from 1222 to 1789. 
 VOL. I. &
 
 xvi TRANSLATOR'S PREFACE. 
 
 nationality. Macchiavelli in entire sincerity exhibits the 
 complete divorce of politics from morality and the cul- 
 mination of the old Eonian severance of political adminis- 
 tration from the essential ends of individual life. The 
 futility of this externalism in the political speculation of 
 the time is equally seen in the fantastic communism of 
 Campanella and the Utopian school. The Italian Political 
 Writers have the merit of having created modern political 
 science, but Government being regarded by them one- 
 sidedly and negatively by itself, Jurisprudence was almost 
 lost sight of in this pursuit of the ignis fatuus of a 
 mere political form. The spirit of the time thus came 
 to lose its hold on any concrete principle of right, and 
 the inevitable consequence was the moral corruption and 
 degradation of the people. 1 
 
 The new spirit which has renovated Italy in the Nine- 
 teenth Century owes its vitality and strength to the appro- 
 priation of a truer conception of human personality and of 
 the ends of human life in the organism of civil society. It 
 was scientifically kindled in the beginning of the Eighteenth 
 Century by Vico, the greatest of the modern Italian thinkers, 
 the founder of the Philosophy of History, and with it of 
 the true Philosophy of Law. Professor Flint has sugges- 
 tively characterised Vico's " Scienza Nuova, one of the 
 profoundest, greatest of books," as " the philosophical com- 
 plement to Dante's Divina Commedia." 2 We might even 
 go further, and find in Vico the philosophical comple- 
 ment to the spirit of Ancient Borne, as well as to that of 
 
 1 The merits and services of the Flint's Vico in Blackwood's Philo- 
 
 Italian,AlbericoGentile(i55i-i6ll), sophical Classics (1884) contains a 
 
 Professor of Civil Law at Oxford, valuable Chapter on "Vico as a 
 
 as the chief precursor of Grotius in Theorist on Law." This admirable 
 
 founding the Science of Interna- monograph has been received with 
 
 tional Law, have been well recog- the greatest approbation in Italy, 
 
 nised by Professor Holland in his and has heightened the expecta- 
 
 inaugural lecture, " Albericus Gen- tion and impatience with which the 
 
 tilis" (1874), and in the edition of learned author's treatment of the 
 
 his De jure belli, Libri tres, 1877. Philosophy of History in Italy is 
 
 2 The Philosophy of History in awaited 
 Europe, vol. i. 287. Professor
 
 TRANSLATOR'S PREFACE. xvil 
 
 Mediaeval Italy. 1 Vico first clearly enunciated the old 
 Itoman principle that it is the spirit of man which makes 
 " the World of the Nations," and according to the faith of 
 the Middle Ages, that this world is regulated by the laws 
 of an indwelling Providence. Vico discovered and pro- 
 mulgated the reality of immanent law in the whole social 
 life of man, and verified it by profouuder study of ancient, 
 and especially Eoman history. Society thus came to be 
 regarded as a sphere of organised and progressive move- 
 ment, and the political organisation as subordinated to 
 a divine-human purpose. The essential freedom of man 
 must be realised in the social organism, and his absolute, 
 natural rights become gradually recognised and guaranteed 
 with the advance of civil liberty. Man comes from God, 
 and he returns to God with his nature liberated and en- 
 riched by social participation in the directing Justice which 
 is the one principle and the one end of universal right. 
 Jurisprudence exhibits this fundamental truth by the aid 
 of Philosophy and History, and it has its practical embodi- 
 ment and realisation in law. " Vico's entire philosophy 
 arose from a study of law." He did for Jurisprudence 
 what Galilei and the Italian scientists had done for 
 Physics ; he gave it a solid and permanent foundation 
 on the inherent laws of Human Nature and initiated their 
 empirical verification by inductive examination of the 
 facts of history. He thus became the chief teacher and 
 guide in the sphere of Jurisprudence and Ethics of all the 
 leading thinkers of Italy since his time, and his concep- 
 tions have given solidity and definiteness to the aspirations 
 
 1 Gioberti describes Vico as " a of Vico, and many works have been 
 
 man who appeared to resume in written on his system. For the 
 
 himself the speculative genius of " Vico Literature " see Flint's Vico, 
 
 which his contemporaries were de- at p. 230 ; to the works on Vioo's 
 
 prived ; a man raised, it seems, by Philosophy of Law, mentioned at 
 
 Providence to save the honour of p. 165, may be added C. Cucca's 
 
 Italy from entire shipwreck ; the Del diritto sefondo la mente del Vico 
 
 man of the vastest and most potent (vol. i. 1879), i Q which (as in the 
 
 genius Italy has seen since Dante present work) "a fusion of the 
 
 and Michael Angelo." The Italian views of Vico with those of Gio- 
 
 thinkerd never weary in thc-ir praise bcrti is attempted " (Werner).
 
 xviii TRANSLATOR'S PREFACE. 
 
 for liberty and reform. The remarkable development of 
 philosophical thought in Italy during the Nineteenth 
 Century has proceeded from Vico, as that of France did 
 from Descartes, that of England from Bacon, and that of 
 Germany from Kant, 1 Even the more practical patriotic 
 workers for the emancipation of Italy have been domi- 
 nated and guided by Vico's ideas. The new spirit of 
 freedom has brought with it not only great activity in 
 the scientific cultivation of Jurisprudence, but correspond- 
 ing progress in the emancipatory work of practical legis- 
 lation. Eight and Politics have thus been united in a 
 deeper ethical synthesis embracing and regulating the 
 harmonious ends of the social life. In no country has 
 this been more conspicuously the case of late than in 
 Italy ; and in reviewing the contemporary relations Pro- 
 fessor Lorimer did not exaggerate when he said : " Italy 
 is the land on which since Germany went on the ' war- 
 path' the mantle of scientific jurisprudence seems to have 
 fallen. In no country in Europe is the relation of theory 
 to practice at this moment more intimate, the character 
 of jurisprudence as a branch of the science of nature better 
 understood, or the haphazard ' leap-in-the-dark ' legislation 
 on which we pride ourselves more at a discount than in 
 Italy." 2 
 
 And so, as we said at the outset, Italy has again become 
 the living and fruitful home of the Science of Law. The 
 historical antecedents and conditions referred to make the 
 fact intelligible, and it is authenticated by the remarkable 
 
 l A good sketch of the History of also been translated. Nowhere have 
 
 Modern Italian Philosophy is given the principles of the Scottish School 
 
 by Dr. V. Bottain the English Edi- of Philosophy been better appreci- 
 
 tion of Ueberweg s History of Philo- ated than in Italy ; and the Ion <r 
 
 sophy (vol. ii. 461-516). Mr. Thomas neglect of the systems of Rosminf 
 
 Davidson has done great service by Galuppi, Gioberti, and Mamiani by 
 
 his excellent translation and exposi- the representatives of that school 
 
 tion of "The Philosophical System has been as discreditable to them 
 
 of Antonio Rosmim-Serbati," Lon- as it has been unfortunate for its 
 
 don, 1882. Rosmim's New Essay on history 
 
 the Origin of Ideas (3 vols., Lon- ' Studia National and Intcrna- 
 
 don, 1883-4) and his Ruling Prin- tional, p 107 1800 
 cipLe of Method (Boston, 1887) have
 
 TRANSLATOR'S PREFACE. six 
 
 juristic literature which the industry of the recent Italian 
 Jurists has produced in all the departments of positive law, 
 civil, commercial and penal. 1 But it is in the highest 
 department of all, the one which crowns and unifies and 
 completes all the others, that we meet with the most 
 characteristic and original products of the juridical genius 
 of the modern Italians. The Philosophy of Law has 
 been nowhere cultivated with more earnestness, assiduity, 
 and success, during the present century, than in Italy. 
 True to their traditions, every one of the leading Italian 
 thinkers has given his best thought and endeavour to 
 the elucidation of the fundamental problems of Eight. 
 Emancipated by their legislation from the mechanical 
 formalism of the old Roman Law, and by the new patriotic 
 spirit from the false dominion of a hybrid ecclesiasticism, 
 they have striven to find a deeper and truer foundation for 
 the reform and reorganisation of the national life. This 
 juristic movement, while presenting a rich variety and in- 
 dependence in detail, has been conspicuously characterised 
 by a faithful regard to the development of history, a keen 
 scrutiny of human reason, and a sober acceptance of esta- 
 blished limitations. It has thus been at once historical, 
 speculative, and positive in its method ; and progressive, 
 elevating, and regulative in its results. While every school 
 of contemporary European thought has had its representa- 
 tives, and while the most prominent of them have not 
 
 1 That abundantand ever-growing etc., 4th ed. 1890), Garofalo(Oimino- 
 
 literature cannot be even indicated l-njia, 2nd ed. 1890), Marro (Uarateri 
 
 here. It is not confined to the dei dtlinqucnti, 1887), and Luchiui 
 
 Italian Codes and their special (Critica, della pena, e svolgimento di 
 
 subjects, but ranges over all the alcuni principii intorno al diritto di 
 
 departments and problems of Law. punire, 1869). Great attention is 
 
 The interest of English Students of given by the Italian Jurists to the 
 
 Law is now being directed to the Historical and Comparative Study 
 
 important work of the Italians in of Law. The Italian Juridical 
 
 Criminology, in which they have Reviews are numerous, and give 
 
 led the thought of Europe since evidence of great scientific activity. 
 
 Beccaria. Among the most valuable The " Rivista Italiana per le Scienze 
 
 recent works on this subject are Giuridiche," published at Rome, may 
 
 those of Lombroso (L'uomo dclin- be mentioned; it gives the titles 
 
 qucnte in rupporto all' anthropoloyia, and contents of the other Reviews.
 
 ix TRANSLATOR'S PREFACE. 
 
 escaped the penalty of their one-sided devotion, the Italian 
 Jurists have been remarkable on the whole for their catho- 
 licity, breadth, and comprehensiveness. In this respect it 
 is no exaggeration to say that they have largely combined 
 the speculative ideality of the Germans with the practical 
 reality of the English in a special activity that has been 
 equally faithful to the demands of science and the re- 
 quirements of life. 1 This ideal realism, this dialectical 
 synthesis, this plastic integration, based upon quick 
 perception and comparison of relations, seems to be the 
 characteristic note of the modern Italian genius, and it 
 has fruitfully authenticated itself in the Philosophy of 
 Law. The Italian Jurists have worked out with con- 
 spicuous fidelity and success the scientific conception of 
 Jurisprudence embodied by Vico in his admirable defini- 
 tion : " Jurisprudentia universa tribus ex partibus coales- 
 cit, philosophia, historia, et quadam propria arte juris ad 
 facta accomodandi." In doing so they have not only 
 given remarkable proof of the tenacity and versatility of 
 the Italian genius, but have largely enriched the juridical 
 thought and capability of Europe. 2 
 
 It is more than time that the English Students of Law 
 were giving attention to this realised and advancing 
 work of the Italian School. The reasons for its long 
 neglect have been too many, and are too obvious to 
 be dwelt on. The immediate interest of positive law 
 and the dominant utilitarianism have checked, and even 
 suppressed, the higher capabilities of English thought 
 iu investigating the fundamental problems of jurispru- 
 dence. 3 But the need of a true Science of Eight is 
 
 1 The characteristics of the mod- 2 The Bibliography appended to 
 ern Italian ingenium in relation to this work gives a clear, concise, and 
 juridical and social studies have useful survey of the literature re- 
 been delineated with admirable in- ferred to. See also the historical 
 sight and discrimination by Pru- sketch in the Prolegomena, 
 f essor Carle, op. cit. Lib. v. c. iv. 2. 3 The Translator has already dealt 
 * also Dr. Werner's Die Itali- with this subject in the Prefaces to 
 fnuche Philosophic des neunzehnteu his Translations of Kant's Philosophy 
 Jahrhunderts, Bd. v. p. 346 ; and of Law, and the Outlines of Juris- 
 
 oberti, Introduzwne, I. c. iii. prudence by Puchta and others
 
 TRA XSLA TOR'S PREFA CE. xxi 
 
 always becoming more apparent in England amid the 
 increasing political confusion, social unrest, and indefi- 
 nite thinking of the time. The best-qualified jurists 
 acknowledge it; and our two chief masters Sir Henry 
 Sumner Maine and Professor Lorimer have been taken 
 from the field of labour. It is a time when earnest 
 students may well look abroad for light and leading. 
 The supremacy of Germany in the sphere of juridical, as 
 of general philosophical, speculation has been deservedly 
 won, but its ideal products, supremely valuable in 
 potentiality as they are, have never satisfied the practical 
 tendency of the English mind. Nor have the French 
 Jurists of this century, with all their clear and logical 
 faculty, been able to originate anything like an inde- 
 pendent or fruitful philosophical jurisprudence. 1 In 
 these circumstances, it may be allowed to point the 
 English Student of Law to the living development of 
 jurisprudence in Italy, in the belief that he will find 
 himself readily at home in its method of dealing with 
 juristic problems, and that he cannot but be enriched and 
 strengthened by any appropriation of its results. 2 
 
 It is from this point of view that the present work has 
 been translated into English. The fact of its having been 
 already translated into German, French, and Spanish, and 
 that it has reached the third edition in Italian, is a guarantee 
 of its interest and value. 3 It is well fitted to be not only 
 
 1 Of this too abundant evidence on Crimes and Punishments, by the 
 
 has been furnished by the Preface Marquis Beccaria of Milan. With 
 
 to the French Translation of the pre- a commentary by M. de Voltaire, 
 
 sent work. It contains a great deal It is imperfect, and made apparently 
 
 of interesting information regarding from the French version, 
 
 the present state of juridical study 3 The German and French Trans- 
 
 in France and other countries. lations are excellent, and Lave been 
 
 4 It does not appear that any- referred to in order to secure accu- 
 
 thing has been done iu the way of racy in the English rendering. The 
 
 translating any of the works of the Spanish translation has not yet come 
 
 Italian jurists into English for more to hand. Important additions and 
 
 than a century, or indeed since the modifications have been made on the 
 
 translation of Beccaria's tractate, last edition of the original work by 
 
 Del dditti e delle pene (1764), a new the Author for the English Transla- 
 
 edition of which was published at tion, which has been made with his 
 
 Glasgow in 1770, entitled, An Essay sanction and kind co-operation.
 
 xxii TRA NSLA TOR'S PREFA CE. 
 
 an attractive and comprehensive Introduction to the 
 Science of Jurisprudence generally, but also a Special 
 Introduction to the Juridical Philosophy of contemporary 
 Italy. Among a large and ever-increasing number of works 
 on the subject, it bears conspicuously the characteristic 
 stamp and form of the new Italian School. Founding 
 upon Vico and Gioberti, the most distinctively Italian 
 thinkers of the Eighteenth and Nineteenth Centuries, it 
 exhibits their principles and spirit in their largest scope 
 and widest applications. 1 Free from all religious narrow- 
 ness or national prejudice, while yet earnestly religious 
 and intensely national, it bears aloft the highest spiritual 
 interests of humanity, and steers a firm course with a 
 touch of scorn through all the eccentric and downward 
 tendencies of the time. Showing much of the spontaneous 
 and easy power of the Italian artist, it exhibits also the 
 practicality of the old Eoman understanding and the 
 cosmopolitan adaptiveness of the new Italian character. 
 The metaphysical foundation of the system is only laid 
 
 1 Gioberti (1800-1852), " the pat- 'RisRinnovamcnto, published in 185 1, 
 riot-philosopher of Italy," may well continued the work on clearer and 
 be regarded as the most distinctively more practical political lines. Prof. 
 Christian thinker of the Nineteenth A. Bartoli has said of Giobertf a 
 Century. Hi.s philosophical stand- Gesuita moderno (5 vols., 1846), 
 point is indicated by the Author of that " it will live as the most tre- 
 this work in the Prolegomena, with inendons indictment ever written 
 the earnestness and enthusiasm of against the Jesuits." Gioberti's 
 a disciple. Gioberti has not the Essay on the Beautiful, 07- Elements 
 wonderful metaphysical subtlety of ^Esthetic Philosophy, has been 
 and elaboration of Rosmini (1797- translated into English by Ed. 
 1855), but he is more immediate, Thomas (2nd ed, London, 1860 
 more impassioned, more Italic. Ros- an indifferent translation, the 
 mini has unfolded a Philosophy of French translation .being much 
 Right in the utmost detail of divi- better). " In the United States of 
 sion and definition, while Gioberti America, Gioberti found a devoted 
 has only laid the metaphysical and interpreter in Dr. O. A. Brownson, 
 ethical basis of principles which he whoae able exposition of the doc- 
 gave his whole soul to bringing trine contained in the ideal formula 
 directly to bear upon the religious was published in 1864, in the Re- 
 ami political renovation of Italy, view bearing his name " (see Scr- 
 ibe publication of bis eloquent and iceg, vol. ii. 497-504). Gioberti's 
 patriotic work. II primato morale e Teoria dd Sopranaturale (1838) and 
 eimie (Ugh Italian, in 1843, gave a his Protologia (1856) entitle him to 
 : impetus to the Neo-Guelfic comparison as a metaphysical theo- 
 party.and had"an immense success." logian with Scotus and He^el
 
 TRANSLATOR'S PREFACE. ixiii 
 
 bare that it may be proved to be safe to build upon, as the 
 basis of the whole structure. It will be found animated 
 throughout by the magnih'cent thought so grandly expressed 
 by Hooker, that "of Law there can be no less acknow- 
 ledged than that her seat is the bosom of God, her voice 
 the harmony of the world." The industry of the historical 
 student appears everywhere in the work, side by side with 
 the keen watchfulness of the practical politician. The 
 Author has himself hinted that the matter of the First 
 Volume might have been condensed, but the enlarging 
 ideal of the time, no less than the conception of the great 
 jurists, pleads his justification. In England especially 
 there is no more necessary teaching required at present 
 than that which would awaken the sense of the largeness 
 of the domain of Eight, and guide to a just appreciation 
 of its several spheres. The exposition of political doctrine 
 and of existing forms of the State in the Second Volume 
 should be found interesting both to the politician and the 
 jurist, disclosing as it does the harmony and unity of their 
 tasks. The Italian standpoint of the work makes it, so 
 far as it goes, a contribution to Comparative Politics and 
 Law, and an easy and reliable guide to the political 
 organisation of the new Italian Kingdom. It may be 
 admitted that greater depih might have been exhibited 
 in the treatment of fundamental principles, that the his- 
 torical expositions might have been carried into further 
 detail, that the analysis and filiation of the jural concep- 
 tions might have been sharper and more distinct, but the 
 method, proportion, and presentment of the work is all 
 the more adapted for the want in view, and hardly more 
 could have been accomplished within its limits. No 
 better introductory synopsis of the system could be given 
 than that of the highly competent German translator, Dr. 
 Matteo di Martino, who summarises it as follows : 
 
 The Author of the following work has exhibited the character 
 of the Italian Philosophy in the criticism of the Systems con-
 
 xxiv TRANSLATOR'S PREFACE. 
 
 tained in his Prolegomena ; and upon that Philosophy he builds 
 his system of Ethics and Jurisprudence. Morals and Law 
 pursue one and the same End, the realisation of the Good, but 
 with different means. Everything is to be regarded as good 
 which is in harmony with the nature of the universe, and con- 
 sequently also with human nature. The Good differentiates 
 itself into singular Ends, for the attainment of which certain 
 conditions are requisite which guarantee Eight. Justice is 
 the norm for human actions, in so far as these are regarded as 
 external. Law is the ideality of Eight which contains the 
 criterion for the Just in its application to human relationships. 
 What then are the cardinal relationships for which Law is 
 called to provide the most favourable conditions possible ? 
 Ahrens had accentuated Eeligion, Science, Education, Art, in 
 its two main branches as beautiful and useful Art, Commerce, 
 Morality, and Justice. Our Author includes Education under 
 Justice, and in the First Part of the work he surveys the 
 Objects of Eight, which have ever been, and always must be, 
 the conditions for the harmonious development of these car- 
 dinal relationships. 
 
 In order to attain this end, Man may be active as a separate 
 individual or in fellowship with others. In the Second Part 
 of the work treating of the Subjects of Eight, the Author 
 examines the divers stages of this fellowship or association, 
 and works out positions different from those of both Ahrens 
 and Mohl. The former had presented the Individual, the 
 Family, the Commune, the State, the Confederation of States, 
 and Humanity ; and the latter added the Eace and various 
 permanent Associations, such as the Church. Our Author 
 adds the Province, but leaves out the Eace and the other 
 Associations. 
 
 On the basis of the doctrine of Yico, according to which 
 Man is an intuitive and free being, the Author begins with 
 Certainty and ends with Truth. He lays chief importance on 
 history. The Understanding produces truth, the Will fact. 
 Ideas and facts proceed from one and the same point ; and con- 
 sequently a necessary harmony must reign between them in 
 their great outlines. Hence the Author first carefully investi- 
 gates the origin of the Jural Institutions, and then proceeds to 
 expound the theory of them. The chief value of the work
 
 TRANSLATOR'S PREFACE.. XTV 
 
 lies in its comparison of the Legal Institutions established 
 among the different Nations, the Italian Legislation being 
 constantly referred to as the basis of this comparison. 
 
 The Table of Contents has been enlarged in this Eng- 
 lish edition, and the Summaries and Bibliography left out 
 by the German and French translators, have been also 
 rendered in order to give it the completeness of the original 
 and to facilitate its appropriation. The work may thus 
 be left to speak for itself in detail, in the hope that 
 it may be received with such interest as may justify 
 the attempt to reproduce some of the profounder and 
 weightier productions of the Italian Schools. It cannot, 
 at least, fail to give the student some insight into the vital 
 and organic conceptions, and a clearer and truer sense of 
 the manifold interest both for science and for practice, 
 of the contemporary philosophy of law. And it will 
 achieve its purpose if it helps to stimulate greater devo- 
 tion to this department of science in the large and com- 
 prehensive spirit of the precept which Vico addressed to 
 his young contemporaries, and which may well be prefixed 
 as a motto to the following pages : " Integram sapientiam 
 excolite, naturam universam perficite." 
 
 W. II. 
 
 EDINBURGH, December 1890.
 
 AUTHOK'S PKEFACE 
 
 TO THE THIRD EDITION". 
 
 THIS book had a university origin ; but the successive 
 enlargements of it have adapted it for the use of all culti- 
 vated readers. And, indeed, is it possible under a free 
 government for any one to ignore with impunity the 
 historical and rational origin of the principal juridical 
 institutions ? The ruling classes are no longer capable 
 of guiding the community when they cease to have 
 arguments with which to meet every new paradox. The 
 poet Heine was wont to say that the troubled end of the 
 Eighteenth Century would yet seem an idyl in comparison 
 with that of the Nineteenth Century. We should there- 
 fore have the courage to keep in view certain problems 
 which, if badly solved, may yet lead to the abyss. 
 
 "What are we ? Whence do we come ? Whither are 
 we going ? All possible social and political organisation 
 depends on the answers given to these three questions. If 
 we are not only sensitive, but reasonable and free, beings, 
 and come from a Creator with whom we are destined to be 
 reunited without being confounded with Him, and have 
 to render Him an account of our actions, then our life 
 ought to be regulated in a certain way. But if we are 
 only sentient beings, if we have sprung by natural selec-
 
 xxviii A UTHOR'S PREFA CE. 
 
 tion from the monkey, then we must be subject in every- 
 thing and by everything to the struggle for existence, 
 and nothing will remain of us but an empty name. In 
 order to answer adequately the questions thus indicated, 
 we have examined human nature under the guidance of 
 tradition, existing systems, and direct observation ; and 
 everywhere and always we have recognised in it a divine 
 germ. Everywhere and in all times, we have perceived 
 humanity in search of the good, with a more or less en- 
 lightened conscience ; and we have found juridical institu- 
 tions directed towards the attainment of it. 
 
 The philosophers, reconstructing mentally the work of 
 the people, have put man into relation with the universal 
 order, distinguishing him when he conformed himself to 
 it from a disinterested internal motive, and when he acted 
 with' the view of obtaining a certain utility. They have 
 thus separated morality from right, and specified the good 
 in reference to essential ends, and they have determined 
 the mode of obtaining it objectively and subjectively. 
 
 It has seemed to us most useful to arrange the juri- 
 dical material in this order, because the whole human 
 development can thus be taken in at a single glance, 
 without ever losing sight of the point of departure and 
 the goal. In the First Part of our work, dealing with 
 the Objects of Right, we have been followed by the cele- 
 brated jurist Ihering, although with a different meaning. 
 In Ihering's view ends dominate in the sphere of right 5 ; 
 they are, however, not regarded as adapting themselves 
 according to an inherent gradation to the needs of the time, 
 but they have to be kept in check by a complex of forces 
 which he calls the social mechanism. In the Second 
 Part of the work, in which we deal with the Subjects of 
 Right, we are still without companions.
 
 AUTHOR'S PREFACE xxix 
 
 Meanwhile certain fundamental objections have been 
 taken to the point of view here advocated. These have 
 been elegantly summed up in a lecture by Professor Prins 
 of the University of Brussels/ and in the inaugural dis- 
 course of Professor Nani of the University of Turin. 2 
 
 The former puts his objections thus. For nearly two 
 centuries Natural Right has been considered as a science ; 
 and the theories of a state of nature, of the social contract, 
 and of pure reason, have been both discussed and rejected 
 as sources of right. If Pufendorf, the first occupant of 
 a chair devoted to this subject, were to return to life, 
 he would not find many disciples, but he would find not 
 a few opponents who dispute the basis of his system. 
 Professor Prins then concludes in favour of the Historical 
 School. As he puts it, at first right is an instinct ; jus- 
 tice, religion, and power are found mixed up ; there are 
 no legal rules nor jurisconsults; right is born from the 
 bosom of the people like the heroic songs. It is sacred 
 as their faith, and is transmitted as tradition. In the 
 same assembly the gods are worshipped, rhapsodies are 
 listened to, and judgment is pronounced. . . . But sud- 
 denly the picture becomes enlarged ; justice, power, and 
 faith are separated ; there is not yet a written law ; but 
 there are precedents, and there are judges to make use 
 of them, and now it is no longer instinct but reason 
 which guides them. Customary right appears ; a body of 
 positive rules is formed ; magistrates arise to apply these 
 rules, and they create jurisprudence. . . . Lastly, after a 
 rich vegetation, the dry branches of the juridical growth 
 are cut off in order to render the trunk more vigorous, 
 and legal right becomes a written science, while juris- 
 
 1 La philosophie du droit et Vtcolt hisioriqve. Bruxelles, 1882. 
 * Vecchi e nuovi prollemi del diritto. Torino, 1 886.
 
 xsx AUTHOR'S PREFACE. 
 
 consults develop its technical element. . . . The duty of 
 the jurist is simple ; he has to cultivate the living legal 
 right, to search for truth in the juridical sources or in the 
 national organisms, without the interests of humanity 
 becoming in any way compromised, because the national 
 organic right thus takes the place of universal right, and 
 the majestic laws of advancing humanity that of the rules 
 of pure reason. 
 
 Nani, on the other hand, attacks not only Natural 
 Right, but also the Historical School : the former because 
 it proclaims the omnipotence of the individual, and re- 
 legates jurisprudence to the field of abstract speculation ; 
 and the latter because if it has been able to indicate the 
 source from which right arises, it has erred in believing 
 it simply to be a product of the consciousness of the people, 
 like language, customs, and the political constitution. 
 Accordingly he seems to associate himself with the learned 
 Professor Dahn, holding the view that the Philosophy of 
 Right is founded on the comparative science of the peoples, 
 on their psychology, or on ethnology and anthropology in 
 the widest sense of the term. 
 
 The want felt by the two illustrious professors is to 
 reconnect the fact with the idea, or to reconcile philology 
 with philosophy. Prins accepts the fundamental problem 
 as formulated by Rousseau, namely, how to find a form 
 of association which shall defend and protect with the 
 whole of the common power the person and goods of 
 every associate, while respecting the liberty of each. 
 But he finds the solution of it in assigning the function in 
 question to the collective whole of society when it makes 
 use of its natural organisms, and not in entrusting that 
 power to one or more persons who are called represen- 
 tatives of the general will
 
 AUTHOR'S PREFACE. rni 
 
 Nani, after having indicated his adhesion to Dahn, 
 confines himself to considering how philosophy penetrates 
 into juridical science under the sociological form ; and he 
 exclaims : " The end of the century will perhaps see it 
 seated anew in the position which not many years ago 
 it believed that it had abandoned for ever." 
 
 What the two illustrious professors desiderate, has been 
 in existence for a long time, even from the year 1720, 
 when Giambattista Vico published his golden treatise De 
 uno universi juris principio et fine uno. In it he says : 
 " Quae vis veri, seu ratio humana virtus est quantum cum, 
 cupiditate pugnat, eadem est Justitia quantum utilitates 
 dirigit et exaequat, quae est unum universi Juris Prin- 
 cipium unusque Finis. Utilitates autem quae cupiditatem 
 cient, corpore constant : communis corporum mensura seu 
 regula est commensus vulgo dicta proportio, quam Mathesis 
 pro nostro argumento demonstrat duplicem, arithmeticam 
 seu simplicem, et geometricam seu comparatam. . . . At 
 quod est aequum dum mctiris, idem est justum quum 
 . eligis : quod in rebus cognitionis et in rebus actionis, 
 modo utraeque sint pro natura sua demonstratae, unum 
 sit genus assensionis. Igitur uti aequum cognitionis 
 demonstratum, ubi id recta matheseos methodo confectum 
 sit ; ita justum actionis, ubi animus sit perturbationibus 
 defoecatus, nee ullo pravo gentis more corruptus, . . . 
 justum, inquam, ei est pianissimo demonstratum." In 
 another place Vico says more concisely : " Honestas is the 
 cause of right ; utttitas is its occasion ; and metaphysica 
 is the mother of jurisprudence, the societas veri being an 
 essential element of the societas aequi, and reciprocally." 
 So in the world of the nations the useful is found already 
 connected with the aequum. From the examination which 
 every one makes of what he believes useful, arises what is 
 VOL. i. c
 
 xxx ii AUTHOR'S PREFACE. 
 
 justly due to each ; that is, there arises the idea of human 
 justice. But this idea already exists virtually and in- 
 tuitively, and it is only certain necessities which lead to 
 its being explicated and taking a reflective and scientific 
 form. In this way the Neapolitan thinker foreshadowed 
 the synthesis of History and the Philosophy of Eight. 
 We need not here follow the distinguished author in his 
 description of primitive right and the transition from the 
 jus privatae violentiae to the jus civile. Montesquieu, the 
 worthy continuator of Vico, before plunging into historical 
 researches, declares : " Particular intelligent beings may 
 have laws of their own making, but they have some like-- 
 wise which they never made. Before there were intel- 
 ligent beings, they were possible ; they had therefore 
 possible relations, and consequently possible laws. Before 
 laws were made, there were relations of possible justice " 
 (Esprit des lois, Liv. I. ch. i.). 
 
 According to the hypothesis of Kant and Laplace, let 
 us assume, on the contrary, that a nebulous mass became 
 separated from the sun and was consolidated while turn- 
 ing around itself. Gradually this incandescent globe cooled 
 down and brought forth the vegetables which nourished 
 the animals that sprang forth spontaneously. Man was 
 distinguished among his congeners by a more developed 
 instinct, and formed a species of society at first mute, then 
 gesticulating ; and finally he found articulate speech from 
 which the primitive civilisation took its origin. Long 
 ages flowed past during the transitions from the horde to 
 the tribe, from the tribe to the city, and from the city to 
 the State. But at last the great Oriental empires arose ; 
 then Greece, Home, Christianity, and the modern nations : 
 all by natural selection and by the law of heredity. The 
 physical world is represented according to this theory
 
 AUTHOR'S PREFACE. xxxiii 
 
 as differing in nothing from the moral world ; both are 
 subject to the laws of life. Morality is the resultant of 
 two impulses, egoism and altruism. The former arises 
 from the necessity of nutrition implanted in the organic 
 substance in order that it may exist as an individual, and 
 the latter from the necessity of loving in order that it may 
 exist as a species. The notion of justice is a mental equa- 
 tion transported into the domain of action and of morality. 
 It retains some of the rigour of its origin and a certain 
 impartiality which distinguish it. Accordingly there is 
 no longer final causality, nor any will freely exercised in 
 order to attain it. The voluntary activity which is in 
 us takes origin from the excitation of the muscles, and 
 is transferred from the internal domain to the external 
 domain. All phenomena are considered as directed by a 
 will ; all events as directed by a Providence ; and finally 
 the whole visible and invisible universe as crowned by a 
 Supreme Will. This method of explanation we regard as 
 mere illusion. 
 
 We do not ask an act of faith from our readers, but 
 only that they examine with equal attention internal facts 
 and external facts in order to discover their laws. They 
 will find in their mind the ideas of substance, of a creative 
 and regulative cause that is perfect and infinite, as well 
 as the ideas of the good and just which experience can- 
 not give. External reality corresponds to these ideas, and 
 this not by chance. Man feels himself free and respon- 
 sible, and works in consequence. He differs from the 
 animals by his power of discernment (discrimen or dis- 
 ccrnimen, from discernd), which is the crown of reason 
 (ratio, from rcor, to think, logos meaning thought and 
 speech). Morality, which in the animal is arrested at 
 sympathy, rises in man to duty ; and as the moral law is
 
 A UTHOR 'S PREFA CE. 
 
 not realised spontaneously as a whole, there arises the 
 necessity of coercion in that part of it which it is incum- 
 bent on society to see as far as possible actualised. The 
 animals cannot be subjects of right because they have not 
 an end to attain. The animals adumbrate man. In the 
 plants and animals, and even in inorganic nature, there 
 are found dispersed the properties, including the perfec- 
 tions and the imperfections, of our being. Wherefore the 
 ancients, and especially the Stoics, sought in the irrational 
 beings, and particularly in the brutes and in infants, the 
 impress of the law of nature, calling them mirrors of 
 nature. Plutarch wrote on the nature of the animals, 
 and defended their cause, which had been already patronised 
 by Democritus. That ancient philosopher said : " We 
 have already been disciples of the animals in great things, 
 of the spider in weaving and sewing, of the swallow in 
 building, and of the sweet swan and nightingale in sing- 
 ing." Speech is congenital to man, and civilisation is his 
 work, being found by spontaneous reason, and perfected 
 by reflective reason. As the immortal author of the New 
 Science wrote, the profound wisdom of the philosophers 
 succeeds the vulgar wisdom, the true process of the human 
 mind consisting in verifying by analysis the primitive 
 synthesis, and in thinking by means of reflection what is 
 learned by intuition. 
 
 In this Third Edition of our work, we have taken full 
 account of the observations of the Italian, German, and 
 French press when the two previous Italian editions and 
 the German and French translations appeared, but without 
 introducing any variation into the order or distribution 
 of the contents. Although to some the First Part has 
 appeared a little long, we have deemed it right to pre- 
 serve it as it is in conformity with the traditions of our
 
 AUTHOR'S PREFACE. XXXT 
 
 greatest jurists, who have defined the subject in the well- 
 known words : Junsprudentia est divinarum atque human- 
 arum rerum notitia, justi atque injusti scientia. We have 
 carefully followed all the improvements which have been 
 effected in the sphere of legislation at home and abroad, 
 and have kept in view the circumstances of time and place 
 affecting them in criticising the juridical institutions. 
 
 Thereby our science, without ceasing to be the link of 
 connection between Philosophy and Eight, will be seen to 
 acquire a practical value in enlightening public opinion 
 and paving the way for the work of the Legislator. 
 
 THE AUTHOR.
 
 CONTENTS. 
 
 PROLEGOMENA. 
 
 The Problem of Knowledge : Plato ; Aristotle ; Chris- 
 tianity . ... i 
 
 Growth of the Moral Sciences : Augustine ; Bossuet ; 
 
 Vico 2 
 
 Progress of Political Science ; Representative Govern- 
 ment 3 
 
 Private Right ; Public Right ; Penal Right . . . . 4 
 
 Progress in the Study of Law 6 
 
 CHAP. 
 
 I. METAPHYSICAL SPECULATION. 
 
 The Systems of Philosophy 9 
 
 j. Development of Philosophy in China and India 10 
 
 2. Development of Philosophy in Greece . . 12 
 3. Early Christian Philosophy . . . .18 
 
 4. The Scholastic Philosophy 20 
 
 5. Philosophy of the Renaissance .... 26 
 
 6. Modern Philosophy 3' 
 
 7. Philosophy of the XVIII. Century ... 39 
 8. German Philosophy in the XIX. Century . .45 
 9. Italian Philosophy in the XIX. Century . . 51 
 10. French Philosophy in the XIX. Century . . 61 
 1 1. English Philosophy in the XIX. Century . . 63 
 12. Summary of the Progress of Philosophy ; Con- 
 clusions 7 1 
 
 II. ETHICS. 
 
 The Greek Ethics : Plato ; Aristotle ; Epicurus ; Stoics 89 
 
 Christianity and Morality ; Augustine . . . 9 1 
 
 Bacon; Descartes; Vico 93
 
 ixxv iii CONTENTS. 
 
 CHAP. 
 
 
 Sensualism ; Locke ; The Scottish School ... 95 
 
 Kant and the German School ...... 9^ 
 
 French School of Maine de Biran and Jouffroy . . 97 
 
 Gioberti .......... Io 
 
 The Positivist School; Hobbes; Bentham; Spencer; 
 
 Mill .......... I01 
 
 Summary Review ........ IO 7 
 
 III. THE PHILOSOPHY OF RIGHT. 
 
 The True as Justice in the Sphere of Right . . .112 
 The Greek Philosophers ; Christianity ; -Dante . .112 
 Grotius .......... "3 
 
 Pufendorf ; Leibniz ; Wolf ...... "4 
 
 Kant ; Schelling ; Hegel ....... 115 
 
 Krause; Ahrens; Trendelenburg ..... 117 
 
 Ancient and Mediaeval Utilitarianism . . . .121 
 
 Hobbes ; Spinoza; Locke ...... 122 
 
 Rousseau .......... 124 
 
 English School ; Bentham; Bain; Spencer; Darwin . 125 
 Romaguosi, the Italian Bentham ..... 127 
 
 Vico ........... 129 
 
 Division of the Philosophy of Right . . . .130 
 
 PART FIKST. 
 THE OBJECTS OF RIGHT. 
 
 I. RELIGION. 
 
 Nature of Religion : Vera ; Gioberti ; Max Miiller . 135 
 Multiplicity of the Religions ; how explained . . 1 36 
 The Religions of China, India, Egypt, and Persia . . 1 38 
 
 The Greco-Roman Polytheism 143 
 
 Monotheistic Religions; Semitic and Hebrew Mono- 
 theism 144 
 
 Christianity ; Protestantism ; Romanism ; English 
 
 Church 146 
 
 Relation of these Religions to Society . . . .151 
 Relations of the Church with the State . .162
 
 CONTENTS. 
 
 CHAP. PAGE 
 
 Ancient Church ; Mediaeval Church .... 163 
 
 Dante's De Monarchia ; Council of Trent . . . 167 
 
 French Revolution ; Concordats of 1801 and 1851 . . 172 
 
 Eastern Church in its Relations with the State . . 174 
 
 The Protestant Churches 180 
 
 The English Church 181 
 
 Churches of Sweden and Denmark and Germany . .184 
 The Reformed Church in France and Holland . .185 
 
 The Church in America 185 
 
 Summary ; Cavour and his Successors . . . .187 
 
 II. SCIENCE. 
 
 Separation of Science from Religion . . . -199 
 
 Science in China 199 
 
 Science in Ancient Egypt 201 
 
 The Science of the Greeks and Romans .... 202 
 
 Christianity ; Julian ; Barbarians ; Charlemagne . . 203 
 
 The Arabs ; School of Salerno 204 
 
 Bologna and Roman Law ; University of Naples . . 205 
 
 The English Universities 205 
 
 Roger Bacon ; the Renaissance ; Galileo . . . 206 
 
 Bacon ; Descartes ; Newton ; Physical Science . . 208 
 
 Mill; Spencer; Renan ; Comte . . . . 211 
 
 Hegel; Gioberti; Cenni 213 
 
 Relation of the State to Science 215 
 
 French Institutions ; German Universities ; Italy. . 216 
 
 Secondary and Primary Education ; Luther's Letter . 222 
 
 Religion and Science 226 
 
 III. ART. 
 
 Nature of the Beautiful and of Art 227 
 
 Rise of the Beautiful Arts 228 
 
 Art in China, India, Assyria, Persia .... 230 
 
 Greco-Roman Art ; Church Architecture . . . 232 
 Greek and Roman Painting; Italian, Flemish, and Dutch 
 
 School 234 
 
 Arts of Speech ; Poetry 235 
 
 Music ; Sculpture ; the Drama 237 
 
 The Art Institutions of Greece, &c 243
 
 x l CONTENTS. 
 
 PACK 
 CHAP. 
 
 IV. INDUSTRY. 
 
 The Bodily Necessities ; Labour ; Property . . .246 
 Development of the Forms of Property . . . .249 
 Views of Sir H. S. Maine and Laveleye . . . .250 
 Property among the Romans ; Mommsen . . . 252 
 Roman Empire ; French and Italian Codes . . -255 
 Non- Aryan Peoples ; Mosaic Law ; Mussulmans . . 258 
 
 China, Peru, and Mexico 259 
 
 Views of Plato and Aristotle ; Christian Communism . 260 
 Opponents of Property ; More ; Campanella ; Morelly 263 
 French Revolution ; Babeuf ; Louis Blanc ; Proudhon . 264 
 Advocates of Individual Property ; Aquinas ; Locke . 265 
 Montesquieu; Quesnay; Bastiat; Baudrillart . . 267 
 
 Kant ; Fichte ; Ahrens ; J. S. Mill 268 
 
 Nationalisation of the Land 270 
 
 Laveleye's Views 270 
 
 Laws guaranteeing Industrial Property . . . .273 
 The State and Industry 274 
 
 V. COMMERCE. 
 
 Industry and Exchange ; Modern Society and Contracts 275 
 
 Contracts in the Roman Law 276 
 
 Domat and Pothier and French Civil Code . . . 278 
 Classification of Contracts by Kant, Hegel, and Trende- 
 
 lenburg . 280 
 
 Contracts of Exchange ; Commercial Associations . 283 
 
 Bills of Exchange ; Bottomry ; Marine Insurance . 284 
 
 Development of Commerce 286 
 
 VI. MORALITY. 
 
 Ethics and Jurisprudence distinguished .... 290 
 
 Relation of State to Morality 290 
 
 Beneficence and the State 291 
 
 Beneficence in Ancient Times 293 
 
 Christianity and Beneficence 298 
 
 Naples; England and Legal Charity . . . .301 
 
 VII. JUSTICE. 
 
 How the State provides for Realisation of Right . . -305 
 Civil aud Penal Procedure 306
 
 CONTENTS. xli 
 
 PAGE 
 
 System of Proof in Italy 308 
 
 Mixed Systems 311 
 
 Execution of Civil Sentences 314 
 
 Penal Sentences and Punishment 315 
 
 Criminal Law and Penal Systems 316 
 
 New Penal School 321 
 
 Review of Part 1 323 
 
 SUMMARY OF THE FIRST VOLUME 325
 
 PHILOSOPHY OF EIGHT. 
 
 PROLEGOMENA. 
 
 WHEN we cast our eyes upon the universe we see our- 
 selves surrounded by phenomena which we naturally 
 desire to know. How is this knowledge attained ? Plato 
 says that Science is not learned, as some believe, by intro- 
 ducing it into the mind as sight is given to one born 
 blind ; but every one has in himself the faculty of under- 
 standing, a sort of organ destined for the attainment of 
 knowledge, when it is applied to the contemplation of 
 what exists. Hence it is necessary to seek for the abso- 
 lute behind the relative, and to search under facts for the 
 divine or human ideas which produce them. 
 
 The ancients regarded things under a double aspect, 
 as we see from the theories of Plato and Aristotle : the 
 former directing all his attention to the ideal, and the 
 latter to the real. Christianity adopted the point of view 
 that had been taken by Plato; but, as it understood 
 human nature better, it subordinated the real to the ideal 
 without annihilating it. Nevertheless such were the ob- 
 stacles thrown in its way by the barbarism which super- 
 vened, that Christianity could then only scatter the germs 
 which it remained for future ages to develop. 
 
 The modern period began with a certain disgust at the 
 moral sciences. The hatred of scholasticism led to the 
 abandonment of the rational method, and Galileo, con- 
 siderably before Bacon, asserted that " the meanings of the 
 
 VOL. I. A
 
 2 PHILOSOPHY OF RIGHT. 
 
 things of nature are to be sought in the works of nature, 
 thatthe life of nature is always operating, and that ^ it 
 stands before our eyes real and unchangeable in all its 
 facts." Attention, however, did not remain long absorbed 
 in external nature, and the moral sciences did not want 
 illustrious cultivators such as Machiavelli and Grotius. 
 But these sciences continued to advance without connec- 
 tion with each other and in opposite ways, from their 
 being made to consist wholly of the results of observation, 
 or wholly of reasoning. Bossuet took up the theme of 
 St. Augustine's De civitate Dei and produced his magni- 
 ficent Discourse on Universal History. Antonius Serra 
 had already explored the laws of the formation of wealth, 
 one of the principal outgoings of human activity. Vico, 
 taking up again the work of Bossuet, finds the laws of 
 history by analysing man in his individual and social 
 relations ; and the moral sciences may be said to have been 
 then really established. Singular destiny that Italy, when 
 involved in such misfortunes, should thus have produced 
 the two great investigators of the moral world ! 
 
 Thus far practice and speculation independently pur- 
 sued each its own way; but as the relations among the 
 peoples extended, the influences which ideas had exercised 
 upon facts by means of external revolutions, came to be 
 better appreciated. The human mind was stirred at the 
 close of the Middle Ages, and after the reformation of 
 religion it turned itself to political reform. Among the 
 ancients liberty was synonymous with sovereignty; and 
 as the sovereign was the State, the value of the individual 
 disappeared. Neither the Republic and Laws of Plato, 
 nor the Politics of Aristotle, nor the Republic of Cicero, 
 offer us any other ideal. The Germans preserved the 
 spirit of individual liberty; they felt the need and the 
 passion of individuality. After the invasion of the bar- 
 barians, the sovereignty became incarnated in property 
 from which were derived independence and power. This 
 power assumed the form of feudalism; but after the
 
 PROLEGOMENA. 3 
 
 struggles of centuries, it fell on the Continent, over- 
 thrown by the Commons and by Monarchy. In England, 
 on the contrary, the Barons united with the Commons in 
 order to resist the royal power; and then was founded 
 that mixed government which has become an object of 
 imitation to all Europe. But how were these Commons 
 to take part in the parliaments or the great national 
 councils ? As all the citizens, or even all the muncipal 
 magistrates, could not attend these national councils, it 
 was necessary to depute some of them to represent the 
 entire community, as was the practice in the case of the 
 knights of the shires and of the clergy. If this idea, 
 which seems so simple, had arisen before the irruption of 
 the barbarians, the means would have been found for 
 combining the unity of the Eoman Empire with the liberty 
 of the several parts which composed it. 
 
 The representative form of government which had 
 sprung up in the Thirteenth Century, and which had been 
 developed by the two revolutions of 1640 and 1688, made 
 England free and happy in the Eighteenth Century. Vol- 
 taire and Montesquieu, having visited Great Britain, and 
 having read Locke's treatise on Civil Government, under- 
 stood all the importance of this form of government and 
 described its advantages. Soon thereafter, the English of 
 the New World, the Americans of the north, turned the 
 institutions of the mother country into a republic. Ac- 
 cordingly when the Erench entered upon the great Eevolu- 
 tion of 1789, they had two models before their eyes, the 
 one a monarchy and the other a representative republic. 
 The constitution of 1791 neither founded a monarchy nor 
 a republic, but a government which was without a sub- 
 stantial basis or a probability of duration. This noble 
 nation fell under the influence of those writers who, draw- 
 ing their inspiration from Rousseau, turned back to the 
 ancient idea which made liberty consist in sovereignty, 
 and right in the will of the nation. Hence they founded 
 equality, and not liberty. The revolutionary anarchy
 
 4 PHILOSOPHY OF RIGHT. 
 
 was succeeded by the Napoleonic despotism, and it was 
 only after realising the evils of conquest that France 
 returned to sounder ideas. 
 
 Private Eight separated itself slowly from Public Eight. 
 We may take for illustration the example of the Eoman 
 Law, which has passed through its whole development and 
 is best known. At the outset we see all rights absorbed 
 by the paterfamilias, who was at the same time the priest 
 and judge. He united around himself his wife, his sons 
 and their descendants, with his clients and slaves, all of 
 whom (included under the name of gens) were represented 
 by him as their head. To him belonged the right of the 
 spear (jus quiritium) and the sacrifices (sacra privata) ; 
 and whoever had the spear and the sacrifices also possessed 
 the land, and the right of taking occupation of the goods 
 of an enemy. The gentes, assembled as curiae (from curis, 
 a spear), formed the supreme council of the rising State. 
 Contracts were rare, and were surrounded with numerous 
 formalities. The land passed with the spear from father 
 to son, a necessary and fated succession ; and if the father 
 wished to dispose otherwise, he could not do it without 
 the consent of the curiae (calatis comitiis}. 
 
 The clients, however, increased in importance ; and, 
 united with other free men who had come from the con- 
 quered cities, they formed the plebs. Legal right then 
 began to divest itself of many formalities. Along with 
 the dominium quiritarium there was admitted the domi- 
 nium bonitarium ; and to contracts stricti juris were 
 added contracts lonaefidei. The increase of the strangers 
 contributed to temper the rigours of the ancient law ; and 
 by means of aequitas and the fictio juris, there came to be 
 established by the praetor a jus gentium, quasi jure quo 
 omnes gentes utuntur. Philosophy made its beneficent 
 influence felt, and Cicero went so far as to declare : " Non 
 erit alia lex Eomae, alia Athenis, sed omnes gentes una lex 
 continebit." 
 
 To Nero is ascribed the institution of a magistrate who
 
 PROLEGOMENA. 5 
 
 had to receive the complaints of the slaves against the 
 excesses of their masters. Alexander Severus reduced the 
 power of fathers over their sons to that of simple correc- 
 tion. The latter had already begun to possess goods of 
 their own, with the recognition of the pecidium castrense 
 ct quasi castrense. 
 
 As to succession, the praetor had sought by various 
 expedients to substitute the natural family for the civil 
 family, or to put cognatio in the place of agnatio ; and he 
 was followed in this line by Marcus Aurelius, Cominodus, 
 Coustantine, Valentinian, and lastly by Justinian, who 
 crowned this effort by his celebrated Novella 118. 
 
 Penal right or criminal law appeared at Eome, as in 
 the case of all other peoples, as a means of giving repara- 
 tion for injury received. 1 The idea of penalty was not 
 slow to spring up with the special laws which punished 
 offences against the community as crimes. These offences 
 were judged in the judicia populi, presided over by 
 the king, then in the comitia, which elected a quaestio 
 or commission to examine whether the accusation was 
 founded in fact, and to punish the criminal. Such 
 commissions were not afterwards appointed for every 
 single crime, but for a given period and for the delicts 
 which might be committed, until they became permanent 
 tribunals, with certain rules for judgment and for the 
 punishments which were to be inflicted. The imperial 
 despotism abolished the quaestiones, as they called to mind 
 the commissions by whom they had been elected ; and it 
 assigned an ample jurisdiction to the senate, in which the 
 emperors voted like ordinary senators. By degrees the 
 function of punishing crimes passed over to magistrates 
 directly named by the emperors, and the prerogatives of 
 the senate were usurped by the private imperial council, 
 which had become a sort of supreme court of appeal. In 
 criminal matters, the Digest does not yield to any code as 
 
 1 We allude here to criminal law because it is generally treated as 
 belonging to public law.
 
 6 PHILOSOPHY OF RIGHT. 
 
 regards the variety of the crimes it indicates and the 
 severity of its punishments. 
 
 The Eoman Law did not perish with the fall of the 
 Empire. It remained as the law of the conquered popu- 
 lation, and a part of it also passed into the barbarian 
 compilations of the Franks, the Burgundians, and the 
 Visigoths. 
 
 The Glossators introduced the Eoman Law into the uni- 
 versities, and increased its authority in the courts. Most 
 of the statutes of the Italian municipalities merely formu- 
 lated its contents. Alciatus, who was called to teach in 
 France, awoke in that country a love for the Eoman Law. 
 Cujacius commented upon it, no longer seeking merely for 
 the meaning of single phrases, but exploring its spirit and 
 expounding its relations with antiquity. The Dutch 
 School continued to study it philologically. Durnoulin 
 and Argentre", on the other hand, applied the Eoman 
 method to the national law; and Domat and Pothier, who 
 were powerful generalises, immediately exercised an influ- 
 ence upon all minds. In Germany, Thomasius, a philoso- 
 phical jurist, sought to apply to jurisprudence the reform 
 which Descartes had tried to carry out in the other 
 branches of knowledge. Breaking away from all the ideas 
 in vogue, Thomasius wished to make a clean sweep of 
 these by withdrawing jurisprudence from the influences of 
 history and of theology. Vico soon thereafter turned back 
 from this tendency by restoring to history its legitimate 
 influencej but illuminating it with the torch of meta- 
 physics. Nevertheless, about the middle of the last cen- 
 tury, legislation was made up of elements taken from the 
 Eoman Law, the Canon Law, feudal books, and an endless 
 number of particular edicts and customs. The criminal 
 law was distinguished by the application of torture, the 
 inhumanity of its punishments, the arbitrary application 
 of penalties, and the confusion of all the degrees of the 
 imputability of crime. 
 
 These various efforts could not remain without effect on
 
 PROLEGOMENA. ^ 
 
 legislation; and the French Revolution, which aimed at 
 reforming society from top to bottom, could not let the 
 chaos which we have indicated continue to exist. How- 
 ever, the question of the principle of legislation was not 
 settled by the Code Napole'on. It arose again in Germany 
 in 1814, through the publication of a treatise by Thibaut 
 On the Necessity of a Code for Germany, to which Savigny 
 replied in his tract on The vocation of our age for Legisla- 
 tion and Jurisprudence. Thibaut desired 'that legislation 
 should be as far as possible perfect in its form and matter, 
 so that the language of the laws should be clear and pre- 
 cise, and that it should respond to the wants of the nation. 
 Savigny did not directly deny the advantage of a codifica- 
 tion when it could take place, according to the desire of 
 Bacon, in an age that was marked by the superiority of its 
 science and experience ; but he preferred that the legis- 
 lator should confine himself to removing the obstacles 
 which were opposed to the progress of the institutions 
 which sprang up spontaneously, and that he should repre- 
 sent the function of the praetor at Rome or of the old 
 French parliaments when they decided in the form of regu- 
 lating enactments (arrets de reglement}. The fundamental 
 principle of the School of Thibaut was that the will of the 
 legislator might modify and change institutions at pleasure, 
 whereas Savigny thought that the part of the legislator 
 should be on the whole secondary, seeing that Right main- 
 tains itself in all epochs in direct relation with nature and 
 with the character of the people from which it emanates. 
 
 The same progress has thus been effected in the develop- 
 ment both of Public Right and of Private Right. Theory 
 has been elevated in proportion to the measure in which 
 history has presented a new side of the human relation- 
 ships. Economic science has contributed not a little to 
 perfect the conception of property, and to show the har- 
 mony of all interests. There cannot be a scientific treat- 
 ment of Right and Law without an examination of the 
 principle on which every moral and juridical edifice rests;
 
 8 PHILOSOPHY OF RIGHT. 
 
 and this investigation will form the object of these Prole- 
 gomena or preliminary surveys. They will be divided into 
 three parts, namely, i. Metaphysical Speculation, 2. Ethics 
 or Moral Philosophy, and 3. Jurisprudence as the Philo- 
 sophy of Eight. In this way we shall thus far see Eight 
 arising, as Cicero has expressed it, ex intima philosopliia, 
 and we shall follow it in its historical development.
 
 METAPHYSICAL SPECULATION. 
 
 THE object of Philosophy is to present a regular system 
 with regard to the essential conditions of knowledge and 
 the existence of things. The principal difficulty which 
 it encounters, lies in its point of departure, and in its 
 method. 
 
 A modern French philosopher, Cousin, has reduced the 
 philosophical systems to Idealism, Sensualism, Scepticism, 
 and Mysticism. And in fact, when we examine the various 
 schools, we find that they have started from one of the 
 points thus indicated in order to give a rational explana- 
 tion of the real and the knowable. By a system is meant 
 a series of ideas which are connected together and sub- 
 ordinated under a single principle. The history of the 
 earliest times shows us man under the control of religion, 
 making everything depend immediately upon God. But 
 he had no sooner fixed his gaze on the external world and 
 on himself than sensation and ideas captivated his atten- 
 tion. A moment of disconcertment produced Scepticism, 
 and the need of faith gave rise to Mysticism. In the 
 history of philosophy Are find the names of other systems, 
 such as Materialism, which is a stage of Sensualism ; and 
 Pantheism, which admits the unity of substance but which 
 may be readily reduced to Idealism, if the one substance 
 is conceived as ideal, or to Materialism, if it is conceived 
 as matter. The same may be said of the Positivism now 
 in vogue, which is only a disguised Materialism. 
 
 Gioberti, an Italian philosopher, has sought to reduce
 
 io PHILOSOPHY OF RIGHT. 
 
 all the philosophical systems to two great categories, 
 namely, Psychologism and Ontologism. Under the name 
 of Psychologism, he embraces the systems which start 
 from experience or from the Ego, in order to arrive at the 
 Absolute; and he says that those systems belong to 
 Ontologism which proceed from the intuition of the 
 absolute idea in order to explain the contingent. This is 
 rather a question of method than of system ; but it is of 
 great importance, since method is essential to every system. 
 If the investigation starts from facts, or from what is 
 sensible, it is better to adopt the analytical method ; if it 
 begins from ideas or from what is intelligible, the syn- 
 thetical method is more appropriate. But when the subject 
 is at once a fact and an idea, or both sensible and intelli- 
 gible, then the two methods are both involved. As the 
 fundamental problem of philosophy is to find the first 
 principle of what is knowable and of what is real, and 
 since this principle, as we shall afterwards see, cannot be 
 a material fact, the synthetical method is therefore to be 
 preferred. 
 
 '. 
 
 The East is recognised by all as the cradle of civilisa- 
 tion, but a considerable part of it, such as Egypt and 
 Persia, did not advance out of symbolism, or a form of 
 theology. Philosophy began to manifest itself in China 
 and in India. 
 
 In China there prevailed from the beginning a belief 
 in spirits which symbolised the various forces of nature, 
 and in the sky (Tien) as the origin of all things. In the 
 VI. Century B.C., Confucius extracted a species of prac- 
 tical philosophy from the old sacred books called King. 
 Mencius, his disciple, formulated a species of mystical 
 pantheism which savours of the influence of the Hindoo 
 philosophy. Lao-tseu, the rival of Confucius, starts from 
 a void unity, the tao, from which all beings take origin ; 
 and he seems to have numerous points of affinity with the
 
 PROLEGOMENA. 11 
 
 Pythagorean and Platonic ideas as they were understood 
 in the School of Alexandria. He combats Confucius, who 
 recommended action, and makes perfection consist in in- 
 action. Fortunately for China the ideas of Confucius 
 prevailed; and its society, which was entirely founded 
 on the family, continued to seek for material well-being 
 by means of activity and labour. 
 
 In India philosophy began with the simple interpreta- 
 tion of the Yedas, This gave origin to the Mimansa 
 School, which has left its monument in the Sutras or 
 Aphorisms. Its next stage was the Vedanta, which rose 
 to the interpretation of some of the metaphysical maxims 
 contained in the Vedas, and which had for its founder 
 Vyasa. The Vedanta philosophy, according to Colebrooke, 
 was a refined psychology and metaphysic which advanced 
 even to the denial of the existence of matter. Then arose 
 the Nyaya system of philosophy, whose author was 
 Gautama, and the Yaiseshika system, which was founded 
 by Kanada. " Nyaya " means reasoning, and " Vaiseshika " 
 means distinction of parts, that is, of the elements of the 
 world ; and accordingly the former is a system of dialectics, 
 and the latter a system of physics. We have two Sankhya 
 systems of philosophy: that of Kapila, which was irre- 
 ligious in its results ; and that called Sankhya Yoga, the 
 head of which was Palandiadi, and which issued in Mysti- 
 cism. Sankhya means logos, ratio ; and the first of the two 
 systems was called from its conclusion Nirdovara "sine 
 Deo ; " while the second was called Tesovara " cum Deo" 
 
 All this philosophical development took place under 
 Brahmanism, that is, the religion of Brahma. The San- 
 skrit scholar Weber distinguishes three periods in the 
 history of this religion. During the first period the sacred 
 hymns called the Vedas were written; the forces of 
 nature were then worshipped, and the first principle was 
 matter. The second period is called by Weber the phase 
 of dualism ; and in it, along with matter, which was con- 
 sidered as a sort of chaos, there was distinguished an
 
 12 PHILOSOPHY OF RIGHT. 
 
 ordering cause which had fixed matter (in Sanskrit stalita), 
 that is, which had created it. In the third period, the 
 world came to be considered as a simple emanation of 
 God, and even as a species of illusion (Maya) ; and science 
 taught men to liberate themselves from this illusion by 
 means of the contemplative life. 
 
 This Brahmanic tendency to repose was pushed even 
 to annihilation (Nirvana] by Buddhism, a religion which 
 arose in the VI. Century B.C. It inculcated the duty of 
 divesting oneself of existence by meditation and mortifica- 
 tion. The common basis of Brahmanism and of Buddhism 
 was the belief in the metempsychosis, but with the 
 difference that the former promised a better existence, 
 and the latter aspired after total annihilation. The most 
 accurate investigations of Buddhism have discovered the 
 complete atheism which is contained in this religious 
 system. 1 
 
 There is no doubt that Greece received its religious 
 doctrines from the East, but that its philosophical develop- 
 ment was indigenous. 
 
 Sensualism and Idealism show themselves clearly in the 
 Ionic School, and in the Italic School of Pythagoras. 
 Thales had constructed nature wholly and entirely out of 
 the principle of water. Anaximenes, and, later Diogenes 
 of Apollonia, believed that this first element was found in 
 air, a more refined principle. Heraclitus found it in the 
 Tire which animates and destroys everything, and which 
 
 Bournouf carefully notes that founds his contention that Buddha 
 
 this doctrine appears in the third attached no other meaning to the 
 
 part of the Canon (the Atidarma), word nirvana than repose or place 
 
 and not in the first (the sutras or of immortality. Buddha says : all 
 
 aphorisms) nor in the second (vinaia that is created must disappear, must 
 
 or ethics), which together bore the be decomposed ; but it is not so 
 
 name of Dharma or laws. He also with the not made, the not created, 
 
 observes that the whole of this part the nirvana. The successors of 
 
 of the Canon is designated by the Buddha gave to this word the sig- 
 
 ancient authors as " not revealed by nificance of annihilation 
 Buddha." On this Max Muller
 
 PROLEGOMENA. 13 
 
 generates the movement and variety through which every- 
 thing passes, and into which everything is transformed. 
 
 Anaximander, Anaxagoras, and Archelaus of Miletus, 
 started from an original material principle, aTreipov, from 
 which, by means of chemical and mechanical combinations, 
 everything arises, and to which everything returns. Anaxa- 
 goras recognised a superior principle, vovs, which moves the 
 world without ^being separated from it. This mechanical 
 explanation was completed by the Atomistic School of 
 Leucippus and Democritus, which suppressed the moving 
 intelligence. According to this School, the principles of 
 things are the plenum and the vacuum. The plenum 
 consists in atoms which are infinite in number and en- 
 dowed with perpetual motion, and which by their aggrega- 
 tions compose beings. The soul is composed of subtle 
 atoms, and sensation is the only source of our cognitions, 
 bodies giving off atomistic emanations which penetrate 
 into the brain and produce images of things. 
 
 The Pythagorean or Italic School, instead of keeping to 
 phenomena, took to examining their relations. It is essen- 
 tially mathematical, astronomical, and at the same time 
 idealistic. Unity is the principle of all things : ev ap^ 
 Trainwv. Contraries are the elements of every existence, 
 but everything returns to harmony. Things are composed 
 of perfection and of imperfection. The perfect number is 
 the decad, which is God. The soul is the harmony of the 
 body ; it is not the result of the organism, but an emana- 
 tion of the universal soul. It survives the organism and 
 passes from body into body by metempsychosis. 
 
 The Eleatic School stands in the same relation to the 
 Pythagorean School as the Atomistic School stands to the 
 School of lona ; it was an exaggeration and a supplement of 
 it. Pythagoras had signalised the harmony which reigns in 
 the world as the manifestation of his principle. Xeuophanes 
 showed a predilection for unity ; and Parmenides, perhaps 
 without denying variety, ignores it entirely. Finally, Zeiio 
 denies variety, and consequently movement and the very
 
 I 4 PHILOSOPHY OF RIGHT. 
 
 existence of the world. To him is attributed the invention 
 of Dialectic, which he applied negatively by striving to 
 reduce the opinions of his adversaries to absurdity. 
 Empedocles takes a step back, finds in nature the centri- 
 petal and centrifugal forces, discord and harmony, and 
 celebrates the triumph of love, that is, of God. 
 
 The dialectic of Zeno had yet to bring forth its fruits. 
 Protagoras, a sophist, drew from the Ionic sensualism its 
 extreme consequences, and maintained that human con- 
 sciousness only consists of the perception of the pheno- 
 menal, and that man is the measure of all things. Gorgias 
 did the same by reference to the Italic idealism. Zeno 
 had shown the nullity of sensible appearances by founding 
 upon rational truths ; Gorgias endeavoured to reduce the 
 rational truths to simple appearances. 
 
 The Sophists had abused reasoning because they had 
 strayed away from reality. Socrates called philosophy back 
 to internal observation, saying that every one can be his own 
 master if he is only led thereto by certain external circum- 
 stances, and especially by opportune interrogations. He 
 applied himself to the perfecting of method in order that 
 every one may depend upon himself, and may be able to 
 give an account of the power and forms of reason. This 
 method of Socrates brought forth the Dialectic of Plato 
 and the Analytic of Aristotle. Plato seeks not only for 
 the logical principles of science but for the real principles 
 of things ; and he uses Dialectic not only to combat the 
 opinions of his adversaries, but in order to discover the 
 highest principles. Plato discerns in the idea the essence 
 of mundane things, as ideas constitute the intrinsic possi- 
 bility and reason of these things and act as archetypal 
 causes in the formation of all beings. Ideas have a sepa- 
 rate existence and form a part of God. There are two 
 interpretations of this doctrine of Plato. Some hold that 
 ideas are concepts and attributes of God, a view which 
 was held by Plutarch, Alcinous, and some of the Fathers 
 of the Church. Others think that Plato gave to ideas an
 
 PROLEGOMENA. 15 
 
 existence distinct from the world, and that God actualised 
 them in creating them. This opinion has been followed 
 by Aristotle and by the Scholastics, among whom were 
 Albertus Magnus and Thomas Aquinas. Accordingly 
 ideas are beings : ra OI/TW? ovra, eternal and immutable 
 essences that are visible to reason only. They are divine 
 types of all things, and they all spring from the idea of 
 ideas, etSo? eiS&v, the supreme idea of unity and of good- 
 ness, TO ev, TO ayadov, which is the principle of physical 
 and intellectual light. "At the extreme confines of the 
 intellectual world," says Plato in the Republic, "there is 
 the idea of the good which is perceived with difficulty, 
 and which cannot be perceived without inferring that it 
 is the cause of all that is good and beautiful ; that in the 
 visible world it produces the light, and the star from 
 which light springs; and that in the invisible world it 
 produces light and truth." God realised finitely the Idea 
 of the Good in the world which He has produced and 
 which He governs in His goodness and wisdom. The 
 problem of knowledge is resolved in the following manner. 
 Human souls before descending into the earthly life have 
 directly beheld the ideas in the Logos or divine Word, 
 and so the ideas are awakened in these souls through 
 simple reminiscence by means of Dialectic. 
 
 Aristotle explains the formation of ideas by means of 
 two faculties : Sense and Intellect. The senses have for 
 their object singulars or individual things, and the intellect 
 universals ; the senses present the matter of cognitions to the 
 intellect which forms ideas. Are ideas then a product of 
 the human mind ? How can the intellect evolve universals 
 out of singulars, since these are diverse from each other ? 
 Aristotle replies that ideas are not a product of the human 
 mind, but that the intellect by its abstractive power forms 
 the universals from singulars, extracting from the latter 
 what they have in common, because singulars are univer- 
 sals potentially. The singular or individual thing is not 
 outside of the genus, but is the genus in actuality as it
 
 16 PHILOSOPHY OF RIGHT. 
 
 realises itself by becoming individual. We have still to 
 note what Aristotle means by matter and by form. By 
 matter he does not mean being that is extended, visible, 
 tangible, and divisible, but the simple possibility of becom- 
 ing something, that is, indeterminate being which becomes 
 real by means of form. But the notions of matter and of 
 form do not suffice to explain the universe ; and therefore 
 Aristotle accompanies them with the notions of efficient 
 cause and of final cause. Every object is thus composed 
 of matter and of form, united together by an efficient cause 
 in view of a determinate end. The notion of efficient 
 cause leads Aristotle to the demonstration of the existence 
 of God, the first Cause that moves the world; and the 
 notion of final cause reveals to him the wisdom which 
 has ordered everything and which preserves everything. 
 For it is by a mere inconsequence that he has isolated the 
 world from God and has not recognised the divine provi- 
 dence. 
 
 After Plato and Aristotle, philosophy declined. Their 
 systems were succeeded by Epicureanism and Stoicism, 
 and these have this point in common, that they reduce 
 philosophy to moral science. Epicurus reproduced the 
 atomistic doctrine of Democritus, and founded private 
 and social morality on utility. In the Stoical system, 
 reason is the basis of humanity, of nature, and of God 
 Himself, who is not distinct from Nature. Hence the 
 practical rule par excellence, is to live according to reason, 
 or, which comes to the same thing, according to nature, 
 naturam sequere. This rule is summed up in two precepts : 
 sustine et abstine, and it leads by another way to the egoism 
 of Epicurus. The human mind could not stop long at this 
 conclusion, and it fell into the Scepticism of the New 
 Academy, which was developed principally by Arcesilaus, 
 Carneades, Philo of Larissa, who started from idealism, and 
 by Aenesidemus and Sextus Empiricus, who proceeded 
 upon sensualism. 
 
 Pteason, now weary, turned to the East and sought for
 
 PROLEGOMENA. 17 
 
 repose in mysticism. The philosophers of the School of 
 Alexandria, Plotinus, Porphyry, Jamblichus, and Proclus, 
 sought union with God by means of ecstacy. But as God 
 was conceived as absolute unity, man could approach Him 
 only by becoming absolute unity. Plato had put forth the 
 idea that man ought to resemble God ; the Alexandrians 
 considered that he should be mingled with God, thus 
 destroying all activity and all progress. 
 
 To the School of Alexandria the relations of man with 
 God are those of the emanated to the emanating. Plo- 
 tinus teaches that man has a consciousness of the infinite, 
 but it is through the medium of the contingent Ego, of 
 which he has to divest himself in order to rise to the 
 absolute. God does not produce from need, because He 
 is sufficient to Himself ; nor from desire, because He has 
 nothing to desire. He does not generate by necessity, 
 because He is Himself the necessity and the law for other 
 beings. The God of Plotinus therefore generates by His 
 own nature, that is, by something which is superior to 
 liberty and to necessity. He begins to generate the most 
 perfect, and gradually comes to the more imperfect. He 
 therefore generates Intellect, which is His Son, and differs 
 the least of all from Him ; then He generates the Soul or 
 Spirit, which also differs little from intellect. These three 
 hypostases, or divine substances, are unequal in the rela- 
 tion of metaphysical anteriority, although they are all three 
 eternal. It is easy to recognise in the first person the God 
 of Plato,* in the second the God of Aristotle, and in the 
 third the God of the Stoics. The third person, or the Soul, 
 produces the world, proceeding from things more perfect to 
 those that are more imperfect. These last, however, tend 
 always to perfection, and convert themselves gradually 
 into the more perfect, until they are mingled with the 
 hypostases themselves, which return again into the One. 
 
 Porphyry seeks to reconcile Plato with Aristotle, but 
 always in a pantheistic sense. He maintains that the 
 incorporeal rules bodies, and that the soul is found present
 
 ,8 PHILOSOPHY OF RIGHT. 
 
 everywhere, and can act at any distance. Jamblichus 
 exaggerates this tendency into a theurgy, and falls into 
 the grossest superstitions. Proclus tries in vain to reani- 
 mate the expiring philosophic thought by decomposing 
 the divine order into so many intermediary beings, because 
 everything springs from emanation and all returns to it. 
 What he calls providence can be only regarded as fate. 1 
 
 3- 
 
 But a new light had appeared for mankind in Chris- 
 tianity. It began by speaking to the heart and purifying 
 the morals of men ; but it was not slow to make an alli- 
 ance with philosophy. The cardinal elements of the new 
 religion are creation and the incarnation, which bring the 
 creature near to God without confounding it with Him. 
 " The divine "Word is reason, and all the human race par- 
 ticipates in it," exclaimed Justin Martyr. " In virtue of 
 this germinal reason arising from the Word, the ancient 
 sages were able to teach at times beautiful truths ; because 
 all that the philosophers and legislators have said or found 
 of good, they owed to a partial intuition or knowledge of 
 the Word. Socrates, for example, knew Christ in a certain 
 way, because the Word penetrates into everything with 
 its influence. This is why the doctrines of Plato are not 
 contrary to those of Christ, although they are not by any 
 means the same." Instead of rejecting the philosophical 
 doctrines, Justin Martyr endeavours to bring them into 
 agreement, and he manifestly inclines to Pythagoras and 
 Plato. Clement of Alexandria and Origen continued this 
 species of eclecticism, but the Church found something 
 exaggerated in Justin's views and something false in 
 Origen. Lactantius proclaimed that there was no religion 
 without philosophy, as there could be no sound philosophy 
 without religion. 
 
 1 See besides the original works ff istoire del' fooled 1 Alexandrie,Hit- 
 
 Cousin's Ifistoire gtnlrale de la phi- ter's History of Ancient Philosophy, 
 
 losophie, Ravaisson's Essai sur la Zeller's History of Greek Philosophy, 
 
 metaphysique d'Aristote, Vacherot's and other Histories.
 
 PROLEGOMENA. 19 
 
 The Christian Trinity differs from the Alexandrian, for 
 it considers the three divine hypostases as equal and co- 
 eternal. The Son, the Word or Intelligence, cannot be 
 inferior to the Father from whom He proceeds, any more 
 than the Spirit or Love ; because otherwise the perfect 
 could generate only the imperfect. The Christian Trinity 
 resembles a circle eternally closed ; and the creation of the 
 world takes place in virtue of the divine Love, which is 
 entirely free from any need or desire. This difference 
 produces important moral consequences, because it lays 
 down, as the dominant principle, love to God and love to 
 men from regard to God. 
 
 The Christian writers in general are divided into Monks, 
 or solitary ascetics who aimed at the purification of morals, 
 Apologists who combated the doctrines contrary to the 
 new faith, Fathers who accepted the aid of philosophy, 
 and Doctors who made it their principal stay. Over 
 them all towers St. Augustine, who combines in himself 
 the mysticism of the solitaries, the argumentative vigour 
 of the apologists, the authority of the fathers, and the 
 metaphysics of the doctors. St. Augustine perfected the 
 Platonic doctrine with regard to ideas by removing all 
 doubt as to the place of the ideas, since from the uncer- 
 tainty of the Platonic language it seemed that the ^0705 
 was not consubstantial with God, and that ideas existed in 
 themselves and by themselves. Moreover he destroyed 
 the hypothesis of a pre-mundane life by establishing tha 
 view that the human mind perceives the ideas in God by 
 direct, immediate, actual, and continuous intuition. Here 
 are his words : " Probabilius est propterea vere respondere 
 de quibusdam disciplinis etiam imperitos earum, quando 
 bene interrogantur quia praesens est eis quantum id 
 capere possunt, lumen rationis aeternse, ubi haec immuta- 
 bilia vera conspiciunt " (Petr. Lib. I. c. 4). Elsewhere he 
 says : " Sunt ideae principales formae qiuedam vel rationes 
 rerum stabiles atque incommutabiles, quse ipsae formatae 
 sunt ac per hoc aeternte, ac semper eodem modo sees
 
 20 PHILOSOPHY OF RIGHT. 
 
 habentes quae in divina intelligent^ continentur." De- 
 scending to psychology, Augustine shows that the existence 
 of the Ego is inseparable from thought, and that the senses 
 and sensation are a necessary condition of the exercise of 
 intelligence, and not the matter of all cognitions. 
 
 The calamities of the times that followed turned away 
 the thoughts of men from philosophy. Meanwhile the 
 reign of Plato was being succeeded by that of Aristotle. 
 The Alexandrians who had largely taken from Plato, but 
 at the same time corrupting his original doctrine, turned 
 round to Aristotle. Porphyry had sought to reconcile 
 the two systems. Maximus, the teacher of the Emperor 
 Julian, Proclus, and Damascius, were almost Peripatetics. 
 The Commentators, Themistius, Syrian us, David the 
 Armenian, Simplicius, John Philoponus in a word, the 
 second generation of the School of Alexandria had gone 
 over to the Stagirite, and established him as an authority 
 which lasted more than ten centuries. Boethius, by his 
 translation of Porphyry's Isagoge, or Introduction to the 
 Categories of Aristotle, formed the transition from ancient 
 to mediseval times. A passage of this work, which puts 
 the question whether genera and species exist by them- 
 selves or only in the intellect, and whether they exist 
 separate from sensible objects or make a part of these 
 objects, served as a text for the Scholastic Philosophy. 1 
 
 4. 
 
 Scholasticism has three distinct epochs. The first epoch 
 extends from the XI. to the XIII. Century, and in it 
 philosophy is the Ancilla theologiae ; the second extends 
 from the XIII. to the XIV. Century, and in it the two 
 sciences are rather regarded as allies ; and the third ex- 
 tends from the XV. to the first years of the XVI. Cen- 
 tury, and in this period their complete separation began. 
 Scholasticism, in general, may be defined as the alliance 
 
 1 See Hitter's History of Christian Philosophy.
 
 PROLEGOMENA. 21 
 
 of the Christian dogma with the philosophy of Aristotle. 
 This does not mean that Plato was entirely forgotten, but 
 his influence was then less. Plato continued to reign 
 through the medium of Augustine, and thus produced 
 Anselm and Bonaventura. The demonstration a priori of 
 the existence of God, which constitutes the most original 
 title of Anselm, was rejected by Scholasticism. Anselrn 
 treated this subject twice : first in his Monologium, where 
 he expounds the demonstration of Plato, which consists 
 in rising from the more imperfect goods to the Supreme 
 Good, to perfect being, by passing from the contingent to 
 the necessary. In his Proslogium he demonstrates the 
 existence of God from the mere idea of God, as has been 
 done again by Descartes ; and this forms the most con- 
 vincing proof of the Theodicy. Before Anselm, the in- 
 fluence of Plato had produced Scotus Erigena, who 
 translated the spurious writings attributed to Dionysius 
 Areopagita, and represented God as the substance of all 
 things. From Scotus and the pseudo-Dionysius sprang 
 the Pantheists, Amaury de Chartres and David of Dinant. 
 The great problem of the Scholastic Philosophy was 
 based upon the passage of Porphyry we have indicated, 
 and it was brought forward about the end of the XI. Cen- 
 tury by the Canon Eoscellinus, who said that the genus 
 was a simple abstraction formed by the mind uniting in 
 one common idea what the various individuals have all 
 alike ; and thus he created Nominalism. From this view 
 he inferred that there is no reality except in the indi- 
 vidual ; and thus the unity which forms the basis of the 
 mystery of the Trinity became nominal, only the three 
 individual persons existing. Anselm hastened to combac 
 the new system, by writing a treatise on the mystery of the 
 Trinity. William of Champaux, going to the other extreme, 
 maintained that genera were not mere empty words ; but, 
 on the contrary, that they were the only entities (res), and 
 that they were found entire in the individuals (eadem 
 essentialiter tota simuF), and that the individuals, identical
 
 22 PHILOSOPHY OF RIGHT. 
 
 in their essence, differ only by their accidental elements 
 (sola multitudinis accidentium varietate). This system was 
 called Realism. 1 Then came Abelard, who, although recog- 
 nising the reality of genera, maintained that they existed 
 only in the mind, which makes an abstraction from what 
 the individuals have in common ; and thus he created 
 Conccptualism. He made the boldest applications of these 
 theories, explaining the Trinity philosophically by reduc- 
 ing the three persons to simple attributes of being, namely, 
 power, wisdom, and goodness, which attributes united 
 together form perfect being. This was the heresy of the 
 unity of the persons as opposed to that of Eoscellinus, who 
 seemed to maintain three Gods ; and hence Abelard was 
 condemned by the Councils of Soissons and of Sens, and 
 retired to end his life in a cloister. 
 
 The Church sought to guide the philosophical movement 
 which it was not able to suppress. The institution of the 
 two orders of St. Dominic and St. Francis gave origin to 
 two schools, the first of which reckoned among its members 
 Albertus Magnus and Thomas Aquinas, while the second 
 claimed Alexander of Hales, Bonaventura, Duns Scotus, 
 Eoger Bacon, and Eaymond Lullus. The Middle Ages 
 had possessed the Organon or Logic of Aristotle, and it 
 was enriched by the discovery of his other works, namely, 
 the De Anima, the Metaphysics, and the Natural History 
 which came to light in the time of the Crusades. These 
 treatises had been hitherto known in Europe only in the 
 expositions of Arabian commentators. The Arabians ac- 
 cepted the Greek encyclopedia of knowledge as it existed 
 at that time, and they knew Aristotle only through the 
 medium of the School of Alexandria. This knowledge was 
 not direct, and it could not be exact. Thus Avicenna and 
 Averroes interpreted Aristotle in a pantheistic sense, while 
 Avicebron interpreted him in a materialistic sense. Alber- 
 
 1 What was called Realism in the ciple of all knowledge and of all 
 Middle Ages is now called Idealism, reality consist iii the idea. 
 as the system which makes the prin-
 
 PROLEGOMENA. 23 
 
 tus Magnus expounded his position in the treatise De 
 unitate Intellectus, and the struggle was continued by his 
 disciple, Thomas Aquinas. Thomas Aquinas sets out from 
 the Aristotelian distinction of the passive and active intel- 
 lect. The soul is a tabula rasa, and the images gathered 
 by the senses and the imagination (two faculties which 
 form the passive intellect) are subtle species which are 
 converted into intelligible species by means of the active 
 intellect. Sensation therefore furnishes the matter, but is 
 not sufficient to create knowledge, which requires the con- 
 currence of the action of the intellect. Intellectiva cognitio 
 Jit a sensibili non sicut a materia causae. The active intel- 
 lect facit phantasmata a sensibus accepta intelligibilia ; 
 and thus it perceives unity in particular objects. " Necesse 
 est ad hoc quod intellectus acta intelligat suum objectum 
 proprium, quod convertat se ad phantasmata ut speculetur 
 naturam universalem in particulari existentem." We have 
 therefore only particular ideas, and by abstraction, gene- 
 ralisation, and induction, we rise from the particular to the 
 universal. Thomas does not deny the universal, but he 
 connects the species and genera with their supreme prin- 
 ciple, making them concepts of the divine intelligence, 
 the archetypes of creation ; and he says expressly that the 
 intelligible light contained in the active intellect is an 
 emission of the divine substance. In this way Thomas 
 Aquinas became a Platonist without knowing it. He 
 admits the proof of the existence of God from the prin- 
 ciple of motion ; but he corrects Aristotle by adding that 
 God cannot remain external to the universe, since He would 
 not know Himself completely if He did not know the 
 extent of His power and of His will, the one of which is 
 the cause of possible beings, and the other of existing 
 beings. He resolves the problem of individualisatiou by 
 a triple principle. For sensible objects, it is matter which 
 determines the form ; for pure spirits, it is the simplicity 
 of their essence ; for the human soul, it is the tendency to 
 unite itself to a determinate body. It would have been
 
 24 PHILOSOPHY OF RIGHT. 
 
 much more simple if he had had recourse to the crea- 
 tive act. 
 
 Alexander of Hales founded the Franciscan School. He 
 was one of the first to take advantage of the translations 
 of Aristotle made by the Arabians, and he left commen- 
 taries on the Sentences of Petrus Lombardus, which, after 
 the approval of ten doctors, were recommended by Inno- 
 cent IV. to all the schools of Christendom. Bonaventura 
 is the most eminent thinker of this school. He unfolds 
 the profoundest reasoning on the idea of God, making this 
 idea the foundation of certainty, on the ground that the 
 Word of God not only gives us the knowledge of primitive 
 trutjis, but also that of deduced truths, which are con- 
 nected with the former. 
 
 Duns Scotus represents individuals as arising from the 
 union of matter and form. But the determinate cause of 
 this union is placed by him in a particular entity, which 
 his disciples called Hcecceitas, which is the principle of 
 individualisation. The universal is contained not only 
 potentially (posse) but really (actit) in objects; it is not 
 created by intelligence, but is reality itself. He main- 
 tains the principle of indifference, and considers moral 
 truths as well as the creation to be dependent only on the 
 will of God. 
 
 The efforts of Eoger Bacon and of Eaymond Lully, may 
 be regarded as a reaction from the excessive realism of 
 Duns Scotus. Eoger Bacon cultivated by preference the 
 natural and mathematical sciences, and had a presentiment 
 of the principal discoveries of modern times. He pro- 
 claimed the principle that art should imitate nature, and 
 he was the precursor of the discovery of the experimental 
 method. Eaymond Lully wished to find formulae by 
 which to attain to universal science in his Ars Magna, 
 a sort of alphabet of abstract ideas, and of logical sub- 
 jects, and attributes, which, divided into certain circles, 
 united or divided by certain lines, were to furnish middle 
 terms for all reasonings.
 
 PROLEGOMENA. 25 
 
 The open struggle between religion and philosophy 
 begins with William of Occam, who revived and advocated 
 Nominalism. He held that genera could exist only in 
 things, or in God. In things they would be either the 
 whole or the part ; but in the first case, there would not 
 be individuals, and in the second case, the part would be 
 a genus. In God they could not exist as an independent 
 essence, but as a simple object of knowledge. After 
 dealing with universals he attacked another celebrated 
 theory, that of sensible or intelligible species, which the 
 philosophy of the time believed to be the intermediaries 
 of ideas. Occam recognised no other intermediary but 
 speech. As regards the mind, he knows it only by its 
 attributes, and is not able to maintain that it is a material 
 or an immaterial being. 
 
 Among the most celebrated Nominalists we may men- 
 tion Buridanus and Pierre d'Ailly. After them there 
 sprang up an indifference which may be regarded as a 
 kind of scepticism, until the movement culminated in 
 thorough mysticism in Gerson and Thomas a Kempis. 
 
 Throwing a general glance over the Scholastic Philo- 
 sophy, we find in it the characteristics both of progress 
 and of barbarism. It is progressive in so far as it in- 
 directly revives the ancient systems, seeking to reconcile 
 them with Christianity. It is barbarous in so far as it 
 seeks certainty in the external forms of reasoning; and 
 so much so that it may be correctly said that its form 
 stifles its matter, and its reason is oppressed by the 
 syllogism. For example, the question of Universals had 
 presented itself to the philosophers of antiquity, and had 
 been resolved according to the different schools, but the 
 problem of individualisation had not entered into the 
 mind of any of them. The Middle Ages not only dis- 
 tinguished the particular from the general, but, following 
 Aristotle, the leading minds of the time were long occu- 
 pied in distinguishing the form from the matter in the 
 particular. Thus they wished to find out by virtue of
 
 2 6 PHILOSOPHY OF RIGHT. 
 
 what principle the particular separated itself from the 
 universal, and if it drew its origin from form or from 
 matter. Hence they devised hypotheses, as we have 
 seen in the case of Thomas Aquinas, instead of simply 
 havin^ recourse to the creative act. Other schools denied 
 the universals, saying they were empty words or mere 
 concepts of our mind, thus ignoring the immutable order 
 which the particular beings manifest, and which is re- 
 flected in nature under the double form of classes and 
 laws, and in our mind by those general ideas whose 
 eternal exemplar exists in the divine intellect. But the 
 principles of reason, through the medium of the philoso- 
 phical ideas of antiquity, were to break through the hard 
 shell which surrounded them ; and this work was reserved 
 for the Eenaissance. 1 
 
 5. 
 
 'The XVI. Century was a revolutionary century ; it 
 differs from the XVIII. Century only in that it was noc 
 conscious of the fact. The Council of Florence, which 
 aimed at the reconciliation of the Greek Church with the 
 Latin Church, had given occasion in the preceding century 
 for many Greeks coming to Italy, and they spoke of the 
 treasures of antiquity which they still possessed intact. 
 The taking of Constantinople increased the number of the 
 Greeks who settled in Italy, and they brought precious 
 manuscripts with them. But such a circumstance, entirely 
 material as it was, does not suffice to explain the great 
 movement of ideas which was furthered, bat not created, 
 by the arrival of the Greeks. 
 
 This movement was really occasioned by that restless- 
 ness of mind which was striving absolutely to break the 
 fetters which held it enchained. War was declared on 
 Scholasticism, as well as on many of the traditions of the 
 
 1 See Haureau, Histoire de la sophie scolastique ; Jourdain, La 
 
 philosophic scolastique; Rousselot, philosophiedeSaintThomasd'Aquin; 
 
 Etudes sur la philosophic du moyen and other works. 
 age; Cousin, Fragments de philo-
 
 PROLEGOMENA. 27 
 
 past ; and under the guise of antiquity the most extrava- 
 gant ideas were expounded. The principal sources from 
 which thinkers drew were the two great schools of Greece, 
 those of Aristotle and Plato. But these two great authors 
 now showed themselves under a new aspect. We have 
 already said that the Middle Ages for a long time had 
 known only the Organon of Aristotle, and that his other 
 works were only indirectly known through the medium of 
 the Arabians who had principally drawn from the School 
 of Alexandria, which had sought to attenuate the differ- 
 ences that divided Aristotle from Plato. But hardly had 
 the power been acquired to read all the writings of Aris- 
 totle which survived in the original, as well as the Commen- 
 taries of Simplicius and Alexander Aphrodisiensis, than 
 a more truthful idea was obtained of the philosophy of the 
 Stagirite. No system has given rise to so many controver- 
 sies as that of Aristotle, which in the present day is still held 
 by some to be materialistic and by others to be idealistic. 
 On the one side it is shown how he unites thought with the 
 body, and that he believes digestion and thinking spring 
 from the same cause ; from which it follows that man, 
 when he loses the organic life, loses memory and con- 
 sciousness, and is therefore incapable of immortality. It 
 is added that he holds matter to be co-eternal with God ; 
 and that he maintains that God did not create the world, 
 but remains absolutely alien to it. On the other side it 
 is alleged that Aristotle certainly recognises an invisible 
 principle, simple and one ; that this principle is thought, 
 and that it governs the body ; and, moreover, that the 
 principal idea of his philosophy and of his theodicy is that 
 of final cause, as he recognises in nature an ascending 
 scale of beings. Above man and nature he puts a Being 
 who owes his movement to his own power, an absolute and 
 immaterial intelligence, an immovable mover of the uni- 
 verse. All this is contrary to materialism. The second 
 interpretation had predominated in the Middle Ages, and 
 the first prevailed during the Pienaissance. Two great
 
 2 8 PHILOSOPHY OF RIGHT. 
 
 Peripatetic Schools arose in the University of Padua, the 
 centre of the movement. The one which followed the Com- 
 mentator Alexander the Aphrodisian included Pomponatius, 
 Cremonini, Zabarella, and Vanini, while the other which 
 followed Averroes included Achillini, Cesalpino, and Zimara, 
 and they regarded Aristotle as an enemy of orthodoxy. 
 
 Plato, on the contrary, had been well interpreted by the 
 first Fathers of the Church, and by Augustine and Anselm. 
 And now he was revived as transformed by the Neo- 
 Platonic School of Alexandria, and he was therefore re- 
 presented as antagonistic to Christianity. It would be 
 erroneous to confound the God of the Dialectic of Plato 
 with the absolute Unity which is without determinations, 
 and therefore without thought, without action, and with- 
 out life. This is the Dialectic of the School of Elea, as it 
 was resuscitated by the Alexandrians in conjunction with 
 the method of Plato. The Platonic Dialectic is not a 
 simple logical process, but an experimental and rational 
 method which sets out from the living reality, and on the 
 wings of reminiscence rises to the Ideas, that is to say, 
 to the absolute types of existence and to the principle of 
 all the ideas, which is the Good. Certainly Plato has not 
 well defined the relations of man to God, because he did 
 not know the principle of creation which was brought into 
 philosophy by Christianity ; and on this point we see the 
 Platonic doctrine of ideas improved by Augustine, and we 
 shall see that it is completed by Gioberti. Hence the 
 Eenaissance resuscitated a false Plato; and thus it was 
 that Gemistus Pletho confounded Plato with Zoroaster. 
 Marsilius Ficinus, the founder of the Platonic Academy 
 of Florence, oscillated between Plato and Plotinus, and 
 believed in good faith that he could reconcile them. Pico 
 della Mirandola applied mystical theories to the cosmogony 
 of Moses. Patricius accumulated a thousand extrava- 
 gances under the names of Plato and Hermes. Bessarion 
 and the Cardinal of Cusa, wishing to defend Plato, con- 
 fused his doctrines with those of Aristotle and Plotinus.
 
 PROLEGOMENA. 29 
 
 Nevertheless in Cusanus there are found the germs of the 
 infinitesimal theory, and there is much that is peculiar in 
 his doctrines. 
 
 The most original author of this period was Giordano 
 Bruno. To the logic of Aristotle he opposed a new logic 
 after the outlines of Eaymond Lully; to the astronomy 
 of Ptolemy he opposed that of Copernicus and of Pytha- 
 goras ; to the physics of Aristotle, with its finite world and 
 its incorruptible heaven, he opposed the idea of an infinite 
 world, subject to an eternal evolution ; to the Christian 
 religion, the religion of grace and of the spirit, he opposed 
 a religion of nature without a cultus, without an altar, 
 and without a God. Bruno did not create a well-con- 
 nected system, but he transmitted to Descartes the notion 
 of methodic doubt and evidence as the criterion of truth ; 
 to Spinoza the idea of an immanent God ; to Leibniz the 
 germ of the theory of monads and of optimism ; to Schel- 
 ling the famous expressions natura naturante and natura 
 naturata ; and, lastly, to Hegel the conception that a 
 secret logic presides over the order of the universe, that 
 whoever attains to a comprehension of the first elements 
 of thought and the necessary laws of the various combi- 
 nations of ideas, renders himself master of everything, and 
 that God is the absolute coincidence, the supreme harmony 
 of contraries, the indifferentia oppositorum. It may be 
 added that in the material and physical sciences he caught 
 glimpses of the centre of gravity of the planets, of the 
 orbits of the comets, and of the irregularity in the spheri- 
 city of the earth ; and he perhaps also gave the first idea 
 of vortices. Thus it will be seen how well Bruno deserved 
 the title which he gave to himself of EaxuUtor. 
 
 Telesio and Campanella, other two Italians, were also 
 precursors of the modern epoch. Bernardino Telesio pub- 
 lished a work entitled De natura juxta propria principia, 
 in which he proclaimed that it is necessary to start from 
 real, not abstract beings, entia realia non dbstracta, and 
 he combated the physics of Aristotle. Campanella trans-
 
 30 PHILOSOPHY OF RIGHT. 
 
 ferred to psychology the axiom which Telesio had applied 
 to physics, and formed a system which resembles the 
 sensualism of Condillac. He says that human knowledge 
 naturally begins from real things, and therefore that sensa- 
 tion is knowledge. Nothing, then, should be presupposed 
 as certain and known; and consequently we ought to 
 doubt everything, even our own existence. Hence Cousin 
 has well said that " when we read the life and the works 
 of Telesio and of Campanella, we feel that Bacon and 
 Descartes are not far off." l 
 
 The Eenaissance had its sceptics and its mystics, like 
 every other period in the history of philosophy. Of the 
 former we may mention Sanchez, Montaigne, and Char- 
 ron. Among the latter the first position is taken by the 
 Cardinal Nicolas of Cusa, who, although a Xeo-Platonist 
 in the strongest sense of the term, is reckoned among the 
 mystics on account of his book De Docta Ignorantia, the 
 chief argument of which is that finite being cannot embrace 
 the infinite. Then come Eeuchlin, who mixes up Platonic, 
 Pythagorean, and Cabalistic ideas ; Agrippa, who openly 
 teaches magic; Paracelsus and Cardan, who busy them- 
 selves wiih alchemy and astronomy in order to discover 
 an occult philosophy ; Van Helmont, who reproduces 
 Paracelsus : and Fludd, who seeks to reconcile him with 
 the book of Genesis interpreted allegorically. Finally, 
 Jacob Bohme in 1612 published his Aurora, in which he 
 seeks to demonstrate the impossibility of attaining to truth 
 without a heavenly inspiration, the identity of the human 
 soul with God, the difference between them being only in 
 form ; and he gives a symbolical exposition of Christianity. 
 
 Thus the philosophy of the Eenaissance, under manifest 
 imitation of the systems of antiquity, already gives us a 
 feeling of the new life. z 
 
 1 Victor Cousin, ffittoire gentrale sophie moderne jusqu" & Kant. Paris, 
 ae la philosophic, Ler t on onzieme, 1861. Burckhardt, Die Cultur der 
 I2ine edition. Paris, 1884. Renaistamct in Jtalien. Stuttgart, 
 
 2 See Buhle, Histoire de la pJtilo- 1878
 
 PROLEGOMENA. 31 
 
 6. 
 
 The modern philosophy takes its beginning from Bacon 
 and Descartes, because the method of these two philosophers 
 brought about new inquiries. But in order to be just, it 
 must be admitted that these two philosophers did nothing 
 but formulate \vhat the philosophy of the Eenaissance had 
 so far anticipated. And in fact, if their principal merit 
 consists in having overthrown the authority of Aristotle, 
 and in having completely separated philosophy from reli- 
 gion, how is it possible to leave out of account what had 
 been done by the Eenaissance ? In general, we may say 
 that the Sixteenth Century discovers, the Seventeenth 
 Century reorders, the Eighteenth Century destroys, and 
 the Nineteenth Century tries to rebuild. 
 
 Bacon transplanted into England the spirit of reform 
 which had been awakened in Italy by Telesio and Cam- 
 panella, and which had been applied by Galileo. The 
 method of Bacon is observation, or more exactly, it is 
 experience, because he would have nature dissected and 
 anatomised. Induction is the logical process by which 
 we advance from the particular to the general, from pheno- 
 mena to their laws ; and it is warmly recommended by 
 Bacon. We may quote the following words of the Instau- 
 ratio Magna to show that Bacon did not exclude reason, 
 although he gave the preference to experience : " I believe 
 that I have wedded the empirical method and the rational 
 method, the divorce of which is fatal to science and to 
 humanity." 
 
 Hobbes, Gassendi, and Locke are connected with the 
 School of Bacon, inasmuch as it may be asserted that 
 these three writers carried the spirit of Bacon into the 
 various departments of philosophy: Hobbes carrying it 
 into politics, Gassendi into learning, and Locke into 
 metaphysics. The philosophical principles of Hobbes are 
 extremely simple, as he only admits bodies : Subjcctum 
 philosophiae est corpus omne. The phenomena of intelli-
 
 32 PHILOSOPHY OF RIGHT. 
 
 gence are corporeal, being produced by the impressions 
 of bodies. Sensation presents us with objects ; man adds 
 or subtracts by means of reasoning, but he has no certainty 
 with regard to what the senses present to him. Liberty is 
 only the determination of appetite, and the state of nature 
 is a state of war, man being the enemy of man, while laws 
 and justice are the creation of the social contract. 
 
 Gassendi was a scholar after the manner of the pre- 
 ceding century, and his whole life was spent in renewing 
 the philosophy of Epicurus and in combating Descartes. 
 
 Locke was led to devote himself to philosophical inquiry 
 by a question which was raised in a private conversation, 
 and which remained unsolved. He thought that the diffi- 
 culty involved arose from making use of ideas that were 
 not well denned; and enlarging this observation, he said 
 that as we make use of the mind in philosophy, it is there- 
 fore necessary to study it. He assigns two sources to 
 human knowledge: sensation and reflection. Eeflection 
 is applied to the operations of the mind, and it makes us 
 know what they are, that is to say, as sensation presents 
 them to us. Locke closes the XVII. Century, and 
 before taking up his successors we must take a step back- 
 wards in order to examine the doctrine of Descartes. 
 
 The method of Descartes embraces four rules : i. To 
 trust only to evidence; 2. To divide objects as much as 
 possible (which Bacon called dissecting and anatomising 
 nature) ; 3. To make many enumerations, even as exten- 
 sive and varied as may be possible ; 4. To reconstitute a 
 system with the parts already divided and examined. 
 Everything is reduced to employing analysis and syn- 
 thesis in order to attain to evidence. Applying this 
 method, he seeks to demonstrate existence by means of 
 thought with his famous Cogito ergo sum, without con- 
 sidering that thought is a phenomenon, and that it does 
 not advance from the sphere of simple perceptions. What 
 is the character of thought ? It is to be invisible, intan- 
 gible, imponderable, unextended, simple. Now, as we may
 
 PROLEGOMENA. 33 
 
 conclude from the attribute to the subject, and as thought 
 is an attribute of the Ego, the simplicity of the one is the 
 simplicity of the other; and in this manner he demon- 
 strates the spirituality of the mind. He admits innate 
 ideas, not in the sense attributed to them by Hobbes and 
 by Locke : that is to say, not as present to our mind from 
 the first day of its existence, but as existing in germ in 
 all intelligences and awakened in certain circumstances. 
 Descartes may be considered as the father of that system 
 which has since been called subjectivism or psychologism. 
 
 Reflecting on his own thought, Descartes rises to the 
 idea of God ; for although thought is imperfect and finite, 
 he nevertheless discovers in it the idea of the perfect 
 and infinite, appropriating the celebrated demonstration 
 of Anselm. He therefore attributes to God a liberty of 
 indifference, holding that He is not subject to any law, not 
 even to that of the good. No being in any moment pos- 
 sesses in himself the reason of its own existence, nor are 
 mathematical and moral truths in any way independent 
 of God, who can change them at any moment. The world 
 being imperfect has its origin from the perfect, that is to 
 say, it has been created by God. Every truth and every 
 existence accordingly depends on the will of God. Man 
 finds the nature of truth and of goodness established and 
 determinated by God. The criterion of certainty which 
 is found, as we have already said, in evidence, can only be 
 subjective. There exists another objective criterion of 
 truth which serves as the basis of all, and Descartes finds 
 it in the divine veracity. According to Descartes, the 
 only reason which we have for believing that our thought 
 is conformable to things, and that the internal evidence 
 corresponds to the external reality, is the idea of an abso- 
 lute principle which produces both the laws of thought 
 and the laws of being, and which, as eternally willing the 
 truth and eternally manifesting it with the creation, is 
 eternally truthful. 
 
 Hence in his definition of " substance," which he repre-
 
 34 PHILOSOPHY OF RIGHT. 
 
 sents as a " thing which exists per se," he has in view only 
 the divine substance, as neither the human soul nor matter 
 exists of or through itself. The fundamental attributes 
 of substance are defined to be " extension " and " thought," 
 and he denies matter every kind of force. He denies also 
 the possibility of a mutual action between the two sub- 
 stances, the divine and the created, which he has separated 
 by an abyss. The soul cannot excite any movement in 
 the mechanism of things, but can only change a pre-exis- 
 tent motion. God has arranged the things that are out of 
 us in such a way that they present themselves to our 
 senses at a given moment, and He knows that our free- 
 will will determine itself in a certain manner according to 
 the occasion. Here we have the germ of the " Occasional 
 Causes " of Malebranche, and of the " Pre-established Har- 
 mony " of Leibniz. 
 
 Malebranche sought to establish more completely the 
 harmony between thought and reality by identifying the 
 intelligible with the real, and by demonstrating that in- 
 ternal truth is but a reflex of the absolute truth. He says 
 that " nothing " is neither intelligible nor visible ; whence 
 it follows that all that is seen clearly, directly, and im- 
 mediately, necessarily exists. Malebranche returns to 
 Plato, maintaining that we do not see things in themselves, 
 but in their ideas or eternal possibilities. Passing from 
 idea to idea, from possibility to possibility, we reach a 
 Being which cannot be conceived as simply possible, since 
 it does not arise from any superior being. "We cannot 
 conceive God, he says, as simply possible; nothing can 
 contain Him or represent Him ; and if He is thought, it 
 is a sign that He exists. In other words, God is possible 
 and intelligible through Himself; and other things are 
 only intelligible through God. We think of things only 
 in their intelligibility, or in their idea; and hence we 
 think them in God, while we think God in Himself, 
 although we do not perceive Him in any higher idea, as 
 He is the Idea of ideas, the Being that is absolutely in-
 
 PROLEGOMENA. 35 
 
 telligible and absolutely real. When we think of God, 
 He is present without any medium to our thought ; and 
 when we see or perceive things, we see them in God as in 
 an eternal light. Hence this system has been called that 
 of ideal vision, as maintaining " the vision of all things in 
 God." As all activity is attributed to the absolute being, 
 bodies cannot act on us, nor we upon bodies; and they are 
 only the occasion or " occasional causes " of our impres- 
 sions, of which God alone is the efficient cause. Our own 
 will itself is only an occasion of the movement of our 
 organs which God alone moves, since we are only thinking 
 machines ; and God Himself is only an eternal geometrician 
 and an artist. Hence it has been well said by a recent 
 French writer that " Malebranche is Spinoza arrested half- 
 way by faith, or an illogical and unconscious Spinoza." x 
 
 Spinoza was a Jew, and as such he knew the philosophy 
 of the Cabbala and the philosophy which his fellow- 
 countrymen had derived from the Arabs. That philo- 
 sophy denied the attributes of God in order to escape from 
 Anthropomorphism, while it makes of man an abstraction, 
 and considers the world as eternal and infinite. It is 
 easy to recognise in it the Oriental pantheism that had 
 sprung from a false interpretation of Aristotle, and which 
 spread over the coasts of Asia and Africa and then into 
 the schools of Spain. It disturbed the University of Paris 
 in the XII. Century through the writings of Amaury de 
 Chartres and of David de Dinant, and it exercised the 
 University of Padua in the XVI. Century in connection 
 with the works of numerous Peripatetics. The most 
 illustrious representative of this philosophy among the 
 Arabs was Averroes. It was represented among the 
 Hebrews by Maimonides, whereas Avicebron remained 
 unaffected by the Arabian influence, and rather represents 
 the orthodox national philosophy with a shade of Neo- 
 Platonism. 
 
 The system of Spinoza may be summed up as follows. 
 
 1 Fouillce, Etudes sur Vhistoire de la philosophic. Paris, 1875.
 
 3 6 PHILOSOPHY OF RIGHT. 
 
 Substance is what exists of itself and through itself, and 
 which needs nothing in order to exist. This is the defini- 
 tion of Descartes. It follows that it is sui causa, that is, 
 it cannot be produced by any cause ; and it is eternal and 
 infinite, and therefore unique, as two infinite substances 
 cannot be admitted. This one sole substance is God. 
 God alone is free, because He exists only by the necessity 
 of His own nature, and determines Himself to act of and 
 through Himself. The attributes of God are spirit and 
 matter, as Descartes had found thought and extension to 
 be the attributes of substance. God, considered as free 
 and determining cause, is called natura naturans, and all 
 that springs from the divine essence is called natura natu- 
 rata, terms already used by Bruno. Thought, will, desire 
 are modes which belong to the natura naturata, since 
 God has neither thought in act nor will properly so called. 
 There are no final causes, as God could not produce things 
 differently from those which He has produced, nor could 
 He set before Himself any end. Man is a being who exists 
 only in actu ; the body is a mode of extension, and the soul 
 is the collection of affections which emanate from the body 
 and produce ideas, from the most confused to the most 
 clear, which is that of God. 
 
 Leibniz found philosophy divided into two camps. Sen- 
 sualism was represented by Locke ; and idealism, inaugu- 
 rated by Descartes, came to a melancholy issue in Spinoza 
 and in Malebranche. Leibniz aimed at a reconciliation of 
 the systems. He began by combating Locke, and to the 
 axiom nihil est in intellectu quod prius non fuerit in sensu 
 he added nisi intellectus ipse, thereby saving intelligence 
 and necessary and universal ideas. He then attacked the 
 theory of Descartes, which assigned extension to matter 
 as its essential attribute, whereas according to him it is 
 force which constitutes the essence of every material sub- 
 stance. He reduces the universe to a complex of forces, 
 which he calls " monads." These monads, hierarchically 
 arranged and created at a single time, are effulgences of
 
 PROLEGOMENA. 37 
 
 the Deity, placed between the creation which has taken 
 place by the goodness of God and annihilation which the 
 goodness of God prevents. They contain an infinite mul- 
 titude of obscure perceptions which make them, as it were, 
 a representative mirror of the universe ; and the develop- 
 ment of intelligence consists in rendering these percep- 
 tions clear and distinct. But how are these monads 
 moved, and in what relation do they stand to each other ? 
 God, the great Monad, has arranged everything in accor- 
 dance with a pre-established harmony. This hypothesis 
 ruins the whole system, for it reduces man to a spiritual 
 automaton almost in the same way and degree as Descartes, 
 Spinoza, and Malebranche had done. In this way God is 
 the author of reality and of the knowledge of the external 
 world, but in a fashion that is entirely mechanical. Leibniz 
 believed that he had saved everything, and that he had 
 harmonised the sensible world with the intelligible world ; 
 whereas he remained in the sensible world alone, that is, 
 in the sphere of internal fact or of the internal pheno- 
 menon of the representative power of the monad. 
 
 In Italy, Vico combated the philosophy of Descartes, 
 and recalled thinkers to Ontology. He sought to connect 
 his ideas with those of the ancient philosophers, Pytha- 
 goras and the Italic Zeno, whom he confounds with Zeno 
 the Stoic. Pythagoras saw in numbers, which resolve 
 themselves into unity, the principles of things ; and Zeno 
 admitted a substance incapable of division which exists 
 equally under all things. Vico called this substance the 
 metaphysical point; because, just as the mathematical 
 point (which is a pure abstraction) gives origin to a world 
 of numbers and of figures, so the metaphysical point is 
 the radical virtue of bodies, and has the power of extension 
 and of motion, although remaining undivided under all 
 magnitudes and extensions, and it explains to us the 
 whole of creation. It is therefore an indivisible power 
 of extension ; and although unextended, it is capable of 
 extension, and it serves as a mean between beings and
 
 3 8 PHILOSOPHY OF RIGHT. 
 
 God, by whom it is called forth. The metaphysical points 
 of Vico are accordingly the created essences of things. 
 They are their substance, and to them properly belongs 
 the virtus extensionis et motus by means of which indi- 
 vidual things are produced ; and they are created essences 
 which are dispositions of God the Creator, in whom they 
 are purest activity (actus purissimus). 
 
 Passing to the theory of knowledge, Vico begins by dis- 
 tinguishing intelligere from cogitare. Intdligere is scire 
 per causas, and is the proprium of God ; cogitare is collect- 
 ing the elements of truth that are in things, and it is the 
 proprium of human minds. He adds that truth ad intra 
 is convertible with that which is generated, and truth ad 
 extra is convertible with fact, which means that the divine 
 origin of ideas happens by means of generation, and their 
 human origin by means of creation. The elements of all 
 divine and human knowledge are three, namely, knowing, 
 willing, and having power to act, the sole principle of 
 which is the mind whose eye is reason illuminated by 
 God. God possesses infinite knowledge, will, and power ; 
 man has finite knowledge, will, and power, which tends to 
 the infinite. Man has necessary knowledge, but free will 
 and power. He begins with the certain and ends with 
 the true ; that is to say, he first believes and works, and 
 then he reflects and judges. The intellect produces the 
 idea ; the will, the fact ; and as they thus set out from a 
 common centre, there ought to be a necessary harmony 
 between, them. These principles have been very happily 
 applied by Vico to morals, law, and history. 
 
 Scepticism was represented in the XVII. Century by 
 . Huet, Bishop of Avranches, Hirnham, Glanville, Pascal, 
 and Bayle. The scepticism of the first two is compara- 
 tively slight, but Glanville examines and confutes dogma- 
 tism with reference to the idea of cause, and opens the 
 way to Hume. Pascal is sceptical with regard to reason, 
 but he is tormented by a great need of faith. Bayle is 
 the ideal of the learned sceptics. He attacked everything
 
 PROLEGOMENA. 39 
 
 with great fertility of argument ; and lie was the precursor 
 of Voltaire. 
 
 Mysticism is manifested under its metaphysical and 
 moral form in Poiret, who takes as its basis the impotence 
 of reason and the corruption of the will. Hence arises the 
 necessity of receiving everything from God as truth by 
 means of faith and revelation, and virtue by means of 
 grace. Gale and Henry More make truth wholly consist 
 in revelation. Pordage reproduces Bohme ; and Sweden- 
 borg develops mysticism under all its aspects, metaphysical, 
 moral, naturalistic, and allegorical. 
 
 We have now reached the XVIII. Century, which has left 
 so great an impression in history as the demolisher of the 
 past. Luther believed that he had restricted free inquiry 
 or individual criticism in the religious sphere. Descartes 
 applied it to philosophy, but he took care to remove all 
 suspicion of dealing with the political order of the States. 
 " These great bodies," he said, " are too difficult to raise 
 again when they are overthrown, and their fall would be 
 ruinous ; and therefore I could not approve of those rest- 
 less minds that are always thinking of reforms. My 
 design has never been extended beyond the reform of my 
 own thought, as I wished to build on a foundation that 
 was my own exclusive property." In contrast to this the 
 XVIII. Century wished to overthrow everything in order 
 to reconstruct it all again, including religion, society, and 
 government. 
 
 Empiricism could not be arrested by the hypotheses of 
 Leibniz. In England, Collins, a disciple of Locke, denied 
 the liberty of man. Dodwell advanced a demonstration of 
 the materiality of the soul, founding upon an observation 
 of Locke that it is not impossible for matter to think. 
 Mandeville, finding in Locke the theory of the useful as the 
 sole basis of virtue, concluded that there was no essential
 
 4 o PHILOSOPHY OF RIGHT. 
 
 distinction between virtue and vice. Hartley and Erasmus 
 Darwin connected the intellectual man with the physical 
 man, and identified matter and mind. Godwin and Ben- 
 tham are the political writers of this school. 
 
 In France, Condillac was the father of sensualism. In 
 his " Essay on the Origin of Human Cognitions " (Essai sur 
 Vorigine de connaissances humaines), he follows in the foot- 
 steps of Locke, distinguishing in man two series of ideas : 
 those that come from sensation, and those that take 
 origin from the mind turning upon its own operations ; 
 although he grants it a certain amount of activity, which 
 he afterwards denied it in his " Treatise on Sensations " 
 (Trait^ de Sensations). The soul is at the outset a tabula 
 rasa, and all ideas come from experience. This is the 
 common principle of Locke and of Condillac. But in the 
 formation of the ideas which come to impress themselves 
 on this tabula rasa, one calls forth activity and another 
 suppresses it. Condillac supposes a statue to be organised 
 internally as we are, and not to have received any ideas ; 
 and he represents it as opening successively to the various 
 impressions of which each of the senses of this statue is 
 susceptible. He begins with smell, which of all the senses 
 is the least extended, and has the smallest part in the 
 cognitions of our mind. He repeats successively the same 
 test in the case of the other senses. After having exa- 
 mined the ideas furnished by each of them, he analyses 
 those that result from the united action of several senses ; 
 and thus setting out from a simple sensation of smell, he 
 raises his statue by degrees to the state of being rational 
 and intelligent, so that not only he describes the faculties 
 and the ideas which spring from them, but he explains also 
 their genesis by analysis of the sensations. He distin- 
 guishes two species of faculties : the intellectual, which he 
 reduces to the understanding, and the affective, which he 
 reduces to the will. He concludes to this effect: that, 
 while Locke distinguishes two sources of our ideas, the 
 senses and reflection, it would logically be more exact to
 
 PROLEGOMENA. 41 
 
 assign them to one source only, since reflection is in its 
 principle only sensation itself, or the channel by which 
 ideas come to us from the senses. 
 
 After Condillac, sensualism became predominant in 
 France, through the advocacy of Diderot, D'Alembert, 
 and the other writers of the Encyclopedic. It fell into 
 a pure materialism with Helvetius, D'Holbach, and La 
 Mettrie. Cabanis did in France what Hartley and Darwin 
 did in England. "We may mention as exceptions Voltaire, 
 Rousseau, and Saint Martin. Voltaire by reason, and 
 Eousseau by sentiment, rose to a first cause, while Saint 
 Martin reproduced the mystical theories of Bohme. 
 
 In Italy Genovesi retained some of the doctrines of the 
 preceding century and of Leibniz, but the philosophy 
 of Locke, and then the system of Condillac, ultimately 
 prevailed in the Italian peninsula, notwithstanding the 
 honourable exceptions of Sigismondo Gerdil and Ermene- 
 gildo Pini in upper Italy, Thomasso Eossi at Naples, and 
 Vincenzo Miceli in Sicily. 
 
 In Germany, the Sensualistic School was represented 
 by Feder, Tittel, Basedow, and Tiedeman ; but, before the 
 century closed, there arose the grand philosophical system 
 of Kant. 
 
 .The reaction began in Scotland, \vhere Hume, starting 
 from Locke and Berkeley, lauded in absolute scepticism. 
 Locke had reduced the notions of cause and of substance 
 to simple individual relations of things to each other, or 
 to simple associations of ideas. Berkeley advocates the 
 view that we perceive only ideas or images, which succeed 
 each other without any relation to external objects. Hume 
 inferred from this that causes and effects are in conjunc- 
 tion and not in connection with each other, thus destroying 
 all legitimate belief both in the external world and the 
 internal world. 
 
 Reid revolted against the hypothesis of representative 
 ideas, and vindicated the doctrine of immediate objective 
 perception. He and Dugald Stewart wished to found
 
 42 PHILOSOPHY OF RIGHT. 
 
 philosophy on observation, and admitted a priori truths 
 as fundamental laws of the human intellect. A great step 
 was taken by these philosophers of the Scottish School 
 against sensualism and scepticism. Reid held the doctrine 
 of immediate perception, or an objective and affirmative 
 idea of body in the concrete ; but he did not equally recog- 
 nise the perception of the generic and absolutely concrete, 
 and the objectivity of the judgment which accompanies 
 the perception of these various elements and connects 
 them together. Instead of establishing the position, as 
 he ought to have done, that the judgment belongs to the 
 perceived object, and that the true and first judger is the 
 same object (the absolute idea) which presents itself with 
 all its parts to the subject, he wished to derive the judica- 
 tive act from the latter, and by this hypothesis he took 
 away all value from the perception. And in fact, how 
 can the perception be immediate and the idea truly objec- 
 tive, if the percipient does not receive the judgment from 
 that on which the reality and the organism of the ideal 
 object depends, and if the judgment belongs to the subject 
 which perceives, and not to the thing perceived ? Kant, 
 with great acuteness, saw that, on the one hand, the con- 
 tingent concrete thing cannot be thought without the 
 generic idea; and that, on the other hand, the subjectivity 
 of the judgment cannot be harmonised with the objectivity 
 of the idea and the immediate nature of the perception. 
 But instead of conjoining the general idea and the concrete 
 absolute with perception, and objectifying the judgment, 
 he subjectified the idea, denied perception the power of 
 embracing the contingent concrete object, and reduced all 
 cognition to the generic element alone, which, when the 
 concrete object was withdrawn from it, could have no 
 other than a subjective value. 
 
 Kant was " roused from his dogmatic slumber " by the 
 scepticism of Hume, and in order to combat it, he was not 
 satisfied with merely maintaining a priori truths like Eeid. 
 He made a profounder analysis of the human intellect,
 
 PROLEGOMENA. 43 
 
 and found two species of cognitions : the first rational, 
 synthetical, a priori, general, and necessary; the other 
 analytical, a posteriori, and contingent. The former cog- 
 nitions constitute the fundamental laws of our intellect, 
 and it possesses them anteriorly to all experience. In 
 fact, synthetical judgments are those which enlarge our 
 cognitions by showing us something which is not contained 
 in their subject, whereas analytical judgments do nothing 
 more than show us better the agreement of the predicate 
 with the subject. Kant distinguishes in knowledge its 
 matter and its form. He calls the matter of cognition 
 phenomena, and what unites the diversity of the phenomena 
 in certain relations, he calls their form. In other words, 
 matter is the diversity, and form is the unity in cognition. 
 He distinguishes the forms of the sensibility (which are 
 time and space), the categories of the understanding (which 
 are those of quantity, quality, relation, and modality), and 
 the ideas of the reason, that is, the ideas of the Ego, of 
 the world, and of God, which transcend or go beyond 
 experience. 
 
 We see then how knowledge is formed according to 
 Kant. We have intuitions or representations of objects 
 which are furnished to us by experience. To what are 
 these intuitions due ? To our capacity for receiving im- 
 pressions, or, in a word, to our receptivity. But it is 
 necessary to co-ordinate such intuitions, that is to say, 
 to reduce them to unity. How, then, can this function be 
 fulfilled? The activity as such must be an activity of 
 thought, with the spontaneity which is proper to it, and 
 which constitutes the understanding. The intuitions, ac- 
 cordingly, are the matter of cognition ; they are rendered 
 homogeneous by a common bond, which is that of space and 
 time, without which they would not be possible. In order 
 that a synthesis may be valid, it is necessary that it should 
 have acquired the character of necessity, which the under- 
 standing alone can give to it by means of the categories. 
 Reason struggles to pass beyond the limits of space and
 
 44 PHILOSOPHY OF RIGHT. 
 
 time, because it is in accordance with its nature to seek 
 totality or absolute unity by synthesis of the cognitions, in 
 order to attain to an absolute principle. Not finding this 
 in the sensible objects, reason throws herself into meta- 
 physical speculations, and forthwith abandons the field of 
 experience, gives way to illusions, and falls into continual 
 contradictions. From this point of view Kant draws out 
 his antinomies, that is to say, he demonstrates the pros 
 and cons in the ideas which form the object of reason. 
 He infers that reason is regulative not constitutive, or in 
 other words, that it necessarily adopts metaphysical ideas 
 only in order to discover the systematic unity of the sen- 
 sible world on account of its being impossible for us to 
 know things in themselves, or noumena; and hence we 
 ought to stop at simple phenomena. 
 
 Fichte held that since we know nothing but what is 
 produced by our thought, there exists nothing but the 
 Ego, which must be conceived as absolute, and which, in 
 virtue of its unlimited energy, begins to determine itself 
 and posits the non-Ego. Accordingly the external world 
 is to Fichte the same as what matter was to Plato, that 
 is, it is a non-being; and it becomes real only in the pro- 
 portion in which it is converted into idea, that is, in so 
 far as it is thought by the Ego. Kant confines himself to 
 neither affirming nor denying the existence of external 
 things ; Fichte maintained that they are that part of the Ego 
 which it has not yet realised, and that, if in this continuous 
 action it does not succeed in overcoming all resistance, this 
 arises from the fact that its virtuality is infinite, for its 
 ideal activity is as infinite as its nature. God is to Fichte 
 an Ideal of all intelligence and reality, which the Ego 
 strives to realise without ever being able to attain to it. 1 
 
 We have thus seen how the XVIII. Century began 
 with the purest sensualism and ended in an absolute 
 subjectivism. 
 
 1 See Wilm, Histoire de la philosophic aUemande depuis Eant jusq' d 
 Hegel. Paris, 1849.
 
 PROLEGOMENA. 45 
 
 3. 
 
 The first works of Schelling bear the date of the last 
 years of the XVIII. Century, while the last works of 
 Fichte saw the light in the first years of the XIX. Century ; 
 and thus the two schools joined hands. As it is of im- 
 portance for us to know somewhat more fully the philo- 
 sophical doctrines of our century, we shall devote a 
 paragraph to each of the nations which have been most 
 occupied with philosophy. And we shall begin with 
 Germany. 
 
 Schelling thought that the Ego was able to produce the 
 sphere of the practical life, but that it could not gene- 
 rate physical nature. The non-Ego of Fichte appeared to 
 Schelling, not a negation or limitation, but an affirmation, 
 a positive thing really as much as the Ego. There are 
 then, said Schelling, two positive realities : the one internal 
 and ideal, the other external and real ; the sphere of the 
 mind and that of nature. As to the forces which animate 
 and rule this double world, may they not be relative to 
 each other and correspondent ? May not the principles of 
 nature be found in the human mind as laws of conscious- 
 ness and of reason, and may they not verify themselves 
 equally in the external world under the form of physical 
 laws ? Both spheres are lost in a common infinite, and 
 this infinite in which the two are absorbed and from which 
 they both descend is the Absolute, which serves as a 
 foundation to spirit and to nature, whose primitive unity 
 is unfolded in two distinct worlds : in that which is deve- 
 loped with consciousness, and in that which is produced 
 without consciousness. The universe is therefore the 
 identical expression of the divine thought, and human 
 reason is the identical expression of the divine intelligence, 
 and consequently of the universe. The ideal world is 
 accordingly the end and the cause of the sensible world ; 
 the sensible world is the image and manifestation of it ;
 
 46 PHILOSOPHY OF RIGHT. 
 
 and philosophy is the science of it, or its reproduction in 
 the mind. 
 
 Hegel set out from the system of Schelling, which he 
 applied himself to determine better and to complete by a 
 rigorous method, making a profound application of it to 
 all the sciences. The absolute idealism aspires to omni- 
 science, to the science of God, which according to Schelling 
 we possess by means of the intellectual intuition, and 
 according to Hegel by the immanent dialectic, or the 
 movement of thought. The universe is the product of 
 the evolution of the conception, notion, or absolute Idea. 
 This absolute Idea of Hegel is the eternal notion or con- 
 ception (Der ewige Begriff], the Idea of ideas of Schelling, 
 or the absolute ideality. The world, says Hegel, is a 
 flower which proceeds eternally from a single germ ; this 
 flower is the divine absolute idea produced from the 
 movement of thought. First it is the logical idea or the 
 totality of the categories of thought; then by its own 
 activity, without receiving any impulse or the least matter 
 from the external, it becomes nature and spirit, universe 
 and universal cognition, physical and moral world. 
 Nature, man, history are only different periods or moments 
 in the development of this idea. In the first moment, it 
 is solely in potentiality, in an absolute and indeterminate 
 unity ; and so we have Logic, that is, the laws of thought. 
 In the second moment, it goes out of itself and manifests 
 itself in various particular existences; and so we have 
 Nature. And finally, the Idea returns into itself and is 
 by itself, that is, acquires consciousness in man ; and we 
 have philosophy properly so called. 
 
 Jacobi takes an attitude of opposition to the system of 
 Kant, maintaining that the principle of all knowledge and 
 of all activity is faith, or the revelation which manifests 
 itself in the human mind under the form of feeling, and 
 which is the basis of all certainty and of all science. 
 Jacobi, however, does not confine himself to recognising 
 the part of spontaneity and intuition in knowledge, but he
 
 PROLEGOMENA. 47 
 
 also assigns much to feeling and sentiment. From this 
 there arises a confusion, especially in his moral system, 
 where the law of duty, so admirably described by Kant in 
 his Critique of the Practical Reason, is reduced to a sort of 
 vague instinct, to a desire of happiness. 
 
 Fichte, in the last years of his life, sought to modify 
 his doctrine by distinguishing science from faith, but 
 without showing the link which unites them. His philo- 
 sophy exercised a great influence, especially in literature. 
 The humoristic school of Jean Paul Eichter developed 
 the principal of irony in art, and Solger, and Friedrich 
 Schlegel, hold by this subjective idealism ; and from it 
 also sprang the effort of the Ego to escape from itself and 
 the aspiration of the soul towards the infinite and the 
 absolute which generated the mysticism of Novalis. 
 
 Schelling, without ever abandoning the principle of his 
 method, which was intellectual intuition, substituted for 
 his subtle and often fastidious deductions a mystical 
 contemplation, a species of inspiration that was the fertile 
 source of most beautiful suggestions. Among those of 
 his disciples who attributed great importance to living 
 nature are to be reckoned Oken, Steffens, Goerres, and 
 Baader. 
 
 The system of Krause closely approaches that of 
 Schelling. He divides the universe into two spheres 
 which penetrate each other, that of nature and that of 
 reason, above both of which there exists the Supreme 
 Being. It is a variation of the system of identity, but 
 Krause, like Schelling, has not left a regular and complete 
 exposition of his philosophy. 
 
 The opposition of the two worlds is found again in 
 Herbart, the disciple first of Kant and then of Fichte. 
 He endeavoured to open up a new way applying mathe- 
 matics to philosophy, and subjecting the phenomena of 
 the moral order to the Calculus. Setting out from the 
 hypothesis that ideas are forces, he reduces the intellectual 
 life to a sort of dynamism. Nevertheless he develops
 
 48 PHILOSOPHY OF RIGHT. 
 
 his principle with much ingenuity, and his works abound 
 in many just observations. " The successors of Kant," 
 says Herbart, " imagined an absolute knowledge by the aid 
 of which the dogmas of the existence of God and of the 
 immortality of the soul were to be put beyond doubt, but 
 on the contrary it has rendered them more uncertain than 
 ever." Schelling and Hegel, in fact, pretended to unite 
 realism and idealism by proving the identity of being and 
 thought, of ideas and things, but they reached only an 
 absolute idealism. Herbart regards experience as the first 
 source of knowledge, and limits the extension of real 
 knowledge to what is furnished to us by observation 
 rectified and completed by thought. Every generation 
 transmits to that which follows it its thoughts better 
 certified, no less than its language its inventions, institu- 
 tions, and arts. Hence there result phenomena which the 
 individual psychical mechanism could not produce by 
 itself. In each of us the whole of the past lives again. 
 Eeason is thus reduced to a psychological fact ; and liberty, 
 like reason, is acquired. A man becomes rational only by 
 the action of old ideas upon the new; he is not free unless 
 he has formed for himself a character by means of the 
 union of predominating ideas, and this only comes about 
 by chance, or by a sort of intellectual mechanism. 
 
 It remains for us to indicate the vicissitudes of the 
 German philosophy since the death of Hegel in 1832. 
 His school soon came to be divided into a right, a centre, 
 and a left (1840). Michelet was one of the disciples who 
 maintained the doctrine of the master in its purity, and 
 along with him we may mention Eosenkranz, Hotho, 
 Gabler, and Marheineke. It was not long, however, till 
 Michelet seemed to have been seized by a kind of vertigo 
 in his book on the solution of the social problem, and in 
 his conversations with Victor Cousin. Eosenkranz re- 
 mained faithful ; and in his " System of Science," and in 
 his "Reform of the Hegelian Philosophy," he sought to 
 prove that atheism was not in the mind of the great
 
 PROLEGOMENA. 49 
 
 philosopher, who believed in the personality of God, that 
 primitive being without consciousness and without will, 
 that infinite substance which requires to manifest itself in 
 its contrary in order to attain to cognition of itself, that 
 germ of God which will flower and bear its fruit only on 
 the completed theatre of the universe ; these, he says, are 
 simple figures used in order to make the old truths of spiri- 
 tualism penetrate into the mind of the reader ! ! ! Who 
 could enumerate the eccentricities and the sophisms of 
 the young Hegelian School ? Strauss, combining together 
 all the partial negations accumulated by the German 
 theologians from Lessing, undertook to demonstrate that 
 Christ was the work of the thought of all; and Bruno 
 Bauer maintained that the Gospels were not the work of the 
 evangelists, and were therefore an imposture. Feuerbach 
 translated the Hegelian ideas into popular language, show- 
 ing that man worships his own shadow, homo homini deus ; 
 and Max Stirner reached the last consequence in pro- 
 claiming egoism, homo sibi deus. In our days, the same 
 Strauss, in his last book, The Old Faith and the New, 
 prostrates himself before the God-universe, while the pro- 
 gress of the natural sciences has led Moleschotte and 
 Biichner to a sort of physiological materialism founded 
 upon positive ideas. 
 
 But all the German philosophy did not culminate in 
 materialism. There was one philosopher unknown for 
 many years, Schopenhauer, who published in 1819 a work 
 under the title " Die Welt als Wille und Vorstellung " (The 
 World as Will and Idea), which made no noise at the 
 time, because Germany was then entirely taken up with 
 the system of Hegel. On the fall of this system after 
 1848, the work of Schopenhauer was reprinted, and he 
 then came into great repute. In this work he tries to 
 explain everything by the " will " taken in the general 
 sense of force. In itself the will is one and identical, the 
 plurality of phenomena being only an appearance pro- 
 duced by the apparition of the intellect, a secondary and 
 
 VOL. I. D
 
 5 o PHILOSOPHY OF RIGHT. 
 
 derivative faculty. Intelligence acts so that the "will from 
 being unconscious becomes conscious, and passes from 
 existence in se to existence per se. He shows that the 
 will is at bottom nothing but desire, and therefore that 
 it is need and consequently pain ; and he finds no other 
 ideal in life than the negation of life by delivering our- 
 selves from it, by means of science and asceticism. 
 
 The leading disciple of Schopenhauer is Von Hartmann, 
 who explains and completes the doctrine of the master. 
 He says that the first principle, the Unconscious, is not 
 merely will, but at the same time is objective idea, which 
 he regards as inseparable from the will and co-ordinated 
 with it as a metaphysical principle of equal value. To 
 the unconscious will corresponds the unconscious idea. 
 The will can manifest itself even without the brain, the 
 ganglia or nerve centres sufficing for it, as in animals 
 of imperfect organisation. Instinct springs from a will 
 which acts rationally, without having a consciousness of 
 its acting. 
 
 The filiation of the system of Schopenhauer is manifest. 
 After Descartes, Kant had believed the Ego to be the 
 originator of all cognition; Fichte had raised it to an 
 absolute principle ; and finally, Hegel recognised all reality 
 in the Idea, the immanent dialectic of which, in the world 
 and in history, he described ; but he forgot that the Idea 
 alone remained absolutely unfruitful, having need of a 
 will to realise itself. Schopenhauer raised the unconscious 
 will to a supreme principle without noticing that the 
 will has need of an object, of an end, of an Idea. Con- 
 sciousness, then, does not result from the action of organised 
 matter upon the unconscious mind, but reveals itself in it 
 as its occasion. 
 
 Let us see now how this philosophy resolves the great 
 metaphysical problems. Matter in relation to the intelli- 
 gence is a non-being ; in relation to the will, it is a fact, 
 that is to say, it is reduced to force according to Schopen- 
 hauer. Hartmann corrects him by saying : Matter is will
 
 PROLEGOMENA. 51 
 
 and idea. For both of them the real individuality resides 
 only in the atomic forces, and we are mere physical coin- 
 cidences. God is the All- One; and as at the same time 
 he is will and idea, a logical succession reigns in the 
 universe, and thus neither the disciple nor the master deny 
 final causes. For man, happiness consists in unconscious 
 sleep. The earth is in the afternoon or post-meridian hours 
 of its planetary course, and is approaching the twilight of 
 its evening. 
 
 Yet all Germany was not seized by this vertigo. Adolph 
 Trend elenburg, for example, in his Logical Investigations, 
 explains the order of the universe by the ideas of Plato 
 and the actuality of Aristotle. He recognises final causes, 
 and expounds their realisation in right and morality. 
 
 9- 
 
 Italy at first followed the sensualism of the XVIII. 
 Century. According to Gian Domenico Eomagnosi, reason 
 is a sort of superior sense, the logical sense ; and the ideal 
 of life does not transcend experience and happiness. The 
 philosophy of Melchiorre Gioia differed little from that 
 of Romagnosi. But as the Italian speculative thought 
 began to acquire its autonomy, it reacted against sen- 
 sualism, Kantianism, and pantheism. Pasquale Galuppi, 
 following the Scottish School, admitted an immediate per- 
 ception of the concrete. Analysing this perception, he 
 clearly explains the spontaneous and natural synthesis of 
 the Ego with the non-Ego (the me and the extra me), so that, 
 according to his view, there is found in the commonest 
 fact of consciousness the double sentiment of the subject 
 feeling and of the thing felt. At the end of the second 
 book of his Critical Essay on Cognition, he says " I have 
 destroyed with invincible arguments the system of repre- 
 sentative ideas, and with Eeid I have put our mind into 
 direct relation with objects; but this relation, which in 
 the system of Eeid is arbitrary, is essential in mine. I
 
 5 2 PHILOSOPHY OF RIGHT. 
 
 have furnished a remedy for the defects of the philosophy 
 of experience on this important point ; and I have estab- 
 lished that the direct relation of the sensible perception 
 necessarily supposes the reality of the object, and that 
 sensible perception is the intuition of the object." 
 
 In his theory of cognition, Galuppi has not been so 
 happy, since he retains the general idea as the product of an 
 operation which is called generalisation, and which is pre- 
 ceded by abstraction and attention. In order to separate 
 himself from the School of Locke, he admits in the human 
 mind the idea of relations of identity and of diversity, 
 which he calls ideal relations, and those of cause and of 
 substance, which he calls real relations. Eeal relations 
 have their foundation in direct feeling and in the percep- 
 tion of reality, internal and external ; whereas ideal rela- 
 tions depend essentially on the ideal synthesis which forms 
 them and on the synthetic unity of our thoughts. In 
 order to restore to thought all its independence, Galuppi 
 was led to combat the synthetic judgments d priori of 
 Kant, and to reduce them to analytic judgments, because 
 the former present themselves as mysterious data of which 
 reason is ignorant, while the latter are the result of the 
 decomposition of thought. 
 
 In moral science, Galuppi re-established the true rela- 
 tions between happiness and virtue, by recognising duty 
 as the supreme law of life, and happiness as an end whose 
 realisation is subordinated to justice. 
 
 In the view of the Neapolitan philosopher, reason, if 
 not a derivation of sense, was regarded as a subjective 
 abstract thing devoid of necessary and absolute value. 
 Antonio Rosmini endeavoured to repair this grave defect. 
 By a subtle analysis he reduced all ideas to that of possible 
 being, for which he recognised an objective and absolute 
 value, and which he constituted a unique and universal 
 form of truth. For this end he establishes the view that 
 experience gives the matter of cognition, and being gives 
 its form ; and he distinguishes two species of perceptions,
 
 PROLEGOMENA. 53 
 
 the sensitive and the intellective. Sensitive perception is 
 sensation with its relation to the sensible term. Intel- 
 lective perception comprehends : i. Sensitive perception ; 
 2. The affirmation of actual existence; 3. The idea of 
 being. He calls the body a co-subject of the mind, and 
 affirms that the relation between being and its modes can 
 only be manifested by feeling ; and he goes on finally to 
 maintain that we cannot know the divine reality except 
 negatively, because, in order to know it positively, it would 
 be necessary to feel it and to perceive it. However, neither 
 sensation, nor feeling, nor reflection (in the sense of Locke) 
 contains the idea of being. Our mind has the conscious- 
 ness of seeing it and not of producing it, as the eye con- 
 templates the stars of the firmament without believing 
 itself to be their creator. The idea of being is intelligible 
 by itself, and renders all other ideas intelligible. It 
 manifests itself under the three forms of identity, reality, 
 and morality ; in other words, of the ideal, the real, and 
 their relation. Nevertheless it is merely a logical and 
 universal possibility, which contains all ideas with the 
 interminable series of genera and species and their perfect 
 types ; and it comes forth in the approximation which 
 takes place in intellective perception between sensation 
 and intelligible truth. This ideal being is also the initial 
 being, that is to say, it is something divine or of God. It 
 is objective and intelligible, eternal and necessary, but it 
 is not the absolute. It is infinite as idea, but it is not all 
 the infinite. 
 
 What, according to Eosmini, is the passage from the 
 ideal to the real ? All the essences united compose the 
 model or exemplar of the world, but they are not the 
 Word of God, nor can they be identified with the absolute 
 perception of being, the unity and simplicity of which 
 suffer neither division nor limitation. The creation is the 
 work of the creative liberty of God, who, from loving 
 being, is driven by love to create it in so far as it is rela- 
 tive and finite. Creation takes place by a sort of diviue
 
 54 PHILOSOPHY OF RIGHT. 
 
 abstraction, by that operation through, which the intelli- 
 gence of God determines in itself the relatively primordial 
 idea from which spring all the objects of our knowledge 
 and the types of things. The existence of God is proved 
 by a sort of integration of being, which is at first indeter- 
 minate and is then completed under the real and moral 
 form ; for in reasoning on the infinite, which appears to 
 us under the ideal form, we very soon perceive that there 
 can only be a single infinite, as that which unites reality 
 to ideality and therefore attains perfection. 
 
 The passage to morals was easy to Eosmini by his 
 establishing the proposition that the idea of a perfect 
 essence is a good, because it includes all that can be 
 attributed to a being of a given class according to its 
 nature, that is, according to the end of its movement and 
 of its tendencies; so that when a being approaches the 
 fulness of its essence and of its perfection, it obeys at the 
 same time an ideal necessity, and becomes what it was to 
 be by conforming itself to its own' good and to good in 
 general. 1 Possible being is the relation of the absolute 
 reality to our knowledge and to created things. Now a 
 relation cannot be known without knowing its terms. But 
 Eosmini would not admit that the absolute reality is 
 immediately known. To him the ideal remained dis- 
 joined from the real. Accordingly this possible being 
 remained, as it were, suspended in the air ; and it offered 
 a side to attack from two opposite quarters. The partisans 
 of the philosophy of experience attacked it on the one 
 hand, reproaching Eosmini for having intruded into the 
 primitive cognition of the real, the abstract, and the pos- 
 sible, in that operation of the mind which he calls intel- 
 lective perception ; whereas Eeid had shown that the reality 
 of the thing perceived was immediately felt and known, 
 because it was at the same time sensible and intelligible, 
 and that judgment and affirmation are subsequent acts 
 
 1 See Ferri, Essai sur Vhistoire de la philosophic en Italic au XIX. Siecle. 
 Paris 1869.
 
 PROLEGOMENA. 55 
 
 destined to analyse what was confusedly contained in the 
 primary perception. 
 
 Vincenzo Gioberti, on the other hand, has shown that 
 rational knowledge cannot depend on the intuition of a 
 possible Being, but rather on the relation of the intelli- 
 gence to an infinite reality, an inseparable condition of all 
 thought and of all existence. He has established by the 
 solidest arguments the impossibility of separating the ideal 
 from the real, by making relative being with its double 
 aspect, ontological and idealogical, enter into the rational 
 intuition of the synthetic judgment d priori : " Being 
 creates existence," He maintains that all judgments resolve 
 themselves into ideas, and that all ideas include judgments 
 which are all synthetic d priori and d posteriori, since all 
 express the common relation of ideas to the impenetrable 
 term of the infinite or finite essence. The only exception 
 is the judgment : Being is, which is analytical, because by 
 it the absolute idea is posited and is affirmed before our 
 thought. Intuition accordingly includes the primitive 
 synthesis, or in other words, the intelligible data and their 
 relations. Reflection decomposes this synthesis in order 
 to reconstruct it, and to express it in language. Language 
 is necessary to reproduce in thought what is contained in 
 the intuition, which being unlimited and infinite cannot 
 fall under the finite power of reflection except by means 
 of sensible signs. These are produced by the creative act 
 itself, which, giving existence to the intuition, at the same 
 time manifests the intelligibility of being. Accordingly 
 the signs correspond exactly to the ideas. Such signs 
 compose language, which is internal and external, natural 
 and artificial. Internal and natural language declares 
 sentiments and modifications of the mind of which ex- 
 ternal signs and artificial language are thus the expression. 
 Not only is language the instrument and organ of what 
 is rationally intelligible, but of whatever transcends it. 
 Gioberti distinguished in the mind the supra-intelligible 
 element which was not adequately observed before by the
 
 56 PHILOSOPHY OF RIGHT. 
 
 philosophers. He analysed it minutely. He considered 
 it as the product of a special faculty which he called 
 supra-intelligence ; he showed its connections with the 
 products of the other faculties ; and he marked off what 
 corresponds to it in the order of reality, that is, the supra- 
 natural, reserving himself for a profounder study of it, and 
 intending to make of it a separate science in later works 
 under the designation of the philosophy of the supra- 
 intelligible or of the supra-natural. When Gioberti began 
 to print his works he had already in his mind a system of 
 philosophy well outlined and organically put together. 
 But as it was eminently different from the philosophy in 
 vogue, he proposed to make the understanding of it easier 
 by means of an Introduction to the Study of Philosophy. 
 In this introduction he aims at showing that the being 
 primarily intuited was real, not shut up in itself but 
 creative, and hence that the order of knowledge proceeded 
 identically with the order of things. He distinguished 
 psychological reflection from ontological reflection, and the 
 latter from intuition ; but he did not enter on discussion of 
 the intimate nature of intuition, nor as to whether the 
 intuition of finite reality was in everything identical with 
 the intuition of the infinite reality. He laid down the 
 substantial difference between intelligence as a faculty 
 apprehensive of the absolute Intelligible, and sensibility 
 which apprehends the contingent ; but he did not inquire 
 as to whether what is sensible was in its essence a relative 
 intelligible. He indicated and promised to speak of it 
 afterwards in detail whenever he should have expounded 
 the new and recondite part of his doctrine which is found 
 in his posthumous works, where is explained the being 
 of immanent thought, and its distinction from successive 
 thought. 
 
 To the double state of thought he makes the double 
 state of nature correspond; and this is not wonderful, 
 since spirit and nature constitute the existent, which in so 
 far as it is_created by Being ought to resemble it. Now
 
 PROLEGOMENA. 57 
 
 being is one and infinite, and the existent ought to be in 
 like manner one, except that its unity being finite has to 
 include multiplicity, and therefore must be a manifold 
 unity or a manifold one. Similarly the existent must be 
 a relative intelligibility, a potential infinity which corre- 
 sponds to the absolute unity ; which analogy between the 
 existent and being, or between the copy and the original, 
 is designated by the term methexis, 1 which means properly 
 participation. The sensible, which Gioberti calls mimesis? 
 will gradually become intelligible. Mysteries are to be 
 cleared up by the way of analogy, and the cosmos will be 
 succeeded by the palingenesis. In nature as in mind, under 
 all the forms of being and of cognition, there is hidden 
 and there moves a force which opposes contraries to each 
 other, puts them into harmony in a third term, and draws 
 from them incessantly new oppositions and new harmonies. 
 The propositions which compose the interminable sorites 
 of beings, spring from the categories : fundamental ideas 
 produced by the infinite thought in its marriage with 
 spirit and with the things which it engenders. The cate- 
 gories are the most general ideas ; the ideas are in God, 
 and form in Him only one single Idea which differentiates 
 itself and passes from the absolute to the relative by 
 means of the creative activity. The categories are divided 
 conformably to the terms of the primitive formula to which 
 they are related ; for they are divine and incommunicable 
 (Being), mathematical and mediating (Creation), cosmic 
 and communicable (Existence). 
 
 In other passages Gioberti developed his doctrine in 
 a sense more favourable to Platonism and Christianity, 
 combining together the methexis and creation, and sub- 
 stituting partial unity for the absolute identity of Hegel, 
 without breaking the unity of the universe ; for the idea 
 and its eternal causality are the supreme condition of all 
 the ideal relations and of the substantial unity of the 
 world. According to Gioberti, the identity of contraries is
 
 5 8 PHILOSOPHY OF RIGHT. 
 
 verified in an absolute manner only in God, and their 
 distinct division and apparition begins really only with 
 the creative act. In the view of Hegel the dialectic is the 
 unity of the absolute negation and affirmation, which is 
 the total transformation of the contradictory terms. To 
 Gioberti, on the contrary, being and existence compose a 
 primary proposition whose terms are irreducible, that is, 
 are not convertible ; and their ontological dependence has 
 place by means of the creation, that is, by means of a 
 causality which is imperfectly intelligible so far as we parti- 
 cipate in it. According to Gioberti, dialectic is not barely 
 formal, but real and objective ; it is not a pure art but a 
 science : the science of opposites and of their harmony. 
 It is developed in the world and in the human mind, not 
 in God. The divine dialectic is subjective and apparent ; 
 it is not in the object which is one and immanent, but in 
 the subject which apprehends it, seeing that the opposites 
 do not harmonise but are identified, their opposition not 
 being real and effective. He represents it to himself as 
 the movement of finite thought which realises itself in 
 time and space, and is parallel to the life of the world. 
 Hegel was wrong, according to Gioberti, in substituting 
 contradictories for contraries, and in transporting them 
 from Existence to Being. The possibility of transforming 
 the cosmological categories into each other may, it is true, 
 have for a foundation the unity of the cosmical substance, 
 that is, the one and finite reality which is intermediate 
 between individuality and generality, and from which 
 dialectic, aided by experience, draws the various forms of 
 beings ; but this metamorphosis stops at the finite. For if 
 the chain of the categories is prolonged further, this arises 
 from its traversing the creative act and sinking in the 
 mysterious bosom of the absolute unity, which takes 
 away from this transformation any pantheistic significance. 
 Accordingly, Gioberti neither admits the unity of contra- 
 dictories, which he regards ' with Plato and Aristotle as 
 the destruction of reality and of science, nor the identity
 
 PROLEGOMENA. 59 
 
 of contraries, between which he only admits harmony, as 
 Pythagoras taught. 
 
 Thus Gioberti in his second period, in spite of appear- 
 ances to the contrary, due to the imperfection in which he 
 left his posthumous works, has done nothing but perfect 
 his doctrine by rising from successive thought to immanent 
 thought, and establishing the dialectic. 
 
 Gioberti deduces the science of the good from his ideal 
 formula as follows. The human good is a conformity of 
 the human will with the divine will, as the true is the 
 accordance of the human intellect with that of the Creator ; 
 whence it follows that our two principal faculties, reason 
 and free will, derive their value from their participation 
 in the excellence of the divine nature. 1 
 
 Mamiani takes a position intermediate between Rosmini 
 and Gioberti. He adopts what is truest and most certain 
 in their systems to compose a third of greater strength and 
 solidity. It hinges on the principle of identity, which in 
 his view is concrete not abstract, and is wholly one with 
 the absolute reality in a direct and most immediate rela- 
 tion with thought. According to Mamiani, intuition ap- 
 prehends real, not possible being; and every necessary 
 truth already contains the real and the substantial. He 
 is opposed to Kantianism, which he combats in all its 
 forms. While he maintains that being is concrete and 
 real, not possible and abstract, according to the view of 
 Bosmini, he, however, does not agree with Gioberti in hold- 
 ing that intuition also apprehends the creative act. It 
 
 1 Among the most learned inter- doctrine an acroamatic doctrine 
 
 preters of Gioberti we mention Pro- which was gradually unfolded. Di 
 
 lessors Pietro Luciani and Vincenzo Giovanni, alarmed at the bold 
 
 Di Giovanni. Luciani, in his work thoughts contained in the posthu- 
 
 on Gioberti and the New Italian mous works of Gioberti, keeps closely 
 
 Philosophy (3 vols., Naples, 1868- to those published in his lifetime ; 
 
 1872), combats Hegelianism, and and in his various works on the 
 
 shows the intimate agreement be- History of Philosophy (printed at 
 
 tween the first and last works of Palermo) he finds a precedent for 
 
 Gioberti. He maintains that this the philosophy of creation in the 
 
 philosopher, like the great masters works of Monsignor d'Acquisto, his 
 
 of antiquity, had besides his exoteric fellow-countryman.
 
 60 PHILOSOPHY OF RIGHT. 
 
 does not appear to him that the principle of cause is con- 
 tained in the immediate and common intuition of being 
 itself, but is a cognition posterior and reflex inasmuch as it 
 demands a clear consciousness of our passivity, and is born 
 from the need of combining in a single judgment the object 
 and the subject together with their connection. Creation, 
 then, he regards as necessary, not free, caring little whether 
 this is repugnant or not, and may even lead logically to pan- 
 theism ; and all the more that he has placed the principle of 
 identity in the unique and absolute judging of the real and 
 knowable. Ideas are representations which the Absolute 
 makes of Himself, unveiling them to such intellects as are 
 sufficient for it. They are all real, all objective in the ab- 
 solute reality and objectivity of the being which sustains 
 them, but they are not themselves the divine paradigms and 
 the archetypal and efficient causes of things, although their 
 representations are faithful and perpetual. In this mediate 
 nature of the ideas, Mamiani finds the qualitative character 
 of the Platonic revival of the modern Italian philosophy. 
 Every one of these ideas furnishes the firm support for 
 particular sciences. Thus on the conception of absolute 
 justice, he founds all his books which treat of right. On 
 the conception of the holy, he founds the theory of re- 
 ligion, and so on. Although all his works abound in 
 subtle analyses, in acute psychological observations, and 
 in rigorous argumentation, yet they are deficient in co- 
 herence, and above all they want logical connection. In 
 fact he admits the contingent and the necessary, sensible 
 facts and ideas, but he does not explain scientifically how 
 the one depends on the other, or how they are united to 
 each other. In his view, the conjunction of phenomena 
 with'the ideas, and of the ideas with the absolute, con- 
 stitutes the relation which is reflected from being in science, 
 by means of perception as the ideal representation and 
 intuition of the infinite. He maintains creation, especially 
 in his Cosmology, where he has philosophically co-ordinated 
 the ultimate results of the natural sciences ; and he vindi-
 
 PROLEGOMENA. 61 
 
 cates progress, which he makes to consist in a successive 
 increase of being appropriated and co-ordinated to its end. 
 
 There were other thinkers in Italy who sought with 
 much ability to harmonise the doctrines of the Scottish 
 School regarding the perception of the external world, 
 with the innate activity of the mind which is reflected in 
 consciousness. They thus continued the work of Galuppi, 
 as did Augusto Conti. Others tried by a bold scepticism 
 to prepare the way for positivism, as was done by Guiseppe 
 Ferrari. 
 
 10. 
 
 Prance began to pass from the sensualism of Condillac 
 with^the writings of Laroiniguiere, who distinguished atten- 
 tion from sensation. Eoyer Collard brought the Scottish 
 School into honour, and Maine de Biran examined the 
 voluntary and free activity which constitutes personality. 
 Cousin introduced the German philosophy into France, 
 wedding it with the Scottish philosophy. Their union 
 resulted in a system to which he gave the name of " Ecclec- 
 ticism." He starts from common sense in order to descend 
 into the depths of consciousness, throws a glance over the 
 external world, and then rises to the eternal ideas of the 
 true, the good, and the beautiful. He thus believed that he 
 had adopted whatever truth the various systems contained. 
 In the conclusion which he added to his General History of 
 Philosophy a few days before his death, he speaks no longer 
 of " ecclecticism," but of " spiritualism," and exclaims : 
 " Let us then enter without fear upon the uncertain and 
 obscure path that has been opened before us by the French 
 Revolution; let us enter upon it under the auspices of 
 common sense to which the last word in all things belongs ; 
 let us attach ourselves to this experienced guide ; let us 
 never abandon it; and let us be persuaded that in the 
 crash of the world and among all the ruins of the past it 
 will guide us and will bring us always back to the soul 
 and to God." We see that, notwithstanding certain for-
 
 62 PHILOSOPHY OF RIGHT. 
 
 mulae adopted from Sclielling and Hegel, Cousin remained 
 faithful to the method of Descartes and to psychology. 
 The impulse given by him to philosophy in Trance was 
 beneficial, and it was carried on by his disciples. Thus we 
 owe to Jouffroy some fine psychological analyses, to Saisset 
 and Janet learned polemics against pantheism and a more 
 or less disguised sensualism, with important historical 
 works by Jules Simon, Vacherot, Eavaisson, and Barthe- 
 lemy Saint-Hilaire. 
 
 We have seen that the scepticism of Hume begot the 
 subjectivism of Kant. Auguste Comte admits with Hume 
 that the causes of phenomena are other phenomena which 
 are their invariable antecedents ; and he also admits with 
 Kant that we can know nothing of things in themselves 
 or noumena, declaring that such knowledge is of no value 
 to us. According to Comte human opinions in this regard 
 have not varied by chance. They have obeyed a law which 
 makes them pass through three successive states. The 
 first state attributed concrete forms to the absolute cause 
 of events by a pure fiction of the mind ; and this Comte 
 calls the theological state. The second state gave to this 
 same absolute cause an abstract and purely ideal form ; 
 and this Comte calls the metaphysical state. Finally, the 
 third state renounces investigation of the origin and desti- 
 nation of the universe for the knowledge of the immediate 
 causes of phenomena, and confines itself to discovering 
 their effective laws, that is, the relations of succession and 
 resemblance, their positive and real state. The first ex- 
 planation gradually raised itself to its perfection by sub- 
 stituting the providential action of a single being for the 
 numerous independent divinities which it had primarily 
 imagined. The second explanation, which substitutes for 
 the one divinity a being of reason, follows the same road, 
 reducing all unities to a single unity, which is nature, 
 a grand entity regarded as the one source of all phenomena. 
 Finally, the third explanation, which is that of the positive 
 state, considering facts as particular cases of more "eneral
 
 PROLEGOMENA. 63 
 
 facts, is tending to its perfection, which it will probably 
 never reach, but which would consist in being able to re- 
 present the various observable phenomena as particular 
 cases of a single general fact, as, for example, the fact 
 of gravitation. 
 
 The method of Comte is the scientific method ; and he 
 himself says that his positive philosophy has much analogy 
 with that which since Xewton has been called in England 
 " natural philosophy." This philosophy emerges from two 
 operations : the determination of general facts by each of 
 the sciences, and the reunion and co-ordination of these 
 facts. It therefore presents the conception of the world 
 which results from the systematic aggregation of the posi- 
 tive sciences ; and hence the great importance of the series 
 of the six fundamental sciences : mathematics, astronomy, 
 physics, chemistry, biology, and sociology, which succeed 
 and complete each other in turns. All ideas come from 
 experience ; and every experience is proved and verified 
 by perception of the external world. 
 
 In the second half of his career, Comte tried to create 
 a religion without a God and witliout a worship, but 
 directed towards an object at once ideal and real, namely, 
 the human race conceived as a continuous whole which 
 embraces the past, the present, and the future, and has 
 need of our services and of our devotion. Comte found 
 a worthy interpreter and continuator in Littre, who stripped 
 the system of the barbarous language and of the autocratic 
 and hieratical tendencies, which Comte had borrowed from 
 the economist Saint-Simon, and which he carried out to 
 an exaggerated degree in his second period. 
 
 I"- 
 
 Kant had preserved the notion of the absolute in the 
 supra-sensible world above the sphere of experience. He 
 at least retained it as a necessary limit of reason which 
 cannot carry up the chain of the phenomena of beings to
 
 64 PHILOSOPHY OF RIGHT. 
 
 the infinite. In Scotland, Sir William Hamilton showed 
 himself more radical, as he reproaches Kant for not having 
 once for all exorcised the phantom of the absolute. Kant, 
 he says, ought to have shown that if the unconditioned 
 has no objective reason, this is because it is not susceptible 
 of a subjective affirmation, since it cannot yield any true 
 cognition from its containing nothing that is conceivable. 
 Notwithstanding this, he admits immediate perceptions 
 with Eeid, and the pure forms of thought with Kant. 
 
 John Stuart Mill denies both the immediate percep- 
 tions of the Scottish School and the d priori forms of the 
 German School. He maintains that the belief in the 
 external world is not a primitive fact, but the result of 
 induction derived from experience. The Ego is the bond 
 which unites the various sensations, and matter is " a per- 
 manent possibility of sensation." Every species of know- 
 ledge springs from the association of ideas. Induction is 
 the key of nature; it discovers and proves the general 
 propositions by which we conclude from the individual 
 to the class, and from one time to another. Axioms are 
 only a class, the most universal class, of the inductions 
 drawn from experience ; they are generalisations of facts 
 furnished by the senses and by experience. The only 
 useful propositions are those which connect one fact with 
 another so as to enable us to conclude from one particular 
 fact to another particular fact. Mill in his Inductive 
 Logic establishes four methods for the experimental dis- 
 covery of connection : that of " agreement," that of " differ- 
 ence," that of " residues " (which consists in taking from 
 the phenomenon the part which is known to be the effect 
 of certain antecedents in order to see whether the residue 
 of the given phenomenon is the effect of the antecedents 
 that remain) ; and that of " concomitant variations," which 
 operates not upon two phenomena directly by themselves, 
 but upon their variations. 1 
 
 1 These four methods are found theory of the three Tables of Pre- 
 almost literally in Bacon, in his sence, Absence, and Gradation,
 
 PROLEGOMENA. 65 
 
 Induction is founded on the law of causality; but as 
 Mill admits only phenomena or combinations of pheno- 
 mena which follow each other in an invariable and un- 
 conditional manner, the relativity of knowledge follows 
 from this position. Mill is distinguished from Comte by 
 the greater importance assigned by him to psychology, 
 which Comte had denied a place among the fundamental 
 sciences in order to make it dependent on biology. 
 
 Alexander Bain deepens the furrow traced out by Mill, 
 showing by a greater range of observations that all the 
 phenomena of the mind spring from the association of 
 ideas. Bain treats psychology as a continuation of phy- 
 siology, and studies all its phenomena under the physical 
 and mental aspects. In contrast to other psychologists 
 who are advocates of association, he gives much prominence 
 to the activity and spontaneity of the mind. Sensation, 
 memory, and association are passive facts which may 
 serve to explain our dreams, our phantasies, and our for- 
 tuitous thoughts. Bain shows that the brain does not 
 simply obey impulsion, but that it is self-acting ; that the 
 nervous influence is not transmitted by it to the motor- 
 nerves automatically, nor without rule and cause, but 
 is produced by the organic stimulus of nutrition. He 
 seeks the germ of the will in the spontaneous activity 
 which resides in the nerve centres. Excitation produces 
 movements, changes of posture, and in consequence sensa- 
 tions. There is thus established in the yet empty mind 
 a connection between certain sensations and certain cor- 
 poreal movements; and whenever afterwards sensation 
 may be excited by some external cause, the mind will 
 know that a movement will take place at some point. In 
 
 which contains the essential con- successively all these circumstances 
 
 ditions of all positive investigation, until we come to that circumstance 
 
 Bacon founds his method on the which, when suppressed, suppresses 
 
 theory that the only way of dis- the phenomenon itself, and, finally, 
 
 covery in the sciences consists in in making that circumstance which 
 
 ascertaining certainly all the impor- is presumed to be the cause, vary, 
 
 tant circumstances which accompany in order to note the concomitant 
 
 a phenomenon, then in suppressing variations of the effect. 
 VOL. I. , E
 
 66 PHILOSOPHY OF RIGHT. 
 
 a word, consciousness verifies effort, but does not constitute 
 it. Effort is produced by the organic state of the nerves 
 and muscles. The moral laws which prevail in almost all 
 societies, if not in all, are founded in part on utility and 
 in part on sentiment. The individual conscience is an 
 internal imitation of the external Government, and is 
 formed and developed by education. 
 
 Herbert Spencer does not stop at psychology, which, 
 like Mill and Bain, he regards as a continuation of phy- 
 siology, but he seeks to enter the field of metaphysics. He 
 admits with Comte the exact correspondence of percep- 
 tions with sensations, and holds that we have two classes 
 of states of consciousness : the internal state which is 
 called the subject, and the external state which is called the 
 object. Ideas are formed on the model which is furnished 
 to us by things, through a constant repetition of the same 
 associations during an incalculable number of generations. 
 The forms or laws of thought are absolute uuiformities 
 which the world engenders in us : the most comprehensive 
 kinds of a vague experience lasting through an immense 
 period, during which the correspondences of groups of 
 states of consciousness with groups of the states of the 
 world are formed, and during which the relations of succes- 
 sion and of co-existence are gradually fixed, so as to serve 
 as a rule to individual experience. The indissolubility 
 of an association of states of consciousness, is what regu- 
 lates thought and constitutes necessary propositions. The 
 infinite variety of phenomena depends on the metamor- 
 phoses of force, and all movements obey the laws of evolu- 
 tion, that is, equivalence, rhythm, and cohesion, which are 
 corollaries of the principle of the persistence of force. 
 Matter and motion are manifestations of force variously 
 conditioned. The concentration of matter implies the 
 dissipation of motion ; and reciprocally the absorption of 
 motion implies the diffusion of matter. Hence arises a 
 consecutive integration and disintegration of evolution and 
 dissolution. If we are obliged to conceive an immense
 
 PROLEGOMENA. 67 
 
 series of evolutions, past and future, we cannot attribute 
 any limit to the visible creations. These are manifesta- 
 tions of force which may be regarded as the conditioned 
 effect of an unconditioned cause, as a relative reality which 
 presupposes an absolute reality ; our thought conceiving an 
 unknown force co-relative to the known force. In this 
 transformed realism we see the phenomenon and the 
 noumenon in their primordial relation, and we are obliged 
 to regard them both as real. Thus the absolute which 
 Hamilton chased out by the door, is brought in by Spencer 
 through the window. 1 
 
 The purely naturalistic school has furnished a consider- 
 able part of the arguments of the philosophers just referred 
 to. Towards the end of the last century, Lamark tried 
 to explain the creation of organic nature without the 
 intervention of final causes. The ancient Epicureans had 
 tried to show how the fertile and moist earth produced 
 by spontaneous virtue every species of living beings, and 
 how atoms by combining with each other according to 
 the laws of weight and deviation (clinamen) had here 
 formed men and there animals and fishes, on the ground 
 that at times they had seen many incomplete bodies 
 emerge from putrid mud. This view is expounded by 
 Lucretius in his De rerum natura. Such a system was 
 no longer able from its simplicity to satisfy the modern 
 mind. Accordingly Lamark had recourse to various prin- 
 ciples and agents, and chiefly to the action of the environ- 
 ment (milieu}, of use or exercise, and of want, which 
 gradually transformed the monad into humanity. Facts, 
 however, show that the action of the environment (that 
 is, air, water, meteorological variations, and education) is 
 effective only to change the skin and the accessory char- 
 acters of animals ; and Lamark himself admits that it is 
 insufficient to produce the organic forms and their adap- 
 tations. He therefore invokes the vital force, which is 
 excited by want and strengthened by exercise. If the 
 
 1 See Ribot, La psychologic anglaist contemporaine. Paris, iSSl.
 
 68 PHILOSOPHY OF RIGHT. 
 
 environment is changed by terrestrial and telluric revolu- 
 tions, a change in the organism will be necessary in order 
 to adapt it to the new conditions of existence. But this 
 last change will be produced by an internal force, that is, 
 by the vital force. The use of the organs will then 
 complete what the vital force had hardly begun. Facts, 
 however, have abundantly demonstrated that exercise may 
 strengthen organs, but cannot create them. 
 
 Charles Darwin saw that it was necessary to have re- 
 course to other principles in order to explain the trans- 
 formation of species. He was struck by the method of 
 crossing used by English agriculturists in order to improve 
 the breed of cattle, swine, sheep, and horses, and which 
 consists in selecting individuals possessing in the greatest 
 degree the qualities which are in demand, such as the 
 slimmest for swiftness, and the largest for the production 
 of fatness, &c. Why should nature not have reached 
 spontaneously what man obtains by his art, transmitting 
 by way of heredity in the course of ages certain individual 
 qualities that were due to mere chance ? Such perfecting 
 by transmission is what Darwin calls " Natural Selection." 
 This principle is at work in the " Struggle for Life," that 
 struggle which animals carry on for subsistence, and from 
 which the strongest survive; and the good results are 
 perpetuated by means of heredity and " adaptation " to the 
 various conditions in which animals and plants are called 
 to live. Thus Darwin explains the origin of species from 
 some ten primordial types created by the Creator. Every 
 type may perfect itself accidentally and its varieties will 
 not deteriorate, because they are well armed, although in 
 diverse modes, for the struggle for life. Those types, on 
 the contrary, which have not acquired any advantage, 
 perish. According to this law the primitive type disappears 
 when the varieties by acquiring advantages become diver- 
 sified, and the trace of their common origin is lost. So it 
 is not true that man is descended from the monkey, for 
 if it were so, as he is immensely superior to the monkey,
 
 PROLEGOMENA. 69 
 
 lie would have conquered it in the struggle for life, and 
 therefore would have absorbed and destroyed it. Bather 
 are man and the monkey descended from the same type, 
 which has been lost, and of which they are divergent 
 divisions. In a word, according to this hypothesis, the 
 monkeys are not our ancestors, but our cousins-german. 
 Generalising this example, it is not necessary to hold that 
 the vertebrates have been molluscs, nor that the mammalia 
 have been fishes or insects, but that the four branches may 
 have been four rays parted from a primitive centre, which by 
 removing from each other have become infinitely varied. 
 
 Darwin has found followers everywhere, especially in 
 Germany. They generally hold that all organic beings 
 have sprung from one primordial form, that is, from the 
 cell or ovular vesicle. The plants and animals, even the 
 most perfectly organised, are only an agglomeration more 
 or less complicated of this first elementary organic form, 
 the cell. Haeckel adds that the cell is not the last term, 
 but that it is necessary to seek it among those forms 
 recently discovered which are not yet cells, and which con- 
 sist simply in small animated vesicles, or in almost formless 
 mucosity. The cell has already too complicated a confor- 
 mation, and cannot be considered as the primordial form, 
 which would rather be a fleshy bit of matter (sarcode) to 
 which the name plasma would be more applicable. What 
 distinguishes the animal from the plants is contractility. 
 There were beings intermediate between the animal and 
 plants, which are called protisti. Then there arose 
 structureless organisms, which nourished themselves by 
 absorption and reproduced themselves by scission. These 
 were only little masses of contractile albumen capable 
 of nutrition and reproduction; and in their case all the 
 functions, instead of being performed, as in the case of the 
 superior animals, by means of special organs, proceeded 
 directly from the unformed matter. On account of their 
 simplicity, Haeckel calls them moneres, from the Greek 
 (single). The transition to the cell is effected by
 
 7 o PHILOSOPHY OF RIGHT. 
 
 a condensation of the central point, which becomes the 
 nucleus in the plastic mass of the monere; then there 
 appears a viscous substance, and finally the membrane 
 which encloses this nucleus. 
 
 But how were these moneres produced ? In the ocean 
 which surrounded the earth when yet hardly cooled, there 
 were brought forth, says Haeckel, great quantities of 
 moneres of the same kind ; and the diverse conditions of 
 life to which they had to adapt themselves, produced 
 modifications on their homogeneous albuminous mass. It 
 still remains to be known what was the origin of the 
 organised compounds of the globules of albumen from 
 which the primordial cells were formed. In the present 
 day, chemistry extracts organic compounds from inorganic 
 materials, such as alcohol, grape-sugar, oxalic acid, formic 
 acid, fat bodies, and even albumen and fibrin, which are 
 not crystallisable, but only coagulable. This has been 
 called "spontaneous generation" (generatio aequivoca or 
 heterogenea). It was indicated by Lucretius of old when 
 he said : " Living worms are seen to emerge from the mud 
 when the earth, saturated by the rain, comes to a state of 
 putrefaction. The elements, set in motion and brought 
 together in new conditions of existence, give origin to 
 animals." This doctrine had still followers in the i6th 
 and i /th Centuries. Van Helmont describes the means 
 of bringing forth mice ; and others taught the art of pro- 
 ducing frogs and eels. An experiment of Eedi destroyed 
 these illusions by demonstrating that the worms which 
 are found in putrefying flesh, are the larvse of the eggs of 
 flies, and that by enclosing the flesh in a very thin veil 
 these worms are not brought forth. The microscope has 
 furnished to the predecessors and successors of Darwin 
 other arguments for spontaneous generation, but the latest 
 experiments of Pasteur are decisive against it. He proves 
 that the air contains millions of corpuscles organised like 
 germs, and they decrease in proportion as we rise in the 
 atmosphere. He shows that when we remove these
 
 PROLEGOMENA. 71 
 
 organised corpuscles which are supposed to be germs, we 
 no longer obtain the production of infusoria. 1 
 
 The impossibility of spontaneous generation having been 
 proved, the system of Darwin is reduced to an investiga- 
 tion of the question, whether the Creator created a few 
 types or all the existing species ? The first objection to 
 this system arises from its improper assimilation of artificial 
 selection with natural selection. The difference of these 
 two things is evident, because the first is intelligent and 
 produced by man, who knows what he wishes, while the 
 second is represented as the work of blind nature, that is, 
 of chance. It may be added that experience has shown 
 that in the case of artificial selection, animals are as a rule 
 no sooner left to themselves than they return to their 
 primitive type. A second objection not less grave arises 
 from an absolute absence of intermediate types. There 
 have been found in the pyramids of Egypt, and in excava- 
 tions elsewhere, animals that existed more than three thou- 
 sand years ago exactly similar to the actually existing 
 species. Moreover, it is also the case that, even in the 
 geological strata which go back to thousands of thousands 
 of years, while there are found extinct species, at the same 
 time there are also found almost all the species still exist- 
 ing, and that these do not differ in the least part from those 
 which we still have before our eyes. 
 
 12. 
 
 It is now time to gather together these scattered ideas, 
 and to show the progress of philosophy in its funda- 
 mental systems of Sensualism, Idealism, Scepticism, and 
 Mysticism. 
 
 We have said that if Greece received its religious tradi- 
 tions from the East, its philosophical development was 
 indigenous. 2 The first philosophers of the Ionic School 
 
 1 See Janet, Le materialisme contemporain. Paris, 1864. 
 
 .fa.
 
 72 PHILOSOPHY OF RIGHT. 
 
 sought for the primary elements without explaining change. 
 Heraclitus presents himself as the philosopher of the 
 becoming, and he is the precursor of Democritus and 
 Leucippus. On the other hand, Anaxagoras held that all 
 was confused, and that a mind intervened and ordered all, 
 without, however, distinguishing it from material nature. 
 Plato, after having defined matter as a being extremely 
 difficult to understand, an eternal bond that is not clear to 
 the senses yet perceptible, says that the supreme orderer 
 took this mass which was agitated by an unbounded and 
 unregulated motion, and from the disorder made order 
 spring. According to Aristotle, indeterminate matter at 
 the highest degree of abstraction is without attributes. If 
 it always tends to form, to actuality, it is because it has 
 in itself a principle of potency, of force. In the view of 
 Aristotle, force is the principle of form which is sub- 
 stantial. 
 
 Christianity was not favourable to matter, which it re- 
 presented as a dark inert substance, fixed and absolutely 
 passive ; in a word, as an obstacle to the spiritual and noble 
 nature of man. Accordingly the Christian system em- 
 braced the opinion of Aristotle, which represents form as 
 a necessary attribute of matter, as an external principle. 
 
 The Eenaissance reacted against Aristotle, and materi- 
 alism became predominant. Bruno himself seems to follow 
 the principle of Lucretius. "There are no determinate 
 limits to the universe ; a real limit is not intelligible ; 
 God, the world, and matter, are but one sole and same 
 thing ; and the universe is an infinite being animated in 
 all its parts. The human mind is a fraction of the divine 
 mind." Matter is to Bruno the mother of all that has 
 life ; it includes in itself all germs and all forms. " What 
 at first was seed becomes herb, ear, bread, chyle, blood, 
 seed, embryo, man, corpse, which becomes earth or stone 
 or some other inert matter, and so on. Nothing seems 
 stable, eternal, and worthy of the name of principle, unless 
 it be matter." There is but little difference between
 
 PROLEGOMENA. 73 
 
 this statement and the language of Huxley, a continuator 
 of Darwin. We open one of his Lay Sermons, 1 entitled 
 On the Physical Basis of Life, and there we read as follows : 
 " What, truly, can seem to be more obviously different 
 from one another, in faculty, in form, and in substance, 
 than the various kinds of living beings ? What community 
 of faculty can there be between the brightly- coloured 
 lichen, which so nearly resembles a mere mineral incrusta- 
 tion of the bare rock on which it grows, and the painter 
 to whom it is instinct with beauty, or the botanist whom 
 it feeds with knowledge ? ... If we regard substance, or 
 material composition, what hidden bond can connect the 
 ilower which a girl wears in her hair and the blood which 
 courses through her youthful veins ? . . . But I propose 
 to demonstrate to you, that, notwithstanding these apparent 
 difficulties, a threefold unity namely, a unity of power 
 or faculty, a unity of form, and a unity of substantial com- 
 position does pervade the whole living world." Nutri- 
 tion, growth, reproduction and contractility are common 
 to all living things ; and they are all composed chemically 
 of carbon, hydrogen, oxygen, and nitrogen, which thus 
 united form protoplasm. As they live they waste and re- 
 pair their forces. " Every word uttered by a speaker costs 
 him some physical loss; and, in the strictest sense, he 
 burns that others may have light so much eloquence, so 
 much of his body resolved into carbonic acid, water, and 
 urea. . . For example, this present lecture, whatever 
 its intellectual worth to you, has a certain physical 
 value to me, which is conceivably expressible by the 
 number of grains of protoplasm and other bodily sub- 
 stance wasted in maintaining my vital processes during 
 its delivery." 
 
 Bacon did not deny mind, but intent on formulating 
 the method of induction, he gave it very little attention. 
 Descartes, by his incomplete definition of substance, estab- 
 
 1 Lay Sermons, Addresses, and Reviews, by Thomas Henry Huxley, 
 LL.D., F.R.S. 2nd ed. Lond., 1871.
 
 74 PHILOSOPHY OF RIGHT. 
 
 lished a dualism. He revived the idea of mechanism in 
 nature, but he required the "shove" of the Creator to 
 set it in motion. The Greek atomism, resuscitated and 
 strengthened by Descartes by aid of the hypothesis of the 
 ether, was adopted by Newton and the modern mechanical 
 school. This school has followed out the discoveries 
 which have calculated the celestial motions ; it has investi- 
 gated the nature of the ether which is moved by the sun ; 
 and it reduces force to the product of mass by the velocity. 
 On the other hand, Leibniz made dualism disappear by 
 resuscitating the actuality (evepyeia) of Aristotle ; because 
 if matter tends to form, this is because it has in itself a 
 principle of potency or force. The dynamism of Aristotle 
 was indeterminate, and Leibniz completed it by demon- 
 strating that the type and source of force is the mind. The 
 new dynamical school of the present day has proved the 
 absolute indestructibility of energy, and has demonstrated 
 by numerous examples the fundamental identity of the 
 appetent and elective forces of chemistry and of crystallo- 
 graphy with those that psychology reveals. 1 
 
 The atomic school formulated a first theory of know- 
 ledge. It considered the soul as composed of atoms very 
 subtle and spherical like those of fire. The soul makes 
 every possible effort to go out of the body, but it is retained 
 by the breath, and death takes place with the suppression 
 of the breath. Sensation is the sole source of our cogni- 
 tions ; for bodies send forth atomistic emanations^ which 
 penetrate into the brain and excite the images of things. 
 Pythagoras was the first to rise to general relations, making 
 the principles of things consist in numbers. The numbers 
 of Pythagoras are the first germs of the ideas of Plato, 
 the prototypes of things, and of the actuality of Aristotle. 
 The Alexandrians tried to make it more conceivable how 
 the intelligible implies the intelligent and the ideal the 
 mental, by considering the intelligible species as Ideas of 
 God, and thus explaining the theory of Plato under this 
 
 1 See F. Papillon, La nature et la fie. Paris, 1874.
 
 PROLEGOMENA. 75 
 
 aspect. Christianity, with its doctrine of creation ex nihilo, 
 furnished St. Augustine with the means of putting man 
 into mental communication with God and the universe, 
 under the divine influence, without in the least confound- 
 ing the physical substance with the infinite substance. 
 Thomas Aquinas revived Aristotle's theory of actuality, 
 but connected the species and genera with their supreme 
 principle, by making them concepts of the divine intelli- 
 gence or archetypes of creation ; and he expressly main- 
 tained that the intelligible light contained in the active 
 intellect is an emission of the divine nature. 
 
 Whereas the Middle Ages had abused reasoning, and 
 the Eenaissance had sought to conceal its own ideas under 
 the veil of the ancient systems, the modern period turned 
 frankly to external observation with Bacon, and to internal 
 observation with Descartes. From Bacon have proceeded 
 Hobbes, Locke, Condillac, and the contemporary positivists; 
 from Descartes have come Eeid, Kant, Galuppi, and all 
 the psychological school. Descartes, considering clear and 
 evident ideas as certain, had formed a criterion of truth 
 which was wholly internal, and which he was obliged 
 to supplement by faith in the divine veracity, a higher 
 principle of harmony between thought and reality. Male- 
 branche felt it necessary to identify immediately what is 
 in thought with what is in being, the intelligible with the 
 real, and to show that internal truth depends on absolute 
 truth. The system of Malebranche lacked a clear criterion 
 as to the creation ; and thus he attributed to God all effi- 
 cient causation, saying that we see all things in God, who 
 alone acts and modifies us. Malebranche, without know- 
 ing it and without wishing it, opened the way to all the 
 pantheists, materialists, and idealists, from Spinoza to 
 Hegel. Leibniz endeavours to reconcile Plato, Demo- 
 critus, and Aristotle, with Descartes, and the scholastics 
 with the moderns, by extracting from all their systems 
 a quaedam perennis philosophia. " The foundation of the 
 truth of contingent and singular things," he says, " lies in
 
 76 PHILOSOPHY OF RIGHT. 
 
 the fact that sensible phenomena are in agreement with 
 intelligible truths." Let metaphysics therefore compare 
 things possible with each other and seek for the best, that 
 is, that which will contain most convenience, simplicity, 
 and beauty, and thus it will penetrate into the secret of 
 creation. In order to attain this it will have to make use 
 of the principles of contradiction and of sufficient reason. 
 The first will conduct us to the possible, the second to 
 the real. As ideas are linked together with each other, so 
 beings are interconnected with each other, since the laws 
 of thought and of nature are the same. Substance is 
 essentially active; that is, it is composed of forces or 
 monads which strive after and comprehend each other 
 reciprocally, according to the degree of their development. 
 How is this possible, seeing that monads are independent ? 
 By means of a harmony pre-established by the Creator : 
 a view which takes from man all true liberty. Gioberti 
 has perfected philosophy by rightly distinguishing intui- 
 .tion from reflection, and immanent thought from successive 
 thought, and by this he puts the objectivity of the idea 
 beyond all doubt. He has also better explained the nexus 
 between the subject and the object, between things and 
 ideas, by his theory of the creative act. This explana- 
 tion has been always present to the human mind, and has 
 been more or less clearly enunciated in the systems that 
 are truly idealistic, such as those of Plato, Aristotle, St. 
 Augustine, Thomas Aquinas, Leibniz, and Vico. It re- 
 duces itself to the principle of contradiction, and to those 
 of causality and of sufficient reason, resumed in a primary 
 judgment. Vico had said openly " The true is the fact, 
 i.e., what is, is what is done, and therefore God is the first 
 truth because He is the first doer ; God does or makes, 
 that is, creates ad extra, and He generates ad intra." 
 Gioberti has the merit of having definitely formulated 
 the theory of the creative act, around which the battle of 
 modern science is being carried on. 
 
 Psychology is the substratum of metaphysics, and some
 
 PROLEGOMENA. 77 
 
 schools have wished to reduce all philosophy to it, as the 
 reader may have remarked iii the course of our rapid 
 sketch. Materialism could not but necessarily attribute 
 thought to matter, and define the soul as a subtle matter, 
 or a breath. Cabanis says expressly that thought is a 
 secretion of the brain. Carl Vogt has added for the sake 
 of greater clearness that the brain secretes thought as 
 the liver secretes bile, and as the kidneys secrete urine. 
 Sensualism says the same in terms that are only less crude. 
 Condillac introduces us to the birth of all ideas and of all 
 the faculties of sensation. The English School, which 
 prefers to call itself positive, seeks the germ of our faculties 
 in the reflex action of the universe upon us. Thus Herbert 
 Spencer says that reflex action becomes instinct, and from 
 instinct there spring on the one side the faculties which 
 he calls " cognitive," such as memory and reason, and on 
 the other side the affective faculties, the sentiments and 
 the will. Similarly Bain reduces the laws of intelligence 
 to intellectual molecules which are conjoined and held 
 together by association. All the efforts of this school tend 
 to confound psychology with physiology (which Jouffroy 
 forty years ago had taken so much pains to separate), and 
 to bring human physiology into close connection with 
 animal physiology in order to subject it to the law of 
 evolution. 
 
 Plato considers the soul as an active force, and distin- 
 guishes in it the rational part and the animal part, which 
 are united together by the dv^o?. 1 It is a prisoner in 
 the body, and it rises to knowledge by means of certain 
 notions or ideas proper to reason, which are, as the basis of 
 every thought that resides in us, anterior to all particular 
 perception, and determine our actions. Such ideas are 
 resuscitated in the mind by the perception of things made 
 in their image, and this takes place as by a species of 
 
 1 This word is usually translated the affective faculty which partici- 
 by the terms " soul," " courage," pates in the reason and the senses, 
 "appetite," but it properly indicates
 
 7 8 PHILOSOPHY' OF RIGHT. 
 
 remembrance. Plato distinguishes with sufficient exact- 
 ness the faculties of knowing, feeling, and willing, and 
 the different kinds of perceptions, sentiments, and deter- 
 minations. 
 
 Aristotle defines the soul to be the first "entelechy" 
 of a natural organised body which potentially contains 
 life. He enumerates five kinds of souls: the nutritive 
 soul, common to animals and plants; the sensitive soul, 
 the cause of sensation ; the locomotive soul ; the appetitive 
 soul, the source and spring of the will; and lastly, the 
 rational soul. He does not distinguish well the organic 
 part from the rational ; and he has thereby given occasion 
 for the most opposite interpretations. 
 
 Plotinus explains that the soul is present in the whole 
 of the body and in every part of it. St. Augustine adds 
 that we know the soul directly, and that we know it as 
 immaterial ; and therefore that it can be present in every 
 part of the body, and can contain images of the most 
 extended objects. As Augustine perfected Plotinus, so 
 Thomas Aquinas perfected Aristotle. He finds that the 
 nutritive faculty, the sensitive faculty, the locomotive 
 faculty, and the rational faculty belong to the same soul. 
 "Auima enim est primum quo nutrimur et sentimus et 
 movemur secundum locum, et similiter quo primo intelli- 
 gimus." The identity of the soul in its various operations 
 is demonstrated by the fact that when it employs one 
 with energy the others are suspended. The superior form 
 accordingly comprehends the inferior ; that is, the rational 
 soul includes the sensitive and nutritive souls of Aristotle. 
 This opinion was recognised as a dogma by the Council of 
 Vienne in 1311. 
 
 Descartes asks, " What am I ? I am," he replies, " a 
 thing that thinks, or that doubts, understands, conceives, 
 affirms, denies, wills, does not will, and that imagines 
 and feels." To Descartes the essence of man consists in 
 thought, which, as we have seen above, is one of the modes 
 of substance. Leibniz directs his mind to explaining the
 
 PROLEGOMENA. 79 
 
 notion of substance, and he rises to the idea of force or 
 energy. Active force is not the abstract power of the 
 scholastics, that is to say, it is not a simple possibility of 
 acting which, in order to be reduced to act, should re- 
 quire an external stimulus. Eeal force includes action in 
 itself; it is an entelechy, a power intermediate between 
 the simple faculty of acting and the determinated or 
 effected act. This active force is inherent in every sub- 
 stance which cannot remain a single instant inoperative ; 
 and this applies to corporeal substance as well as to 
 spiritual substance. The soul is an active force, and as 
 such it knows immediately what it does, and mediately 
 what it feels. Free activity is the necessary condition of 
 immediate perception, or of the knowledge of self (con- 
 scientia, scire cum) as well as of mediate external apper- 
 ception conjoined with feeling of the Ego, which is 
 essential to every feeling or idea. The soul does not 
 know itself as a sensible force ; it does not know that it 
 lives, feels, and acts. This is the source of the obscure 
 perceptions which Leibniz attributes to the soul in the 
 state of a simple nionad or living force. The pre-existence 
 of the obscure perceptions, especially of those which are 
 immediately bound to the functions of the animal life, 
 cannot escape the attentive observer who is able to dis- 
 tinguish the previsive dominion of the spirit from the 
 passivity (fatuvi) of the body. 
 
 Descartes had said " I think, therefore I am." Maine 
 de Biran corrected him, saying: "I will, therefore I am." 
 Without action thought would not exist, and the true 
 name of thought is will. We only attain gradually to the 
 knowledge of this truth. We have hardly a gleam of it 
 in the sensitive life which is common to the animal and 
 the child ; but in the perceptive life, or the life of reflec- 
 tion, we become aware that the motive force makes us 
 perceive objects which become known to us by their 
 resistance and the acting subject as well by a sort of 
 reverberation. To perceive is therefore to move oneself
 
 So PHILOSOPHY OF RIGHT. 
 
 and to act. To have consciousness is also acting; it is 
 willing. Reason itself is only an extension of the will. 
 
 We are now able to formulate our conceptions of nature, 
 knowledge, and the soul. 
 
 "We have seen Leucippus and Democritus teaching from 
 the most ancient times that matter is composed of cor- 
 puscles that are indivisible but indestructible, the number 
 of which is infinite as is the greatness of the space in 
 which they are scattered. These corpuscles are solid and 
 endowed with figure and motion. The diversity of their 
 forms determines the diversity of their movements and 
 of their mode of aggregation, and consequently of their 
 figure. The Greek atomism, however, had an enormous 
 lacuna which Descartes has filled up by discovering the 
 ether which serves for the transmission of motion. But, 
 exclaimed Leibniz, everything can be explained mechani- 
 cally except the mechanism itself. In ancient times this 
 was understood ; and Pythagoras, Anaxagoras, and Plato 
 gave the predominance to a spiritual principle. According 
 to Aristotle, matter at its highest degree of abstraction is 
 indeterminate, and tends to form or to actuality. It has 
 in itself a principle of potency, of force, which is a simple, 
 unextended, incorporeal principle. The universe is a vast 
 dynamism, a wise system of co-ordinated forces. Leibniz 
 reproduced the doctrine of Aristotle, denying all imme- 
 diate action (influxus physicus) between the monads, and 
 believing that an ideal connection, or a disposition to the 
 internal modifications which would make them harmonise 
 with each other, was sufficient. Neither Aristotle nor 
 Leibniz wished to exclude substance, which they considered 
 essentially active. Kant, in his Metaphysical Foundations 
 of Physics, seems to have wished to construe nature with 
 the simple notion of force. He imagines two elementary 
 forces, attraction and repulsion, which compose the uni- 
 verse. This doctrine is followed by Schelling. It is 
 necessary to come to an understanding as to the meaning 
 of the word " force." In mechanics, force is the cause of
 
 PROLEGOMENA. 8r 
 
 motion; in metaphysics it is not only a cause, but it 
 becomes a substance, a species of spiritual atom. Sub- 
 stance and force are indissolubly united so as to com- 
 pose what we call a being. The basis of corporeal 
 things cannot be extended substance, although there will 
 always remain a residuum irreducible to the notion 
 of force, which it has been sought in vain to absorb 
 into this notion. Substance without force is nothing, 
 just as the concave is nothing without the convex. 
 Leibniz was right in seeking the origin of mechanics 
 and mathematics in metaphysics ; but he was wrong in 
 stopping at the notion of force, which is itself a mechani- 
 cal and mathematical notion, and in not ascending to the 
 actuality of Aristotle which is the inexhaustible source of 
 force. 1 
 
 What philosophers called " the Soul of the World," was 
 an immaterial force mingled with matter, not extending 
 beyond it, and which served as a motor and plastic prin- 
 ciple giving it movement and that variety of forms which 
 we admire in the universe. Plato, thinking that pure 
 intelligence or the substance of the eternal ideas could 
 not act directly on matter, imagined a substance inter- 
 mediate between these two principles. He conceived it 
 as formed of an invariable identical element, like intelli- 
 gence, and of a variable element like sensible objects. 
 The active substance of Leibniz, the metaphysical point 
 of Vico, and the melhexis of Gioberti, ought not to be coc- 
 founded with the soul of the world, which has been set 
 aside as a useless hypothesis, because there is nothing to 
 prevent God from acting directly upon bodies or to hinder 
 the manifold immaterial forces from producing all the 
 phenomena of nature. Here arises the somewhat indiscreet 
 question as to whether God created one substance of a 
 single species which, by transforming itself, has produced 
 all other species ; or whether He created all the existing 
 
 1 See Janet, L'idte de force et la philosophic dynamique. Revue do 
 Deux Mondes, i" Mai 1874. 
 
 VOL. I. F
 
 82 PHILOSOPHY OF RIGHT. 
 
 and extinct species, which differ from each other not only 
 in degree but also in essence. 
 
 The theory of knowledge may be applied to elucidate 
 the theory of existence. If ideas are the prototypes of 
 things, and if their totality constitutes the essence of God 
 in which our mind perceives them, it follows that specific 
 essences ought to correspond to the specific ideas. The 
 proper form of the intellect is the intelligible species, 
 which abstraction separates from sensation, and which is 
 found in all minds, and is applied to all the objects of 
 the same class. The controversy became burning in the 
 Middle Ages, first in opposition to the Nominalists, who 
 considered the genera and species as flatus vocis, and then 
 in opposition to the Averroists, who maintained thought 
 to be impersonal and identical in all men. In our days 
 the controversy has been renewed again with Positivism 
 and Darwinism ; and we have no other means of defending 
 knowledge and existence than the Platonic doctrine of 
 ideas as carried to perfection by Gioberti. A singular 
 way this of proving facts by a hypothesis! will be the 
 exclamation of some minute observer of nature, not con- 
 sidering that there are not only physical facts but also 
 mental facts. Men, says Plato, are like prisoners chained 
 in a cave underground, and above them over their shoulders 
 there is an opening through which there penetrates a 
 light, produced by a fire which they cannot see, because 
 they are chained to the walls of the cave in such a way 
 that they can neither move their body nor their head. 
 Before the aperture of their dungeon men pass over a 
 low wall who carry objects, the shadow of which is re- 
 flected on the walls of the caVe. What do the prisoners 
 think of these shadows ? They fancy that they are 
 realities, the only realities which exist ; and if the passers 
 by to whom we have referred should speak and their 
 voices were to be repeated by the echo of the cave, the 
 prisoners would naturally believe that the shadows were 
 speaking. If one of these prisoners were to be suddenly
 
 PROLEGOMENA. 83 
 
 led up to the open air, he would begin to distinguish the 
 shadows and then the objects in themselves. This is the 
 history of the soul. It is a prisoner here below, and by 
 meditation it has to release itself from the bonds of the 
 body in order to contemplate the ideas in themselves. 
 By means of the senses we are enabled to understand that 
 all equal things tend to an intelligible equality, below 
 which, however, they always remain. "Whence can the 
 idea of this equality come ? Certainly not from sensation, 
 but from thought. It is one of the modes of thought, or 
 something substantial. In order to reach it, we must go 
 out of ourselves and turn to an invisible point in which 
 the object touches the subject and forms the unity of the 
 synthesis of thought. 
 
 This point, according to Gioberti, is the first intuitive 
 judgment : Being creates the existent. But is the intuition 
 which apprehends Being the very same, or at least is it 
 realised in the same way as that which apprehends the 
 existent? In such a case, seeing that in the intuition of 
 the existent the subject and the object are equal and the 
 one acts upon the other, the same ought to happen in the 
 intuition of Being, and this intuition would exist before 
 Being had created. There is therefore another mode of 
 knowing different from and superior to that which we 
 call successive and reflective. It has as its proper object 
 the creating Being, to the exclusion of the existent ; whence 
 its immanence is transferred into the act which contem- 
 plates it, from which therefore all succession is excluded. 
 This being an immediate synthesis between the infinite 
 and the finite, it ought to have certain special qualities, 
 the most singular of which is that, while the creating 
 Being works in us, we do not work in that Being, although 
 it is the object of our contemplation. Thus it is that 
 the cognition is totally determined by the action of the 
 creative cause, and consequently it is a true infallible 
 revelation. In this primitive and immanent state of cogni-
 
 84 PHILOSOPHY OF RIGHT. 
 
 tion, the activity involved is not distinct nor separated 
 from thought, but they are one and the same thing. 
 Hence thought has not for its immediate cause the think- 
 ing activity or the existent, but Being, which at a certain 
 point creates the thinking activity. And on this account 
 the spirit introduces nothing of its own into the object, 
 seeing that that object arises at that very point at which 
 it springs itself into existence, and it cannot unfold any 
 act of its own before it thinks; and thus its essential 
 activity is just thought. In this way Being, wholly 
 stripped of any subjective property, offers itself to our 
 immanent thought. Consequently it cannot be that the 
 spirit has cognition of itself in this immanent thought, 
 although it does yet know itself in a certain way ; but this 
 primitive manner of knowing itself may be compared to 
 the eye which sees the light and itself in the light, because 
 light is its essence. It does not know itself in itself as 
 existent, but in its cause and in the transition of the 
 creative act. The immanent thought is a pure intuition 
 of the intelligible; it is a sort of terminus or an effect 
 which regards the intelligible Being as its principle and its 
 cause. It is perfect, identical in all men, not susceptible 
 of progress, necessary, and out of time. It is a perception 
 of being without judgment, since every judgment implies 
 an act of attention and consciousness, which cannot have 
 place in this thought, as it is included in the creative act 
 of this Being, which as it is alone truly operative, so it 
 alone truly affirms and gives place to the two objective 
 judgments : / am ; I create. Hence it follows that im- 
 manent thought cannot be directly apprehended, although 
 every act of attention or reflection implies a human judg- 
 ment, and is related to the succeeding thought. Similarly 
 this immanent thought does not by itself constitute science, 
 which involves consciousness. It only furnishes the con- 
 fused matter or the germ of science ; and science is there- 
 fore the explication of the material thus furnished by
 
 PROLEGOMENA. 85 
 
 means of reflection and speech. 1 This mental process 
 may be verified by every attentive observer because it is 
 a fact. 
 
 To this double state of thought there corresponds a 
 double state in nature, because the existent as created by 
 Being ought to resemble it. Now Being is one, infinite, 
 and essentially ideal and creative. The existent has a 
 finite unity which does not exclude multiplicity ; it has 
 a relative intelligibility, a potential infinity, and a con- 
 creative power, which correspond to the absolute identity, 
 the actual infinity, and the creative power of Being. This 
 analogy between the existent and Being, between the 
 copy and the original, is expressed by the term methexis, 
 which properly means participation. The Methexis is the 
 universe viewed as an intelligible unity which combines 
 in its bosom an always increasing number of forces. 
 There are three methexes : the initial methexis, the medial 
 methexis, and the final methexis. The medial methexis 
 is differentiated from the first and last, because in it 
 multiplicity prevails over unity, chaos over order, and the 
 sensible over the intelligible. The medial methexis is the 
 passage and transition from the initial methexis to the 
 final methexis. This transition involves the issuing of 
 the diverse from the identical, of the individuals from the 
 species ; and as an intermediate factor it binds together 
 power and act, and has the contrary qualities of the two 
 extremes. Hence Gioberti calls it mimesis, or imitation. 
 The mimesis is essentially progressive, inasmuch as the 
 initial methexis goes on actualising itself in order to 
 become final, and the more the mimesis approaches the 
 final methexis, the more does the intelligibility and unity 
 of things increase. Everything is thus on the way to 
 
 1 This is the highest point of meta- filosojta nuova italiana, vol. iii.). 
 
 physics. We have adopted in our Luciani has first shown that the 
 
 exposition the words of Professor Protologia of Gioberti constitutes a 
 
 Luciani in his work, already re- new science distinct from the Onto- 
 
 ferred to, on Gioberti and the new logia which is subordinate to it. 
 Italian Philosophy (Gioberti e la
 
 86 PHILOSOPHY OF RIGHT. 
 
 become thought ; the essence of things is thought, because 
 it is the methexis. It is to be noted that what is here 
 spoken of, is created thought and not uncreated thought ; 
 for the methexis is not the Idea. 
 
 The soul in the methexis occupies a distinct place ; but 
 it may be asked : is it a force and is it only a force ? If 
 so it would be necessary to hold with Herbart that psycho- 
 logy is a part of mechanics, and that the laws of number 
 and weight are applicable to spirit as well as to matter. 
 But there is in the soul a different element higher than 
 force, and this is mind. Force is attached to the soul, 
 depends on it, and emanates from it, but does not con- 
 stitute it. In order therefore to have an adequate idea of 
 the soul we must not stop at force, but rise to the activity 
 which is the inexhaustible source of all force. Maine de 
 Biran has given a new development to dynamism, bring- 
 ing into light the properties of effort and of the will which 
 produces it. The ancient philosophy had left a lacuna 
 in reference to the free will. In the view of Plato the 
 intellect had always the power of making us determine 
 for the good; love, according to him, was a species of 
 fatal desire ; and virtue cost hardly any effort. Aristotle 
 approached the truth when he conceived of morality as 
 the proper and personal activity of the agent ; but he 
 stops at the supremacy of the intellect, not understanding 
 that man possesses in his free will an infinite and absolute 
 worth which makes him an end and never a means or an 
 instrument. Stoicism retained liberty, regarding it as 
 necessity rightly understood. Christianity put forward 
 charity as the love of our neighbour, and consequently 
 gave prominence to duty, leaving law and right in the 
 shade. The first systems of modern times, those of 
 Descartes and Leibniz, did not assign to the will the place 
 that was due to it. Descartes did not exactly distinguish 
 the faculties of the mind, and he confounded the will with 
 the intellect. Leibniz, not recognising any reciprocal 
 action among his monads, had recourse to the hypothesis
 
 PROLEGOMENA. 87 
 
 of the pre-established harmony. Vico, however, said 
 clearly : " Knowing is necessary ; willing is free." Kant 
 afterwards put the will into strong relief, reconstructing 
 in his Critique of the Practical Reason what he had de- 
 molished in the Critique of the Pure Reason. Maine de 
 Biran, studying facts, put the activity of the will out of 
 doubt; and a whole school of young Leibnizians is at 
 present carrying on the war in France against the attacks 
 of the positivists. 
 
 Such are our philosophical conclusions, and they deter- 
 mine us for idealism as against sensualism. We have not 
 spoken of scepticism and mysticism, although we reckoned 
 them at the outset among the fundamental systems. In 
 fact, scepticism and mysticism represent two essential 
 sides of our nature. The human spirit has its moments 
 of weakness and of impatience, and then it becomes 
 sceptical or mystical. It is not desirable that it should be 
 otherwise, because a little scepticism or a little mysticism 
 is a useful corrective of a dogmatism which might become 
 presumptuous and impertinent, or of a rationalism which 
 would dry up the soul. Or to speak more exactly, scep- 
 ticism and mysticism are rather two states of the soul 
 than two doctrines. They are accidents in the history of 
 metaphysics. Thus the remark of Leibniz is verified that 
 the systems are generally true in what they affirm and 
 false in what they deny, so that it is necessary to adopt 
 the better part of their doctrines, but, as he adds, by 
 making at the same time always a step of advance. 
 This is what every new system does, or believes it does ; 
 that is to say, it professes to embrace and improve the one 
 which has preceded it. And thus humanity does not turn 
 round in a fatal circle, but accumulates observations and 
 raises itself always higher. It might be difficult, however, 
 for us to prove this by a minute comparison of the metaphy- 
 sical systems of Plato and Aristotle with those of Leibniz 
 and Gioberti. The two former saw farther because their 
 horizon was unexplored; but the latter two have discerned
 
 88 PHILOSOPHY OF RIGHT. 
 
 things more distinctly because they have profited by the 
 observations of all their predecessors. What is there that 
 is not comprehended in the system of Gioberti ? We have 
 seen how the "methexis" from being initial and then 
 medial becomes final. If space allowed us we might 
 show how the supernatural is an anticipation of the final 
 methexis, and how the supra-intelligible will diminish 
 without being annihilated. 
 
 Having thus found a guidquid inconcussum, we may now 
 begin to rear our moral and juridical edifice.
 
 II. 
 
 ETHICS. 
 
 WE feel, think, and will. This being recognised, it remains 
 for us to see how these faculties act in practical life, and 
 whether their activity proceeds in view of a final end. 
 Undoubtedly sense predominates in the first period of life ; 
 our life is then instinctive and wholly animal. Eeason 
 appears with speech, and then we act no more from im- 
 pulse, but from calculation. Later on reason shows other 
 relations, such as those referring to order and to the good 
 in itself, and the will does not allow itself to be deter- 
 mined merely by pleasure or by the useful, but feels itself 
 obliged to actualise the good. The moral life, properly so 
 called, appears only in the third period of man's life, the 
 first and the second periods being common to us with the 
 animals. All the fundamental systems of philosophy have 
 not recognised the three periods ; for sensualism, scepticism, 
 and partly also mysticism, deny the power of the will to 
 elevate itself to the moral law, as well as the universality 
 of this law. Idealism alone demonstrates the insufficiency 
 of the instinctive and egoistic state to explain all the 
 moral phenomena. We have already shown the close 
 relations of knowing and willing ; and it now remains for 
 us to indicate what the principal philosophical systems 
 have 'gradually unfolded with reference to the doctrine of 
 morals. 
 
 Ethics as a moral doctrine seems to spring full armed 
 from the head of Plato, for he sums up Pythagoras, the 
 ancient sages, and especially his master Socrates. No one
 
 9 o PHILOSOPHY OF RIGHT. 
 
 has better distinguished than Plato what the absolute 
 good is ; and he identifies it with God, whom we ought to 
 seek to imitate. The good in everything is order; and 
 the soul to be happy and wise ought also to be well 
 ordered. The soul realises the good by means of virtue, 
 which is composed of four elements : wisdom, courage or 
 constancy, temperance, and probity or justice. There is 
 nothing more beautiful than justice; and love leads us 
 to it. Injustice is an evil and demands a remedy which 
 consists in punishment and expiation. Punishment, says 
 Plato, liberates the soul from evil. 
 
 Plato, however, in his psychology, does not rightly dis- 
 tinguish the faculty of knowledge from that of will. Evil 
 is committed only from ignorance. We do not find any 
 description of that intermediate state in which the soul 
 does not do the good which it knows and loves, and in 
 which it prefers the evil which it knows and hates. The 
 personal activity is thus limited ; and this is a point which 
 Aristotle undertook to correct. 
 
 Aristotle, in his Metaphysics, distinguishes between 
 potentiality and actuality. In his Ethics, he explains that 
 actuality is identical with the end or purpose; and he 
 called the aspiration which every being has to pass from 
 potentiality to actuality, desire. The end of a being can 
 consist only in the good ; and the perfect being will be 
 that one in which there will be no more potentiality, but 
 all will be actuality. Man loves action, and virtue con- 
 sists in attaining actuality. Pleasure springs from action ; 
 it is an adjunct or complement which is superadded to 
 activity as beauty is to youth. Aristotle, in his theory of 
 the virtues, distinguishes free will, personal responsibility, 
 and the influence of habit in the exercise of the virtues. 
 In these points he excels Plato, who had confounded 
 virtue with science, and had left the practical conditions 
 of morality in the shade. He approaches Plato again, 
 when he gives the predominance to the intellectual 
 virtues over the moral virtues, and makes the highest
 
 PROLEGOMENA. gi 
 
 happiness consist in thought, which renders us like the 
 gods. 
 
 Epicurus made happiness the end of morality, but he did 
 not regard it as consisting in the actualisation of the good, 
 but rather in the prudent search for pleasure. He reduced 
 all virtue to the avoiding of the greater pain and seeking 
 the better pleasure which is the tranquillity of the soul. 
 " Our wants," says Epicurus, " are of three kinds : natural 
 and necessary, such as hunger and thirst ; natural and not 
 necessary, such as the desire of delicate foods ; and facti- 
 tious, such as the craving for spirituous liquors. The wise 
 man combats the last of these, moderates the second, and 
 satisfies the first. What is strictly necessary ought to 
 satisfy the happiness of the wise man ; with a bit of barley 
 bread and a cup of water, he may be as happy as Jove." 
 
 Zeno the Stoic combated pleasure as unstable and de- 
 ceitful, and he found happiness in the fulfilment of duty, 
 that is, in the observance of the laws of nature. Man has 
 a place assigned him in the universe by an inexorable 
 destiny, and he cannot desert it except by suicide. By 
 combating his good or bad passions, man may attain to 
 a state of insensibility which Zeno and his followers call 
 happiness. 1 
 
 Christianity regarded morality as a resurrection. The 
 soul, having lost its purity by original sin, the sacrifice of 
 a God was necessary for its redemption. The fundamental 
 precept of the Christian doctrine of morals is this : Love 
 God above everything, and thy neighbour as thyself. The 
 love of God is generally inseparable from the love of our 
 neighbour, which is charity ; but the true perfection lies 
 in the contemplative life, in prayer, and in ecstacy. Plato 
 established a sort of natural society between man and 
 God ; Christianity proclaimed the absolute dependence of 
 man. St. Augustine starts from the Platonic idea that 
 man by reason perceives the eternal law of all truth and 
 
 1 See Denis, Histoire dcs theories et dcs idces morales dans I'antiquiU, 
 2nd ed. Paris, 1879.
 
 92 PHILOSOPHY OF RIGHT. 
 
 all justice, and actualises it by means of free will. But 
 in the later period of his life, in connection with his con- 
 troversy with Pelagius, he abandoned this idea, and main- 
 tained that the soul after the fall lost the liberty of 
 abstaining from sin, but preserved that of committing it, 
 and that God immediately directs the will to do good, 
 granting or denying this grace according to His pleasure. 
 This is the Augustinian doctrine of election and predestina- 
 tion. The Church modified the Augustinian doctrine by 
 establishing the view that human liberty is not annihilated, 
 but is supported by the divine grace, which is granted to 
 whoever does not reject it. 
 
 As Augustine had thus sought to attach the Christian 
 ethics to Plato, Thomas Aquinas endeavoured to connect 
 them with the doctrines of Aristotle. He lays down the 
 position that all beings have an end, and that the final 
 end of man is happiness. But he asks, what is this happi- 
 ness ? It is not the happiness which springs from material 
 goods, which are transitory ; nor that of a tranquil soul, as 
 the soul cannot rest in itself, but only in its final end, which 
 is God. He therefore distinguishes an imperfect happiness, 
 which is that of this world here below, from the perfect 
 happiness, which must be exempt from all evil, and which 
 being attainable only in the other life, consists in the 
 contemplation of God face to face. By this distinction, 
 Aquinas departed very far from the views of Aristotle, as 
 Aristotle placed happiness in meditation, or in the philo- 
 sophical life, and believed that the natural virtues were 
 sufficient. Thomas. Aquinas, on the contrary, shows, like 
 Plato, that every created being is imperfect, because it is 
 only in part, and that the supreme good is in God. And 
 he adds as a Christian, that the natural virtues which are 
 derived from the intellect and the will are insufficient to 
 elevate us to the supra-natural order ; that intelligence is 
 subordinate to the supra-intelligence which is faith ; and 
 that the will is attracted by faith and love. Faith, hope, 
 and charity do not pass above nature, but complete it.
 
 PROLEGOMENA. 93 
 
 The Renaissance attacked scholasticism ; and in a more 
 disguised way it attacked Christianity itself in the name 
 of reason and nature. The Court of Eome was seduced by 
 the splendour of the arts and by eloquence ; and paganism 
 seemed to be reviving. A vigorous reaction was not long 
 in manifesting itself ; and Luther and Calvin denied all 
 efficacy to human works by resuscitating and exaggerating 
 the Augustinian doctrine. Melanchthon was regarded as 
 almost a heretic when he maintained that we have the 
 liberty to resist grace. 
 
 The modern period was opened by Bacon. He divides 
 moral philosophy into two parts: the good in general, 
 which he says has been well treated by the ancients and 
 the scholastics ; and the mode of regulating our conduct 
 in life, which deserves to be better cultivated. Bacon 
 denies the superiority of the contemplative life when it 
 does not tend to better the active life. He desiderates 
 that the passions and affections be studied and described, 
 a thing which had been done till then rather by the poets 
 and historians than by the philosophers. 
 
 Bacon's wish was soon carried out. In 1649 there 
 appeared a treatise by Descartes on the passions, which 
 he analysed from the physiological and psychological side, 
 and he also considered the method of regulating them. 
 Nevertheless, Cartesianism was not directly favourable 
 to moral philosophy, as Descartes did not recognise the 
 action of second causes, but regarded them as existing 
 only because they are created every moment by God. 
 Malebranche, with a certain originality, distinguishes in 
 things the relations of quantity and perfection, that is to 
 say, he distinguishes the mathematical and the moral 
 truths. The mind uses the mathematical relationships 
 in order to know things and to submit them to calcula- 
 tion ; but the relationships of perfection induce and oblige 
 it to prefer and love those things which possess them. 
 Man is therefore driven by his nature not only to know 
 but to love ; and he loves what is most perfect, that is,
 
 94 PHILOSOPHY OF RIGHT. 
 
 God, and then things in proportion as by their perfection 
 they approach God. But as God creates in us our ideas, 
 He also creates our acts. Thus our liberty consists in the 
 attention which we accord to the work of God ; and virtue 
 consists entirely in spiritual force. Malebranche was the 
 first to divide the science of ethics into three parts, treat- 
 ing respectively of the duties towards God, towards our- 
 selves, and towards other men. Spinoza carried out to its 
 extreme issue the definition of substance given by Descartes, 
 and he found only one substance which develops itself 
 according to secondary laws. How is a doctrine of morals 
 possible in this system ? The good and the evil are merely 
 relative ideas. Virtue is power, and it consists in having 
 adequate ideas, as the soul is passive and enslaved in 
 inadequate and confused ideas. It is necessary therefore 
 to make reason predominate over the passions, and to get 
 near to the supreme intelligence. Leibniz vainly endea- 
 voured to eradicate the germs of pantheism which he 
 discerned in the Cartesian philosophy, by substituting for 
 the view of a continuous creation that of a continuous 
 participation, and for the absolute passivity of the crea- 
 tures their essential activity ; for he does not explain the 
 physical and moral order otherwise than by an hypothesis, 
 namely, that of a pre-established harmony. 
 
 Vico, considering God as the immovable mover of all 
 created things, makes Him also the mover of the human 
 spirit. This movement, however, does not consist in an 
 impulsion or mechanical push, but in its virtuality as 
 communicated to it by creation, a virtuality or power 
 which includes what are called faculties, such as are ex- 
 hibited in thought and will. And as the mind cannot but 
 think Being, that Being which is the true and the good 
 in itself, so it is never separated therefrom, not even in 
 its errors, as it is not possible that the mind even in 
 its aberrations should think of nothingness, nor that the 
 will, however culpable, should wish it. Thus we lay 
 hold of the false only under the appearances of the true,
 
 PROLEGOMENA. 95 
 
 or we will what is evil under the appearance of the 
 good. 
 
 Sensualism, which had shown itself timidly in the 
 Middle Ages and more openly in the Eenaissance, came 
 to its full manifestation in modern times with Hobbes. 
 This philosopher distinguishes the cognitive faculties from 
 the affective faculties. Sensation commences with the 
 action on the brain ; is communicated to the heart ; and 
 there produces joy or pain, love accompanied with desire, 
 or hatred accompanied with aversion. When there is 
 experienced in reference to the same thing, now desire 
 and then aversion, this alternative while it lasts is called 
 deliberation. When in consequence of deliberation one 
 of the two movements conquers the other, it takes the 
 name of will ; and when the will produces execution, there 
 is liberty of choice, so that liberty is not independence, 
 but simply the absence of any obstacle to the will. 
 
 Locke sought to save the activity of the mind by dis- 
 tinguishing reflection from sensation. But he failed ; for in 
 order to escape from the innate ideas of the Cartesians, he 
 made the mind a tabula rasa, and reflection served only 
 to elaborate what sensation furnished to it. Deriving 
 everything from sensation, moral good and evil could be 
 nothing else, according to Locke's principle, than the plea- 
 sure and pain which accompany an action. Helvetius, 
 Saint-Lambert, Volney, and Bentham were the faithful 
 interpreters of this doctrine. 
 
 The Scottish School of philosophy distinguished a priori 
 truths from d posteriori truths, designating the former by 
 the names of fundamental laws of belief, primitive beliefs, 
 and truths of common sense ; and it proceeded to show 
 that these could not come from experience. Hutchison, 
 the first thinker of this school, started from Locke's theory 
 of knowledge, and he sought to endow us with a special 
 sense which could discover moral good in human actions. 
 Adam Smith took a step in advance and derived the good 
 from the moral sentiments, which were all reduced by him
 
 96 PHILOSOPHY OF RIGHT. 
 
 to sympathy. It did not cost Price much trouble to 
 demonstrate that the idea of the good can only take its 
 origin in the intuitive reason, and he was followed in this 
 line by Eeid and Dugald Stewart. This school rendered 
 great services to moral science by its fine psychological 
 analyses. This is sufficiently shown by referring to the 
 investigations of Eeid relating to instinct, the appetites, 
 the desires, and the affections, which he designated by the 
 complex term, principles of action. 
 
 We have already seen that Kant in his Critique of the 
 Pure Reason became imprisoned in the Ego ; but he did 
 not suffer this imprisonment long, for he sought to break 
 his fetters in the Critique of the Practical Iteason. The 
 moral law, he said, is given by pure reason, as a fact of 
 which we have consciousness d priori, and it is apodicti- 
 cally certain. In the universal and obligatory character 
 of this law, Kant sees the passage to objective reality; 
 and therefore he does not make it depend on the idea of 
 the good, which according to the first of these Critiques 
 would be a concept of our mind. The existence of this 
 law is attested by the consciousness of all, as well as the 
 freedom which consists in conforming our actions to it. 
 The moral principle is called by Kant the Categorical 
 Imperative, and it is thus formulated : " Act so that the 
 maxim of thy action may be capable of being raised by 
 the will to a universal law." Here it seems evident that 
 Kant confounds the will with the reason, maintaining 
 that the will is autonomous, or that it obeys only its own 
 law, that is to say, that law which is conformable to it, 
 and which may be valid for every rational will. Duty 
 consists in conforming our actions to the prescriptions of 
 this law, so that our actions acquire a moral value, not by 
 the end which they put before them, but by the principle 
 which determines them. But of this, consciousness ought 
 evidently to apprise us. Now if we hold with Kant that 
 consciousness is a mode of the sensibility, how can it 
 reveal to us the law of duty ? And what else could this
 
 PROLEGOMENA. 97 
 
 law be but the simplest form of the relations of phenomena 
 among themselves? From the existence of the law of 
 duty, Kant deduces as a postulate the immortality of the 
 soul and the existence of God, who distributes rewards 
 and punishments according to desert. 1 
 
 Fichte carried out the system of Kant to its extremest 
 consequences both in metaphysics and in ethics. The 
 German philosophy, having thus developed the notion 
 of liberty in Kant and Fichte, proceeded in Schelling and 
 Hegel to absorb it in the notion of necessity. It always 
 maintains the idea of freedom in the third moment or 
 phase of the metaphysical evolution, but in such a trans- 
 cendent sense that it rather denotes the rational unity of 
 the great whole, than the individual unity of the human 
 personality. The successors of Hegel have understood 
 this necessity in a wholly material sense, and they have 
 taken for their idea the mechanism of matter and the 
 organism of life, subjecting effects to causes, means to 
 ends, the individual to the State, the weak States to the 
 strong States, and the alleged inferior races to the superior 
 races. We have already spoken of the ethics of Schopen- 
 hauer and Hartmann in dealing with their metaphysics. 
 Against these doctrines, Fichte the younger, Wirth, and 
 Ulrici, have combated in the name of liberty and 
 reason, in the " Eeview of Philosophy and Philosophical 
 Criticism." 
 
 France availed herself of the aid of the Scottish and 
 German philosophy in order to combat sensualism. Maine 
 de Biran, in restoring activity to the Ego, by an excess in 
 his reaction, concentrates it entirely in the will, which he 
 confounds with force. Jouffroy puts everything in its 
 proper place. What was the principal thing to Maine de 
 Biran becomes accessory in Jouffroy. The will appears 
 and disappears in the intellect which persists always, 
 both in the voluntary state and in the state of spontaneity. 
 Jouffroy carefully distinguishes the physiological func- 
 
 1 See Cousin, La philosophic de Kant. 3rd ed. Paris, 1857. 
 VOL. I. Q
 
 9 8 PHILOSOPHY OF RIGHT. 
 
 tions from the psychological functions. He recognises 
 three primitive tendencies : the desire of knowing or curi- 
 osity, the love of others or sympathy, and the love of power 
 or ambition ; and he shows the pleasure and pain which 
 the satisfaction or repression of these tendencies causes 
 us, and the part taken in them by the external world, the 
 reason, and the will. Obstacles serve to develop our 
 liberty and to form our personality; and life has the 
 double merit of making us free, and putting our freedom 
 under the empire of reason. Jouffroy is not satisfied 
 like Kant with deriving duty from liberty, but he has 
 recourse to the principal of finality. What then is our 
 destiny ? Every being, says Jouffroy, is predestined by 
 its nature to attain to an end. This end is its good ; and 
 the end of man is indicated by his primitive tendencies 
 to know, to act, and to love. These tendencies are blind 
 and disinterested, because they impel us to action before 
 knowing whether it will bring us pleasure or pain. The 
 first development of human activity is instinctive and 
 innocent ; but as soon as we have learned that the satis- 
 faction of our tendencies procures us a pleasure and their 
 non-satisfaction a pain, we act no longer from instinct, 
 but from calculation. Reason has now intervened; and 
 it has learned that all our tendencies look to the individual 
 good, but that this good cannot be complete. It makes 
 us aware that it is necessary to sacrifice the lively plea- 
 sures of the moment in order to attain to pure and more 
 lasting pleasures in the future. It assigns to actions the 
 principle of interest well understood. Our nature runs 
 after this end, which is indicated to us by reason, and 
 the love of the well-understood interest is superadded to 
 the primitive passions, which always subsist. This new 
 state is called egoism or selfishness, which did not exist in 
 the instinctive state. But this is not the ultimate state 
 of human nature ; for reason is not long in coming to 
 understand that as all beings have to attain an end, the 
 individual good is part of the universal good, of the
 
 PROLEGOMENA. 99 
 
 absolute good, or of the good in itself; and that if the 
 good of aii individual is opposed to the good of other 
 individuals, we ought to prefer the greatest sum of possible 
 good. Thus the idea of the obligatory good appears to 
 our reason ; and our reason rises from the idea of the 
 universal order to the idea of God who has created this 
 order; and our submission to order becomes submission 
 to God. Morality and religion are different expressions 
 of this fact. In the arts, beauty and ugliness are only the 
 expression of order and of disorder. The beautiful is an 
 aspect of the good, and the true is another aspect of it. 
 The beautiful is order expressed ; the true is order thought ; 
 and the good is order realised. The good in itself appears 
 only when reason shows us the universal order and pre- 
 sents it to us as obligatory. In the two first states, the 
 individual served only himself, at first instinctively, and 
 thereafter with discernment and egoism. In the third 
 state, the individual serves order, and he is now able to 
 raise himself to sacrifice. It is then only that there are 
 manifested the ideas of merit and of demerit, of moral 
 satisfaction and remorse, and of penalty and reward. 1 
 
 This theory of human destiny was invested by Jouffroy 
 in a popular form after the manner of a catechism. Why 
 has man been created ? In order to know, love, and serve 
 God in this life, and to enjoy Him eternally in the other 
 life. To know God is to know the order established in 
 the world ; to love Him and to serve Him is to conform 
 ourselves to His designs, that is to say, to the universal 
 order so far as our powers go. Accordingly they are 
 mistaken who promise on this earth the harmonious de- 
 velopment of our tendencies, because the struggle will not 
 be able to cease till the obstacles in our way have ceased ; 
 and our aspirations after science, love, and power cannot 
 be completely satisfied here below, so that our life demands 
 further completion. 
 
 It is evident that Jouffroy seeks to give the doctrine 
 
 1 Court dc droit natural, passim. 3rd ed. Paris, 1858.
 
 loo PHILOSOPHY OF RIGHT. 
 
 of morals an objective basis. He had as his associate in 
 this attempt, Cousin, who lost himself in the subtleties of 
 his theory of the impersonal reason. 
 
 It remained for Gioberti to substitute the ontological 
 process for the psychological process in the knowledge of 
 the good, and thus to give us an exact synthesis of the 
 modern principles of ethics in his elegant treatise Of the 
 Good. He exhibits the Creator in intercourse with man 
 as will and thought. As will, He manifests Himself in 
 the quality of the obligatory law to which Kant gave the 
 name of the Imperative. But the Kantian Imperative 
 is purely abstract and subjective, and accordingly it has 
 little or no efficacy on the human will. The Imperative 
 of Gioberti is founded in a commanding person who is the 
 intuitive concrete of which th imperative is the reflective 
 abstract. Both of these are the volition of God with 
 reference to the liberty of man. This volition prescribes 
 to free spirits the observance of the orders established in 
 the sphere of the cosmical forces. God says to every 
 man : Maintain the order of the creation. The Impera- 
 tive accordingly is the voice of the Supreme Being who 
 speaks to our conscience and promulgates an absolute and 
 divine command. From this it follows that the imperative 
 includes the notion of right, that is, the idea of a supreme 
 and absolute will having the power to command the crea- 
 tures. In the primitive order of things, the conception of 
 duty springs and proceeds from the correlative notion of 
 right. The absolute right of God creates the absolute 
 duty of man, who has in relation to his Creator duties 
 without rights. From such absolute duty, which is the 
 effect of that absolute right, then arise the relative duties 
 which bind men among each other, and finally the rela- 
 tive rights which are the necessary correlation of these 
 relative duties. 
 
 It remains for us to speak of the positivist and natu- 
 ralistic schools of Ethics. Positivism began by maintaining 
 that it was vain to attempt to construct science d priori,
 
 PROLEGOMENA. 101 
 
 seeing that every metaphysical system, whatever may be 
 its pretensions, has only a logical value, and in the real 
 order expresses but more or less perfectly the science 
 of its time. As an example of this the Ionic School is 
 adduced, as its systems correspond to a first glance cast 
 upon nature, and the Pythagorean School, which transferred 
 to its system the discoveries made by it in geometry, 
 astronomy, and acoustics. It is added that Plato himself, 
 when in his Timccus he expounds dprioriihe plan followed 
 by God in the creation, uses the imperfect theories of the 
 astronomy, physics, and physiology of his time. And 
 finally the positivists assert that the universe which Hegel 
 believed that he had constructed solely by means of his 
 transcendental logic, is found conformable at every point 
 to the a posteriori cognitions of his time. Positivism was 
 not long in displaying its inconsequences, by making an 
 imperfect use of observation and reducing psychology to 
 a species of cerebral physics, the soul being defined as 
 the complex of the functions of the brain and of the 
 spinal marrow. Iii making physics the basis of psy- 
 chology, it follows that anthropology and history will 
 have to become social physics. Positivism is thus con- 
 founded with naturalism, and we see an interchange of 
 theories between these two systems. 
 
 What then can the moral law be according to positivism ? 
 The whole doctrine of morals, says Littre*, springs from two 
 impulses : the love of self and benevolence towards others, 
 egoism and altruism. The first of these impulses springs 
 from the necessity of nutrition, which is experienced by 
 the organised substance in order that it may subsist 
 individually ; and the second from the necessity of loving, 
 which by means of the sexual union serves to preserve 
 the species. 1 Moral science accordingly will have as its 
 object to deduce from the laws of life and from the condi- 
 tions of existence, rules of conduct for the attainment of 
 the individual and social well-being. This well-being or 
 
 1 Littrd, La philosophic positive. Pari?, iS/o.
 
 102 PHILOSOPHY OF RIGHT. 
 
 good consists in pleasure and utility ; and it will be pro- 
 duced mechanically, for in us liberty lies only in the 
 execution and not in the volition, which is determined by 
 causes independent of us. 
 
 For the brutal selfishness of Hobbes, Bentham substi- 
 tuted a moral thermometer by means of which he hoped 
 that the science of the passions or mental pathology 
 would be able to measure pleasures both in their intensity 
 and in their extension. The question of duty was thus 
 reduced by him to a problem of arithmetic. John Stuart 
 Mill took up the problem, recurring to the association of 
 ideas as a view that was dear to the English psychologists, 
 who put the criterion of the justice or injustice of an 
 action in its foreseeable consequences. A mental habit 
 associates with an action an idea of approbation or disap- 
 probation. The moral sense is an acquired sentiment, 
 not a primitive faculty. Conscience, being only a series 
 of instincts and hereditary habits, is subject to the laws 
 which preside over the formation of the instincts. This 
 is found in divers degrees in all the divisions of the 
 animal kingdom ; and natural selection develops it in the 
 higher animals. Darwin claims to have discovered in the 
 animals a sort of moral instinct which rises to the con- 
 sciousness of social solidarity, and intelligence being added 
 to this instinct there arises, according to this celebrated 
 naturalist, the sentiment of moral obligation and duty. 
 The law of adaptation to the environment, of which the 
 law of association is only a consequence, gives to the 
 moral sense new energy ; the instincts contrary to the 
 conditions of existence created by external circumstances 
 disappear, and the others form organs. Every instinct, 
 says Darwin, which is permanently stronger or more 
 persistent than another, brings forth a sentiment which 
 we denote by the expression, must obey. This is the moral 
 sanction. The conclusions of Darwin have been adopted 
 by Bain, and have been somewhat modified by Herbert 
 Spencer. Spencer holds that just as the intuition of space
 
 PROLEGOMENA. 103 
 
 possessed by a living individual is the result of the 
 experiences of the individuals that have preceded it, so 
 the experiences of utility accumulated by the whole 
 human race have produced corresponding nervous modi- 
 fications which by hereditary transmission have produced 
 in us certain faculties of moral intuition, and awakened 
 certain emotions relative to just or unjust conduct, which 
 have not any apparent foundations in the experiences of in- 
 dividual utility. Spencer differs from the other utilitarians 
 not as to the end which has to be attained, but as to the 
 means which have to be followed. Happiness is the 
 ultimate end of morals, and not the proximate end. The 
 object of moral science ought to be to deduce from the 
 laws of life and from the conditions of existence what are 
 the actions which conduce to happiness ; and as humanity 
 is only a part of the universe, moral science thus depends 
 in ultimate analysis on cosmology. 
 
 This school holds that for us there is no liberty of choice. 
 Hence John Stuart Mill distinguishes three kinds of de- 
 terminism : the first consists in the invariability of the 
 particular effects even when the particular causes change, 
 and this may be called absolute fatalism ; the second finds 
 place when the effects are invariable, because causes do 
 not change, and this may be called a mitigated fatalism ; 
 and the third is the complement of the preceding view, 
 and is established when variation of the causes makes the 
 effects also vary. Mill holds to this third species of 
 determinism, and teaches that moral obligation can only 
 be understood in an impersonal sense, that is to say, that 
 something produces in us the thought and the desire of 
 perfecting our own character. 
 
 Is free will then an illusion? Positive science only 
 develops the doctrine of necessity ; or as the English 
 say, it only recognises uniform causation. A. Herzen, in 
 his Physiology of the Will, sums up the results of the 
 latest researches in the following terms : " I. Spontaneity 
 of actions in living beings does not exist any more than it
 
 104. PHILOSOPHY OF RIGHT. 
 
 exists in any phenomenon of the universe whatever ; every 
 change is the effect of a preceding change, and no effect 
 can be spontaneous. All the acts of any being whatever 
 are reactions excited by the influences and impressions 
 which the being receives from the external universe. It 
 is an influence when there is no consciousness, and an 
 impression when there is perception by means of the 
 organs of the senses. In the absence of motives arising 
 directly from without, it is impressions which act on the 
 senses, including ideas, images, and representations that 
 is to say, the subjective sensations indirectly excited in 
 the nerve centres. In either case, there is no activity, 
 because there are no motives. 2. The will is the con- 
 sciousness of the determining motive combined with that 
 of the image of the act, or of the series of acts which 
 have to be executed after the victory of the predominating 
 motive. In other words, the will is only the perception 
 of the tendency to act or not to act in some particular 
 way, in consequence of a particular combination, or of 
 the resultant of all the causes which provoke the action. 
 3. Individual liberty or free will is a subjective sensation 
 arising from what is incalculable and unexpected, condi- 
 tions which always exist in our actions, and which render 
 it impossible for us to foresee all the circumstances which 
 may supervene and influence the final resolution. Hence 
 the feeling of freedom or of the resolution is simply the 
 consciousness of the possibility of a change in the tendency 
 to execute this or that other act in consequence of a modi- 
 fication in the external or internal motives which may arise 
 and exert an influence upon our action. The illusion of the 
 spontaneity of an already completed action, persists only 
 when the agent has not been conscious of the determining 
 motive, or has ignored it ; not having observed it, or having 
 forgotten it on account of its small importance. The 
 illusion of the freedom of a future action subsists until 
 the moment in which the victorious motive makes all its 
 force felt. As soon as we know what we are going to do,
 
 PROLEGOMENA. 105 
 
 we know also the reason of it; and accordingly we know 
 the determining motive of our action. But before knowing 
 it there is for us a moment of undecided equilibrium 
 among the different motives ; and being ignorant of the 
 final result we form a representation of various possible 
 results. This moment produces in the individual the 
 illusion of freedom as a faculty of free choice or free will. 
 4. The final determination of the will is the infallible, 
 necessary, and exclusive product of the following three 
 factors : a. The individual organisation, or the innate 
 physical or moral constitution, including the dispositions, 
 the desires, the passions, the character, &c. ; I. The state 
 of the nervous system at the moment in which it receives 
 the impression which sets it into activity, that is, the 
 moral state of the nerve centres, produced by education 
 in the widest sense of the term ; c. The sum total of the 
 impressions perceived in the moment of acting, whether 
 they are derived directly from an external source, or are 
 awakened by reflex action or by association in the internal 
 ramification of the nerve centres. 5. Individuality is 
 the positive and real conception which ought to take the 
 place of the metaphysical conception of freedom. The 
 term freedom or liberty, when applied to the individual 
 activity, precisely signifies the absence of obstacles ex- 
 ternal or internal, physical or moral, which might possibly 
 prevent the individual from acting conformably to the 
 tendencies inherent in his physical or moral constitution, 
 or the conditions in the midst of which he is developed. 
 In other words, the freedom of the individual consists in 
 the capability of being able to react in his own way, and 
 without constraint, according to the volitions or desires 
 awakened in him by the concourse of circumstances. The 
 individual is therefore free to do whatever he wills when 
 the execution of his willing is not impeded ; but he is not 
 free to will what he will, since his volitions are produced 
 by the conditions above enumerated, which conditions in 
 110 way depend on the individual. But just because the
 
 106 PHILOSOPHY OF RIGHT. 
 
 organisation is one of the three factors of the volitions to 
 which it gives an individual character, the positive concep- 
 tion of individuality is clearer and much more suitable 
 than the negative conception of freedom." 
 
 Free will being denied, the question arises, will it be 
 possible to foresee human actions ? To this question 
 Herbert Spencer gives the following in reply : A free 
 body in space subject to the attraction of another single 
 body, will move in a direction which can be predicted 
 with great precision. But if it is attracted by other two 
 bodies, the displacement can be calculated only approxi- 
 mately, and with still less precision if it is attracted by 
 three bodies. Finally, let us suppose the said body sur- 
 rounded by various bodies of all sorts of dimensions, 
 situated in all directions and at all distances, its motion 
 will be apparently independent of the influence of each of 
 them ; it will move in an indefinite and oscillating line, 
 and it will seem free, just as if it determined itself spon- 
 taneously. In the same way, in the degree in which the 
 relations of any psychical state are multiplied, the psychical 
 modifications become incalculable and appear independent 
 of all law. 
 
 And now, turning our attention from the individual 
 man to collective man, it may be similarly asked, whether 
 we shall be able to foresee anything of the future. Here 
 Littre answers as follows : Sociology is the sixth of the 
 fundamental sciences, and it is therefore subordinated to 
 biology, which depends upon physics and chemistry. The 
 physiological man that is, man regarded as without any 
 acquired quality material, moral, or intellectual is trans- 
 formed into the sociological man, or rather the historical 
 man, by evolution. What takes place by means of natural 
 selection in the animal kingdom, says Littre, is attained 
 in the human kingdom by means of education, which is 
 first instinctive and unconscious, and then determinate 
 and conscious. The sociological evolution is produced 
 by the capacity which the societies have for accumulating
 
 PROLEGOMENA. 107 
 
 cognitions. Tradition, monuments, and writing are, as it 
 were, the organs of this faculty. The societies are station- 
 ary when the sum of the cognitions remains the same ; 
 they are retrograde if it diminishes, and progressive when 
 it increases. History is therefore a natural phenomenon, 
 and is not subject to chance nor to caprice. It proceeds 
 by the filiation of the social states, or by a process of 
 generating them from each other. It shows us humanity 
 in its various degrees of development, until it becomes 
 mistress of itself, in the stage of the positive sciences. 
 The end of individual life accordingly is to increase and 
 adorn the collective life. The past generations laboured 
 instinctively for this end, and the future generations will 
 strive towards it with a full consciousness of their social 
 mission. 
 
 Let us now pause in order to cast a glance over the 
 path we have traversed. Founding on a psychology that 
 is generally received, we saw that there are three faculties 
 in the mind, namely, feeling, thinking, and willing ; and 
 to these correspond three states of the soul, the instinctive, 
 the egoistic, and the moral All the systems, however, do 
 not recognise these three states ; sensualism stops at the 
 first two, and idealism alone rises to the moral law. We 
 have reviewed the struggle between sensualism and ideal- 
 ism in the course of the ages, a struggle which has be- 
 come a livelier conflict in our age owing to the immense 
 progress of the natural sciences. These sciences have, 
 however, brought out clearly the unity of design pervad- 
 ing the various types. " From one pole to the other, and 
 under all the meridians," says Agassiz, " the mammalia, 
 the birds, the reptiles, and the fishes reveal the same plan 
 of structure. This plan denotes abstract cognitions of the 
 most elevated order, and it far surpasses all the generalisa- 
 tions of the human mind. The most laborious investiga- 
 tions have had to be carried on in order that man might 
 be able only to form an idea of it." l These types, both 
 
 1 De Vespece et dea classifications^ Paris, 1869.
 
 io8 PHILOSOPHY OF RIGHT. 
 
 animal and vegetable, are likewise most exactly adapted 
 to every part of the globe, and instead of having recourse 
 to the vain hypothesis of transformation, this celebrated 
 naturalist bows before the creative wisdom. In life we 
 observe not only physico-chemical phenomena, but there 
 is a sort of vital design for every being and every organ, 
 and this in such a way that the various phenomena of the 
 organism taken isolatedly, are subjected to the general 
 forces of nature ; but considered in their succession and 
 in their totality, they reveal a special connection, and 
 seem directed by an invisible condition. This invisible 
 condition is the power of evolution immanent in the egg, 
 which includes the phenomena of nutrition and genera- 
 tion. Biology is not capable of explaining the moral 
 phenomena, just as sensation could not give account of 
 consciousness. The soul makes use of the organs and 
 comes under their influence. The beasts have a soul, but 
 they have not an ego on account of the imperfection of 
 their mental faculties. The animals do not pass beyond 
 the instinctive, or at most the selfish state ; and as they 
 do not possess the intuition of the true they cannot direct 
 their will to the realisation of the good. Hence it is that 
 the animal is born and dies an animal, whereas man is 
 born an animal and becomes a free person. 
 
 In what does freedom properly consist ? When cognition 
 is involuntary the mind acts unconsciously and calls itself 
 free, because it follows its nature. When cognition is 
 voluntary and the mind acts after deliberation, it is said 
 to be free, because it is always possible for it to do the 
 contrary. This possibility of doing the contrary is denied 
 by the positivists, because according to their system all 
 our ideas come to us from sensation and have nothing 
 absolute in them, and the strongest motive must always 
 prevail. In the view of the positivists there is no other 
 way of making man better than by multiplying motives 
 by means of instruction. That attentive observation which 
 has discovered intuition and reflection in the sphere of
 
 PROLEGOMENA. 109 
 
 metaphysics, has also recognised in the moral sphere the 
 possibility of doing the contrary. This is expressed by 
 the Latin poet in the well-known words : Video meliora 
 proboque, Deteriora sequor. This freedom in doing evil 
 makes our good actions meritorious, as it is necessary the 
 more frequently to combat the strongest motive in order 
 to make the most reasonable motive triumph. Neverthe- 
 less we are not alone in this struggle, because as we attain 
 ideas in God, we likewise obtain the strength to realise 
 them in action. " Man," says Maine de Biran, " is a being 
 intermediate between God and nature. He touches God 
 with his spirit and nature with his senses. It is possible 
 for him to be immersed in nature by allowing his Ego 
 with his personality and freedom to be absorbed, and by 
 abandoning himself to all the appetites and impulses of 
 the flesh. It is possible for him up to a certain point 
 to be identified with God, by transporting his Ego into 
 God by the exercise of a higher faculty. Hence it follows 
 that the lowest degree of degradation and the highest 
 point of elevation, may be equally connected with two 
 states of the soul in which it loses its personality, accord- 
 ing as it is confounded with God or annihilated in the 
 creature." l 
 
 "We observe in society as in the individual the struggle 
 of the passions with reason, and the triumph of reason by 
 means of the free will. The passions, however, in passing 
 from the individual to the social body, lose in strength. 
 They agitate only the surface, leaving the foundation of 
 society, or the ideas on which it is based, almost unmoved. 
 It is not long since it began to be perceived that there is 
 a logic and a progress in the political, religious, civil, and 
 military institutions of the peoples. Pascal was the first 
 to indicate it in an important fragment from which we 
 
 1 We have quoted Maine de Biran will. Fichte, likewise, after having 
 
 in order to show that the strongest exaggerated the power of the Ego, 
 
 champion of the will, in his last work, closed his career by adopting a 
 
 Nouveaux essais d'anthropoloyie, had species of mysticism, 
 to admit divine action on the human
 
 I io PHILOSOPHY OF RIGHT. 
 
 may quote the following words : " Man in the first age of 
 his life is in ignorance, but he goes on learning without 
 ceasing as he advances ; for he derives advantage not only 
 from his own experience, but also from that of his pre- 
 decessors, and because he always preserves in his memory 
 the knowledge which he has once acquired, while the 
 knowledge of the ancients is always present to him in the 
 books which they have left. And as he preserves this 
 body of knowledge, he can also easily increase it, so that 
 men are to-day in the state in which those ancient philo- 
 sophers would have found themselves if they had been 
 able to have lived on till now, and to have added to the 
 knowledge which they had, the further knowledge which 
 their study might have enabled them to acquire through 
 so many ages. Hence it follows that by a peculiar pre- 
 rogative not only does every man advance from day to 
 day in the sciences, but all men together make continual 
 progress in them as the universe grows older, because the 
 same thing happens in the succession of men as takes 
 place in the different ages of an individual. In this way 
 the whole succession of men during the course of so many 
 ages, ought to be considered as the same one man who 
 subsists always and learns continually." l 
 
 The ancients attributed all change in society to the 
 passions and to the characters of individuals. The moderns 
 have come gradually to recognise an affiliation between 
 ideas and facts, and they have thus created the philosophy 
 of history. Bossuet, following in the footsteps of St. 
 Augustine, described the part taken by God in events. 
 Yico taught that " the world of the nations is the fruit of 
 the human mind." Herder showed the influence of nature 
 upon man. Thus the moral development takes place in 
 the same manner both in the individual man and in 
 the social man. Virtue is always an effort, a habit of 
 making reason triumph over the senses and follow the 
 dictates of the moral law. Politics does not differ essen- 
 
 1 Pascal, Fragment $un traiii du vide. Paris, 1663.
 
 PROLEGOMENA. in 
 
 tially from ethics, only the peoples are allowed a greater 
 latitude in the fulfilment of their proper duties' as they 
 are not confined within the narrow round of a generation. 
 This may be shown by an example. A courageous man 
 does not hesitate to sacrifice his life to his honour ; but a 
 people takes account only of grave offences, and even dis- 
 sembles them till its armaments are ready and its alliances 
 are concluded. Without denying that the statesman has 
 a greater variety of means, we come to the conclusion that 
 just as in private life virtue is what is supremely useful, 
 so in politics honesty is the best policy.
 
 III. 
 
 THE PHILOSOPHY OF RIGHT. 
 
 MAN does not always act for a disinterested end, or in view 
 of an absolute good, but most frequently he seeks to obtain 
 what is useful for himself and for others. His actions are 
 then measured by another standard; abstraction is made 
 from the determining motive, and the result is considered. 
 The rule in such actions is no longer absolute goodness 
 but justice ; or, as Vico says, it is the good recognised in 
 its equality. 
 
 Plato, as we have seen, makes justice one of the four 
 elements of virtue. Justice, he says, makes man a mea- 
 sured whole that is proportional and full of harmony. It 
 has its realisation in the State, which is man on the large 
 scale, and which has to actualise the whole good. It is 
 evident that Plato confounds justice with goodness, and 
 right with morality. Aristotle, on the other hand, lays 
 down a principle of distinction, maintaining the position 
 that justice is virtue in relation to others ; that it is the 
 good of others ; and that the State should not absorb the 
 whole citizen as Plato wished. Stoicism gave greater 
 prominence to the inner man and endeavoured to emanci- 
 pate the individual from the State, recognising the unity 
 of the human race and the harmony of all the parts of 
 the universe. 
 
 Christianity weakened the feeling of right, as a religion 
 giving the predominance to morality. As Christians we 
 ought to bear injustice, and even to rejoice at it; but we 
 are not bound to this as a matter of right. As Christians
 
 PROLEGOMENA. 113 
 
 we ought to love our persecutors ; but in right we may 
 oppose force by force. Without doubt the Christian idea 
 is more sublime than that of right ; but the idea of right 
 is indispensable in order to maintain order in society, and 
 to prevent some from abusing the candour and charity of 
 others. 1 
 
 Christianity, however, was not able to dispense with 
 a legal doctrine for the common uses of life. Thomas 
 Aquinas defines justice in almost the same words as Aris- 
 totle : " Ordinat hominem in his quae sunt ad alterum." 
 In order that justice may exist, there must be a relation of 
 equality subsisting between the things exchanged ; and this 
 relationship or proportion between two objects, the will of 
 the agent not being taken into account (non considerato 
 qualiter db agente fiat) is what is termed right (jus). 
 Dante only fills up and completes this definition when he 
 says : " Jus est realis et personalis ad hominem proportio, 
 quae servata hominum servat societatem et corrupta 
 corrumpit." 
 
 Controversies concerning the origin of political power 
 were carried on very keenly in the Middle Ages ; and it 
 is curious to observe that the supporters of kings maintain 
 their divine origin in order to render kings inviolable, 
 while the supporters of the Church hold that power is of 
 human and popular origin, in order to make the kings 
 dependent on the Pope as the sole representative of God 
 on earth. 
 
 Hugo Grotius wishing to circumscribe the rights of war, 
 began by emancipating jurisprudence from theology, and 
 he thus founded the science of natural right. This is how 
 he enters on the subject: "Many authors have under- 
 taken to comment upon and to summarise the civil law, 
 both the laws of the liomans so called by autonomasia, 
 and the particular laws of every nation. Nevertheless 
 the right which has to be observed between different 
 peoples, or towards the rulers of the various States, and 
 
 1 Janet, Uistoiredes doctrines morales et politiques. 3rd ed. Paris, iSS6. 
 VOL. I. H
 
 ii 4 PHILOSOPHY OF RIGHT, 
 
 which is founded on human nature, established by divine 
 laws, or introduced by customs and by a tacit convention 
 of men, has occupied the attention of few ; and no one 
 has examined the subject in all its extent and in a syste- 
 matic form. However, it is not the less a need of the 
 human race that every one requires to be instructed through 
 a work of this kind." He then investigates the principle 
 of right, and finds it in human sociability, or in the need 
 of maintaining society in a manner conformable to the 
 cognitions of the understanding, that is to say, by abstain- 
 ing religiously from taking the goods of others, by keeping 
 the word which has been pledged, by repairing any damage 
 that has been done, and by accepting a punishment for 
 every violation of these principles. It is at once evident 
 that Grotius does not regard sociability as a material fact 
 common to men and animals, but as an index of reason. 
 " From this idea there arises another more extended idea 
 to which has been given the name of Right. The supe- 
 riority of man over the other animals consists not only in 
 the feelings of sociability of which we have spoken, but 
 also in the faculty of valuing things that are pleasing or 
 displeasing, whether present or future, and discriminating 
 the useful from the prejudicial. It is recognised that it 
 is conformable to human nature to regulate oneself accord- 
 ing to a right and sound judgment, in as far as the weak- 
 ness of the mind permits it, and not to allow oneself to 
 be intimidated by an impending evil, nor to be seduced 
 by a present pleasure, or to be conquered by an uncon- 
 sidered impulse. All that is opposed to such judgment 
 is regarded as contrary to natural right or to the laws of 
 our nature." 
 
 Samuel Pufendorf, although severely characterised by 
 Leibniz as vir parum jurisconsultus ct minime philosophies, 
 rendered services to the new science by developing what 
 Grotius had sketched. He distinguishes natural right 
 from moral theology and from the civil laws, explaining 
 natural right as that which is ordered by right reason.
 
 PROLEGOMENA. 115 
 
 civil right as that which is commanded by the legislative 
 power, and moral theology as that which is prescribed by 
 the sacred Scriptures. From these principles two im- 
 portant consequences are derived : the first is that natural 
 right does not extend beyond this life, and the second 
 that it is limited to the regulation of external actions. 
 Christian Thomasius, called by Leibniz " sylvestris et archi- 
 podialis" takes a step forward, being the first to draw a 
 sharp distinction between right and morality. He dis- 
 tinguishes the juridical obligations from the moral obli- 
 gations, calling the first perfect obligations because they 
 may be imposed by force, while the second are imperfect 
 obligations. The juridical obligations, he adds, are only 
 negative, and are determined by the precept, quod tibi 
 non vis fieri alteri nefeceris; whereas the moral obligations 
 laid down by the precept of the honestum et decorum are 
 positive. 
 
 To Leibniz these distinctions appeared not to be exact, 
 and he proceeded again after the manner of the ancients 
 to confound morality and natural right. " The end of 
 natural right," he says, " is the well-being of those who 
 observe it (and accordingly it does not exclude the ques- 
 tions of the immortality of the soul and the future life) ; 
 its object is everything that has regard to the good of 
 others, and which it is in our power to do (and it thus 
 comprehends the moral actions) ; and finally, its efficient 
 cause is the light of the divine reason which illuminates 
 our mind." Eight is therefore a moral power, as duty is 
 a moral necessity. 
 
 Wolf did for Leibniz what Pufendorf and Thomasius 
 had done for Grotius. He explained that we are led to 
 the good at first by appetite and then by pleasure, but 
 that reason alone makes us discern and love the true good 
 by revealing its end and determining its means. The 
 good consists in perfection. He says: "Actiones bonae 
 teudunt vel ad conservationem perfections essentialis vel 
 ad acquirendum accidentalem."
 
 1 16 PHILOSOPHY OF RIGHT. 
 
 Kant, in his Critique of the Practical Ecason, shows us 
 the human will subjected to the rational law of duty, 
 which he calls the Categorical Imperative. It remained 
 for him therefore to make a scientific enumeration and 
 co-ordination of the duties ; and this he did in the Meta- 
 physic of Morals. Here he divides the duties into two 
 classes : those which may be the object of an external 
 and positive legislation, and these are the duties of right ; 
 and those which are immediately imposed on the will by 
 reason, and these he calls the duties of virtue. These two 
 classes of duties are treated in the two parts of the Meta- 
 physic of Morals, the one of which is entitled the Meta- 
 physical Elements of the doctrine of Eight, and the other 
 the Metaphysical Elements of the doctrine of Virtue. 
 
 Kant lays it down as a general principle that every 
 action which does not hinder the accordance of the liberty 
 of each individual with the liberty of all, is conformable 
 to right. The idea of right, according to Kant, is there- 
 fore founded upon that of freedom, which is its condition ; 
 and hence the canon : " Act externally, so that thy liberty 
 may be able to co-exist with the liberty of all." The 
 power of coercion springs immediately from the notion of 
 right, since the capability of removing every obstacle to 
 our freedom is an integrant part of our freedom. Eight 
 accordingly is the form of the will, and it therefore con- 
 sists in agreement, whence arise all contracts, not from 
 desire, nor from regard to their end. Eight takes no 
 account of good or bad motives, and only looks to injuries. 
 
 But we may ask Kant: Why is human freedom not 
 to be impeded, and why is accordance or harmony in it to 
 be sought ? He can give no other answer than the rule 
 which is incidentally formulated by him in the Metaphysic 
 of Morals : " Act so as to consider humanity both in thy 
 own person and in the person of others as an end, and so 
 as not to use it as a means." Eight will thus not be 
 a condition nor the sum of conditions, but subjectively 
 zfacultus agendi of the moral being anterior and superior
 
 PROLEGOMENA. 117 
 
 to the conditions in \vhich it may be able to manifest itself ; 
 and objectively it will be the good in relation to free 
 beings. 
 
 In Schelling's " System of Identity," the divine action, 
 fatal and unconscious in nature, becomes free and con- 
 scious in the spiritual world, where it is manifested as 
 will. The idea of an organism was transferred from the 
 physical world into the moral world; and , the individual 
 considered till then as a whole in himself was viewed in 
 his organic relations with the family and the State from 
 which he cannot sever himself. 
 
 In Hegel's view, Eight is always liberty realised ; but 
 when we reflect that we are only a mode of the Absolute, 
 it is soon understood that liberty is only realised fatally. 
 Hegel says in so many words : " Man is undoubtedly an 
 end to himself, and he ought to be regarded as such ; but 
 the individual man has to be regarded as such only by the 
 individual and not by the State, because the State or the 
 nation is his substance." 
 
 Krause begins by making an analysis of our faculties, 
 and he finds that by means of reason we rise to the uni- 
 versal. God is the immanent and always active reason 
 of the existence of the universe, with which He does not 
 cease to be united. Creation, according to Krause, is both 
 eternal and temporal: it is eternal in so far as spirit, 
 nature, and humanity, being the form of the eternal 
 attributes of God, are eternally willed by Him ; and it is 
 temporal in so far as spirit, nature, and humanity, while 
 developing themselves under the successive law of time 
 and of space, demand the incessant action of God. The 
 will is that operation by means of which the spirit deter- 
 mines its own activity, or realises its eternal essence iu 
 time. Freedom is the form of the will, and its object is 
 the good. The absolute law of the good may be briefly 
 expressed thus : " Will and do the good purely and 
 simply, or, be the temporal cause of the good." God does 
 not remain extraneous to the fulfilment of this law, since
 
 Ii8 PHILOSOPHY OF RIGHT. 
 
 He reveals Himself to our mind as the absolute reason of 
 the subject and as the object of our desire. When we 
 accomplish the good unconditionally we are in the domain 
 of morals ; when we work for an external end we enter 
 the domain of right. 
 
 Ahrens, the distinguished follower of Krause, in his 
 celebrated work on Natural Eight, insists on the condi- 
 tional side of right. He explains that all that exists in 
 the world is, at least under one aspect, finite and condi- 
 tional. God alone is the Being infinitely absolute and 
 absolutely infinite ; He is the Being from whom the world 
 draws its essence and its existence, but who in His abso- 
 lute and supreme unity is above the world and all that 
 is finite and conditional. The unity of origin attributable 
 to all that exists in the world, establishes among beings 
 relationships of dependence and community by means of 
 which the existence and life of some are more or less 
 determined by the existence and life of others. The rela- 
 tion according to which beings depend on each other and 
 are reciprocally determined in their existence and their 
 development, is called a condition. Conditionality there- 
 fore supposes a higher unity ; it involves a community and 
 a solidarity in the existence and life of finite beings who, not 
 being able to suffice for themselves, demand the concur- 
 rence and assistance of other finite beings. These condi- 
 tions are of two kinds. Some are established by God and 
 are independent of the human will, and such are the laws 
 of nature; others are dependent on the will, or on the 
 individual and social activity of man, and these last only 
 enter into the domain of right. 
 
 The differences between right and morality are deter- 
 mined by Ahrens as follow: i. Morality considers the 
 motive of an action, right views it in its effects. 2. The 
 precepts of morality are absolute and invariable, or in- 
 dependent of places and times, whereas the conditions 
 imposed by right may vary according to the degree of the 
 culture of the people. 3. Conscience is the sole judge of
 
 PROLEGOMENA. 119 
 
 morality, while right may be recognised externally, whence 
 follows the necessity of an authority which may determine 
 right and compel to its observance. 4. Hence it further 
 follows that all juridical obligations may be enforced by 
 coercion, a circumstance which on the whole is secondary, 
 because the difference between right and morality would 
 subsist, even although men should observe a conduct so 
 perfect as to render any external coercion superfluous. 
 5. Finally, Ethics, whose object is morality, is a formal 
 and subjective science, whereas Jurisprudence, which 
 deals with right, is an objective science, inasmuch as it 
 has regard to human development. 1 
 
 The chief defect of the moral and juridical doctrine of 
 Ahrens lies in the way in which he understands indivi- 
 duality, which, following his master Krause, he believes 
 to be an eternal divine determination, and which has con- 
 sequently no proper existence of itself. 2 
 
 The question under consideration has also been examined 
 by Trendelenburg in his work on " Natural Eight on the 
 basis of Ethics." Trendelenburg shows the impossibility 
 of separating right from morals, without reducing right 
 to a fact or to a phenomenon. Eight is the external 
 sanction, the guarantee of morality, and it would exist 
 even although men should render coercion useless by their 
 perfection. Nevertheless right does not sanction the whole 
 of morality, but only the part necessary for making the 
 individual co-exist in harmony with the whole. The 
 consideration of this point carries Trendelenburg into 
 metaphysics and psychology. " The ultimate problem of 
 metaphysics," he says, " is directed to reconcile the widest 
 contradiction which exists, that, namely, between blind 
 force and conscious thought, and the relation of these two 
 terms can only be conceived in three ways, so that either 
 blind force stands as the original prior to conscious thought 
 and subordinates it to itself as its product ; or thought as 
 
 1 See Ahrens, Court de droit naturel. 5th ed. Bruxelles, 1860. 
 3 Ahrens, Court de psychduyie. 2 vols. Paris, 1838.
 
 120 PHILOSOPHY OF RIGHT. 
 
 the original precedes blind force and rules it ; or finally, 
 "both are really the same, only different in our under- 
 standing, and as they are nothing but different expressions 
 of the same being, they do not stand in a causal connection 
 with each other. And hence there can only be three 
 essentially different views of the world : the first is the 
 conception of an acting cause (causa efficiens) which gives 
 the physical or mechanical view of the world ; the second 
 is the conception of an eternal end (cansa finalis) which 
 gives the organic or teleological view of the world ; and 
 the third is the conception of the indifference of the acting 
 cause and of the end. These three views of the world 
 may be called after their originators, Democritism, Pla- 
 tonism, and Spinozism." 
 
 Trendelenburg attaches himself to Platonism as corrected 
 by Christianity, and he finds the ethical principle in that 
 organic conception of the world which is based on the 
 great fact of vitality, and which brings the blind forces 
 into equilibrium and presents thought in nature. What 
 is will in the absolute becomes duty in the relative, and 
 man transforms duty into an ethical value when he wills 
 what he ought, or what God wills. The destination of 
 man is to realise the idea of his nature. All the great 
 objective systems have had as their aim the realisation of 
 man as man. The ethics of Plato are realised in the State, 
 but to Plato the State is man on the large scale, so that 
 the psychological tendencies of man pass over into the 
 State and form a harmonious unity. Here psychology 
 enters into alliance with metaphysics, and shows that man 
 is organised in such a way that by his feeling, thinking, 
 and willing, he fulfils the end of the creation. 1 The in- 
 dividual, in so far as he is an organ of the idea, is the 
 
 1 We have been delighted to read ciple may be understood as a way 
 
 in 33 of the general part of Tren- of taking and treating things ac- 
 
 delenburg's work the following state- cording to the divine destination." 
 
 ment: _" According to the organic Has the system of Gioberti then 
 
 conception of the world, the essence penetrated into Germany, or did 
 
 of things rests on a creative thought; Trendelenburg arrive at "the same 
 
 and consequently the ethical prin- results in another way ?
 
 PROLEGOMENA. 12 1 
 
 instrument of a special purpose which is properly the 
 object of consciousness ; and by this correspondence these 
 actions include the true in the strictest sense of the term. 
 The internal ends of morality are the moving forces of 
 right ; and the necessity of their conservation and develop- 
 ment gives origin as a necessary consequence to the notion 
 of right. Eight is defined by Trendelenburg as " the sum 
 of those universal determinations of action by which it 
 comes about that the whole of ethics and its parts are able 
 to be preserved and developed." All right, he adds, in so 
 far as it is right and not injustice, springs from the impulse 
 to preserve a moral existence. This conception of right 
 is the only one that is possible in the ethics of an im- 
 manent teleology. 
 
 Eeduced to these terms, the difference between morality 
 and right is a difference in degree and not of essence. 
 Yet it is a very important difference, as it reduces the 
 power of coercion to what is absolutely necessary for the 
 harmonious co-existence of the individual with the whole. 
 
 All the systems, however, do not derive right from 
 justice. Thus from the earliest antiquity we see the 
 Sophists maintaining that man ought to seek only for 
 pleasure, as by Callicrates in Plato's Gorgias. Carneades 
 maintained that utility is the mother of justice and equity. 
 Epicurus taught that justice is the utility of the greatest 
 number ; and that we ought to obey the laws because 
 they shield us by their protection and accordingly secure 
 us a pleasure, and because if we violate them we shall 
 be punished, and we would accordingly have to undergo 
 a pain. 
 
 Among the scholastics, John of Salisbury is the only 
 one who can be reckoned among the utilitarians. In his 
 treatise entitled Polycratus seu dc nugis curialium, he lays 
 it down as a principle that the pursuit of the useful 
 determines all human actions ; and he approves the end 
 assigned to human life by Epicurus, although he blames 
 the means adopted by his followers in order to attain it.
 
 122 PHILOSOPHY OF RIGHT. 
 
 At the close of the Middle Ages, the human spirit 
 became impatiently desirous to differentiate right from 
 morals and theology ; and it need not be wondered at that 
 in some the distinction almost degenerated into divorce. 
 The great rulers, Louis IX. and Ferdinand of Arragon, 
 furnished the facts ; and Machiavelli raised them into a 
 theory. The highest object was success ; the end justified 
 the means ; and it was reckoned better to anticipate than 
 to await the effects of astuteness and violence. If Machia- 
 velli did not found the new science of politics, he estab- 
 lished its method by introducing into it freedom of inquiry, 
 historical and critical analysis, and direct observation. 
 
 According to Hobbes man is born with bad propensities, 
 and his natural state is war. In this state, accordingly, 
 there is neither justice nor injustice. Force and cunning 
 are the cardinal virtues. Justice and injustice are quali- 
 ties neither of the body nor of the spirit, and they do not 
 belong to man as man, but as a citizen. However, if the 
 greatest good of man is his own preservation, and the 
 greatest evil is the fear of death, it follows that the state 
 of nature is insupportable, and that man must seek all the 
 means of going out of it by establishing peace and security, 
 which are to be obtained by natural law. Hobbes distin- 
 guishes natural right from natural law, making the former 
 consist in the liberty which each one has to use his force 
 as best pleases him for his own preservation, while the 
 latter consists in the rule which he imposes on himself in 
 order to abstain from all that may turn to his disad- 
 vantage. Thus the law serves as a limitation of right ; 
 and there is the same difference between them as there is 
 between liberty and obligation. 
 
 Spinoza, starting from different principles, arrives at the 
 same consequences as Hobbes by identifying right with 
 might or force. By natural rigjit, says Spinoza, must be 
 understood the natural laws of every individual according 
 to which he is predestined to act. For example, fishes are 
 naturally made to swim, and the larger fishes to eat the
 
 PROLEGOMENA. 123 
 
 smaller, so that in virtue of natural right all fishes swim, 
 and the larger fishes eat the smaller ones. It follows from 
 this that natural right prohibits only what is not desired 
 and what cannot be done. It does not prohibit rivalry, 
 nor hatred, nor wrath, nor cunning, nor, in short, anything 
 that is inspired by passion ; nor should this excite astonish- 
 ment because nature is not subject to the laws of human 
 reason, which look only to utility and to the conservation 
 of man. Eeason, however, when duly consulted, teaches 
 us that peace is better than war, and that love is better 
 than hate. Whence it comes that man gives up to society 
 all his power in an absolute manner, and that what remains 
 to him is only a concession made by the State to the 
 individual. In the application of their principles, how- 
 ever, Hobbes enlarges the sphere of the State, while 
 Spinoza restricts it ; but this is accounted for by the 
 surroundings in which they lived, the former living in Eng- 
 land after the revolution of 1640, and the latter spending 
 his life in peaceful Holland. 
 
 Locke finds that there exists a natural law that is 
 obligatory even before the institution of governments. 
 This law is manifested to us by reason, and it is sufficient 
 to interrogate reason in order to learn that all men are 
 equal and independent in relation to each other, no one 
 having a right to interfere with the life, liberty, or safety 
 of his fellows. Men have all the same origin ; they are 
 all servants of the Lord; and they are put into the world 
 to fulfil the mission assigned to them. All are endowed 
 with the same faculties ; all participate in the gifts of 
 nature ; and there cannot be admitted the least distinction 
 among them which would entitle the greatest to oppress the 
 least. Every one is bound to preserve his own existence, 
 and not to abandon his post voluntarily, but he ought at 
 the same time to co-operate in the preservation of others 
 by abstaining from hurting their persons, liberties, and 
 possessions. Governments are instituted in order to 
 guarantee natural la\v, and they only exist by the general
 
 124 PHILOSOPHY OF RIGHT. 
 
 consent. If it is asked whether a state of nature has ever 
 existed, Locke replies that all peoples and independent 
 princes are found in this state of nature, before they have 
 concluded compacts by means of which they enter into a 
 certain political community. 
 
 Rousseau modified the juridical doctrine of Locke for 
 the worse, by making right spring from the will instead 
 of from the reason. According to Eousseau contract 
 creates right, whereas according to Locke it declares it. 
 Eousseau vainly seeks to distinguish the general will from 
 the will of all. His consequences are always unfavourable 
 to the individual, and his fundamental maxim is always 
 the one which was applied with so much atrocity by the 
 French Convention : Solus publica suprema lex csto. 
 
 The influence of Eousseau on the German philosophy is 
 undeniable; it is attested. by Hegel himself in his Lectures 
 on the History of Philosophy. " Eousseau," he says, " pro- 
 claimed that the free will is the essence of man; this 
 principle is the transition to the doctrine of Kant, of 
 which it is the foundation." Schelling and Hegel traced 
 out another path, as we have already seen, in dealing with 
 ethics ; and Schopenhauer says expressly : " In the human 
 world, as in the animal world, it is force and not right 
 that reigns. . . Eight is only the measure of the power of 
 each individual." Alexander Ecker, in his essay en natural 
 selection as applied to peoples, concludes as follows : " The 
 last war has proved that the history of nations rests 
 equally en natural laws, and is composed of a series of 
 absolute necessities, in which the balance hangs always on 
 the side of progress." Prince Bismarck, in a speech to 
 the German Parliament, formulated the same principle in 
 the words : Might before right. 1 
 
 1 Gewa.lt vor RccU. Bismarck has Thucydides into the mouth of the 
 
 said that he does not remember pro- Athenians after the taking of Melos, 
 
 nouncing these words, which are and those spoken by the English 
 
 found in the parliamentary reports ambassador to the Prince of Den- 
 
 because he has no time to revi.-e his mark when his capital had been 
 
 speeches. In conciseness and cyni- bombarded during a time of peace, 
 cisrn they surpass the words put by
 
 PROLEGOMENA. 125 
 
 The successors of Locke in England had not his pru- 
 dence and circumspection. The most important of them 
 is Bentham, who, with imperturbable logic, says : " Give 
 me pleasure and pain, and I will create for you the whole 
 moral and social world; I will produce not only justice 
 but generosity, the love of country, philanthropy, and 
 all the amiable or sublime virtues in their stability and 
 exaltation." Sir James Mackintosh applied himself to 
 perfect the work of Bentham, endeavouring to show 
 that even remorse and the feeling of justice are derived 
 from utility. James Mill added nothing essentially new. 
 Austin answered certain objections taken to the possibility 
 of moral accountability, and made a profound analysis of 
 the relations of law to ethics. John Stuart Mill, in his 
 treatise on Utilitarianism, gathers up the ideas of his pre- 
 decessors, and defends them against all objections. He 
 proves that through the principle of solidarity the in- 
 dividual interest is identical with that of the greatest 
 number, and that justice is the chief part of social utility. 
 He defines right as a power which society is interested in 
 according to the individual. 
 
 Alexander Bain shows that the rules of justice are 
 eternal and immutable, because they correspond to the 
 most essential conditions of social existence. They have 
 as their object the most important part of utility, namely, 
 security. A permanent violation of these rules would 
 occasion in a short time the destruction of the human 
 race. This is why their fulfilment becomes obligatory, 
 and why those who infringe them ought to be punished. 
 Man is therefore moved by selfishness and by the sym- 
 pathy which prudence and benevolence engender ; but 
 these qualities are not sufficient to regulate his conduct, 
 which is marked out for him by an external authority. 
 Government, authority, law, obligation, punishment, are 
 all comprised in the great institution of society. Morality 
 is not produced by prudence and benevolence, but by 
 external law; and the moral sense is formed by educa-
 
 126 PHILOSOPHY OF RIGHT. 
 
 tion in conformity with the law, and by the fear of 
 punishment. 1 
 
 Herbert Spencer explains the universal and immutable 
 character of the principal moral rules by the hereditary 
 accumulation of experiences of the useful, and by evolu- 
 tion ; and instead of deriving morality from right, as Bain 
 would do, he anticipates a state of equilibrium between 
 the nature of man and the social organisation a state 
 in which man would have no desire which he could not 
 satisfy without going out of his sphere of action, while 
 society will impose no other limits than those which the 
 individual will freely respect. The progressive extension 
 of the liberty of the citizens and the abrogation of the 
 political institutions, is the ideal of Herbert Spencer. 
 Government, he says, is a function correlative to the 
 immorality of society. 2 
 
 Darwin seeks to fill up the abyss which moral science 
 had hollowed out between man and the beast. He endea- 
 vours to show that the moral sense is not the exclusive 
 privilege of man, but the highest manifestation of the 
 tendencies which are common to him with the higher 
 animals, and that the same causes which explain the 
 graduated evolutions of nature from the lowest stages of 
 animality up to the quadrumana, are sufficient to give 
 account of all the steps of progress by which the delicate 
 morality of the civilised peoples has gradually disengaged 
 itself from the primitive brutality of the ancestors of our 
 race by means of natural selection and heredity. 3 
 
 The English School thus returns to its point of depar- 
 ture, to Hobbes, with this difference, that the Leviathan no 
 longer represents society merely, but all nature. Science 
 has shown that the being that desires to live must adapt 
 itself to the environment in which it lives, or it will perish. 
 The universe is the environment to which humanity 
 
 1 Mental and Moral Science. London, 1868. 
 
 * See his First Principles, London, 1862 ; and later works. 
 
 3 See The Descent of Man, &c. 1862.
 
 PROLEGOMENA. 127 
 
 adapts itself ; and humanity is the environment to which 
 the individual has to adapt himself. And thus both in- 
 dividual morality and public right only express the extreme 
 progressive movements of such adaptation, and put the 
 human species into the alternative, in which all the other 
 species are placed, of perfecting itself or perishing. Ac- 
 cording to this science, the necessity of nature alone 
 suffices to evolve from the solar heat the mineral forces, 
 and from these the vital forces. And from these, again, 
 arise the human forces, and, finally, society, which when 
 ultimately analysed is nothing but a transformation of the 
 sun : the radiation of light in virtue of the simple and 
 fruitful laws of motion having become the radiation of 
 thought. 
 
 Following the lines of Darwin, the languages and cus- 
 toms of the more savage peoples have been studied in 
 order to discover the origin of the juridical ideas. Giraud- 
 Teulon, in his book on TJie Origin of the Family, summing 
 up the results of the inquiries of Bachefen, M'Lennan, 
 and Morgan, endeavours to show that the patriarchal 
 family was preceded by promiscuity. Sir Henry Sumner 
 Maine, in his work on Ancient Law, and in his Lectures on 
 the Early History of Institutions, shows us the natural 
 origin of all the juridical institutions. Of these works 
 we shall have occasion to speak further on. 
 
 Italy has had its Bentham in Gian Domenico Komagnosi, 
 who not only produced useful works in the sphere of 
 legislation, but investigated the origin and progress of 
 civilisation. In his metaphysics, he preferred to accept 
 certain intermediate axioms in order to use them as a 
 means of defence against the transcendental schools. Man 
 is a social being, he said, and hence the science of the 
 heart and of the mind is part of jurisprudence. Civilisa- 
 tion is an art, and it supposes the necessity of employing 
 certain means in order to attain the end of the social 
 well-being. This necessity, which is imposed by the 
 nature of things for the perfectible conservation of the
 
 128 PHILOSOPHY OF RIGHT. 
 
 human species, constitutes for Eomagnosi the conception 
 of right and duty. The principle of moral education is 
 nothing but the necessity of conforming our actions to the 
 order of the means indispensable for attaining the end of 
 our perfectible conservation ; and the foundation of jus- 
 tice is only the expression of a calculation of utility 
 founded on the inevitable order of things. Consequently 
 every positive obligation or bond not legitimated by the 
 hope of a greater well-being is juridically null, while 
 those obligations by which a lesser advantage is sacrificed 
 to a greater are juridically binding. The science of right 
 having to develop its obligatory rules parallel to the 
 ordinances of the art of civilisation, should not be limited 
 to considering abstractly the relationships subsisting among 
 living men, but ought to follow pari passu the develop- 
 ment of civilisation in the course of centuries ; and 
 accordingly it should elevate the whole order of progres- 
 sive perfection to a rule of rigorous natural right. Civili- 
 sation tends to the equalising of goods and powers which 
 this civil justice will alone be able to make us attain. 
 
 The doctrine of Eomagnosi may be summed up as " a 
 theory of the co-efficient forces of human interest ex- 
 pounded in conceptions, axioms, and general mediate 
 precepts (that is, such as are neither too general nor too 
 special), from which there results a grand connection and 
 similarity for the whole system of the individual inner 
 man and of the social inner man, and which tend to their 
 perfectible conservation under the dominion of nature and 
 of reason." The modern positivists have done nothing 
 more than diminish the influence of reason in favour of 
 that of nature. 
 
 As will now be seen, all the philosophers are divided 
 into two groups: some of them assigning the good to 
 morals and law as their content, and others basing them 
 on utility. It is naturally asked whether a reconciliation 
 of the two views has been ever attempted ? And in fact 
 from the remotest times it has been shown that virtue is
 
 PROLEGOMENA. 129 
 
 useful because it is conformable to the eternal order of 
 things. Epicurus himself was led to place his highest; 
 good, which was pleasure, in the mental tranquillity of 
 the wise man. Vico says expressly that the moral 
 element is the cause of right, and utility is its occasion. 
 He proceeded to show this philosophically and historically, 
 saying that man receives from God the eternal light of 
 truth, but that ideas are awakened in him by sensations ; 
 and therefore he first lays hold of the certain, and then of 
 the true. The metaphysical world is followed by the 
 civil world, or that of the nations, which is founded upon 
 three primitive facts which are found universally among 
 all . peoples. These are the institutions of religion, of 
 marriage, and of burial, which are called foedera generis 
 humani, and which correspond to the three fundamental 
 ideas of the human mind, namely, the existence of divine 
 providence, the necessity of moderating the passions and 
 turning them into social virtues, and the immortality of 
 the soul. Vico finds his theory confirmed by the historical 
 development of the Eoman Law, which began with bar- 
 barous laws (imitationes violentiae). In the degree in 
 which the plebeians acquired strength in the State the 
 hardness of the laws came to be mitigated by jural 
 fictions, and equity was developed in the edicts of the 
 praetors until the complete predominance of rational right 
 was reached under the emperors, who finally removed the 
 exceptions of the written law, and the jurisconsults 
 became true philosophers. 1 
 
 If Grotius founded the science of natural right, Vico 
 has completed it by defining natural right as " the good 
 recognised as equal," and by showing how men attain 
 to it by means of violence itself and material utility 
 Montesquieu advanced in the footsteps of Vico, holding 
 that laws consist in the necessary relationships which 
 
 1 The work of Sir Henry Sumner ment of the ideas of Vico, especially 
 Maine on Ancient Law, however in regard to juridical fictions, testa- 
 original its views may have appeared ments, contracts, &c. 
 out of Italy, only gives a develop- 
 
 VOL. I. I
 
 1 3 o PHILOSOPHY OF RIGHT. 
 
 arise from the nature of things, and analysing the external 
 causes, such as climate and other influences, which act on 
 legislation. Bentham took up a position away from Vico, 
 treating utility not as an accessory element or occasion, 
 but as the reason of law and right. The Historical School 
 in Germany, as founded by Hugo, Hauboldt, and Savigny, 
 returned to Yico, but it left out of view the rational 
 element which makes history intelligible. 
 
 We concluded our review of metaphysics and ethics 
 with Gioberti, and we now close our review of the philo- 
 sophy or science of right with Vico. The true becomes 
 the good in ethics, and the just in jurisprudence; the 
 matter contained is the same, the relations are changed. 
 The weakness of our mind obliges us to study these 
 relationships in so many separate sciences, but we ought 
 not on this account to lose sight of the whole. We have, 
 however, gone at some length into an exposition of the 
 doctrines which the ages have transmitted to us in order 
 to justify our choice, and to show how here too : " Multa 
 renascentur quae jam cecidere." 
 
 Having spent the first half of our life in combating 
 sensualism, we gladly spend the second half of it in the 
 defence of spiritualism. But some will say, what are we 
 to make of a book composed according to the principles 
 of Vico and Gioberti ? Have not the moral sciences made 
 very great progress through others ? We shall only say 
 in reply that we hope our readers will find in our work 
 an organic unity which embraces all the progress that 
 has been really made ; and these Prolegomena may be a 
 guarantee to them of the impartiality and fulness with 
 which we shall expound the opinions opposed to our own, 
 in order that students may be able to make their choice 
 between them, as it is our desire to offer them above all 
 things what Montaigne calls un lime, de "bonne foi. 
 
 Our work will be divided into two parts, the first of which 
 will be designated the Objects of Eight, and the second
 
 PROLEGOMENA. 131 
 
 the Subjects of Eight. In the first part we shall speak of 
 the human ends : Religion, Science, Art, Industry, Com- 
 merce, Morality, and Justice, looking at them in their 
 essence and in their modality. Property will be treated 
 in the chapter on industry ; contracts will be discussed in 
 the chapter on commerce ; beneficence will be taken up 
 as a part of morality ; and punishment and jurisdictions 
 will naturally be connected with the discussion of justice. 
 In the second part we shall treat of the individual and of 
 society, beginning from the Family and rising through the 
 Commune and the Province to the State, to Nations, and 
 to Humanity. 
 
 This distribution of the subject will enable us better to 
 show how the good specialises itself in ends, and how these 
 are able to be attained by means of a material utility 
 without losing any of their ethical value. As there is a 
 hierarchy in ideas, so there is a hierarchy in goods, which 
 leads on until the highest good, which is God, is reached. 
 Eight secures us the free attainment of some of these 
 goods, and imposes the accomplishment of others which 
 are more necessary to the social life, and in this consists 
 its conditional character. Right and law are not separated 
 from morals, but are simply distinguished from them. 
 Social utility serves as their limit, and their sphere is 
 therefore enlarged and restricted according to the various 
 degrees of civilisation. In the beginning everything ap- 
 pears mixed up in the sphere of religion, but gradually 
 science, art, morality, and right become distinguished 
 from it, without losing their intimate relations with it ; 
 and this may also be observed in the case of industry and 
 commerce. 
 
 If right is objectively the expression of the relationships 
 of an ideal justice, it is subjectively the power which the 
 individual or social man has to realise these relationships. 
 Accordingly it will be incumbent on us to examine whence 
 this power springs, what are its limits," and what is the 
 nature of the individual, of society, and of government.
 
 132 PHILOSOPHY OF RIGHT. 
 
 Our discussion would be incomplete if we confined our- 
 selves to the present alone, and hence under every one of 
 our sections, both in the first part and the second part, we 
 shall cast a glance over the past from which the present 
 has been historically and rationally derived. In doing so 
 we do not consider that we are passing beyond the limits 
 of the Philosophy of Eight, in view of the close con- 
 nection which Vico has established between philosophy, 
 philology, and history.
 
 PART FIRST. 
 
 THE OBJECTS OF EIGHT.
 
 CHAPTEE I. 
 RELIGION. 
 
 IN our preliminary survey we have seen man thinking, 
 feeling, and willing; but between thought and feeling 
 there is an intermediate state of the soul which is called 
 Faith. Faith is distinguished into natural and super- 
 natural according as it depends on intelligence or on 
 super-intelligence. The exposition of the philosophical 
 systems has shown us that everything is not accessible to 
 our mind, and that the creation ex nihilo has been intro- 
 duced into metaphysics by Christianity; and the same 
 holds good of the doctrine of grace in morals. The ten- 
 dency of modern times has been to diminish gradually 
 the supernatural even to the extent of confounding re- 
 ligion with philosophy. But, exclaims Ve'ra, although the 
 object of religion and of philosophy may be identical, 
 namely, God or the Absolute, yet religion and philosophy 
 differ in their mode of conceiving that object, because 
 religion cannot liberate itself from the sphere of repre- 
 sentation or from symbol, whereas philosophy contem- 
 plates the Idea in itself. 1 Gioberti had said more explicitly 
 that religion looks at the obscure side and philosophy at 
 the clear side of the idea, and that they make use of two 
 different faculties: the first, of the super-intellect; and 
 the second, of the intellect. 
 
 Max Miiller holds a somewhat similar view. He thus 
 expresses himself : " As there is a faculty of speech, 
 independent of all the historical forms of language, so 
 
 1 V&a, Strautt, I'ancienne et la nouvdle foi. Naples, 1873.
 
 I3 6 PHILOSOPHY OF RIGHT. 
 
 there is a faculty of faith in man independent of all his- 
 torical religions. If we say that it is religion which 
 distinguishes man from the animal, we do not mean the 
 Christian or Jewish religion; we do not mean any 
 special religion ; but we mean a mental faculty which, 
 independent of, nay, in spite of sense and reason, enables 
 man to apprehend the Infinite under different names, and 
 under varying disguises. Without that faculty no religion, 
 not even the lowest worship of idols and fetishes, would 
 be possible ; and if we will but listen attentively, we can 
 hear in all religions a groaning of the spirit, a struggle to 
 conceive the inconceivable, to utter the unutterable, a 
 longing after the Infinite, a love of God. Whether the 
 etymology which the ancients gave of the Greek word 
 avdpwTrps, man, be true or not (they derived it from 
 6 avw adpwv, he who looks upward), certain it is that 
 what makes man man, is that he alone can turn his face to 
 heaven ; certain it is that he alone yearns for something 
 that neither sense nor reason can supply. If then there 
 is a philosophical discipline which examines into the 
 conditions of sensuous or intuitional knowledge, and if 
 there is another philosophical discipline which examines 
 into the conditions of rational or conceptual knowledge, 
 there is clearly a place for a third philosophical discipline 
 that has to examine into the conditions of that third 
 faculty of man, co-ordinate with sense and reason, the 
 faculty of perceiving the Infinite, which is at the root 
 of all religions. In German we can distinguish that third 
 faculty by the name of Vernunft, as opposed to Verstand, 
 reason, and Sinne, sense. In English I know no better 
 name for it than the faculty of faith." 1 
 
 How is the multiplicity of the religions to be explained ? 
 In two ways. Diderot said that all revealed religions 
 were heresies of natural religion, meaning by natural 
 religion that sum of truths which human reason is able 
 to discover independently of all historical and local 
 1 Introduction to the Science of Religion, p. 18. 1873.
 
 RELIGION. 137 
 
 influences. The existence of God, the nature of His 
 attributes (such as His omnipotence, omniscience, omni- 
 presence, goodness), and the distinction between good 
 and evil, virtue and vice, with the corollary of the rewards 
 and punishments that are to be assigned to our actions 
 in a future life, form the substance of Natural Religion. 
 In the beginning of the present century Paley tried to 
 formulate methodically and scientifically what he called 
 Natural Theology. It has not been difficult for Max 
 Miiller, by analysing the positive religions of the principal 
 human races, to show that this Natural Theology is an 
 abstraction. Under the guidance of philology he goes 
 back to the time when the Aryan, Semitic, and Turanian 
 races were not yet divided into their innumerable branches. 
 He finds that the supreme divinity of the Aryans was 
 called " Light " or " Heaven," a name which afterwards 
 became Dyaus in Sanskrit, Zeus in Greek, Jovis in Latin, 
 and Din in German; and comparing the Dyauspetar of 
 the Vedas, the Zev Trdrep of the Greeks, and the Jovis pater 
 (Jupiter) of the Latins, he infers that " Heaven " was not 
 taken merely in the material sense, but also in the sense of 
 Providence, or as it was afterwards more clearly expressed 
 in the words : Our Father which art in Heaven. The root 
 of the name of all the Semitic divinities is found to be 
 El, which signifies " the strong " or " the powerful ; " and it 
 shows us that the Semites conceived of God as the ruler 
 of the peoples rather than as the regulator of the forces 
 of nature. The feminine names denoted at the beginning 
 the energy or faculties of the Supreme Being, and not 
 female divinities. The Turanian languages cannot be 
 said strictly to form a family ; for it has not been demon- 
 strated that the Chinese is the point of departure of the 
 northern branch, that is, the Tungusian, the Mongolian, 
 the Turkish, the Finnish, and the Samoyedan, and of the 
 southern branch, including the Tamil, the language of 
 the Deccan and the Botigan, the languages of Tibet and 
 of Bhutan, of the Taic, the languages of Siam, and the
 
 138 PHILOSOPHY OF RIGHT. 
 
 Malesian, or the languages of the Malay Peninsula and of 
 Polynesia. 
 
 Mythology confirms the original parentage of these 
 many groups by showing the Chinese term Tien (Heaven) 
 in the Tang-li of the Huns, in the Tengri of the Mongols, 
 and even in the Num of the Samoyedans, in the Juma 
 of the Finns, and in the Nam of Tibet. These names 
 not only designated the material heaven, but also the 
 spirit of heaven, who is the father and mother of all things, 
 and who has in his service a great number of spirits (Shin), 
 and among others, those of the dead. To Confucius Tien, 
 or the spirit of heaven, was the supreme God, and he 
 looked upon the other spirits as Socrates looked upon 
 the gods of Greece. 
 
 The other way of explaining the multiplicity of the 
 religions, is to regard them all as alterations of the true 
 religion which was revealed by God to our first parents 
 and preserved by the elect people. The Church, according 
 to the Catholic view, has existed from the first day of 
 the creation, and it is the ultimate terminus to which 
 Providence will bring the whole human race by tradition 
 and conscience. The Light has come into the world, 
 says St. John, but men loved the darkness rather than 
 the Light, because their deeds were evil. In consequence 
 of sin, the idea of God became darkened, and men kneeled 
 before trees and animals (Fetishism}, before the stars 
 (Sdbeism}, and before the forces of nature and personified 
 moral qualities (Polytheism}. More attentive observation 
 discovers that there is almost always in these systems 
 the subordination of the various gods to a supreme Being 
 from whom they emanate; and hence the religions are 
 well distinguished into two categories, according as they 
 are founded upon pantheism or creative monotheism. 
 
 The most celebrated of the former class of religions 
 are: i. The Chinese Eeligion, which is represented in 
 the text of the Y-King (Book of the transformations), attri-
 
 RELIGION. 139 
 
 buted to Fou-hi, and the Shu-King (Book of looks), 
 compiled by Confucius in the sixth century B.C. In the 
 first of these works, the fundamental principle laid down 
 is the binary principle, abstraction and reasoning not 
 being so far advanced as to reach unity. Fou-hi puts at 
 the head of his categories Heaven and Earth, representing 
 the first by a continuous line, and the second by a broken 
 line. The heaven represents the male principle, that is, 
 the sun, motion, force; and the earth represents the 
 female principle, the moon, repose, weakness. Confucius 
 takes Heaven in the more elevated sense of Providence, 
 and makes it the sole principle of all things. 2. The 
 Indian Eeligions, or Brahmanism and Buddhism. The 
 most ancient sacred hymns contained in the Rig-Veda 
 show us so many separate gods who ruled the principal 
 forces of nature. Gradually the metaphysical conception 
 of Brahma begins to take shape as a neutral, eternal, and 
 inactive principle, from which are derived the other 
 divine persons Vishnu and Shiva. The human soul 
 derived from the great whole is destined to change its 
 organism according to the character of its actions ; and 
 hence the great care to keep it pure from all stain so as 
 not to make it migrate into some animal body. Buddhism 
 passes over the problem of the origin of things, and 
 maintains that we are born unhappy, and will be always 
 unhappy, and that there remains for us no other resource 
 than to shut ourselves up in a contemplative life so as to 
 attain total annihilation. 3. The Egyptian Religion repre- 
 sents the infinite, in the god Amun, as the identical prin- 
 ciple of all beings. In the prayers which are addressed 
 to him, he is asked to come out from the darkness which 
 envelops him and to reveal himself to men. Kneph, the 
 good genius, is considered as the mind, the word, or love. 
 He is represented on the monuments in the form of a man 
 who lets an egg fall from his mouth to indicate that the 
 world is the work of the divine word and intelligence. 
 The passive principle or matter is represented by Athir
 
 I 4 o PHILOSOPHY OF RIGHT. 
 
 or Athor, the mother of the gods and of men. From the 
 egg which falls from the mouth of Kneph, there is born 
 a fourth divinity named Phta, who is the soul of the 
 world or the demiurge. 4. The Persian Eeligion resembles 
 the Egyptian religion. The rnythologists recognise Amun 
 in Zervane-Acherene, or the Infinite, the supreme principle 
 from which proceed good and evil, intelligence and matter, 
 light and darkness. Similarly Kneph, the good genius, 
 is found again in Ormuzd ; Athir, or matter and darkness, 
 in Ahriman ; and finally Phta, the soul of the world, or 
 the mediator between beings, in Mithra. 
 
 The social effects of the religions were different accord- 
 ing to places and races. China, being poor in imagina- 
 tion, had a simple worship, and it was wholly domestic, 
 without a vestige of hierocracy. In India, some time after 
 the conquest by the Aryans, we see the sacerdotal class 
 acquiring a pre-eminence, and the whole of society arranged 
 according to castes which were supposed to have proceeded 
 from Brahma. The Brahmans or priests were believed to 
 have sprung from his mouth, the Kshatryas or warriors 
 from his arms, the Vaysias or artisans from his thighs, and 
 the Sudras or the remainder of the population who were 
 the descendants of the conquered tribes, from his feet. 
 
 The code of Manu regulated minutely all that specially 
 concerned the Brahmans, declaring them to be the lords 
 of all things, which they let other men also enjoy from 
 pure generosity. No sooner is a Brahman conceived than 
 it is already necessary to offer a sacrifice for the purifica- 
 tion of the foetus. When born he is made to taste clarified 
 honey and butter. Certain rules are established con- 
 ditioning the name which is to be bestowed upon him, 
 regulating his first outgoing from the house, and how he 
 is to be dressed. When three years old he has to receive 
 the tonsure ; and from his fifth to his sixteenth year he 
 must be initiated with investiture of the sacred thread 
 under penalty of excommunication. The law regulates 
 how this thread is to be made, and what must be the kind
 
 RELIGION. 141 
 
 of wood, and what the length of the staff of the novice. 
 The novice, when once initiated by the ceremony of the 
 kesanta, can be fed on alms only. He is allowed to eat 
 only twice a day, in the morning and evening, and sitting 
 according to the established rules, and after having per- 
 formed his ablutions. At sixteen years of age he passes 
 under a spiritual teacher called the Guru, who becomes 
 his second father, and receives no remuneration for his 
 instruction, which may last fifteen or twenty years. The 
 Guru makes the novice constantly study the Vedas, in- 
 terrupting his explanations by frequent prayers. The 
 novice watches the rising and setting of the sun, and 
 learns to mortify his senses. When his noviciate is 
 finished the young Brahman may become the father of a 
 family, taking a wife of his own caste, and living princi- 
 pally on alms, and not eating flesh. After having pro- 
 created a family and educated them, the Brahman should 
 separate himself from the world, and think of his eternal 
 salvation. Having retired to the depths of a forest, and 
 covered with the skin of a gazelle or the bark of a tree, 
 he has to bathe morning and evening, to wear his hair 
 long and shaggy, to let his beard, hair, and nails grow, 
 and to live on roots or wild fruits, in some cases even 
 refusing alms. He may take with him his old companion 
 in life, but he must keep himself chaste as in the time of 
 his noviciate, and bear the heats of summer and the rains 
 of winter, and sleep on the naked earth. When he feels 
 himself seized by an incurable malady he is to walk with- 
 out stopping in the direction of the north-west until his 
 body dissolves, living only on air and water. Often a 
 more rigorous period closes the life of the Brahman, when 
 he finally embraces the ascetic life, and renounces every 
 sort of affection, becoming a Sunyassi. Then he no longer 
 needs to read the Vedas ; he has to live absolutely alone, 
 without having either bed or roof; if hunger torments 
 him, he goes about asking alms in a neighbouring village, 
 taking care not to tread on impure objects, and filtering
 
 I 4 2 PHILOSOPHY OF RIGHT. 
 
 the water before drinking from fear of killing the insects 
 which may be found in it. He purifies his words with 
 truth ; and inaccessible to all that surrounds him, superior 
 to every sensual desire, and without any other society than 
 his own soul, he has only one solemn thought in his 
 mind, that of uniting himself with the divine spirit. Had 
 these prescriptions been really observed, the Brahmans 
 would have paid a high price for their power. 
 
 But such was the corruption of the Brahmanic system 
 that in the sixth century B.C. Sakyamuni, afterwards called 
 Buddha, felt the necessity of a reform. He laid no im- 
 portance upon caste, proclaimed equality, and prescribed 
 common duties to all, and special duties to the religious 
 devotees. The latter were not to be clothed with any- 
 thing but rags picked up on the highways or from the 
 dunghills or the cemeteries, according to the example 
 which Buddha himself gave. They were to be fed only 
 on alms, receiving in a wooden dish what was offered to 
 them without being allowed to ask it, or to give any sign 
 of importunity. They were to eat only once, before mid- 
 day ; and they were to sleep in the forest with their back 
 leaned against the trunk of a tree, and the rest of their 
 body stretched on a mat. Once a month they were to 
 pass the night in a cemetery, in order to meditate on the 
 instability of human things. They were to observe the 
 most rigorous celibacy, and to break off all relations with 
 their families. In the depths of winter they were per- 
 mitted to take shelter in convents, which the sympathy 
 of the people and the munificence of the kings built for 
 them in all countries. 
 
 In Tibet, where there is a Buddhist pope, there is no 
 secular clergy, and the Grand Lama is only the head of 
 one of the many monasteries. Buddhism, in thus exagge- 
 rating dogma and discipline, has caused the retrogression 
 of the civilisation which Brahmanism, notwithstanding its 
 regime of caste, had promoted. 
 
 This reproach cannot be cast upon the Egyptian priests.
 
 RELIGION. 143 
 
 Society was divided in ancient Egypt into six or seven 
 castes, and the individual had to follow the profession or 
 the trade of his father. The first caste was that of the 
 priests. They were proprietors of two-thirds of the soil, 
 judges, astronomers, astrologers, architects, physicians, 
 historians, preceptors, and tutors of the kings, who could 
 not ascend the throne except by passing through a novi- 
 ciate from the caste of the warriors to that of the priests. 
 It is probable that the rules of agriculture which flourished 
 so greatly in the kingdom of the Pharaohs were laid down 
 by the priests, and that the works for dividing and pre- 
 serving the waters of the Nile were executed under their 
 direction. This increased their pride, and made a priest 
 of Sais say to Solon : " Solon, Solon, you are children ; 
 no Greek is old." But it is not right to exaggerate their 
 science ; for if Pythagoras had learned from them the 
 properties of the triangle, he would not have sacrificed a 
 hecatomb to the gods, as for a discovery of his own. The 
 gigantic monuments which excite our admiration, were 
 raised by human strength only aided by inclined planes ; 
 for we do not find in those monuments which have repre- 
 sentations of the ordinary occupations of life, any sketch 
 of machines, not even of a pulley. 
 
 In Persia we see classes, not castes ; and at their head 
 are found the Moleds or judges of the Magi, and the 
 Desturs, supervisors, or rather simple priests. The form 
 of government is monarchical ; but the king is the image 
 of Ormuzd, and therefore he ought to protect the poor. 
 If he showed himself unfaithful to his mission, the chief 
 Magus, or great priest, had the right to pronounce his 
 deposition. Polygamy is abolished in the family; and 
 the husband or father is absolute king within the pre- 
 cincts of the domestic life. Life in general is represented 
 as a warfare ; nature and the soul form the field of battle, 
 where man has to conquer his passions and the rebel 
 forces. 
 
 The Greco-Roman polytheism transformed the gods
 
 144 PHILOSOPHY OF RIGHT. 
 
 into so many men of a superior nature, and devoted the 
 priests to presiding over prayers and sacrifices. The 
 religion became an instrument of government, by means 
 of oracles among the Greeks and auspices among the 
 Romans. 
 
 We come now to those religions which have creative 
 Monotheism as their basis. Modern criticism has tried 
 to give an entirely natural explanation of creative Mono- 
 theism, denying that it was special to the Hebrews, and 
 attributing it to the whole Semitic race. Thus Kenan 
 writes : " Nature plays a small part in the Semitic re- 
 ligions. The desert is monotheistic ; sublime in its im- 
 mense uniformity, it suddenly revealed to man the idea 
 of the infinite, but not the feeling of that incessantly 
 creative activity which a more fertile nature has inspired 
 in other races. This is why Arabia has always been the 
 bulwark of the most exalted Monotheism. It is an error 
 to regard Mohammed as having founded Monotheism 
 among the Arabians. The worship of supreme Allah 
 (Allah toala) had always been the basis of the religion 
 of Arabia. Exclusively moved by the unity of the 
 government which is displayed in the world, the Semites 
 have perceived in the development of things only the 
 fulfilment of the will of a Supreme Being. They have 
 never understood the multiplicity in the universe. God 
 is ; God has made the heaven and the earth ; this is all 
 their philosophy." 1 Let us hear the reply of the cele- 
 brated orientalist Solomon Munk, who says : " The instinct 
 of Monotheism has been attributed to all the Semites, 
 but all efforts to trace it out have proved futile, as it 
 has always concealed itself from our view, because it is 
 founded upon the strangest philological deductions, and 
 not upon authentic documents. We find constant excep- 
 tions in the Phenicians, the Syrians, and even the Arabians. 
 
 1 Renan, Histoire general* et systeme compare des langues semitiques, 
 vol. ii. 1. i. c. I.
 
 RELIGION. 145 
 
 For when I open the Koran I read the name of several 
 pagan divinities worshipped by the old Arabians. It is 
 asserted that the names of the Semitic divinities all in- 
 dicate a certain dominion : Baal, the master ; Adonai, my 
 lord ; Moloch, the king ; but there are passed over in 
 silence the names of Astarte, Derketo, Dagon, Chemosh, 
 &c. But notwithstanding this, we admit the primitive 
 idea of lordship, and hold that the Semites worshipped in 
 the beginning one God, who became multiplied by casual 
 contact with the Indo-European cults. The Semitic gods, 
 it is replied, are nothing in themselves; they represent 
 only the attributes of the true God, whereas the Indo- 
 European gods act on their own account and of their own 
 will. But in spite of the more accurate investigations, 
 I do not find the autonomy of the Indo-European gods. 
 Do not the Greek divinities recognise the primacy of 
 Jupiter ? Have not the Eomans their Jupiter Optimus 
 Maximus? In fact, neither the Semites nor the Indo- 
 Europeans were monotheists. The difference between the 
 two races is that the Semites, being poor in imagination, 
 worshipped only what appeared to the senses, such as 
 the sun, the. moon, the planets, the constellations of the 
 zodiac, &c., while the imagination of the Indo-Europeaus 
 created everywhere divinities in sublunary nature, as well 
 as in the firmament. ... In a word, the Semites were 
 astrolaters, and the Indo-Europeans worshipped all nature. 
 But both of them confounded nature with God, and 
 neither of them were able to rise to the idea of a first 
 cause, absolute, unique, independent of the world, and 
 creative. Monotheism belongs to the Hebrews alone, and 
 it became theirs by the direct intervention of Provi- 
 dence." 
 
 The one God, the living God, revealed Himself to 
 Abraham, who made Him known to Isaac, and Isaac to 
 Jacob. The head of the family was at the same time 
 a priest and king ; and all the worship consisted in prayers 
 and sacrifices. When at the exodus the family became
 
 I 4 6 PHILOSOPHY OF RIGHT. 
 
 a people, the religion became national, and aspired afc 
 becoming universal. The God of Abraham, of Isaac, and 
 of Jacob was made known by Moses as the God of the 
 universe and the King of kings. That the true religion 
 might not be corrupted it was entrusted to the guardian- 
 ship of the tribe of Levi, and the Hebrew people was 
 isolated as much as possible from its neighbours. The 
 ark, and thereafter the temple, with the tables of the Law, 
 were the material symbols of the alliance between God 
 and the elect people. The solemn promise of a deliverer 
 was taken in an entirely material sense, and hence the 
 Hebrews did not recognise the Messiah in Jesus Christ. 
 He developed the germs of universal charity contained 
 in the Hebrew religion, and said : " Love God above all 
 things, and thy neighbour as thyself ; for this is the law 
 and the prophets." In such passages of the Old Testa- 
 ment as the following, the same sentiment is accentuated : 
 " The stranger that sojourneth with you shall be unto you 
 as the homeborn among you, and thou shalt love him as 
 thyself; for ye were strangers in the land of Egypt" 
 (Lev. xix. 34). "If thou meet thine enemy's ox or his ass 
 going astray, thou shalt surely bring it back to him again. 
 If thou see the ass of him that hateth thee lying under 
 his burden, and wouldest forbear to help him, thou shalt 
 surely help with him " (Exod. xxiii. 4, 5). 
 
 The modern criticism has endeavoured to distinguish 
 several periods in the founding of Christianity. The first 
 disciples still considered themselves as Hebrews, and did 
 not wish to admit any but the circumcised to the promises 
 of the kingdom of God. St. Paul pleaded the cause of 
 the Gentiles and expounded the doctrines of sin and grace. 
 The Apocalypse was the manifesto of the Judaeo-Christian 
 party, as the Fourth Gospel was representative of the 
 Greek philosophy. In this way the attempt has been 
 made to show that the primitive Christianity was entirely 
 a human work. But as Eeuss, a Protestant theologian,
 
 RELIGION. 147 
 
 says, according to the traditional theology the prophets 
 and apostles would thus have been the merely passive 
 instruments of revelation, which in order to attain its 
 end would have neutralised and arrested momentarily or 
 permanently all intellectual exertion in them. On the 
 contrary, we think that they were the most elevated 
 geniuses and Coryphaei of their age, and that they had 
 the honour of being chosen by Providence to propagate 
 the new principles by making use of their natural 
 faculties. They were not vessels of inert matter, in 
 which the water which contained the germs of life was 
 to become stagnant; but their minds were occupied in 
 a free and orderly work, which the divine impulse had 
 excited without weakening the strength of their intellects. 
 The Holy Spirit prepared them to receive the heavenly 
 truth, purified their wills by the ministry of the word, 
 and thus prevented any deviation of thought or action 
 which might have been able to harm the cause which 
 they had been called to serve; and on their side they 
 applied to the furtherance of this cause their natural 
 faculties, the particular gifts of their minds, and their 
 knowledge and eloquence. 1 
 
 At the outset the Christian doctrine was entirely summed 
 up in the expectation of the kingdom of God, of which 
 the Church had the keys. Its, dogmas were still included 
 in the Old and New Testament, and were only defined 
 much later as it became necessary to do so. Thus it was 
 with the absolute divinity of Jesus Christ which was 
 formulated at the Council of Nice in 325, and with the 
 doctrine of the Holy Spirit at the Council of Constanti- 
 nople in 380. In the year 1054, the first definite division 
 of the Church took place in the Greek schism. The 
 two churches differed only in reference to one dogma, 
 that of the procession of the Holy Spirit. Both churches 
 admitted the Scriptures and tradition as the sources of 
 the Christian faith, the infallibility of the visible church 
 
 1 flistoire de la theologie chretienne an III. tticle, p. 19. Paris, 1860.
 
 I 4 8 PHILOSOPHY OF RIGHT. 
 
 (but not that of the Pope, whose primacy was denied by 
 the Greeks) and the semi-Pelagian doctrine of original 
 sin and grace ; and they held the same views about the 
 seven sacraments, purgatory, the invocation of saints, 
 prayers for the dead, and veneration of images, although 
 the Greeks admitted only painted images. 1 
 
 In 1520, Luther separated himself openly from the 
 Roman Catholic Church, and gave origin to the religious 
 reformation called Protestantism, which produced a much 
 deeper separation than the Greek schism. The chief 
 differences between Catholicism and Protestantism are 
 the following: I. The interpretation of the Sacred Books 
 belongs, according to the Catholics, to the clergy assembled 
 in Council and to the Pope, whereas according to the 
 Protestants it is left to the judgment of the individual. 
 2. According to the Protestants eternal salvation is at- 
 tained by faith, whereas the Catholics maintain that faith 
 is not sufficient without works. These two Protestant 
 principles tended to emancipate the individual from 
 authority and external practices. 3. Luther substituted 
 the word " consubstantiation " for " transubstantiation," 
 maintaining that the elements in the Holy Supper, without 
 losing their proper substance, as was taught by the Catholic 
 Church, became the body of Christ, just as red-hot iron 
 contains the heat without ceasing to be iron. Calvin was 
 more logical, seeing a simple symbol in this sacrament. 
 4. Protestantism, founding on individual inspiration, which 
 was afterwards called private judgment, became sundered 
 into a multitude of sects. 
 
 On the occasion of the tercentenary of the Pieformation 
 (27th September 1817), Frederick William I. of Prussia 
 
 1 See for the dogmatic views the summary, may be consulted the Con- 
 
 work of John of Damascus (De la fessio Ecdesiae graecae ortkodoxae a 
 
 foi orthodoxe, Paris, 1712), and for Petro Mogila composite, Lipsia, 1595, 
 
 the canonical position the Nomo- which was approved by the Eastern 
 
 carton of Photius in the Bibliotheca Patriarchs in 1643, and sanctioned 
 
 juris canonici, Paris, 1661. As a by the Synod of Bethlehem in 1672.
 
 RELIGION. 149 
 
 expressed publicly the wish for a general Union df the 
 Protestant Churches, and at the same time he published 
 the official scheme of a synodal constitution which was 
 to be discussed in a future synod of the kingdom. The 
 movement extended to the Duchy of Nassau, the Grand 
 Duchy of Baden, the Bavarian Palatinate, and other small 
 German States. The differences between the churches 
 were attenuated, and a common symbol was compiled, 
 taking the Holy Scriptures as its basis, without, however, 
 diminishing the authority or independence of the two 
 principal confessions, the Lutheran and the Reformed; 
 and this union assumed the common name of the " Evan- 
 gelical Church." Only the so-called Old Lutherans have 
 kept themselves separated, in accordance with a con- 
 cession of the sovereign of 1845. Gradually the other 
 German States, with the exception of Mecklenburg, re- 
 ceived the organisation by communities, and the synodal 
 constitution was harmonised as well as possible with the 
 consistorial constitution. 1 
 
 The restoration of the German Empire in the person of 
 a Protestant Prince took place about the same time as the 
 passing of the decrees of the Vatican Council ; and this 
 gave occasion to a species of persecution against the 
 Roman Church which was called the " culture-struggle " 
 (CulturJcampf), a word which was first used by Virchow in 
 the electoral programme of the progressive party in 1873. 
 The Laws of the 4th, nth, I2th, i3th, and I4th May sub- 
 jected the ecclesiastical authorities to the civil authorities, 
 so as to render the exercise of worship impossible without 
 the greatest abnegation. The articles 15, 16, and 18 of 
 the Prussian Constitution of 3ist January 1850, which 
 
 1 For the doctrinal position of the to consult the Ckristianae rdigionit 
 
 Lutheran Church see the Augsburg institutio (1536) of John Calvin. As 
 
 Confession (1530), its Apology (1531), regards the modern Evangelical 
 
 the theological treatise of Melanch- Church, see the works of Richter 
 
 thon (1521), the Articles of Smalcald (Geschichte der evangdischen Kirche, 
 
 (1537), and the two Catechisms of Leipzig, 1851), and of G. F. Schulte 
 
 Luther (1529). For the doctrine of (Lchrbuch dcs kath. und evang. 
 
 the Reformed Church, it will suffice Kirchenrechtcs, Giessen, 1886.
 
 I S o PHILOSOPHY OF RIGHT. 
 
 secured the Catholic Church as well as the Evangelical 
 Church by precious guarantees, were abrogated by the 
 Law of 1 8th June 1875. In the spring of 1886, the 
 May laws, above referred to, were mitigated in their 
 application, and on the 29th April of 1887 they were 
 almost wholly abolished. 1 
 
 The English Church, when compared with other Pro- 
 testant Churches, comes nearest the Catholic Church. Its 
 Thirty-nine Articles, which were approved in the London 
 Assembly of 1562, rejected the primacy of the Pope, the 
 worship of the Virgin and of the saints, and purgatory, 
 made the ceremony of the Holy Supper simply com- 
 memorative, took away the character of a sacrament from 
 auricular confession and marriage, &c. The Quakers, the 
 Moravian Brethren, and the Methodists, adopted more or 
 less of the mysticism proscribed by the first Eeformers, 
 while the Armenians and the Unitarians of the present 
 day have come to adopt a pure rationalism. 
 
 Mohammedanism is considered by many as a heresy 
 of Christianity, but this view is erroneous. Islamism is 
 rather a return to the religion of Abraham, the gift of 
 prophecy having been granted to Mohammed ; and hence 
 its great simplicity and its tolerance of polygamy. Its 
 religious creed is summed up in these few words : God 
 is great, and Mohammed is His prophet. The Koran is 
 its only foundation according to the Shiites ; and it also 
 includes, according to the Sunnites, the sayings of the 
 prophet gathered by his familiar friends, the decisions of 
 the four first Caliphs and of the four Imams. The 
 Wahabites wished to reduce the worship to prostrating 
 oneself before the idea of the existence of God, without 
 the need of any intercessor ; and they profess to believe 
 that the destroying of the tomb of the prophet and 
 
 1 See Deutsche Reichs und Preus- kirchenrecht zusammengestdlt von A. 
 ticheStaatsgesetzebetre/enddasStaats- Kleinschmidt. Berlin^ Mai 1887.
 
 RELIGION. 151 
 
 the mausoleums of the great Imams, is a meritorious 
 work. 
 
 Let us now look at the relations of these religions to 
 society. The government of the Hebrews was a theocracy, 
 and all know the words of Samuel to the elders and to 
 the people when they asked him for a king. Nevertheless 
 he had to concede their wish, but he did it so that the 
 priests did not lose all their power. The faith in Jehovah, 
 and the promise given to the seed of Abraham, constitutes 
 the fundamental precept of the Mosaic Law : " I am the 
 Lord thy God, and thou shalt have no other gods before 
 me." Idolatry is compared to conjugal infidelity: "Ye 
 are not to go a whoring after other gods ; " and it is 
 punished like adultery by stoning to death. Man is 
 sacred because he is the work of God ; the new-born 
 child is inviolable ; the slave becomes free in the Sabbatic 
 year, that is, every seventh year. In no legislation of 
 antiquity does there appear so much solicitude for the 
 poor. Giving alms is called justice ; and property was 
 only emphyteutic, for in the jubilee, or after fifty years, 
 every seller entered again into the possession of sold 
 goods. The Levites were distributed in forty-eight cities 
 scattered through the whole country, and they had a 
 right to the tenth of the produce of the lands. The 
 dignity of the high priesthood was hereditary in the 
 family of Aaron. The prophets were a sort of inspired 
 tribunes, who always vigorously recalled the commands 
 of the Lord. 
 
 The modern Jews admit a tradition besides their sacred 
 books. This tradition they carry back to Moses, and it 
 regulates all the possible applications of the law. It has 
 given origin to the Talmud (study or science), which is 
 divided into two parts, the Mishna (second law) and the 
 Gemara (gloss). This tradition is undoubtedly the work 
 of the Pharisees, who had eyes and saw not, ears and 
 heard not.
 
 I S 2 PHILOSOPHY OF RIGHT. 
 
 Modern criticism has found easier access to Islamism. 
 The life of Mohammed, says Renan, is known to us like 
 that of a reformer of the sixteenth century. He could 
 neither read nor write ; but his travels in Syria, his relations 
 with the Christian monks, and the Biblical and Christian 
 tradition of his uncle Waraca, awoke in him the religious 
 vocation. Arabia was then passing through a crisis. 
 Greeks, Syrians, Persians, and Abyssinians had penetrated 
 into it on all sides, and had given rise to a species of 
 religious syncretism. The ideas of a single God, of paradise, 
 of a resurrection, of prophets, and of holy books, were in- 
 troduced among the idolatrous tribes. The Kaaba was the 
 pantheon of all the cults ; and when Mohammed destroyed 
 the images of the holy house, he found a Byzantine Virgin 
 with the child in her arms painted on a column. 
 
 Mohammed had conceived the thought of a religious 
 reform for Arabia alone. The idea of a universal con- 
 quest belongs to Omar. By the simplicity of its dogmas 
 and the absence of an official clergy, Islamism resembles 
 natural religion. Eenan combats the ideas of Forster, 
 who compares the Caliphate to the Papacy. " Whatever 
 Forster may say, the Caliphate has never resembled the 
 Papacy. The Caliphate has never been a powerful State, 
 except in the period of the conquests of Islamism ; but 
 when the temporal power passed to the Emiri-al-omra, 
 and the Caliphate was only a religious power, it fell soon 
 into oblivion. The idea of a purely spiritual power is too 
 high for the East. All the Christian branches have not 
 been able to reach it; the Greco- Slavonic branch has 
 never understood it; the German branch has rejected it; 
 it is only the Latin nations that have been able to under- 
 stand its value. Now experience has shown that the 
 simple popular faith does not suffice to preserve a religion 
 unless a consecrated hierarchy and a spiritual head watch 
 over it." * Renan elsewhere 2 says : " Under the Caliphate, 
 
 1 Etudes dhistoire religieuse, 2nd edit. p. 298-9. Paris, 1 860. 
 Under Mahometisme in the Dictionnaire general de la politiquc.
 
 RELIGION. 153 
 
 as under the dynasties which burst from it like clouds, 
 one sole guarantee remained to the Mussulmans in the 
 law which had descended from heaven. This law is placed 
 under the guardianship of judges and juris-consults 
 (ulemas), who form the first two orders of the Mussulman 
 clergy. The interpreters of the law have often obeyed 
 the precepts of the Koran to oppose the violation of the 
 law; and often the Sheik-ul-Islam was as great on 
 account of these resistances as any prefect of the prae- 
 torium under the Roman emperors. Some canonists even 
 deny the Sultans the power to make organic laws in 
 order to secure the execution of the sacred law. The 
 public law of the East appears to have always conferred 
 on the monarch an unlimited power over his functionaries, 
 and generally over all those who have the misfortune to 
 come near him. This cruel law of exception has its 
 origin in the condition of the ancient ministers of the 
 East, who were chosen from among the slaves of the 
 seraglio; and it was also founded upon the peculiar 
 position of the kings, who were strangers to the whole 
 of their kingdom, the first prisoners of the palace, as 
 Montesquieu calls them. This deplorable policy has 
 ruled all the monarchies of the East, and Islamism has in 
 no way modified it. It has been wrongly asserted that 
 the Koran does not recognise property. The property of 
 the lands possessed by the Arabs before the conquest, and 
 the property of lands abandoned by the infidels and 
 divided among the faithful, are as well secured as any 
 landed property can be in the East ; and they are trans- 
 mitted by sale, donation, and succession. The Koran 
 and Sunna further recognise full proprietorship in desert 
 lands which labour recalls to life. " If any one gives life 
 to a dead bit of land," says Mohammed, " it is his." To 
 the conquering Arabs there was assigned a tribute from 
 the conquered lands, the precarious possession of these 
 lands being left to the conquered. The old population 
 remained attached to the soil under the surveillance of
 
 154 PHILOSOPHY OF RIGHT. 
 
 the victorious army. These warriors were collectors of 
 the imposts, and were arranged in a wise hierarchy ; and 
 they lived on vast domains such as the Europeans took 
 for fiefs, but they were only financial divisions, as they 
 wanted the most essential quality, namely, the proprie- 
 torship of the land. Islamism tempered the rigour of 
 proprietorship with the precept of almsgiving, which 
 was fixed at the tenth of the revenues ; and it thus 
 settled the question of pauperism, which Catholicism 
 sought to solve by the monasteries. We now know 
 Islamism under its most disadvantageous aspect, saddened 
 as it is by Turks and barbarians; yet it is not incom- 
 patible with a certain culture, as was seen in the 
 eighth and ninth centuries at Bagdad, and in the tenth at 
 Cordova. 
 
 The true liberty entered into the world with the words 
 of Jesus Christ when He said : " Eender unto Caesar the 
 things that are Caesar's, and to God the things that are 
 God's." Religion has eternal salvation in view, and conse- 
 quently also mortality in the most absolute sense ; while 
 the State has as its object terrestrial prosperity, and, con- 
 sequently, right in the most human sense. Their efforts 
 are not opposed but convergent, since eternal salvation 
 does not exclude temporal prosperity, but would have 
 it subordinated to itself. Such subordination, however, 
 ought to be carried out by the free-will of the individual ; 
 and the State is therefore obliged to secure the individual 
 his full liberty in matters of faith. 
 
 The worship of the first Christians is thus described by 
 Pliny the Younger (Lib. X. Let. 97) : " The Christians 
 assemble on fixed days before the rising of the sun ; they 
 sing in turns hymns in praise of Christ as a God ; then 
 they bind themselves to commit no thefts, crimes, or 
 adulteries, and not to break a promise or deny a de- 
 posit; and after this, they disperse and assemble anew 
 to eat common and innocent food." In order to attract
 
 RELIGION. 155 
 
 the pagans they adopted some of their religious cere- 
 monies, such as the use of tapers, lustral water, proces- 
 sions, &c. 
 
 Some have thought that the whole government of the 
 Church was copied from institutions then existing, and 
 they have tried to find analogies between the election of 
 the magistrates and that of the bishops, between the 
 Church Councils and the Amphictyonic institution, with- 
 out considering that new needs suffice to create new 
 institutions. 
 
 The ecclesiastical hierarchy really arose from the needs 
 of worship, and from the necessity of guarding the purity of 
 the faith. The distinction between clergy and laity seems to 
 go back to the apostolic times, as well as that of bishops, 
 priests, and deacons. A disciplinary authority was granted 
 to the churches which were metropolitan or located in the 
 capitals of provinces, as those of Antioch, Alexandria, and 
 Rome, whose primacy soon came to be recognised. The 
 union of the churches was maintained by the synods or 
 provincial councils. From the second century after Christ, 
 the Christian doctrine was exactly determined according 
 to the teaching of Jesus Christ, as attested by the Scrip- 
 tures and by the tradition transmitted from the Apostles 
 to the uninterrupted series of their successors. However, 
 the Church as a whole was a depository of tradition ; the 
 laity judged the teaching of the clergy and abandoned 
 the communion of the bishop whose doctrine was not 
 conformable to Scripture and tradition. Moreover, the 
 bishop was directly elected by the faithful; the priest, 
 the deacons, and the inferior clergy were elected conjointly 
 by the bishop and by the faithful, who took part in all 
 the affairs which concerned the internal community, 
 while the priests formed a permanent council at the side 
 of the bishop. The election, however, only designated the 
 individual who was to receive ordination, which the spiri- 
 tual power alone conferred. There is not a single example 
 in the New Testament, or in the history of the Church, of
 
 1 56 PHILOSOPHY OF RIGHT. 
 
 the institution of the spiritual power by means of election 
 alone, while there are some instances in which the election 
 is neglected. St. Paul enjoins his disciples Timothy and 
 Titus to institute priests in the cities, that is to say, to 
 choose those who were to preside over the worship, and to 
 ordain them by the imposition of hands. 
 
 The government of the Church was a mixture of 
 monarchy, aristocracy, and democracy. Monarchy was 
 represented by the pope, aristocracy by the bishops, and 
 democracy by the clergy and people. In the year 316, 
 we find a canon of the Council of Laodicea which seems 
 to restrict the popular right in elections ; but it serves 
 rather to restrict the abuse of it, since we have in the 
 following centuries the most incontestable proofs of the 
 intervention of the people in the elections of the clergy. 
 The most powerful obstacles to this intervention came 
 from the princes who desired to make themselves masters 
 of the elections. The Church had granted them a certain 
 right of nomination, or of confirmation in the case of the 
 election of bishops, which, however, was to be always 
 free; that is to say, it was to be effected by the con- 
 currence of the bishops, the clergy, and the people. In 
 the eleventh century the abuses of the secular power 
 reached their height, and a long struggle began between 
 the popes and the emperors with reference to the so-called 
 investitures. 
 
 The Treaty of Worms of 1 122 recognised the full liberty 
 of the canonical elections, and left to the emperors only 
 the right to give the elected bishop with his sceptre 
 investiture in the goods attached to his church. The 
 misfortunes of the times did not always permit the free 
 assembling of the electoral Christian body ; but Innocent 
 III. and the fourth Lateran Council created in the Church 
 a restricted electoral body, and entrusted the elections of 
 bishops to the cathedral chapters, yet still leaving some 
 traces of the intervention of the clergy and the people
 
 RELIGION. 157 
 
 in such elections. 1 By the concordats of the sixteenth 
 century, the nomination of the bishops was granted to 
 the princes, their canonical institution being reserved for 
 the pope. 
 
 The laity not only took part in these elections, but 
 also in the Councils of the Church. We may quote to 
 this effect the words of one of the latest defenders of 
 these solemn assemblies : " The Christian society, says 
 Monsignor Maret, rests on the authority of the First 
 Pastors (Bishops). . . . These are the vicars or represen- 
 tatives of God made man, and of the primordial and 
 infinite reason. Their government ought therefore to be 
 a government of reason and wisdom. Reason enlightens 
 all men, and tlje first pastors ought to take counsel with 
 each other in order to their mutual illumination. But 
 besides this natural motive there are others which arise 
 from the very essence of the religious society. This 
 society has received from its divine founder the deposit 
 of the revealed truths, and preserves it in its memory 
 and heart in order to become the interpreter of it when- 
 ever there arises a doubt regarding dogma or morals. . . . 
 The First Pastors are the witnesses of this tradition, and 
 show its antiquity and perpetuity by their assembly, its 
 immutable unity by their agreement, and its charity by 
 the tenor of their discussions. When assembled they 
 attest the tradition of the Church, comment upon it, 
 develop it, and propose all the laws necessary for the 
 religious society. Thus the agreement of the chief pastors 
 is the manifestation of Christian truth. . . . However, 
 the chief pastors do not only agree among themselves, 
 but call forth the councils of the Pastors of the second 
 order (Clergy), and also of the faithful. This invitation 
 is suggested by the great law of humility and Christian 
 charity. Humility teaches the chief pastors that they 
 may receive from their subordinates salutary advices, 
 because the Spirit of God bloweth where it listeth. 
 
 1 See Thomassin, Discipline ecdesiattique, t. ii.
 
 158 PHILOSOPHY OP RIGHT. 
 
 Charity enjoins them to act always in harmony ; for when 
 unity reigns in the souls of men, laws become more 
 respected and more effective, and goodness becomes 
 easier." 1 The same author further explains that the 
 clergy had a deliberative vote, and the laity simply a 
 consultative vote. 
 
 The Bishop of Eome was chosen like all the other 
 bishops until a special mode of doing this was established 
 on account of his peculiar importance. As the name of 
 Pope became a privilege of the Eoman Bishop, so did the 
 title of Cardinal become a privilege of his presbyters. 
 "VVe find in Baronius the following decree, which emanated 
 from Nicolas II. at the Council of Eome in 1059 : " In 
 primis cardinales episcopi diligentissmi simul de electione 
 (pontifices) tractantes, mox ipsi clericos cardinalea adhi- 
 beant: sicque reliquus clerus et populus ad consensus 
 novae electionis accedat." A letter of Petrus Damiani, 
 written in the time of the successor of Nicolas II., adds : 
 " Sic suspendenda est causa usquedum Eegiae Celsitudinis 
 consulatur auctoritas ; nisi, sicut nuper contigit, periculum 
 fortasse immineat, quod rem quandocius accelerare com- 
 pellat." Accordingly, the cardinals elected ; the remaining 
 clergy and the people gave consent; and the emperor 
 approved the election. If the new pope was taken out 
 of the body of cardinals, it was not a necessity, nor is it 
 so to-day, but a matter of convenience. 2 
 
 The first pope elected without the intervention of the 
 Eoman people, was Celestine II. in 1 143. The high clergy, 
 using as a pretext an insurrection against Innocent II., 
 the predecessor of Celestine, laid claim to the right of 
 choosing the pontiff. The Eomans complained of it, and 
 at the death of Celestine II. reclaimed this right arms in 
 hand. Lucius II., Eugenius III., Anastasius IV., and 
 Adrian IV. were also elected by the common suffrages of 
 
 1 Monsignor Maret, Le Concile gtn6raL et la paix rdigieuse. Paris, 1869. 
 a Guglielmo Audiaio, Diritto pubblico della Chiesa e delle genti cria- 
 tiane. Vol. I. Roma, 1863.
 
 RELIGION. 159 
 
 the clergy and laity : communi voto cleri et populi dectus, 
 as Otto of Freisingen says in speaking of the election 
 of Eugenius III. But Adrian IV. finally deprived the 
 faithful of the electoral right, and Alexander III. -was 
 elected in 1159 without their participation. The Eomans 
 protested, and uniting with certain dissentient cardinals, 
 they elected four anti-popes. This schism induced 
 Alexander III. to convoke the third Lateran Council in 
 1179, which established the condition in principle that 
 the election of the popes belongs exclusively to the 
 cardinals. 
 
 The power of the cardinals increased along with that 
 of the pope. They assisted him in all affairs of import- 
 ance, meeting in a public or secret consistory, whether in 
 an ordinary or extraordinary meeting for nomination of 
 the bishops, &c. The cardinals also met in temporary 
 or permanent commissions. The latter were instituted 
 by Sixtus V., some of them connected with the episcopate 
 of Rome for the administration of the States of the 
 Church, and others for the administration of the whole 
 Catholic world. They are the following: i. The Con- 
 gregatio consistorialis, founded in order to prepare the 
 matters which were to be discussed in the consistory. It 
 was rearranged by Clement IX. 2. The Congregatio S. 
 Ojficii sive Inquisitionis, whose office was to take note of 
 all heterodox doctrines. It was founded by Paul III. 
 in 1542, as an extraordinary commission or a supreme 
 tribunal against heresies. Pius IV. and Pius V. ex- 
 tended its authority, and Sixtus V. made it permanent. 
 
 3. The Congregatio Indicis, instituted by Pius V. and 
 Sixtus V. in order to relieve the preceding one, there 
 being assigned to it the examination of pernicious books. 
 
 4. The Congregatio Sacri Concilii Tridentini interpretum, 
 instituted by Pius IV. with the sole object of watching 
 over the execution of the decrees of the Council of Trent, 
 but Pius V., and then Sixtus V., added to it also the 
 right of interpreting them. 5. The Congregatio sacrorum
 
 160 PHILOSOPHY OF RIGHT. 
 
 rituum, instituted by Sixtus Y. for the liturgy and 
 canonisations. 6. The Congregatio de propaganda fide, 
 founded for the direction of missions by Gregory XV. 
 in 1622, whose jurisdiction was extended by Urban VIII. 
 7. The Congregatio super negotiis episcoporum, and another 
 super negotiis regularium, instituted separately by Sixtus 
 V., and then combined by him into one. 8. The Con- 
 gregatio immunitatum et controversiarum juredictionalium, 
 established by Urban VIII. 9. The Congregatio examinis 
 episcoporum, which takes due information for the nomina- 
 tion of the bishops. 10. Finally, the Congregation in- 
 stituted by Clement IX. in 1669 to provide against the 
 abuse of indulgences and of relics. 1 
 
 In the gravest cases, the pope was not satisfied with 
 the consultative vote of the cardinals, but had recourse to 
 the deliberative vote of the Councils. Here rises the 
 question as to the superiority of the Council over the 
 pope, or that of the pope over the Council. There is 
 invoked on the one side the decree of the Council of 
 Constance, Section V. : " Sancta Synodus declarat, quod 
 ipsa potestatem a Christo immediate habet, cui quilibet 
 cujuscumque status vel dignitatis, etiam si papalis existat, 
 obedire tenetur in his quae pertinent ad fidem et extir- 
 pationem dicti schismatis, et reformatibnem dictae ecclesiae 
 in capite et membris." On the other side there is cited 
 the Bull Pastor aeternus, approved in the fifth Lateran 
 Council, from which we extract the following passage : 
 "Cum etiam solum Pontificem Romanum, pro tempore 
 existentem, tanquam auctoritatem super omnia concilia 
 habentem, tarn conciliorum indicendorum, transferendorum, 
 dissolvendorum plenum jus et potestatem habere, nedum 
 ex sacrae Scripturae testimonio, dictis sanctorum Patrum, 
 ac aliorum Eomanorum Pontificum etiam praedecessorum 
 nostrorum, sacrorum canonum decretis, sed propria etiam 
 eorumdem conciliorum confessione manifesta constat." 
 
 1 Walter, Manud du droit ecdesiastique de toutes lea confessions chrt- 
 tiennes. Paris, 1840.
 
 RELIGION. 161 
 
 The French clergy, being met in a representative 
 assembly on the igth March 1682, held to the first of 
 these two opinions, and formulated in their famous Declara- 
 tion the following two articles : (i) That the power of the 
 Councils is superior to the power of the pope, according 
 to the decrees of the Council of Constance ; and (2) That 
 the decision of the pope is not infallible nor irreformable, 
 except in so far as it has been confirmed by the consent 
 of the Church. This opinion, although disapproved by 
 the pope, continued to be taught in France, and Article 24 
 of the Organic Law of the iSth Germinale, anno X., which 
 was a sort of complement of the concordat of anno IX., 
 demanded that the qualified teachers in the seminaries 
 should subscribe the above Declaration of 1682. 
 
 The Vatican Council has changed this state of things 
 in declaring the infallibility of the pope in the following 
 terms : " Komanoruni Pontificem, cum omnium Chris- 
 tianorum Pastoris et Doctoris munere fungens, pro suprema 
 sua Apostolica auctoritate doctrinam de fide vel moribus 
 ab universa Ecclesia tenendam definit, assistentiam divi- 
 nam, ipsi in beato Petro promissam, ea infallibilitate pollere, 
 qua divinus Eedemptor Ecclesiam suam in definienda 
 doctrina de fide vel moribus instructam esse voluit; 
 ideoque ejusmodi Romani Pontificis definitiones ex sese, 
 non autem ex consensu Ecclesiae irreformabiles esse." 
 Does the personal infallibility of the pope follow from 
 this definition ? We give the reply of Alfonso Capecelatro. 
 " The pope," he says, " is so united to the Church teaching 
 (ecclesia docens) that when he speaks ex cathedrd, he is 
 always bound up with the Church by the promise of 
 Christ, and he expresses its faith. The adverse school 
 affirms that neither errors, nor much less personal faults, 
 can separate the Vicar of Christ from his Spouse when he 
 speaks of religious and moral dogmas in name of the 
 Church universal, or as head and supreme master of it to 
 the same Church universal. In short, according to this 
 theory, the pope is the head of a body which is called 
 
 VOL. I. L
 
 1 62 PHILOSOPHY OF RIGHT. 
 
 the Teaching Church ; and the bishops are members of it, 
 and are living and vigorous in so far as they are united 
 as branches to that first and fruitful vine. When this 
 head speaks in name of the whole body, when in name 
 of this body he teaches all the believers, and teaches in 
 matter revealed by Christ, or in that in which Christ 
 radiates out His own infallibility in the Church : he is 
 then so united, and, I may even say, so immediately 
 identified and unified, with the body, that he always repre- 
 sents its faith, or, which is the same thing, the faith of 
 Christ. This is the theory of Papal Infallibility." l 
 
 Let us now examine the relations of the Church with the 
 State. In the first Christian centuries the Church was 
 ignored by the State when it was not persecuted by it. 
 With the Edict of Milan in 313, the Christians obtained 
 the free exercise of their worship. Soon after, Constantine 
 granted the Church the power to receive donations and 
 legacies, and he gave the first example of them, and 
 guaranteed the Church in perpetual possession thereof. 
 He made the Christian priests share in all the privileges 
 which the pontiffs .of paganism enjoyed, that is, the right 
 of .asylum in their temples, and exemption from public 
 burdens or from personal services, and from imposts. The 
 least of the clergy could not be subjected to torture ; and 
 the Sunday rest became obligatory, which was a great 
 benefit for the slaves. Such great favours were recipro- 
 cated ; aud the emperor even took a part in the dogmatic 
 
 1 11 Concilia Vaticano, a pamphlet truth rests on the principle of Divine 
 
 by Alfonso Capecelatro, formerly assistance, and not on the wholly 
 
 priest of the Oratoire of Naples, human principle of the majority, 
 
 now Cardinal Archbishop of Capria. After, as before the Council, the 
 
 We find the same interpretation in hypothesis advanced by Bellarmin 
 
 the little work of Monsignor Fesler, of a heretical pope, is always admis- 
 
 Secretary of the Council, entitled sible, and then the full power would 
 
 De la vraic et de la fausse infailli- reside of necessity in the Council, 
 
 bUite. The Council will therefore which could be convoked by the 
 
 preserve in the future its delibera- cardinals, or might even be as- 
 
 tive vote, as the pope will have the sembled by the spontaneous motion 
 
 right of confirmation. Dogmatic of the bishops.
 
 RELIGION. 163 
 
 decisions of the Church, which were promulgated by him 
 and made incumbent. 
 
 When the barbarians overran the empire, the Church 
 was the only power which remained standing amid so 
 many ruins, and it is no wonder that its power increased. 
 Coustantine had given legal force to the sentences pro- 
 nounced by the bishops in the causes voluntarily sub- 
 mitted to their decision. Between the period of the Roman 
 municipal government and that of the Middle Ages, we 
 find the preponderance of the clergy in civil affairs. 
 " And in fact," says Guizot, " it was of immense advantage 
 that there existed a moral influence, a moral force, a force 
 which rested only on moral convictions, beliefs, and senti- 
 ments, in the midst of that deluge of material force which 
 broke at this epoch upon society. If the Christian Church 
 had not existed, the whole world would have been delivered 
 up to pure material force. The Church alone exercised 
 a moral power. She did more ; she maintained and 
 diffused the idea of a rule, of a law superior to all human 
 laws ; she professed the belief, as fundamental for the 
 salvation of humanity, that above all human laws there 
 is a law called, according to the times and customs, 
 sometimes reason and sometimes divine right, but which 
 always and everywhere is the same law under different 
 
 names. 
 
 It was not enough to convert the barbarian invaders, 
 but it was also necessary to resist their daily violences, 
 and the still more pernicious assaults of the emperors of 
 Constantinople who wished to act the theologian. Gregory 
 II., surnamed the Great, sought by all means to persuade 
 Leo the Isaurian to keep within his limits ; and he did 
 not free himself from all subjection till he assembled a 
 minor Council in 730 in order to decree the abolition of 
 the worship of images. Gregory III., who succeeded him 
 in 731, tried in vain to effect a reconciliation ; and when he 
 
 1 See his Histoire de la civilisation en Europe, Deuxidme le^on. Pari?, 
 1845.
 
 1 64 PHILOSOPHY OF RIGHT. 
 
 saw his territory devastated, and. Borne besieged by Luit- 
 prand, the king of the Lombards, who was perhaps urged 
 on by Leo, he asked help from Charles Martel, and con- 
 ferred upon him the honours of the patriciate and of the 
 Eoman consulship. Pepin, the son of Charles Martel, 
 admonished Astolf, the successor of Luitprand : " Propter 
 pacis foedera et proprietatis sanctae Dei Ecclesiae ac 
 reipublicae restituenda jura." When the French arms 
 were already threatening them, Stephen likewise exhorted 
 the Lombards : " Ut pacifice, sine ulla sanguinis effusione, 
 propria sanctae Dei Ecclesiae et reipublicae Romanorum 
 redderet jura." 
 
 In 755, Pepin entered Italy, and did not leave it till he 
 had received from Astolf forty hostages, as Eginhard says : 
 " Firmitatis causa pro restituendis quae Eomanae Ecclesiae 
 ablata fuerant." The Lombard king having broken faith, 
 Pepin crossed the Alps again in 756, and besieging Pa via 
 anew, he caused Ravenna, Pentapolis, and the Exarchate 
 to be consigned to the pope. The Lombard fidelity was 
 not better observed by King Desiderius, the successor of 
 Astolf; and Pope Adrian had recourse to Charlemagne, 
 the son and successor of Pepin. Charlemagne marched 
 into Italy, and in 774 took King Desiderius prisoner, and 
 put an end to the kingdom of the Lombards, after it had 
 lasted 206 years. He celebrated Easter in Rome, and 
 confirmed and augmented the restitutions and donations 
 of Pepin. In order to suppress the revolts of the unsettled 
 Lombards, he returned several times; and on the last 
 occasion he was crowned Emperor in Rome by the hand 
 of Pope Leo III. on Christmas day of the year 800. 
 
 What was the historical significance of the renovation 
 of the Roman Empire ? The peoples had trodden each 
 other down, biit after Charlemagne the great invasions 
 may be said to have come to an end. The Church believed 
 that it might rest under the shelter of the empire. " But," 
 says Cesare Balbo, " in Italy the eternal and real seat of 
 the pope was but a nominal seat, and was too far away
 
 RELIGION. 165 
 
 from the new emperors ; and collisions immediately arose 
 and were infinitely more felt. Every election of au 
 emperor, and every election of a pope, was felt and was 
 followed by troubles and misfortunes; and there arose 
 bad and foreign emperors, and bad simoniacal and corrupt 
 popes for more than two centuries." l 
 
 The juridical condition of the Church almost became 
 the same as in the time of the Roman emperors. The 
 bishops took a distinct place among the aristocracy, which 
 was gradually transformed into a state of feudality. 
 Hence it came about that the bishops depended canonically 
 on the pope, and politically on the emperor. But the 
 barbarism of the time did not permit the carrying out of 
 this distinction in fact ; and the simoniacal elections, with 
 the arbitrary distribution of benefices, went hand in hand 
 with the corruption of the habits of the clergy. Hilde- 
 brand was alarmed at the prevalence of such anarchy, and 
 he discussed it as prior of the Abbey of Cluny with Pope 
 Leo IV., who called him to Rome and made him a cardinal. 
 For twenty-three years he directed the affairs of the 
 Church under four popes, and prepared the great reform 
 which he accomplished under the name of Gregory VII. 
 " He proposed," says Guizot, " to subject the civilised 
 world to the Church, and the Church to the Popes, with 
 the intention of bringing about reform and progress, and 
 not from a stationary or retrograde view." 
 
 The occasion of the conflict of the Church with the 
 civil power arose in connection with the right of Investi- 
 ture, a profound question, since it turned upon the issue 
 as to whether the Church was to dominate the State or 
 the State the Church. Gregory VII. did not seek the 
 simple independence of the Church, but he wished to 
 command the sovereigns as the soul commands the body. 
 He combated and he conquered ; for he saw the Emperor 
 Henry IV., the representative of the civil power, at his 
 feet. But the victory was not fin.il, because the State 
 
 1 See Sommario deUa Storla cT Italia. Firenze, 1856.
 
 166 PHILOSOPHY OF RIGHT. 
 
 could not abdicate its independence. Henry V., the son 
 and successor of Henry IV., came to terms with Calixtus 
 II. by means of the Concordat of Worms in 1 122, in which 
 it was established that the pope should give canonical 
 institution to the bishops with the pastoral staff and ring, 
 and that the emperor should take part in the election, 
 giving the bishops investiture into the possessions which 
 they were to hold for the Church. 
 
 The moral dictatorship of the popes ended in Boniface 
 VIII, the last pope of the Middle Ages. Calamitous 
 times for the Church followed with the translation of 
 the Holy See to Avignon (which the Catholics speak of 
 as the Babylonian slavery], and the great schism of the 
 East which terminated at the Council of Constance, and 
 finally the Protestant Reformation. 
 
 The cry for reform had become universal in the Church. 
 The Council of Constance had shown Martin V. the 
 supreme need of it, and the Council of Basle was deter- 
 mined to follow it out, in spite of the tergiversations of 
 Eugenius IV. In its second period this Council proposed 
 to call the clergy to the observance of sanctity of life ; 
 and it wished to put an end to the abuse of appeals to 
 Rome, to abolish annats and other taxes introduced by 
 the avarice of the Roman Court, to suppress reservations 
 and restore the canonical elections, and to provide for 
 the dignity of the sacred offices. The election of the 
 popes, the government of the Church, the composition of 
 the College of Cardinals, and their duties, were objects of 
 the wisest dispositions. We note in particular the canon 
 which restricted the number of cardinals, and prescribed 
 that they should be taken in a just proportion from all 
 the Catholic nations. 1 The decrees of reform were sent 
 to Pope Eugenius, with the demand that he should apply 
 their dispositions without delay. The pope thought it 
 necessary to excuse himself to the Council by special 
 nuncios, who said : " The Holy Father adopts as far as 
 
 1 Condi. Easil, p. 562.
 
 RELIGION. 167 
 
 is in his power, the decrees of the Holy Council, and 
 wishes that they be observed in the future; and if for 
 the past it has been otherwise, this was due to insuperable 
 circumstances." These were only words, and in fact the 
 Council was transferred without its consent to Ferrara, 
 which was the occasion of a new schism, and the magnifi- 
 cent opportunity was thrown away of avoiding the loss 
 of seventy-five millions of Catholics. 
 
 What they would not do at Basle was done at Trent, 
 but when too late. The first decree of this Council clearly 
 says that one of its objects was the reformation of the 
 clergy and of the Christian people; and Pope Pius IV., 
 in confirming the resolutions of the Council, repeated that; 
 one of its ends was the correction of morals and the re- 
 establishment of discipline. 
 
 But let us return to the civil relations of the Church. 
 The Concordat of "Worms, in removing the controversy as 
 to investiture, had not regulated with certainty all the 
 relationships of the Church with the State. There were 
 two Utopian views face to face with each other : the papal 
 Utopia formulated by Gregory VII., Innocent III., and 
 Boniface VIII. ; and the imperial Utopia formulated by 
 Dante in his book De Monarchia. 
 
 Gregory VII. had said in various places in his letters : 
 "As the mother of the faithful, the Roman Church is 
 superior to all Christendom. In this unhappy age, it 
 supports the weight of temporal and spiritual affairs ; and 
 it commands the other churches and the members who 
 depend upon them, including emperors, kings, princes, 
 archbishops, prelates, and generally all Christians. In- 
 vested with the supreme authority, it institutes them, 
 judges them, and deposes them. The sword of the prince 
 being a human thing, ought to be subordinated to the 
 Successor of Peter ; for the seat of the Apostle depends 
 only on God. And if resistance is offered to him, he 
 ought after the example of the Saviour to struggle with 
 perseverance, to suffer, and even to die, but never to
 
 1 68 PHILOSOPHY OF RIGHT. 
 
 abandon his post. Two luminaries, the sun and the 
 moon, give light to the world ; and two powers, the pope 
 and the kings, govern it; but as the moon receives her 
 light from the more luminous star, so do kings reign by 
 the Head of the Church, who comes from God, and to 
 whom it belongs to teach, to exhort, to punish, and to 
 decide. The power of emperors and kings, and the 
 undertakings of mortals, are but straw and smoke when 
 compared with the divine omnipotence and the authority 
 of the Apostolic Church. God has said to his Vicar: 
 ' Thou art Peter, and on this rock will I build My church ; 
 and what thou shalt bind on earth will be bound in 
 heaven' (Matt. xvi.). Has He made an exception for 
 kings ? Do they not make part of the flock entrusted to 
 Peter ? If therefore any one denies the sovereign pontiff, 
 who has succeeded the Apostle, the right of commanding 
 as ruler those who wear the crown, if he who opens and 
 shuts heaven were subjected to mundane power, this 
 would be as great an act of folly as if any one wished the 
 son to command the father, or the disciple the master. 
 Thus the Roman See being by its power so greatly 
 superior to the thrones of the world, the kingdoms belong 
 to Peter, and owe him tribute. What has once become 
 the property of the Church belongs to her for ever ; and 
 even if she lost the enjoyment of it, she would not lose 
 her right to it without a legitimate cession. Whoever 
 is rebellious against the Lord cannot claim to be obeyed 
 by man. Such is the end ; and in order to attain it, it is 
 indispensable that the Church shall depend only on her- 
 self. She is living in sin because she is not free; she 
 must be delivered ; and whatever may be the obstacles 
 in the way, as the cause of the Church is the cause of 
 God, she will conquer." 
 
 Innocent III, in sending the insignia to the chief of 
 the Bulgarians, who had asked him to be raised to the 
 royal dignity, thus expresses himself with regard to the 
 omnipotence of the Holy See : " The King of kings, the
 
 RELIGION. 169 
 
 Lord of lords, Jesus Christ, to whom the Father has 
 committed all things, putting the universe under His feet, 
 to whom the earth belongs with all it contains and those 
 who inhabit it, whom every creature in heaven and earth 
 and hell obeys, has chosen for His vicar the supreme 
 pontiff of the Apostolic See and of the Roman Church ; 
 and He has elevated him above the peoples and kingdoms, 
 conferring upon him the power to take away, to destroy, 
 to disperse, to build, and to plant." 
 
 Boniface VIII. wrote in his Bull Unam Sanctam : 
 " We believe and confess one only Church, holy, catholic, 
 and apostolic, out of which there is no salvation. Being 
 one and single, it can have only one head, and not two, 
 like a monster. This sole head is Jesus Christ, and Saint 
 Peter His vicar, and the successor of Saint Peter. . . . 
 We learn from the Gospel that in this Church, and under 
 its power, there are two swords, the spiritual sword and 
 the temporal sword. One ought to be in the hand of the 
 Church, and therefore wielded by the pontiff, and the other 
 in the hand of the kings and warriors, but it ought to be 
 drawn for the good of the Church at the beck or permis- 
 sion of the priest. Accordingly, it is the case that the 
 one sword depends on the other, or that the temporal 
 authority depends on the spiritual, because the Apostle 
 says that every power comes from God, and all that exists 
 is ordained by God. Consequently we declare and say 
 and define that it is necessary to salvation (de necessitate 
 salutis) to hold that every human creature is subject to 
 the Pope of Eome." 
 
 Daute's book, DC Monarchia, is the manifesto of the 
 imperial or Ghibelline party. The end of humanity, says 
 Dante, is to develop the intellectual and moral faculties 
 of man, and this cannot be attained without peace. 
 Peace being a condition essential for the fulfilment of our 
 mission, the universe ought to be ordered so as to secure 
 us peace; and a universal monarchy alone can give us 
 this guarantee, for where there are several equal princes,
 
 i;o PHILOSOPHY OF RIGHT. 
 
 there necessarily reigns struggle and discord. On the 
 contrary, the golden age 'will come again when the whole 
 human race shall be gathered under a single head. As 
 the poet has said : " Jam redit Virgo ; redeunt Saturnia 
 regna." Dante confesses that he had also shared the 
 error that Eome had become the mistress of the world 
 only by force and violence. But now he has come to 
 see otherwise, and he holds with Cicero that Eome con- 
 quered the world not from ambition, but for the good of 
 humanity. Unity being the goal assigned by God to the 
 human race, the empire has been the means to it. Thus 
 are explained the incessant victories of Eome and the death 
 of Alexander, who might have put a stop to them. Christ 
 was born under Augustus, was enrolled in the census, 
 paid tribute, and acknowledged the empire. The emperor 
 is the master of the world, but princes and nations have 
 also their rights and their liberties. To the emperor 
 only belongs his high jurisdiction in order to put an end 
 to all contests. And he will be equity itself, no longer 
 yielding either to fear or to cupidity. He should have 
 his seat in Eome beside the pontiff; and Csesar should 
 exercise towards Peter that reverence which the firstborn 
 son owes his father, in order that being enlightened by 
 the paternal grace, he may illuminate the terraqueous 
 globe with more virtue. 
 
 Of these two Utopias, that of Dante has triumphed. 
 The reaction had already begun in France under Louis 
 IX., who subjected the prelates to the judgment of the 
 king in civil matters, and prohibited the pope from laying 
 imposts upon the faithful in his kingdom without the 
 express consent of the king and of the national church. 
 If Louis IX. confined himself to resistance, his nephew, 
 Philippe le Bel, dared to carry on the attack by imposing 
 taxes on the ecclesiastical possessions, which till that time 
 had been exempt from them, and by establishing an appeal 
 on the ground of abuse to the lay authorities in reference 
 to all the excesses which the spiritual jurisdiction might
 
 RELIGION. 171 
 
 have committed against the temporal. Later on, Charles 
 VII. assembled a national synod at Bourges, which set 
 forth the Pragmatic Sanction of 1438, into which were 
 introduced the principal maxims of the Councils of 
 Constance and Basle regarding the liberty of elections, 
 the provisions and collations of benefices, and the abolition 
 of annats or the fruits which Borne claimed in the first 
 year of the vacant benefices. Pius II. called this act 
 cxecrdbilis et inauditus. To put an end to the continual 
 remonstrances of Eome, Francis I. and Leo X. concluded 
 a concordat in 1516, without expressly abolishing the 
 Pragmatic Sanction, which was considered as in force for 
 all that was not provided for by the concordat. The three 
 fundamental dispositions of the concordat were : the abo- 
 lition of the elections of the bishops, and substitution 
 for them of the royal nomination with canonical institution 
 by the Holy See ; the re-establishment of the annats, but 
 restricting them to the large benefices only ; and the re- 
 establishment of appeals to the pope, but only for greater 
 causes, while for the others the pope was to name judges 
 in the kingdom. 
 
 The Council of Trent made a step backwards towards 
 the Gregories and the Innocents. The Council wished 
 that all the constitutions of the popes in favour of the 
 ecclesiastics should be carried out without any legal super- 
 vision, and it interdicted the appeals on the ground of 
 abuse against the ordinances of the prelates. The criminal 
 causes of the bishops were to be judged by the pope and 
 his delegates ; and all causes of ecclesiastics pending 
 before the ordinary tribunal might be referred to Rome. 
 The bishops might punish by fines those who were guilty 
 of scandalous and public sin, and they might have their 
 sentence executed by their own officials, or by those of 
 the other judges. The bishops might also compel those 
 connected with their diocese to perform a service for their 
 pastor, and the monasteries might possess and acquire 
 immovable property. It is unnecessary to say that this
 
 1 72 PHILOSOPHY OF RIGHT. 
 
 part of the decrees of the Council of Trent was not 
 received in France. 
 
 From, the Council of Trent to the French Eevolution 
 the State was always defending itself from the Eoman 
 Church. We may refer on the dogmatic side to two 
 articles in the celebrated Gallican Declaration of 1682. 
 The one which establishes the independence of the temporal 
 power, declares that Saint Peter and his successors, the 
 vicars of Jesus Christ, and all the Church, have received 
 no other power from God than over spiritual things and 
 what concerns salvation, and not over temporal and civil 
 things. The king and the sovereigns are not by the 
 order of God subject in any way to the ecclesiastical 
 power in temporal things. They cannot be deposed either 
 directly or indirectly by the authority of the heads of the 
 Church; their subjects cannot be dispensed from the 
 submission and obedience which they owe, nor can they 
 be absolved from the oath of fidelity. Moreover, this 
 doctrine is as necessary for the public tranquillity, and not 
 less advantageous to the Church than the State ; and it 
 ought to be inviolably observed as conformable to the 
 word of God, to the tradition of the holy fathers, and to 
 the examples of the saints. The other sovereigns, such 
 as Joseph II. of Austria, Leopold II. of Tuscany, and 
 Charles III. of Naples, showed themselves equally jealous 
 of their prerogatives. 
 
 The French Eevolution tore up the Concordat of 
 Francis I., and wished to give a civil constitution to the 
 clergy (i2th July 1790), for whom a political assembly 
 was not at all competent. This constitution decreed : 
 I. The election of the bishops and of the parochial 
 priests ; 2. The mode of their election, which was to 
 be, not as in .the time of St. Louis and Charles VII., 
 by the clergy of the cathedral churches and others, but 
 by the suffrage of all the citizens who were political and 
 administrative electors ; 3. Canonical institution to be 
 given by the metropolitans instead of by the sovereign
 
 RELIGION. 173 
 
 pontiff; 4. The delimitation of the dioceses by the govern- 
 ment, and not by the pope. In 1793, the French re- 
 volutionists went the length of proscribing the Catholic 
 worship. 
 
 The Concordat of I5th July 1801 did not restore, nor 
 could it restore, the ancient state of things. It allowed 
 a new circumscription of the dioceses, and a dotation for 
 the clergy chargeable to the budget of the State in return 
 for their renouncing all their immovable goods, even those 
 which were not sold. The nomination of the bishops 
 continued to be made by the head of the State with 
 canonical institution by the pope, and the nomination of 
 the parish priests was made by the bishops with the 
 sanction of the government. By the Concordat of 2$th 
 June 1813, which was not put into execution, the Emperor 
 Napoleon wrested from the pope, who was his prisoner, 
 the renunciation of the temporal power in his States, and 
 the right to delay beyond six months the canonical 
 institution of the bishops, in which case it would have to 
 be performed by the metropolitan. This was the climax 
 of the usurpations of the State over the Church. And in 
 fact the Convention of nth June 1817, which remained 
 a mere project, returned to the Concordat of Francis I., 
 as it established a dotation in immovable goods or in rentes 
 for the bishops, seminarists, parish priests, chapters, c. 
 
 The Belgian constitution raised the liberty of the Church 
 to a canon of public right in its Article 16. " The State 
 has not the right to intervene either in the nomination, or 
 in the installation of the ministers of any form of worship ; 
 nor shall it be able to prohibit these from corresponding 
 with their superiors and publishing their acts under the 
 simple responsibility of the usual law as to printing and 
 publication." 
 
 The Concordat of i6th March 1851 with Spain re- 
 established the Catholic religion with all the rights and 
 prerogatives which it ought to enjoy according to the law 
 of God and the canonical sanctions. It declared that the
 
 174 PHILOSOPHY OF RIGHT. 
 
 education in all the colleges, universities, &c., should be 
 conformable to the Catholic doctrine, and that the bishops 
 should not encounter any obstacle in their supervision of 
 the youth in the relationships of morality and of the faith. 
 It admitted the unlimited right of possessing and acquiring 
 immovable goods, as well as in founding religious orders 
 which might have for their object charity or the public 
 utility. The Concordat of /th October 1872 with the 
 republic of Costa Eica, recognises as belonging to the 
 Church the same rights and free communication with the 
 Holy See in all that concerns spiritual and ecclesiastical 
 things, as is enunciated in the Concordat of i8th August 
 1855 with Austria, which is conformable in all points to 
 those now referred to. 
 
 We have already indicated the dogmatic differences 
 between the Latin and Greek Churches, which were irre- 
 vocably divided from the time of the schism in 1054. 
 "We may now pause for a little on the constitution of 
 the Eastern Church, and its relations with the State. 
 The Emperor of Constantinople claimed to be imperator 
 turn et sacerdos, and this pretension was tolerated by the 
 popes when it turned out for the good of the Church. 
 " Yea, of a truth," replied Gregory II. to Leo the Isau- 
 rian, " those emperors who have preceded you, namely, 
 Constantine the Great, Theodosius the Great, the great 
 Valentinian, and Constantine, the father of Justinian II., 
 who took a part in the sixth synod, showed by their 
 words and deeds what they were ; with ardent zeal they 
 studied the truth of the faith, and they aided the pontiffs 
 in their care of the churches. These emperors, in har- 
 monious relations and unanimity with the pontiffs, con- 
 voked synods and promoted the true understanding of 
 the faith, and they were ornaments and supports of the 
 Holy Church. They were emperors and priests in co- 
 operation, and their deeds showed them to be such." In 
 the Council of Constantinople, the bishop of the new
 
 RELIGION. 175 
 
 metropolis occupied the place immediately after the 
 Bishop of Borne, and later an analogous share of juris- 
 diction was decreed to him. In spite of the opposition 
 of the pope, who combated such innovations, they were 
 sanctioned by authority. The pope continued to be 
 recognised as the head of the universal Church, but the 
 pride of the patriarchs and the continual interposition 
 of the emperors in the ecclesiastical controversies, rendered 
 the relations between old and new Borne difficult. After 
 the schism the power of the patriarch of .Constantinople 
 increased, and he took the title of oecumenical without 
 diminishing the interposition of the emperor. The 
 following was the ceremony for the consecration of the 
 patriarchs, which was still in use when Constantinople 
 fell into the hands of the Turks. The emperor, seated on 
 his throne in the Church of St. Sofia, and having the 
 holy senate around him, delivered the pastoral staff to 
 the patriarch. The first court chaplain pronounced the 
 benediction ; the first chamberlain chaunted the hymn 
 and the gloria ; the inspector of the lamps intoned the 
 chorus : The King of heaven, &c. The chants being 
 finished, the emperor then rose, holding the sceptre in his 
 right hand, with the Caesar sitting on his right, and the 
 metropolitan of Heraclea on his left. The newly-elected 
 patriarch bowed three times before the whole assembly, 
 and prostrated himself at the feet of the emperor, and the 
 monarch, elevating the sceptre, pronounced these words : 
 " The Most Holy Trinity, who has given me the empire, 
 confers on thee the patriarchate of New Rome." * 
 
 The Church of the East had propagated the Gospel in 
 the immense solitudes of the north, and had created the 
 
 1 How different is what is related emperor raising himself replied : 
 
 of the reception given by Alexander Aon tibi scd Petro ; to which the 
 
 III. to Frederick I. at Venice. The pope replied, Mihi et Petro. Balbo 
 
 Emperor prostrated himself at the says this is perhaps a fable, but it 
 
 feet of the pope, who placed them shows well the manners and ideas 
 
 on his head, quoting the text : Super of the time. 
 aspidem et basiliscum; and the
 
 1-6 PHILOSOPHY OF RIGHT. 
 
 Moscovite Church as a dependant on itself. The metro- 
 politans of Kieff were usually nominated by the patriarch 
 of Constantinople, and often they were Greeks. The 
 invasion of the Tartars and the removal of the capital 
 from the shores of the Dnieper to the basin of the Volga, 
 had relaxed the bonds existing between the two churches. 
 The metropolitan of Eussia, who followed the great princes 
 to Vladamir, and then to Moscow, was still a suffragan 
 of the Greek patriarch, but he was now a Eussian, and 
 he was elected by his clergy, and chosen by his sovereign. 
 After the example of her Byzantine mother, the Eussian 
 Church showed herself from the beginning full of respect 
 and deference towards the temporal power. The civil 
 wars, and then the Tartar domination, enabled her to 
 acquire more influence and independence. This was 
 the heroic age of the Eussian Church, the epoch of the 
 great national saints, of Alexander Newski, of Alexis, of 
 Sergius, and of most of the monastic foundations. The 
 elevation of the autocracy, along with the ceasing of the 
 Tartar domination, took from the Church part of her 
 ascendancy, but the extinction of the dynasty for a time 
 restored it. Ivan the Terrible humbled both the Boyards 
 and the clergy, and he had as metropolitan, St. Philip, 
 who was his Thomas a Becket. The metropolitan, the 
 only head of the Moscovite Church, was already too great 
 a personage in the eyes of the autocrat ; and nevertheless 
 in 1589, Ivan the Terrible was no sooner dead than the 
 metropolitan dared to demand the dignity of a patriarch. 
 Good reasons for this were not wanting. Moscovy had 
 become a very vast State, and could not be governed from 
 the shores of the Bosphorus ; and as Constantinople had 
 fallen into the hands of the Turks, the patriarch was 
 consequently in a position of dependence on the Sultan. 
 The patriarch of Constantinople, having gone to Moscow 
 to erect the new patriarchal see, was offered the seat 
 himself while preserving the title of oecumenical patriarch. 
 The Byzantine prelate who had come to obtain succour
 
 RELIGION. 177 
 
 for his Church, refused the offer of the Czar, and con- 
 sidered himself repaid by his largesses. 1 The Moscovite 
 patriarchate was an entirely national institution, and its 
 jurisdiction extended with the political limits of the 
 empire. The Eussian bishops assembled in council had 
 the right to nominate their head ; they chose three names, 
 and the lot had to decide between them. The prerogatives 
 of the patriarch remained in substance the same as those 
 of the metropolitan, but surrounded with greater honours. 
 Like the metropolitan, the patriarch was the supreme 
 head of the ecclesiastical jurisdiction, and besides the 
 affairs of the clergy and matrimonial causes, his adminis- 
 tration of justice included cases of succession down to 
 the time of Peter the Great. He enjoyed the revenues 
 of certain convents and lands; his house was kept up 
 like that of the Czar; and he had his court, his boyards, 
 and his great officers, as he had his tribunals and his 
 administration. 
 
 The patriarchate of Eussia lasted little more than a 
 century (1589-1700), and it is considered by the eccle- 
 siastical historians as a providential fact. Instituted on 
 the eve of the extinction of the dynasty of the Euriks, 
 the patriarchate passed through the anarchy of the 
 usurpation, and contributed to the consolidation of the 
 Eomanoff dynasty. In the first period of its existence 
 it contributed to save Eussia from dissolution and from 
 foreign dominion; and in its second period it communi- 
 cated to the recuperative reign of the first Eomanoffs 
 a religious and paternal character, which rendered that 
 epoch a sort of golden age in Eussian history. Although 
 the patriarchate was in full decline under Peter the 
 Great, he believed it was an obstacle to his great reforms, 
 and seizing the opportunity of the See being vacant, he 
 abolished it. The ecclesiastical reform was carried out 
 by this sovereign under an occidental inspiration which 
 was in part Protestant. The substitution of an assembly 
 
 1 Anatole Leroy-Beanlieu, L'empire dca tzars et les Russcs. Pari, 1881. 
 VOL. I. M
 
 1 7 8 PHILOSOPHY OF RIGHT. 
 
 for a single head was not an . isolated fact special to the 
 Church; it was a general system then in vogue in the 
 West, particularly in France, where the ministers of Louis 
 XIV. had been superseded by the Councils of the regency. 
 The administrative colleges of Peter the Great have 
 been succeeded in the beginning of this century by the 
 ministers ; but the ecclesiastical college of the Holy Synod 
 has remained. We shall glance at its composition and 
 its prerogatives. 
 
 The Holy Synod is nominated by the sovereign, and is 
 composed of irremovable members, namely, the metro- 
 politans of the successive capitals of the empire, Kieff, 
 Moscow, and St. Petersburg ; and the last named, who has 
 usually under him the diocese of Novogorod, is the presi- 
 dent. The other members are four or five archbishops, 
 bishops, or archimandrites, two members of the secular 
 clergy, and two arch-priests, one of whom is usually the 
 chaplain or confessor of the emperor, and the other that 
 of the army. Along with the Synod there sits a delegate 
 of the emperor under the name of Procurator-General 
 (Ober-procurator). Under the Emperor Nicholas, this dele- 
 gate was a general of the cavalry. He is a medium 
 between the Emperor and the Synod, presenting to the 
 Synod the projects of laws formulated by the government, 
 and to the Emperor the regulations discussed in the Synod. 
 The Synod does nothing without the intervention of the 
 Procurator-General, who brings forward the matters of 
 business, and is the executive of the resolutions adopted. 
 No synodal act is valid without his confirmation, and he 
 has a right of veto in cases in which the resolutions of the 
 assembly may be contrary to the laws. Every year he 
 presents a report to the Czar regarding the general condi- 
 tion of the Church, the state of the clergy, and orthodoxy. 
 There is associated with every bishop an ecclesiastical 
 council called the Eparchial Consistory, whose members 
 are nominated by the Synod on the proposal of the bishop, 
 and its resolutions are valid only if approved by the
 
 RELIGION. 179 
 
 bishop. These consistories participate in the diocesan 
 administration, and judge in the first instance the causes 
 still assigned to the ecclesiastical jurisdiction, which causes 
 have to terminate before the Synod. The causes subject 
 to the ecclesiastical tribunals since the time of Peter the 
 Great are cases of clerical discipline and matrimonial 
 cases ; and at present it is under consideration to with- 
 draw those that concern divorce, reserving to the bishop 
 the simple confirmation of the sentence pronounced by 
 the ordinary tribunals. 1 
 
 The ecclesiastical constitution of Russia served as a 
 model to the new Kingdom of Greece. A royal declara- 
 tion of 4th August 1838, accompanied with the adhesion 
 of the bishops, withdrew the administration of the Greek 
 Church from the patriarch of Constantinople ; and the 
 constitution of 1844 settled the superior authority in a 
 permanent synod, consisting of five members, presided over 
 by the metropolitan. The sovereign is represented by a 
 commissioner who attends without joining in the delibera- 
 tions, and who puts his visa to all the resolutions. Servia 
 and Roumania followed the example of Greece. The 
 Bulgarians did not wait for their independence of Turkey 
 before proclaiming an autonomous Church. The patriarch 
 of Constantinople replied to this at first with an excom- 
 munication, as he understood that to fix the boundaries 
 of the young Bulgarian Church and of the old Greek 
 Church, was the same as to determine by anticipation the 
 share of the Slavs and of the Greeks in the inheritance 
 of the Ottoman Empire ; but in 1 872 an exarch was 
 conceded to them. 
 
 1 The Greek - Slavonic Church you, That whosoever shall put away 
 
 allows divorce only on account of his wife, saving for the cause of 
 
 adultery, while withdrawing the.right fornication, causeth her to commit 
 
 of a second marriage from the un- adultery ; and whosoever shall marry 
 
 faithful spouse. It founds on Matt, her that is divorced committeth 
 
 v. 32, which speaks of separation and adultery." 
 not of adultery : " But I say unto
 
 iSo PHILOSOPHY OF RIGHT. 
 
 The second great scission of Christendom was a much 
 deeper one than that of the Eastern and Western Churches. 
 Luther exaggerated the supernatural by taking away 
 everything intermediate between man and God. He, 
 however, precisely distinguished the spiritual power from 
 the temporal power. The Confession of Augsburg in its 
 28th Article says : " The power of the keys, or rather the 
 commission has been given by Jesus Christ to His Apostles 
 to preach the Gospel, to forgive sins, and to administer 
 the sacraments. This power has to do with the eternal 
 goods, but it is exercised only by the minister of the 
 "Word, and is not mixed with the political administration, 
 which has an entirely different thing for its object and is 
 not occupied with the Gospel. The magistrate protects 
 not souls, but bodies and temporal goods, which he defends 
 from all attack, constraining men by the sword and by 
 punishments to observe civil justice and peace. Hence 
 the power of the Church is not to be confounded with the 
 power of the State. . . . Some have foolishly confounded 
 the power of the bishops with the temporal power, whence 
 have arisen great wars, revolutions, and tumults. . . . 
 The power of the Church ought not to invade a domain 
 which is not its own. Christ said : ' My kingdom is not 
 of this world ; ' and elsewhere : ' Who has made Me a 
 judge over you ; ' and Paul says to the Philippians : 
 'Our conversation is in heaven.' Let the Church then 
 not interfere in the affairs of this world ; let it not pre- 
 tend to grant kingdoms, to command magistrates, nor to 
 abrogate civil laws. Bishops have no other jurisdiction 
 and no other power than to remit sins ; and if in fact they 
 have any power, it comes to them not by divine right, 
 but by delegation from princes." Thus the Protestants 
 reduced the Church to a kind of association, and they 
 invested the clergy with a simple power of direction as 
 representatives of the parishes. Melanchthon was not 
 slow in apprising the multitude of his time that they were 
 not competent for this noble office, and he wrote (in
 
 RELIGION. 181 
 
 the Corpus reformatorum) as follows : " Non debet esse 
 Ecclesia democratia, qua promiscue concedatur omnibus 
 licentia vociferendi et niovendi dogmata, sed aristocratia 
 sit, in qua ordine hi qui praesunt, Episcopi et Eeges, com- 
 municent consilia." The Protestant minister Jurieu states 
 that "the Reformation "was accomplished by the aid of 
 the sovereigns : at Geneva, by the senate ; in Switzerland, 
 by the supreme council of every canton ; in Germany, by 
 the princes of the empire; in the United Provinces, by 
 the States-general; in Denmark, Sweden, England, and 
 Scotland, by the authority of the kings and parliaments ; 
 and in France, by the authority of the grandees." The 
 princes and magistrates were considered as principal 
 members of the Church. The Reformers declared that 
 God had entrusted them with the care of souls ; that it 
 was their duty to watch over purity of doctrine, to pro- 
 hibit impious cults, and when necessary, to constrain their 
 subjects to the external duties of religion. Calvin himself 
 treats as a folly the opinion of those who wished that 
 the magistrates should put God and religion under their 
 feet, and should have no other concern at heart than to 
 administer justice, as if God had set up superiors in 'His 
 name to decide lawsuits, but having no care about His 
 worship. Princes who neglect the honour of God in order 
 to procure for men only temporal good, put the plough 
 before the oxen. Hence the retort of Bossuet: "The 
 advantage of the Reformation is reduced to having a lay 
 pope in place of the ecclesiastical pope, the successor of 
 St. Peter; and in handing over to the magistrates the 
 authority of the Apostles." l 
 
 We shall describe the organisation of the Protestant 
 Churches, beginning in order from the one which is least 
 removed from the Catholic Church. It is a popular error 
 that the Reformation took place in England on account 
 of the refusal of the pope to approve the divorce of Henry 
 VIII. from Queen Catherine. This was the occasional 
 
 1 Bossuet, Ilistoire des Variations, L. v. p. 151.
 
 1 82 PHILOSOPHY OP RIGHT. 
 
 cause and not the efficient cause, which must be sought 
 in the national pride of the English, which unwillingly 
 endured dependence on a stranger, even in matters of 
 religion. It will suffice to recall the famous statute 
 Prcemunire of the reign of Richard II., which enacted the 
 punishment of those who appealed to Rome, and pro- 
 hibited the publication of any pontifical Bull which might 
 be contrary to it. The movement of Wiclif and of the 
 Lollards was also a precursor of the Reformation, and it 
 prepared the way for Henry VIII. In 1 5 30, the clergy 
 assembled in convocation addressed a petition to the king 
 in which they called him the supreme protector, lord, and 
 head of the Church of England under the restrictive clause 
 per quantum per Christi legeni licet. The parliament 
 passed various acts to abolish appeals to the court of 
 Rome, as well as dispensations, provisions, bulls of in- 
 stitution for bishoprics, the payment of Peter's pence, and 
 annats. There was also established an oath in favour of 
 the royal supremacy, which is still in force as it was 
 formulated in the reign of Elizabeth, in these terms : 
 That Her Majesty the Queen is the only and supreme 
 sovereign of the realm, both in temporal matters and in 
 spiritual and ecclesiastical matters; and that no prince, 
 prelate, State, or foreign potentate can exercise any 
 jurisdiction, superiority, pre-eminence, or ecclesiastical or 
 spiritual authority throughout the whole extent of the 
 Kingdom. By an Act of 1559, it was explained that the 
 Queen did not intend to claim any authority in theological 
 matters, but wished to exercise her full authority over all 
 sorts of persons. 
 
 The English Church in separating itself from the 
 Catholic Church professed to preserve the apostolical 
 succession of its hierarchy. Its prelates considered them- 
 selves the legitimate spiritual heirs of those who had 
 proclaimed the gospel in the British Islands. The Re- 
 formation was accomplished with their concurrence, and 
 hence the Canon Law remained in force so far as it was
 
 RELIGION. 183 
 
 not opposed to the Common Law and to the prerogatives 
 of the cjown. The clergy having met in general assembly 
 in 1603, published a body of canons and ecclesiastical 
 constitutions. 
 
 The representative system has been applied to the 
 English Church, but not self-government. In ancient 
 times the clergy met in order to settle their own taxation, 
 but by degrees they took part in the election of members 
 of the House of Commons. The autonomy of taxation 
 ceased in 1664, but the two assemblies of Canterbury 
 and York were continued under the name of Convocations 
 which had to deal only with ecclesiastical affairs. The 
 convocation of Canterbury is the most important. In 
 this convocation the bishops sit in the Upper Chamber 
 presided over by the Archbishop, and it includes 22 
 deans, 54 archdeacons, and 24 mandatories of the Chapters. 
 In the Lower Chamber there sit 44 procurators of the 
 inferior clergy. The assembly or convocation of York 
 is in like manner divided into two chambers, over the 
 first of which the Archbishop presides. These two 
 assemblies are convoked at the same time as parliament, 
 but, as Burke says, only in form, as they confine them- 
 selves to transmitting certain conventional addresses to 
 the Queen. No canon can be published without the 
 royal approbation, and it is not obligatory on the laity 
 without the authorisation of parliament. 
 
 The two archbishops as well as the bishops are, by a 
 legal fiction, regarded as elected by the deans and the 
 chapters ; but in reality they are nominated by the 
 sovereign, who, in case of a vacancy, and in virtue of an 
 Act of the twenty-fifth year of the reign of Henry VIII., 
 sends his or her congtfcFelire to the chapter, but in the letter 
 the person is designated who is agreeable to the sovereign, 
 and who, if not elected, is definitely nominated in twelve 
 days. The sovereign has the same right with regard to 
 deans and the more important prebends of chapters. 
 
 The English Church has a right of property in extensive
 
 1 84 PHILOSOPHY OF RIGHT. 
 
 domains, and gathers a Church, rate which is levied even 
 from dissenting parishioners to maintain the celebration 
 of worship. For a long time its special tribunals have 
 been taken away, but the Church enjoys certain purely 
 honorary prerogatives in connection with the administra- 
 tion of common justice. The episcopal tribunals deal 
 with cases of ecclesiastical discipline which may be 
 appealed to the archbishops. Divorce is regulated by 
 the Statute of 1857, and it falls within the competency 
 of a special Court of divorce and matrimonial causes, 
 
 In Sweden and Denmark the Church is organised 
 according to an analogous system. In the former of 
 these two kingdoms the bishops have a consistory 
 associated with them, and in the latter they are called 
 general superintendents. 
 
 In Germany, the fatherland of the Eeformation, Luther 
 sought to oppose the interference of the princes with the 
 proper administration of the Church. In 1543, he wrote 
 as follows : " If the courts wish to govern the Church for 
 their own advantage, God will withdraw His benediction, 
 and things will go from bad to worse. Let the princes 
 act as pastors ; let them preach ; let them baptize ; let 
 them visit the sick ; let them administer the communion ; 
 in a word, let them fulfil all the ecclesiastical functions ; 
 or ceasing to confound callings, let them occupy them- 
 selves with civil affairs, and let them leave the Church to 
 those who honour it and have to give an account for it to 
 God. Satan continues to be Satan; under the pope he 
 mixed up the Church with politics, and now he wishes to 
 confound politics with the Church." Luther established 
 the consistorial system. We find the first instance of 
 it at "Wittenberg in 1539, where it was called together 
 to resolve certain matrimonial questions; but its juris- 
 diction was soon extended. We then see consistories in 
 all the countries of Germany, generally composed of two
 
 RELIGION. 185 
 
 theologians, two legists, a fiscal or public minister, and a 
 secretary, all nominated by the government. Under the 
 consistory there is a superintendent who has to see to the 
 carrying out of its resolutions, and above it there is a 
 general superintendent whose function is to summon and 
 direct it. 
 
 In the Calvinistic Church, which is more properly 
 called the Reformed Church, the Presbyterian and Synodal 
 system has prevailed. " No church," says the Old Disci- 
 pline of the Eeformed Church of France, " shall pretend 
 to pre-eminence or authority over another, nor over a 
 province or union of churches of the' same province." 
 The pastors are all equal, and even the shadow of a 
 hierarchy disappears. Every parish has a presbyterian 
 council or session, which is composed of the pastor and of 
 laymen nominated by all the members of the Church. A 
 certain number of neighbouring parishes form a presbytery, 
 whose members again constitute the provincial synod, and 
 certain pastors and elders belonging to the presbytery and 
 synod sit in the national synod or General Assembly. 
 This system flourishes in Holland, in Scotland, and in 
 the United States of America, where two centuries ago 
 Congregationalist Churches also were formed ; and these 
 mark the last term of independency, every church carrying 
 on its own affairs apart from all the others. 
 
 America has the merit of having first introduced the 
 separation of the Church from the State. Roger Williams, 
 a Baptist minister, gave a very remarkable exposition of 
 the principle of religious equality and freedom in a speech 
 delivered in 1635. The ideas of Williams were also main- 
 tained by William Penn, the Quaker, and by the Catholic 
 Lord Baltimore, until they passed into the law proposed by 
 Jefferson, and promulgated on i6th December 1775, a law 
 which was afterwards introduced into the constitutions of 
 Virginia of 1830 and 1851. It bore that no one should be
 
 1 36 PHILOSOPHY OF RIGHT. 
 
 constrained to profess any particular creed whatever, or 
 contribute to its maintenance ; that no individual should 
 be molested in his person or in his goods on account of his 
 beliefs ; and finally, that every one should be free to pro- 
 fess and defend his own religious opinions with arguments 
 without losing anything of his civil capacities. These 
 determinations, which were special to Virginia, passed into 
 the Federal Constitution with the revision of the Consti- 
 tution of 1787, which declares that the Congress shall 
 not institute an official Church, nor prohibit the free 
 exercise of any religion. The constitutions of the various 
 States by degrees adopted these positions, and they are 
 formulated in the Constitution of New Jersey of 1844 to 
 this effect : No one shall be deprived of the inestimable 
 privilege of worshipping Almighty God in the manner 
 corresponding to the injunctions of his own conscience. 
 No one under any pretext shall be constrained to attend 
 a religious service which is contrary to his faith and his 
 conviction. No one shall be compelled to pay tithes, 
 taxes, or other imposts to build or restore a church, or to 
 maintain a minister of another persuasion than the one 
 he believes good and with which he is associated. There 
 shall be no Church in the State with a preference over 
 any other Church. No test shall be required for admis- 
 sion to the exercise of official offices, nor shall any one be 
 disturbed in the enjoyment of civil rights on account of 
 his religious principles. 
 
 The government of the United States has therefore 
 neither jus majestaticum circa sacra, nor placet, nor appeal 
 ab cibusu. It does not recognise the Church as a union 
 of the faithful, but the congregation as a civil corporation. 
 Its tribunals are competent when there is a case turning 
 on the property or the material interests of the con- 
 gregation. Questions of discipline are judged by the 
 ecclesiastical tribunals proper. The usual mode of 
 founding an ecclesiastical corporation consists in nomi- 
 nating certain trustees who represent it, and every com-
 
 RELIGION. 187 
 
 munion has its own rules for the selecting of trustees. In 
 the case of the Catholics of every parish the trustees are 
 the bishop of the diocese, the vicar-general, the priest of 
 the district, and two laymen nominated by the three 
 ecclesiastical members. In every parish, following the 
 example of the banks and assurance companies, the trustees 
 require every three years to deliver to the Chancery Court 
 of the district an authenticated statement of the movable 
 and immovable property of the congregation. Neglect 
 for two triennial terms to give in this account has the 
 effect of making the corporation of the church fall from 
 its rights. The object of this arrangement is to hinder 
 these ecclesiastical bodies from going beyond the limit of 
 the revenues or funded property fixed by the law in each 
 State, which commonly ranges from 400 to 1200, but 
 in the State of Massachusetts it may reach ^2O,ooo. 1 
 
 Thus far we have noted four systems resulting from 
 the relations of religion with the State: I. Religion 
 dominates the State, as we have seen in the East; 
 2. The State dominates religion, as in the classical an- 
 tiquity; 3. The State and religion live in harmony, as 
 under the first Christian emperors, and after the struggle 
 of the Middle Ages ; 4. The State and religion ignore 
 each other, yet practise a mutual recognition, as in the 
 Presbyterian and Congregationalist systems among the 
 Protestants, and according to the theory which has begun 
 to be put into application under the Belgian statute 
 among the Catholics. Let us now see how these four 
 systems have been formulated by the expounders of them. 
 
 The theory of the first system, or the Theocracy, emerges 
 in the sacred books of the East, and in the papal utopia 
 which we have already expounded. The ancient ex- 
 pounders of the oriental theocracy cannot be here referred 
 to in detail, but the expounders of the papal system are 
 
 1 Laboulaye, La separazione ddla Chieta e detto Stato neyli Stati Uniti 
 d' America. Traduzione del Senatore Carlo Alfieri. Firenze, 1874.
 
 1 88 PHILOSOPHY OF RIGHT. 
 
 abundantly accessible. Thomas Aquinas is very reserved 
 on the question of the relations between the spiritual 
 power and the temporal power. He contents himself 
 with saying that in regard to what concerns the salvation 
 of the soul, the spiritual power ought rather to be obeyed 
 than the temporal, but as regards civil goods it is better 
 to obey the secular authority. Nevertheless the two 
 powers are always found united in the same person alone 
 qui utriusque potestatis apicem tenet. The work entitled 
 De regimine principum is attributed to Thomas Aquinas, 
 and is certainly from his school. In it the pre-eminence 
 of the spiritual power is unfolded in the same way as in 
 a work under the same title by the Romanist Egidius. 
 Charles Jourdain has found in the national library of 
 Paris another work by Egidius entitled De utraque potestate, 
 in which the papal pretensions are carried to the utmost 
 limit. According to this writer, the Church has not only 
 a right to possess material goods, but has a natural 
 jurisdiction over every kind of such goods. The destina- 
 tion of temporal things, he says, is the utility of the body ; 
 the body is subject to the soul, and the soul to the supreme 
 pontiff; and where this subordination does not exist in 
 fact, -from being rejected by human passions, it subsists 
 by right. The art of governing the peoples, he continues, 
 consists in co-ordinating human laws with those of the 
 Church, as matter is co-ordinated with form. Janet 
 recognises in this work that exaggeration which is usually 
 the sign of powers that are about to fall. 
 
 After the excesses of the French Revolution, we see 
 the so-called Theological School reappearing, and as a 
 School it seeks a fixed point in revelation and in the 
 pontifical authority. De Maistre, with an austere imagina- 
 tion and an incisive style, maintains that as all men are 
 born in the guilt of sin, it should not surprise us if the 
 just man suffers here below, since he suffers not as a just 
 individual, but as a man. All suffering is due to us as a 
 consequence of original sin, and there is no other means
 
 RELIGION. 189 
 
 of diminishing it than prayer and the reversion of good 
 works performed by the good, which God in His mercy 
 reckons to the account even of sinners. He regards the 
 government of Providence as an inexorable government, 
 and wishes that the temporal governments would imitate 
 it. The supreme authority he attributes to the pope, on 
 whom princes ought to depend. 
 
 De Bonald finds the nexus of all truths in a primitive 
 language revealed to man. The Bible furnishes him 
 with the historical proofs of this fact; and reason tells 
 him that it was impossible for man to invent language, 
 since according to Rousseau " speech is necessary in order 
 to establish the use of speech." The language revealed 
 to man by the Creator must have been perfect, and there- 
 fore must have contained true ideas. In consequence of 
 the fall, the true language has been lost, and with it many 
 truths have been obscured ; but the Bible and the Church 
 have preserved for us as much as God considered neces- 
 sary for our salvation. Casting a glance upon the world, 
 De Bonald finds three fundamental ideas, which embrace 
 the order of beings and their relations, and these are 
 cause, means, and effect. The cause stands to the means 
 as the means to the effect. What God is in the general 
 order of beings, the husband is in the family and the 
 ruling power is in the State. God reigns absolutely in 
 the universe; and the father and the sovereign should 
 be absolute in the family and in the State. But between 
 God and man there has been a Mediator participating 
 in the divine and human natures, and so there should be 
 a mediator in the family, namely, the wife ; and in the 
 State there should be an aristocracy, a body intermediate 
 between the people and the sovereign. Domestic society 
 should be regulated by natural religion ; and political 
 society ought to be founded on revealed religion. Thus 
 does De Bonald attempt to demonstrate by reason and 
 history the identity of the religious law and of the 
 political law.
 
 igo PHILOSOPHY OF RIGHT. 
 
 Lamennais in his first work, entitled an " Essay on 
 indifference in matters of religion," 1 finds no ground of 
 trust in the senses, nor in the feelings, nor in reasoning, 
 and he derives truth from authority, that is to say, from 
 the testimony of a great number of persons worthy of 
 faith which begets common consent. In the earliest 
 times God directly governed men from the bosom of a 
 cloud, or by means of a moral law engraven in their 
 hearts. But He has now a representative on the earth 
 in the pope. The spiritual power, in the largest sense of 
 the word, pertains to the pope and to the Church. The 
 civil governments represent only the material side of 
 power, and they ought to depend upon the pope. Around 
 Lamennais gathered Lacordaire, Montalembert, Gerbet, 
 de Salinis ; and after the Eevolution of July, they founded 
 the journal called L'Avenir in order to combat for God and 
 liberty, and for the pope, and for the people. They were 
 condemned in the celebrated Encyclical of i$th August 
 1832; and the little community was dispersed, but the 
 seed sown was fruitful, and we shall see it bring forth 
 fruit. 
 
 The oracles in Greece and the auguries in Eome were 
 the most powerful religious instruments in the hand of 
 the State. In the time of the Republic there were added to 
 these the pontifices^ or the five constructors of bridges, who 
 as engineers knew the mysteries of numbers and measures ; 
 and therefore they compiled the calendar, predicted the 
 new and full moon, fixed the festival days, and, in a word, 
 took care that every religious or judiciary act should take 
 place on the day and in the forms prescribed. Cicero was 
 enthusiastic about this system, and Polybius attributed 
 the happy results of the enterprises of the Eomans to 
 their great respect for religion. 
 
 The Emperor, in addition to all his magisterial offices, 
 held also that of the pontificate, and he even became a 
 god, so that both temporally and spiritually the legal 
 1 Essai sur V indifference en maliere de religion.
 
 RELIGION. 191 
 
 aphorism held good : quod principi placuit legis hdbd 
 vigorem. Constantino, after his conversion, retained the 
 functions of the Pontifex maximus, and continued from 
 policy to take part in the pagan sacrifices and in the 
 sanguinary plays of the amphitheatre which his new faith 
 disapproved. The final abolition of paganism and the 
 confiscation of its possessions, are attributed to Gratian 
 and to Theodosius. In 384 A.D., the statue of the god- 
 dess of Victory disappeared from the Roman forum, and 
 Christianity became the only official religion. 
 
 We have already described the relations of the Church 
 and the Empire, and the Utopia of Dante ; and we must 
 now speak of the maintainers of the pre-eminence of the 
 civil power. Among the first of these is reckoned William 
 of Occam, who took part in favour of Philip le Bel against 
 Boniface VIII. in his manifesto entitled Disputatio super 
 potestate ecclesiae praelatis atque principibus commissa. In 
 order to escape the persecution of Rome, he took refuge 
 with the Emperor Louis of Bavaria, to whom he said : 
 " Tu me defendas gladio, ego te calamo ; " and then he 
 wrote his Octo quaestiones super potestate summi pontificis, 
 and his Dialogus mayistri Guillelmi Ockam, extending to 
 about a thousand pages folio. In these works he proceeds 
 by pro et contra, in the manner of the Scholastics ; but in 
 the midst of infinite argumentation, he presents Chris- 
 tianity as a law of liberty, and the people already make 
 an appearance behind the emperor. Marsilius of Padua, 
 in his Defensor pacis, which was also written in defence 
 of Louis of Bavaria, is more explicit. We may quote 
 one of his conclusions, which runs thus : " Legis latorem 
 humanum solam civium universitatem esse,aut valentiorem 
 illius partem." He then explains how the people are not 
 only the source of supreme power, but that they watch 
 over it, judge it, and depose it. His intention was not 
 only to enfranchise the State from the Church, but also 
 from the absolute power. He goes even as far as to 
 proclaim liberty of conscience. In the connection he
 
 1 92 PHILOSOPHY OF RIGHT. 
 
 says : " Ad observanda praecepta divinae legis, poena vel 
 supplicio temporal!, seu praesentis seculi, nemo evangelica 
 scriptura compelli praecipitur." l Under this point of 
 view Marsilius is the precursor of the great thinkers who 
 advocate the reciprocal independence of the Church and 
 the State. After the Council of Trent, Paolo Serpi re- 
 suscitated in its entirety the doctrine of the omnipotence 
 of the pagan State, and it formed the secret inspiration of 
 the great and unhappy Pietro G-iannone. The Eenaissance 
 in general fondled this idea, which rules in Machiavelli, 
 and glimmers also in the Utopia of Sir Thomas More and in 
 Harrington's Oceana. Eousseau made the idea his in his 
 Contrat social, which inspired the Constituent Assembly 
 with the civil constitution of the clergy. 
 
 The Protestant writers declared themselves unanimously 
 in favour of the pre-eminence of the State. Their common 
 thought in opposition to the papacy was : Cujus est regio 
 ejus religio. Hugo Grotius made vast researches, and 
 concluded by attributing all ecclesiastical authority to 
 the State. Hobbes and Spinoza incorporated the Church 
 directly in the State, Spinoza making ample reservations 
 in favour of freedom of conscience. But from the 
 Presbyterians and Congregationalists other maxims could 
 not but arise, and these were reduced to a theory by 
 Thomasius, who would have the Church be regarded as 
 a simple association tolerated by the State. 
 
 The Gallican writers furnish a fruitful mine for the 
 system of concordats ; and without going back to Pithou, 
 Coquille, and Pasquier, we shall confine ourselves to 
 referring to the learned reports of the Minister Lanjuinais, 
 and the Counsellor of State, Portalis, in the discussion of 
 the Concordat of 1801 and the organic articles which 
 followed it. The Belgian Laurent declared himself in 
 favour of concordats in the French manner, despairing of 
 suppressing all the power of the Church, and believing 
 
 1 Janet, op. cit.
 
 RELIGION. 193 
 
 that its absolute separation from the State would be 
 prejudicial to the religious sentiment. 1 
 
 The same author witnesses to the influence exercised 
 on the Belgian legislators by the doctrines advocated by 
 Lamennais and the other writers of the journal L'Avenir. 
 The following are briefly the aspirations of this school. 
 "Let the clergy of France abjure in some way the old 
 maxims of the Gallican Church as the source of equivo- 
 cations and errors, as principles of a slavery imposed on 
 religion by the political despotism, and too easily accepted 
 in the seventeenth century by the prelates of the court, 
 as a fatal barrier raised by profane interests between the 
 Church and its head, as a perpetual danger of national 
 schism like to that provoked by Henry VIII. in England, 
 or to the one that reigned so long in the empire of the 
 czars. Let the Church take again all her liberty both in 
 action and in doctrines in face of the governments; let 
 her claim those indispensable rights now denied to her 
 by the Concordat of 1801 and the Organic Articles; let 
 her be permitted to meet at will in provincial councils 
 and in synods, to communicate with the sovereign pontiff 
 without requiring permission, to found religious orders 
 without needing the council of State and the decree of 
 the prince, to open as many schools as may be thought 
 necessary in the interest of religion, and to teach her 
 doctrines in them without being subject to any surveillance 
 by the State, and to receive her bishops only through the 
 institution of the Holy See. But in exchange for these 
 precious benefactions, let her make the sacrifice of all the 
 temporal goods which the government has secured to 
 her; let her renounce her budgets and her revenues, 
 the official and privileged protection with which she is 
 surrounded, and the political dignities which have been 
 conferred on the episcopate ; let her lay account only 
 upon herself ; let her hold her authority and her means 
 of subsistence only from faith, from piety, and from the 
 
 1 LEglise ct VEtat, p. 482 et ae^. Bruxelles, 1858.
 
 I 9 4 PHILOSOPHY OF RIGHT. 
 
 voluntary offerings of the Catholic populations ; let the 
 old alliance of the throne with the altar be completely 
 destroyed; let there be no more solidarity between the 
 Church and any of the dynasties which revolutions 
 may put at the helm of the State ; and let all confusion 
 or mixing of the two powers cease. Let the Church, 
 accepting the consequences which necessarily arise from 
 this new order of things, acknowledge with good faith 
 that the Catholic religion is not incompatible with liberty 
 of worship, nor with liberty of teaching, nor with the 
 liberty of the press, seeing that these various forms of 
 liberty are the only power which can preserve the Church 
 in France from a catastrophe similar to that which de- 
 stroyed Catholicism in England." 
 
 In the Eeformed pastor Vinet, we have an echo of these 
 doctrines. The State, he says, cannot have any religion. 
 And in fact, what is religion? It is a sentiment or 
 feeling entirely concentrated in the most secret and most 
 profound life of the soul. It regulates no other relations 
 than those of the invisible with the visible; and the 
 external life is to it only a means of reacting on the 
 internal life. Men by combining into civil society make 
 only their interests and their ideas common, but they 
 reserve to themselves the most intimate part of their soul, 
 their religion. Vinet does not say that the State has 
 nothing in common with religion, since it has the 
 morality which springs from a primitive revelation ; but 
 in the internal sanctuary every one ought to be perfectly 
 free. The spiritual and the temporal, he adds, are dis- 
 tinct like law and morality, and this distinction is not 
 an accident, but a necessity ; it is not a passing phase, 
 but the normal and definite state of society, one of the 
 axioms of science and society. To believe that the 
 existence of a religion is threatened by its separation 
 from the State, is an avowal that it has no root in 
 humanity, and no force in itself. We therefore de- 
 mand this separation in order to demonstrate that
 
 RELIGION. 195 
 
 religion is a need and not a habit, a conviction and not 
 a prejudice. 1 
 
 The formula of Cavour, A free Church in a free, State, 
 was the summary of these doctrines, but stripped of their 
 exaggerations, because it was not in the mind of the 
 great minister either to make the clergy renounce their 
 goods, or to reduce religion to pure individual sentiment, 
 which, carried out rigorously, would bring with it the 
 abolition of worship and of the priesthood. 2 
 
 Even in America, these doctrines have not been ac- 
 cepted in an absolute way. There the rest of the 
 Sabbath is rigidly observed, and public-houses and 
 restaurants are closed that they may not minister to 
 vice. The sessions of the Federal Congress and of the 
 special legislatures are opened with prayers led in 
 turn by ministers of the different churches. In certain 
 solemn circumstances, the congress, the president, and 
 the governors of the States order fast-days and thanks- 
 givings ; and when Jefferson during his presidency raised 
 a doubt as to the right of asking the people for prayers 
 for the Union, he met with unanimous disapproval. In 
 most of the States, the churches are free from imposts, 
 and the pastors are exempted from military service and 
 from serving on juries ; nor is this privilege in any way 
 contrary to public opinion. The civil magistrate secures 
 the execution of the sentences of the ecclesiastical tri- 
 bunals, as is seen by an instance reported by Laboulaye. 
 In 1869, Dr. Edward Cheney, episcopal rector of Christ 
 Church. at Chicago, was accused before an ecclesiastical 
 court of having arbitrarily suppressed the word regenerated 
 
 1 See his Essai sur la manifesto,- State, and hence the said writer 
 tion des convictions religieuses et sur modified it into : L'Eglise libre dans 
 la separation de VEglise ct de FEtat, la, nation libre. But as the dans 
 printed first at Paris in 1842. continued to exasperate the too 
 
 2 The formula of Cavour certainly zealous journal, Montalembert and 
 belongs to Montalembert : L'Eglise his friends were content to say : 
 libre dans I'Etat libre. L' Univers L'Eglise libre et la patrie libre. See 
 attacked this formula because it A. Leroy-Beaulieu, Les catholiquet 
 seemed to locate the Church in the libiraux, p. 187. Paris, 1885.
 
 I 9 6 PHILOSOPHY OF RIGHT. 
 
 in the baptismal formula. Bishop "Whit-chouse interdicted 
 Cheney, and deprived him of his living. The congrega- 
 tion decided to retain their rector, and Cheney raised an 
 action against the bishop before the Superior Court of 
 the State of Illinois in order that this canonical sentence 
 might be annulled, as he alleged it injured his rights as 
 a citizen. He gained his case in the first instance ; but 
 when it was carried by appeal before the Supreme Court 
 of the State, the sentence was quashed. The tribunal 
 decided that whenever a particular church and its pastor 
 were subject to the surveillance and censure of higher 
 ecclesiastics, and formed part of a church whose creed 
 and discipline they had voluntarily accepted, then the 
 members that continued faithful to the communion should 
 be considered as alone composing the church, and as 
 having the right to retain its property, even although these 
 faithful ones might be in a minority. The majority ought 
 not to be allowed to abandon the communion and withdraw 
 themselves from the disciplinary jurisdiction and carry 
 away the property of the congregation ; for this would be 
 an act of bad faith which no court of justice could tolerate. 
 Here then in these microscopic proportions, the secular 
 arm shows itself in America. Here are cut by the root 
 those mixed questions which for so many ages have been 
 the despair of jurisconsults and canonists. Certainly it 
 is desirable that all controversies between Church and 
 State should be resolved by reciprocal agreement, includ- 
 ing such questions as the institution of new dioceses, the 
 nomination of bishops, the stipends of the clergy, questions 
 of marriage, schools, hospices, cemeteries, processions, &c. ; 
 but human nature is so constituted, that the strong always 
 seek to oppress the weak, and hence these conflicts and 
 usurpations go on. But this system supposes a state of 
 greatly advanced civilisation, and it has therefore been 
 the last to appear in practice and theory. 
 
 The great thought of Cavour was modified by his re- 
 presentatives and successors. Pasquale Stanislao Mancini,
 
 RELIGION. 197 
 
 late minister in Naples, by a decree of i/th February 
 1861, deprived the priests of the privilege of being taken 
 to prison in a carriage. Afterwards, they were deprived 
 of all exemption from military service, and by extreme 
 interpretations they were allowed to marry. All civil 
 execution is refused for the sentences of bishops who 
 deprive their subordinates of their stipends or suspend 
 them a divinis. The suppression of the religious orders 
 has gone beyond all limit, and has violated acquired rights. 
 The law of Piedmont of 1855 respected the religious 
 orders devoted to preaching, education, and the assistance 
 of the sick. The Italian suppression took effect only in 
 the future, concentrating gradually the surviving monks 
 in the monasteries of the order till their total extinction. 
 The conversion imposed for economic reasons on the 
 chapters and other ecclesiastical bodies, was left to be 
 carried out by themselves according to an estimated state 
 and in a determinate period of time. The law of guarantees 
 did not break all bonds between the Church and the 
 State ; it demands the exequatur of the papal bulls in the 
 nomination of bishops when they claim the temporalities. 
 
 We are far from agreeing with the maxim uttered by 
 Odilon Barrot in a celebrated case, namely, that the law 
 is atheistic. The modern State, answers Kenan, has no 
 official theological dogma; it is neither atheistic nor 
 irreligious; it is even essentially religious, since it sup- 
 poses right and duty, admits the taking of an oath, 
 respects death, and believes in the sanctity of marriage. 1 
 
 Summing up, we say that the State is the expression 
 of the majority, and hence it should conform its conduct 
 in whole or in part to religious rules according as there 
 may exist one or more kinds of worship in its territory. 
 Every one should be free to believe in his own way, but 
 not to exhibit his religious opinions except within limits 
 which will not injure the rights of others ; and hence 
 follows toleration, or liberty of worship, according to cir- 
 
 \See Questions contcmporaines, p. 228. Paris, 1868.
 
 198 PHILOSOPHY OF RIGHT. 
 
 cumstances. It nevertheless does not follow in the least 
 that the State ought not to receive help from religion, as, 
 for example, in relation to marriage, which may be cele- 
 brated civilly and according to the religious rites of the 
 spouses, unless they be freethinkers ; and in such a case 
 the parties should declare it in a public instrument in 
 order to obtain from the magistrates the permission to 
 contract their marriage only civilly. The formula of the 
 oath might be modified by adding to it, On the faith 
 of a man of honour, which would not offend believers 
 and would bind freethinkers. The cemeteries might be 
 divided into various sections, one of them for freethinkers. 
 Doctrinal teaching might be entrusted to the ministers of 
 the various creeds, along with the primary and secondary 
 instruction ; and it might be entirely free in the higher 
 instruction, the right being given to open the universities 
 to whoever has means to attend them. 
 
 According to this view, religion would occupy in society 
 the same position which it holds in the human mind, 
 among the other ends of which we have still to speak. 1 
 
 1 In 1 86 1 we discussed the relations of religion with the State in a little 
 work entitled : L 'Italia, e la Chiesa, risposta a Guizot.
 
 CHAPTER II. 
 SCIENCE. 
 
 SCIENCE separated itself slowly from religion. The 
 separation began in the East, and was completed in 
 Greece. In India, philosophical thought reached the pro- 
 duction of a philosophy without God, as we have already 
 seen in our introductory sketch. The natural sciences 
 were almost entirely neglected by the Hindus, and the 
 most popular work in India after twenty centuries is the 
 Nyaya of Gotama, which lays down the rules of reasoning. 
 But what a difference there is between it and the Organon 
 of Aristotle, which has served as a text for so many ages, 
 and to so many races! With all the goodwill of the 
 Sanskritists, they have not been able to find in Gotama 
 the theory of the syllogism. 
 
 China laid more importance on physics; and in the 
 oldest Chinese book, the Y King, attributed to Fou-hi, we 
 find as the highest categories the Heaven and the Earth, 
 the one represented by a continuous line ( ), and the 
 other by a broken line (- -). 
 
 The first symbol represents the male principle, the sun, 
 the light, heat, motion, force, or in a word, all that has a 
 character of superiority, activity, and perfection. The 
 second represents the female principle, the moon, darkness, 
 cold, rest, weakness, or in a word, all that has a character 
 of inferiority, passivity, and imperfection. All things 
 arise by composition and perish by decomposition. In 
 the Shu-King, there are distinguished five great elements : 
 water, fire, wood, metals, and the earth ; then the faculties ; 
 and lastly, the ethical principles, from which Lao-tse
 
 200 PHILOSOPHY OF RIGHT. 
 
 derived metaphysics, and Confucius ethics. In the twelfth 
 century, Ichu-hi formulated the Chinese encyclopedia in 
 the following way. The generation of the five elements 
 proceeds immediately from the active principle and from 
 the passive principle, which are only modes of being of 
 the great summit (Tai-ki). The Tai-ki is the same thing 
 as the Li, or the efficient and formal cause of the universe, 
 which, putting itself in motion, generated the Yang (active 
 principle), and in its repose produced the Yn (passive 
 principle). The Li is manifested in man as the rational 
 principle, which has as its contrary the Ki or material 
 principle. The first represents movement, and the second 
 repose ; their union constitutes life, and their separation 
 produces death, after which there is no more personality. 
 Spirits and genii are only the active principle and the 
 passive principle, or the breath of life which vivifies 
 nature and fills the space between the heaven and the 
 earth, and which animates man. 
 
 Society was organised in China according to the principle 
 of generation, or on the paternal authority. The Emperor 
 is the typical man, and he unites in himself heaven and 
 earth, and is the father and mother of the people. He 
 represents the universal reason, and he is crammed with 
 all kinds of knowledge from his most tender years. After 
 the imperial family, the Mandarins or literati form the 
 second order of the State. The literati are divided into 
 as many classes or grades as there are sciences ; and those 
 who know best the written signs of their science, form a 
 council of government beside the emperor under the name 
 of Hanlin. This council has the censorship of books, and 
 recommends those which it believes necessary to preserve 
 the ancient precepts and discoveries in arts having an 
 immediate utility. The Chinese youth are educated so 
 as to be able to manage public and private affiairs in an 
 entirely practical way. Every science is reduced to rules 
 which are committed to memory. All undergo exami- 
 nation, the soldier as well as the administrator and the
 
 SCIENCE. 201 
 
 lawyer. In order that the supreme college of the capital 
 may be the nucleus of the empire, there is established a 
 hierarchy among the cities, which forms an uninterrupted 
 chain down to the lowest village ; but it is only the capital 
 that communicates the nobility of knowledge. After the 
 literati come the agriculturists, the artisans, and the 
 merchants, without any principle of heredity. Industry 
 and agriculture depend on tradition and on the police. 
 Before the Europeans had put their foot in China, the 
 Chinese were ignorant of mathematics and all the arts 
 that depend upon them. They were acquainted with 
 gunpowder, but they used it only for artificial fireworks. 
 They possessed the mariner's compass, but they followed 
 the course of the stars in their navigation ; and they had 
 printed books, but they produced them by means of 
 characters cut in tablets of wood, and not by melted and 
 movable types. 
 
 The ancient Egyptians resembled the Chinese in their 
 empiricism, their spirit of tradition, and their attitude 
 towards the arts that are most useful for life. The 
 necessity of recovering their fields after the inundations 
 of the Nile, and the division of the land carried out by 
 Sesostris, led them early to the discovery of geometry. 
 It was, however, entirely practical, and without demon- 
 strations; and as they did not know the measurement 
 of angles and trigonometry,' they made use of ingenious 
 methods which were adopted by the Greek and Eoman 
 land surveyors. In astronomy, they had the merit of re- 
 presenting geometrically the motions of the sun, and moon, 
 and the five planets then known. Herodotus also asserts 
 that they knew the solar year 1325 years before our era. 
 Nevertheless, they had been preceded by the Chaldeans in 
 determining empirically, but with some exactness, the 
 periods in which the same astronomical phenomena 
 return. The Egyptians had the incontestable merit of 
 recognising the value of labour; for if the priests and 
 the soldiers were distinguished by great honours, all kinds
 
 202 PHILOSOPHY OF RIGHT. 
 
 of trade were held in esteem, and it was regarded as a 
 crime to despise a citizen who contributed by his labour 
 to the public good. The division of labour was not only 
 applied to the mechanical arts, but also to the liberal 
 professions, which were all divided into guilds, so that it 
 was impossible for an idle man to conceal himself. Hered- 
 ity was established in the arts and professions in order 
 to render them more perfect. 
 
 The Greeks no longer sought the laws of nature in the 
 theogonies, but by observation. Thales determined the 
 solstices and predicted eclipses. Anaximander already 
 drew geographical maps, and formed spheres and solar 
 quadrants ; and Pythagoras, as by a sort of divination, 
 conceived a planetary system. The milky way was to 
 Democritus an aggregation of stars. The curves of the 
 orbits of the planets were considered by Plato to be 
 determined by attraction, while Aristotle felt as by 
 intuition that motion is a chief and universal fact. Hippo- 
 crates laid down medical aphorisms in spite of his physio- 
 logical hypotheses and the scantiness of his anatomical 
 knowledge. Aristotle founded natural history, descriptive 
 meteorology, psychology, ethics, politics, rhetoric, and 
 the art of poetry, basing them on observation and 
 comparison of facts ; and he also formulated the rules of 
 the deductive method, and indicated the advantages of 
 induction. 
 
 The founding of Alexandria, which united the West 
 with the East, gave an impetus to science. Astronomy 
 had need of trigonometry, and Hipparchus invented it. 
 The distance of the earth from the sun and the moon 
 was calculated by Aristarchus ; the obliquity of the 
 ecliptic was determined by Eratosthenes and Hipparchus ; 
 and Ptolemy founded a system which lasted for fourteen 
 centuries. While anatomy made progress, physiology 
 owed to Galen the discovery of the minute circulation of 
 the blood from the lungs to the heart ; and therapeutics 
 found a rival of Hippocrates in Aratasus.
 
 SCIENCE. 203 
 
 The Eomans added somewhat to natural history by 
 Pliny, to agriculture by Varro and Columella, and to 
 architecture by Vitruvius, but on the whole their additions 
 were small, as they turned all their powers to law and 
 politics. 
 
 But what were the relations of science with religion 
 and government in antiquity? Religion tolerated an 
 allegorical interpretation of its theogonies, but not a 
 direct attack, as was shown by the danger encountered by 
 Anaxagoras and by the death of Socrates. The govern- 
 ment left the public instruction to private enterprise, and 
 it is only in the time of the Empire that we see schools 
 subsidised. 
 
 Christianity was a reaction against knowing. But 
 after having spoken to the heart, it felt the need of 
 addressing itself to the understanding; and it entered 
 into alliance with philosophy, and did not reject all the 
 useful discoveries which render the practice of virtue less 
 severe to us. In vain did Julian the Apostate wish to 
 exclude from the schools the followers of the new religion, 
 who were as eager to learn as to teach. In the present 
 day the Church still interprets in an absolute sense the 
 commission : Go and teach all nations. 
 
 On the invasion of the barbarians the clergy sought to 
 save whatever they could of the ancient sciences and 
 letters. They copied manuscripts and taught the seven 
 liberal arts : grammar, rhetoric, and dialectic (which 
 formed the trivium), and arithmetic, geometry, astronomy ) 
 and music (which formed the quadriviicm). Charlemagne 
 founded the Palatine Academy, which was presided over 
 by himself under the name of David, and every member 
 of which assumed an allegorical name. Along with this 
 Academy, he founded a royal school under the direction 
 of Alcuin; and it became the .centre of the studies of the 
 time, and served as a model to many others. 
 
 The Arabs were driven by their material wants to 
 appropriate the scientific works of the Greeks; but
 
 204 PHILOSOPHY OF RIGHT. 
 
 medicine, physics, and astronomy were so bound with 
 philosophy, which had embraced them all at the begin- 
 ning, that the study of it was rendered indispensable. 
 The Arabs took to Aristotle, whom they considered to be 
 the philosopher par excellence ; and they translated him, 
 commented upon him, and made him known to Europe. 
 " But," exclaims Kenan, " men often speak of an Arabic 
 science and philosophy; and in fact the Arabs were 
 our masters for about two centuries during the Middle 
 Ages, but only until we came to know better the 
 Greek originals. This Arab science and philosophy were 
 only a poor translation of the Greek science and philo- 
 sophy. No sooner did the real Greece appear before 
 our eyes than these indifferent translations became 
 superfluous, and the philologers of the Kenaissance not 
 without reason undertook a veritable crusade against 
 them. When we scrutinise it attentively, this Arab 
 science had nothing Arabic in it; its foundation was 
 entirely Greek, and among those who created it, there 
 was not a genuine Semite, but they were Spaniards and 
 Persians who wrote in Arabic. The Jews in the Middle 
 Ages acted as interpreters of them; and the Jewish 
 philosophy of that time is the Arab philosophy without; 
 any modification. A single page of Eoger Bacon contains 
 a larger infusion of the scientific spirit than the whole of 
 this second-hand science, which is worthy of consideration 
 as a link in the chain of tradition, but it is void of any 
 great originality." 1 Nevertheless, the Arabs communi- 
 cated to Europe the system of numeration and the 
 mariner's compass, which it is said they borrowed from 
 .the Hindus and the Chinese. 
 
 Among the most celebrated schools at the close of the 
 eleventh century may be reckoned the medical school of 
 Salerno, whose origin is lost in the night of time, and 
 which had even Jews and Arabs among its professors. 
 
 1 De la part del peuples stmitiques dans I'histoire de la civilisation. 
 Paris, 1875.
 
 SCIENCE. 
 
 205 
 
 In 1196, the celebrated Irnerius was called from 
 Ravenna, where he was a judge, to Bologna, to teach the 
 Roman Law. In the course of the twelfth century 
 there was added to the curriculum of study the canon 
 law, medicine, theology, and philosophy. Fourteen 
 colleges gathered together the students of different 
 nations; and some of these colleges were founded by 
 popes, others by foreign princes, or by magnanimous 
 donors. Along with them arose other colleges and 
 corporations for examining the students and conferring 
 the degree of doctor upon them: the doctorate in theo- 
 logy being conferred in name of the pope, and that in 
 jurisprudence in name of the emperor, by the authority 
 of whom they had been instituted. For a long time 
 all scientific knowledge consisted in jurisprudence and 
 theology, until literary studies were added to them. The 
 name of Universities was given to these institutions in 
 order to indicate that the universality of knowledge was 
 taught in them. In the University of Naples, which was 
 founded by Frederic II. in 1224, we find the first germs 
 of the Faculties in the teaching of civil and canon law, 
 philosophy, mathematics, and medicine. A student did 
 not become a doctor in jurisprudence till after five years' 
 study, in theology till after twelve years, in philosophy 
 till after three years, and in medicine and surgery till 
 after five years. The law inflicted a punishment of three 
 years' exile on students who attended private courses; 
 and in the other cities of the kingdom, no other study of 
 medicine was tolerated except that in Salerno, which was 
 affiliated to the University of Naples. 
 
 England has preserved intact the type of the Middle 
 Ages with its twenty colleges united around the University 
 of Oxford, and the seventeen of the University of Cam- 
 bridge. The University of London, which was created 
 by^the dissenters under the royal charter of 5th December 
 1837, is not a teaching body. Its power extends over 
 the whole of the United Kingdom and the colonies. It
 
 2 o6 PHILOSOPHY OF RIGHT. 
 
 is a sort of corporation for examining students, and by an 
 additional charter of 2/th August 1867, women are also 
 admitted to the examinations. It does not demand a 
 fixed residence from the candidates, nor any common 
 regulated life, nor any moral or religious discipline. But 
 teaching is given by University College and King's Col- 
 lege, the first of which is divided into the faculties of 
 Arts, and Law, and Medicine, and the second into the 
 four departments of theology, literature and natural 
 sciences, applied sciences, and medicine. These colleges 
 are both private institutions, the first having been founded 
 by the Liberal party, and the second by the clerical or 
 Anglican party. 
 
 The exact sciences and the natural sciences do not, 
 however, owe their progress to the universities, all absorbed 
 as they were in jurisprudence and theology. Eoger Bacon 
 was driven from Oxford because he put little account on 
 scholasticism and ratiocination in general, which convinces 
 without instructing, and often demonstrates error as well 
 as truth with the same evidence. Their conclusions, he 
 said, were but hypotheses when not verified. Experience 
 fills up this want, and is sufficient of itself, whereas 
 authority and ratiocination stand in need of it. Nothing 
 dominates experience, and when Aristotle affirms that 
 the knowledge of reasons and causes is superior to it, he 
 speaks of the common and inferior experience employed 
 by artisans who know neither its power nor its means, 
 and not of the experience of men of learning, which rises 
 up to causes and discovers them by means of observation. 
 Bacon severely censures scholasticism, despises the cultiva- 
 tion of abstract logic, and prefers the Rhetoric and Poetics 
 of Aristotle to his Organon. Next to languages, he wished 
 that mathematics should be studied, which scholasticism 
 had erred by confounding with a sort of magic. He re- 
 duced metaphysics to a sort of philosophy of the sciences, 
 embracing the ideas which they have in common, furnish- 
 ing their methods, and fixing their boundaries. To the
 
 SCIENCE. 207 
 
 general physics of Aristotle and the schools he preferred 
 the alchemy which treated of the combination of the 
 metals (not of their transmutation), and of the structure 
 of the tissues of animals and vegetables, a subject which 
 was not taught in the universities. He laid great value 
 on the art of constructing houses, cultivating fields, and 
 rearing cattle ; and he had a predilection for everything 
 that could conduce to the increase of industry, such as the 
 construction of machines, &c. 
 
 The Renaissance carried out what Roger Bacon had 
 anticipated. The ancient languages were better learned ; 
 texts were restored ; Aristotle was studied in the original 
 and no longer in Arabic translations ; and nature was 
 directly observed. Galileo said that the laws of nature 
 are the simplest of all ; that no one can swim better 
 than the fishes, nor fly better than the birds ; that we 
 should rise by thought to the most perfect and simple 
 rule, and that we would thus form the most probable 
 hypotheses. "We should follow with curiosity the con- 
 sequences which mathematics will be able without hesita- 
 tion to transform into elegant theorems. Geometry has 
 studied many curves unknown to nature whose properties 
 are admirable, but they belong only to geometry if 
 experience has not confirmed them. In a word, to 
 judge of principles by the verification of their most 
 remote consequences, is the method of Galileo and the 
 solid foundation of modern science. 
 
 By mathematical calculation and direct observation 
 Galileo discovered the law of gravity and that of the 
 pendulum, the hydrostatic balance, and the telescope 
 with which he saw the satellites of Jupiter, the phases of 
 Venus and Mars, the solar spots and the mountains of the 
 moon. If he had given greater attention to the three 
 geometrical laws of Kepler regarding the elliptical motion 
 of the planets, and had investigated their mechanical prin- 
 ciple, he might have appropriated the glory of Newton, 
 and founded the modern astronomy with Copernicus.
 
 208 PHILOSOPHY OF RIGHT. 
 
 Francis Bacon of Verulam in his Instauratio Magna set 
 himself to find out the laws of all scientific knowledge 
 and to describe its method, which is observation either 
 pure or aided by experiments, and fertilised by induction. 
 Applying this method, he himself made discoveries ; he 
 invented a thermometer, carried out ingenious experiments 
 on the compressibility of bodies and on the weight of the 
 atmosphere and its effects. He had a presentiment of the 
 force of universal attraction, and of the diminution of this 
 force in the ratio of its distance ; and he caught a glimpse 
 of the true explanation of the tides, and of the cause of 
 colours, which he attributed to the mode in which bodies 
 reflect the light in virtue of their diverse texture. This 
 same method was afterwards applied by the philosophers 
 of the Scottish School to psychology, ethics, and social 
 facts, and it has produced useful results. 
 
 The induction of Bacon ought not to be confounded 
 with empiricism ; for Bacon admits final causes as above 
 efficient causes. But he recommends our stopping at the 
 former in the natural sciences, and leaving the latter to 
 metaphysics. 
 
 The ancients, especially the Stoics, had divided all 
 cognitions by reference to their objects into three cate- 
 gories, giving the three sciences of logic, ethics, and 
 physics. Bacon, however, divided the sciences according 
 to the faculties from which they emanate, making history, 
 natural and civil, arise from memory, poetry and all the 
 arts from the imagination, and philosophy, or the science 
 of God, man, and nature, from the reason. This divi- 
 sion has been reproduced with new developments in the 
 discourse prefixed by D'Alembert to the Encyclopedic 
 in the last century. 
 
 Descartes, by his analytical geometry, and Fermat, with 
 the first elements of the infinitesimal calculus, which was 
 afterwards perfected by Leibniz, prepared the way for 
 Newton. Newton sketched out the sidereal motions ; and 
 it required the combined powers of great mathematicians
 
 SCIENCE. 209 
 
 and astronomers, including Euler, Clairaut, D'Alembert, 
 Lagrange, Laplace, and Cassini, that the sketch might 
 become a picture. 
 
 The renovation of astronomy was followed by that of 
 physics, which was begun by Galileo, and carried on by 
 Volta, Oersted, Ampere, and Melloni. The eighteenth 
 century did not remain behind the seventeenth century in 
 chemistry, which it created through Lavoisier, and which 
 at present threatens to absorb all the other sciences. In 
 fact, as chemistry deals with the combinations which 
 arise among substances, it joins hands with the sciences of 
 life, which is a composition of substances that enter, and a 
 decomposition of substances that are thrown out of the 
 body. Biology, says Littre, was introduced into the world 
 by medicine, and it lived a long time under the protection 
 of the salutary art which undertakes to cure human suffer- 
 ings ; but the time has now come for its serving as a guide 
 to medicine, and especially to pathology. The studies of 
 the Renaissance were directed after the leading of antiquity 
 to discover the anatomical mechanism of the living body. 
 And thus the general circulation of the blood was dis- 
 covered, as it constantly obtains air in the capillary 
 vessels of the lungs, and loses it in the capillary vessels of 
 the rest of the body. Thus too were the ways recognised 
 by which the chyle passes from the intestines into the 
 current of the circulation. And finally, in our day, there 
 was also thus discovered the capital distinction among the 
 nerves, some of which are destined for motion and others 
 for sensibility, as well as that between the nerves and the 
 brain, to which they transmit through the spinal marrow 
 all their impressions, which the brain returns by the same 
 channel through the motor nerves to the muscles. Bichat, 
 at the end of the past century, thought of studying the 
 action of remedies not directly upon diseases, which are 
 complex phenomena, but on the tissues ; but death carried 
 him off in his thirty-first year. His work was taken up 
 again after half a century by Claude Bernard. 
 
 VOL. i. o
 
 2io PHILOSOPHY OF RIGHT. 
 
 From the earliest times, observers had noticed that plants 
 obtain their nourishment from the air and from the earth, 
 and that animals are nourished by vegetable substances, 
 so that, in their ultimate constituents, organised bodies 
 are composed of inorganic elements. "What substances 
 do vegetable bodies obtain from the soil? What agent 
 is furnished by the atmospheric air to living beings? 
 What combination do elements undergo by entering into 
 animated bodies ? What affinities are developed in these 
 bodies ? How does the juice of plants produce gums 
 and sugars, and how does the blood of animals produce 
 bile, saliva, and tears? All these questions remained 
 without reply because they required a science to answer 
 them which was not yet constituted, as the ancients had 
 a glimpse of physiology only on the side accessible to 
 them in anatomy. But when chemistry was created, and 
 discovery was made in living bodies of oxygen, hydro- 
 gen, nitrogen, and carbon, which play so great a part in 
 inorganic nature, physiology became master of the field. 
 It is thus younger than chemistry, which arose after 
 physics, which again had followed astronomy, which was 
 preceded by mathematics. 1 But living beings present 
 a sort of hierarchy, which begins with vegetables endowed 
 only with apparatuses for composition and decomposition, 
 rises to the lower animals that have in addition the gan- 
 glionic nervous system, and reaches the higher animals 
 where these apparatuses and this system are found with 
 the addition of the cerebro-spinal axis and its centripetal 
 and centrifugal nerves. So in like manner, says Auguste 
 Comte, the gradual development of humanity tends con- 
 stantly to determine, and in fact produces an increas- 
 ing preponderance of the noblest instincts of our nature. 
 The pernicious instincts will be neutralised by the powers 
 
 1 See La science au point de vue of our esthetic, moral, and intel- 
 
 philosop/dque, p. 247-8. Paris, 1873. lectual faculties in the domain of 
 
 Littre" would add a seventh science, history, and which would embrace 
 
 extracting it from Sociology, which aesthetics, ethics, and ideology, 
 would gather up the external results
 
 SCIENCE. 211 
 
 of education and science, and liberty of thinking will yet 
 terminate in ethics, as it has terminated in astronomy, 
 in physics, &c. ; and it will thus come to be as absurd 
 to try to confute any rules of conduct formulated by the 
 new science as it now is to call in question the laws of 
 Newton. To this new science Comte gave the name of 
 Sociology. 
 
 Many objections have been made to this scientific 
 classification, even by the followers of the positive 
 philosophy. John Stuart Mill objects to the philosopher 
 having sacrificed in principle both psychology and political 
 economy. Littre answers that psychology cannot serve 
 as a point of departure for philosophy, as it is an appen- 
 dix of biology. The material constitution of the nervous 
 substance is the meeting point of the spirit with the laws 
 of general facts, and there is no subjective science which 
 can be anything else than the product of the faculty 
 of elaboration indwelling in the nerve cells. Political 
 economy, adds Littre*, corresponds to the theory of the 
 nutritive functions in biology, with regard to which, 
 Comte, agreeing with all good physiologists, holds that 
 it is of great importance as the foundation of the new 
 science. As the nutritive functions cannot be separated 
 from the action of the animal or human attributes, so the 
 economic phenomena of society cannot be separated from 
 the action of the political and moral attributes. 
 
 Herbert Spencer says that Comte endeavoured to co- 
 ordinate our cognitions in order that they might serve to 
 interpret phenomena which had not been studied in a 
 scientific manner; and that he has renovated the idea 
 of Bacon, who tried to organise the sciences into a vast 
 system in which social science was to appear as a branch 
 of the tree of nature. The human mind, he continues, has 
 never ceased to seek the first cause either by religion or 
 by science ; and every religion is an explanation a priori 
 of the universe which science strives to explain d posteriori. 
 The whole of science represents the sum of positive know-
 
 212 PHILOSOPHY OF RIGHT. 
 
 ledge ; it depends on the order which reigns in the pheno- 
 mena which surround us, and it is not developed in series, 
 but on the contrary gives life to inter-dependent sciences 
 which spring up and advance together. The difference 
 between Comte and Spencer, says Littre", is this, that Comte 
 regards the sciences objectively, and hence their generality 
 decreases in proportion as they embrace a greater number 
 of objects, whereas Spencer looks at them subjectively, or 
 as they arise in our mind. 
 
 Before the rise of the positive philosophy, there was 
 another classification of the sciences by Ampere which 
 deserves to be mentioned. Ampere observes that human 
 cognitions take two special directions, towards matter or 
 towards thought ; and therefore he divides the sciences 
 into cosmological and noological. The first class he sub- 
 divides into the cosmological sciences properly so called, 
 or the sciences of inorganic matter, and into physiological 
 sciences, or sciences of organised and living matter. The 
 second class he subdivides into noological sciences pro- 
 perly so called, and into social sciences. 
 
 Ernest Eenan, starting from the principle first pro- 
 claimed by Heraclitus that Nothing is, everything becomes, 
 connects all the sciences with the fact of the becoming. 
 In the order of reality, he recognises : I. An atomistic 
 period, at least one virtually so, during which pure 
 mechanism reigns, but which contains the whole universe 
 in germ ; 2. A molecular period, during which chemistry 
 begins and matter already forms distinct groups; 3. A 
 solar period, during which matter is agglomerated in space 
 in colossal masses, separated by enormous distances ; 4. A 
 planetary period, during which in every system there 
 separate from the central mass distinct bodies which 
 possess an individual development, and during which the 
 Earth in particular begins to exist as a planet ; 5. A period 
 of individual development in every planet, during which 
 the Earth in particular passes through the evolutions re- 
 vealed to us by geology, and in which life appears, so that
 
 SCIENCE. 213 
 
 botany, zoology, and physiology begin to have an object ; 
 6. The period of unconscious humanity, revealed to us by 
 comparative philology and mythology, and which extends 
 from the day in which there were beings on the earth 
 that deserved the name of men down to the historical 
 times ; 7. The historical period, which begins in Egypt, 
 and embraces about 5000 years, of which 2500 are well 
 known, and 300 or 400 of which has given us the 
 full knowledge of the whole of our planet, and of all 
 humanity. 1 
 
 This system differs from that of Comte and his followers, 
 because it puts chemistry before astronomy, and makes 
 no mention of physics. It agrees with Comte's system 
 regarding the uselessness of metaphysics, a science which 
 can only gather together the manifestations already 
 reached. God is here synonymous with the total of 
 existence ; He is even more than the whole of existence, 
 because He is the absolute which seeks Himself. Hence 
 it appears that the system of Eenan is only that of Hegel 
 turned upside down. 
 
 According to Hegel, the general exists before the 
 particular, of which it is the foundation, or rather its 
 substance. Science is only the deduction d priori of all 
 that is contained in the idea of being. The only scientific 
 method is the speculative method, which transports us 
 with a bound into the absolute, and which, starting from 
 a first induction, descends by a series of antinomies and 
 syntheses from the general to the particular, or from 
 the abstract to the concrete, according to necessary laws. 
 The Idea is the universal principle, of which things are 
 manifestations ; and hence, in order to study these in 
 their source, it is necessary to consider the idea in itself, 
 which gives the science of logic ; out of itself in nature, 
 which gives the philosophy of nature ; and when it 
 returns into itself in the spirit, which is the object of 
 
 1 See De la mttaphysique ct son avenir, Revue des Deur Mondes, I5th 
 Jan. 1860.
 
 214 PHILOSOPHY OF RIGHT. 
 
 the philosophy of spirit: a tripartite division which 
 comprehends the whole of knowledge. Logic, according 
 to Hegel, is the system of pure reason, of the truth in 
 itself, the science of God considered in His eternal essence, 
 and independently of His physical or moral realisation. 
 It is divided into three parts: the science of being, the 
 science of essence, and the science of the idea. The 
 philosophy of nature is also divided, into three parts : 
 mechanics, physics, and organics, which are each sub- 
 divided into three sections. This is the weakest part 
 of Hegel's work, because it is the most arbitrary. The 
 philosophy of the spirit is also tripartite. The first part, 
 entitled subjective spirit, is subdivided into anthropology, 
 phenomenology, and psychology ; the second part, which 
 has for its object objective spirit, is divided into three 
 sections : right, morality, and customary practice. Finally, 
 the third part, whose object is absolute spirit, leads us 
 to the ultimate developments of the spirit in art, in 
 religion, natural or revealed, and in philosophy. The 
 history of philosophy and the philosophy of history form 
 the complement and conclusion of this gigantic work. 
 
 Gioberti deduces the whole encyclopedia from the 
 ideal formula. The subject, the idea of Being, gives 
 origin to the ideal science, that is, to philosophy, which 
 is conversant with the intelligible, and to theology, which 
 studies the super-intelligible made known by revelation. 
 The predicate furnishes the physical or natural sciences, 
 and the mixed sciences, such as aesthetics and politics. 
 The copula which expresses the conception of creation 
 furnishes the matter of mathematics, logic, and ethics, 
 which express a mediate synthesis between Being and 
 the existent, the intelligible and the sensible ; that is to 
 say, it furnishes matter to mathematics when we descend 
 from being to the existent, and take in time and pure 
 space ; and it furnishes matter to logic and ethics when 
 we remount from the existent to Being by finding the 
 conceptions of science and of virtue.
 
 SCIENCE. 
 
 215 
 
 The encyclopedic sketch which Enrico Cenni, in his 
 valuable work on Italy and Germany, draws from the 
 works of Vico, presents considerable analogy with the 
 one just considered. Alongside of dogmatic theology, 
 the foundation of the scibile, he puts ethics as the basis 
 of the ayibile. Metaphysics, which starts from this, con- 
 sists in the doctrine of the ideas seated in the eternal 
 "Word that has created the world by them, and which 
 are therefore the efficient and final causes of the universe, 
 without which no science is possible. Hence flows the 
 doctrine of the immortality of the soul, the only real 
 basis of psychology ; and psychology in conjunction with 
 the doctrine of ideas generates logic and her daughter 
 criticism, along with aesthetics or the science of the 
 beautiful. And, on the other side, she rears the science 
 of jurisprudence or the philosophy of right, which is the 
 substance of all the juridical and social sciences, namely, 
 civil, criminal, and public law, the foundation of politics, 
 which again embraces the science of the government of 
 the State, and the sciences of international relations and 
 public economy. Then comes mathematics with all its 
 branches, from which we descend into physics, this word 
 being used to signify the science of the sensible universe 
 in all its varied provinces. 1 
 
 We may also mention the division of the sciences 
 worked out by Gioacchino Ventura according to the 
 method by which they are treated, namely, authority, 
 reasoning, and observation. 
 
 We come now to the question as to what ought to be 
 the attitude of the State towards science ? We have seen 
 how the universities arose in the Middle Ages. They en- 
 titled themselves the " first-born daughters of the king," 
 in order to indicate that science wished not to be oppressed 
 by religion. In fact, when the Middle Ages were drawing 
 to their close, the divorce of science and religion became 
 
 1 L'ltalia e la Girrnania, p. 154. Firenze, 1884. Flint's Vico, 1884.
 
 216 PHILOSOPHY OF RIGHT. 
 
 always more patent, till it was definitely pronounced by 
 the Eenaissance. It is marvellous how the popes them- 
 selves, dazzled by the splendour of the restoration of 
 antiquity, took part in the movement. But it was not 
 long till men of great genius like Descartes, Pascal, 
 Leibniz, and Vico began to show the agreement between 
 science and religion ; and this was confirmed by Galileo, 
 Bacon, and Newton. In the eighteenth century the 
 struggle recommenced, and religion appeared extinguished 
 for ever ; but we see it rising again from its ashes in the 
 beginning of the nineteenth century. The French Con- 
 vention closed all the universities in France, and then by 
 the law of the year 2, it renounced all interference on the 
 part of the State with education, putting teachers, male 
 and female, under the immediate surveillance of the 
 municipality, of parents, legal tutors or curators, and all 
 the citizens. Then studies began to perish from want of 
 aliment, until a decree of the year 4 established the central 
 schools : that is to say, in every canton of the republic 
 there was established one or more primary schools, whose 
 directors were to be examined by a jury of instruction ; 
 and in every department there was instituted a central 
 school, whose masters were to be examined and nominated 
 by a jury of instruction under the approbation of the 
 departmental administration. Those cities which already 
 possessed colleges had the power given to them to found 
 at their expense supplementary central schools and special 
 schools for the sciences, antiquities, and arts, the arrange- 
 ment of which was to be regulated by particular laws. 
 And, finally, the National Institute of the Sciences and 
 Arts was established at Paris, and it belonged to the whole 
 Eepublic. 
 
 This arrangement was found insufficient, and under the 
 Empire there was created the monopoly of the University, 
 which substituted the spirit of government for the prin- 
 ciple of incorporation. The academies which succeeded 
 the provincial universities, and whose limits of jurisdic-
 
 SCIENCE. 217 
 
 tion were concurrent with the courts of appeal, were only 
 sections of a great administration. Laferriere says that ' 
 Xapoleon created the University of France from the 
 thought that in our modern society, so sharply separated 
 from the religious corporations, there was needed a teach- 
 ing body of a lay kind, which should cover with its great- 
 ness and dignity the obscure existences consecrated to 
 the laborious duties of teaching. He wished this body, 
 to which he conceded all the guarantees of existence and 
 of jurisdiction, to be under the immediate action of the 
 head of the State ; and in consequence he created a Grand 
 Master, who was his delegate and his representative, and 
 a council of the University, which had as its superior in 
 matters of regulations and of high jurisdiction the Council 
 of State, which was often presided over by the Emperor. 
 This Grand Master was responsible only to the head of 
 the State. Napoleon had made the University a branch 
 of the public administration, and at the same time a 
 corporation that was large and strong from its unity ; 
 but in order to give to this his creature a powerful and 
 vigorous life, he restricted the legal right of families, and 
 the right of religious beliefs and of liberty. He made 
 the Catholic dogma the basis of the teaching; and the 
 University, a glorious monopoly placed under the action 
 of the government, absorbed in its bosom all the private 
 institutions. His thought is clearly expressed in these 
 words which he addressed to the first Grand Master, De 
 Fontanes : " I wish a teaching body, because a body never f 
 dies, but transmits its spirit and its organisation. I wish ' 
 a body whose doctrine may be safe from the little fevers 
 of the time, which shall always march although the j 
 government falls asleep, and the administration and i 
 institutions of which shall become so national that they . 
 shall not be able to be lightly changed." l By the ordi- ' 
 nance of 2ist February 1815, the government of the 
 University was assigned to the University ; but there 
 
 1 See Court de drolt public et admitiiatratif, 4th ed. 1854.
 
 218 PHILOSOPHY OP RIGHT. 
 
 was a long way yet to go before reaching the law of the 
 liberty of the higher teaching, which was passed with 
 difficulty on I2th July 1875. 
 
 The German universities were founded on the model of 
 the ancient University of Paris, which had been copied 
 from the Italian universities. They are corporations in 
 which the State is represented by a curator, who supplies 
 their wants when their special revenues do not suffice. 
 On account of this aid, the minister of public instruction 
 nominates the professors out of three candidates proposed 
 by the academic senate, which is composed of the rector 
 for the time, the rector of the preceding year, and a certain 
 number of ordinary professors chosen by their colleagues, 
 and by the university judge. The university maintains 
 a correctional jurisdiction and a police over the students, 
 and this jurisdiction is exercised by the said academic 
 judge. The faculties regulate their instruction according 
 to the best of their judgment, assigning to their con- 
 stituent members the courses of lectures that have to be 
 delivered in accordance with the latest advance of science. 
 The Privat-docents may choose the subject of their pre- 
 lections from among the matters belonging to the faculty 
 with which they are connected. The faculties alone have 
 the right of conferring the university degrees, although 
 they do it in name of the university as such. The State 
 in Prussia reserves to itself a special examination called 
 the Staatsprufung, to which it subjects those who aspire at 
 exercising a liberal profession. The students are free to 
 attend the lectures of any professor, and to arrange the 
 order of their own studies, on the condition of paying the 
 professors. 
 
 A German university embraces many branches of edu- 
 cation which in other countries are relegated to special 
 schools, such as engineering in bridges and roads, forestry, 
 polytechnic instruction, &c. ; and it possesses also a part 
 of the normal schools in the so-called seminaries for 
 future professors. The Leipsic Senatus states that the
 
 SCIENCE. 219 
 
 characteristic of the university is to offer to every student 
 the opportunity of considering every branch of human 
 science in its living connection with the other branches of 
 science, and to appropriate it freely more in the spirit than 
 in the letter. 1 " Our universities," says Von Sybel, " are 
 superior to other universities, just because they are not 
 simply schools, but so to speak laboratories of science ; and 
 because continuous scientific production has to be the soul 
 of their teaching. For this purpose the State calls men of 
 the greatest scientific capacity in the country to the univer- 
 sities us professors. Hence such a fact as seeing an eminent 
 scientist without an academic post, as is commonly seen 
 in France, almost never happens with us. As regards the 
 nomination of a professor, the first importance is laid upon 
 his scientific capacity, and it is not a fatal objection that 
 he should possess but a small degree of the facility of 
 teaching. If he is capable of producing genuine scientific 
 work, he is believed to be fitted for fulfilling the principal 
 function of our university teaching. Undoubtedly we 
 also demand that the young men shall be prepared in our 
 higher institutions for a certain number of professions, 
 but we do not wish this to be done mechanically and 
 perfunctorily. We do not wish to cram into the memory 
 of the student in the briefest and most convenient way 
 possible, a heap of formulae and notions necessary for 
 examinations and for the first year of his probation. . . . 
 The fundamental aim with us is to initiate the alumnus 
 in the proper method of the science studied by him, and 
 to put him into a position, not to be himself a scientist, 
 but to exercise afterwards his own profession scientifically. 
 He has to learn first of all what science is, how scientific 
 work is done, and what is meant by the term scientific 
 production. The professor, in so far as weak human 
 powers allow it, ought in every lecture to unfold some 
 new and original problem, and to familiarise the student 
 while listening to take a part in the work of the iutellec- 
 
 1 Hippeau, L 1 instruction publique en Allemagnc. Paris, 1873.
 
 220 PHILOSOPHY OF RIGHT. 
 
 tual process. Whatever may be afterwards liis profession, 
 the student in his youth should be the disciple of science 
 and nothing else : for the acquisition of a certain scientific 
 maturity and elasticity of mind is the best preparation 
 for any profession." l That is how the question has been 
 resolved in Germany as to whether the university should 
 be scientific or professional. 
 
 In Italy the question is still being studied. Some wish 
 to reduce the universities to provincial institutions for 
 general culture and to professional schools. Thus they 
 would concentrate into a few institutions of a finishing 
 kind the high culture, and such institutions should also 
 have to serve as normal schools. According to this system 
 the monopoly of the State would remain in the sphere 
 of the higher instruction which requires large resources 
 and exceptional capacities. Others again would prefer 
 to form the universities into corporations, with property 
 and statutes of their own, and with full authority over 
 the higher studies. In the view of the former, liberty of 
 teaching consists in the conditions of impartiality granted 
 by the State to all scientific opinions, while the latter regard 
 it as consisting in the absolute independence of the teach- 
 ing corporations. In the United States of America the 
 latter system prevails, and it presents no inconvenience, 
 as the State is able to take away from these corporations 
 their civil personality whenever they do not fulfil satis- 
 factorily their proper office. In such a system the State 
 examination would be in place as a constant test of the 
 excellence and efficiency of the teaching. 
 
 Besides the universities there are other scientific bodies, 
 such as academies, which aim at the advancement of the 
 sciences, which deserve to have a recognised personality 
 in the State. 
 
 Positivism has tried in our time to make the relations 
 between science and society closer. Moved by the incon- 
 veniences of too great a division of material and scientific 
 
 1 From his Inaugural Discourse to the University of Bonn in 1868.
 
 SCIENCE. 221 
 
 labour, Anguste Comte, advancing on the footsteps of his 
 master Saint-Simon, has sought for the basis 'of a true 
 spiritual power which only science can lay. A large and 
 liberal education of the youth which should prepare them 
 for all the professions, arts, or crafts, is a remedy, but it is 
 not sufficient. Hence Comte demands the institution of 
 a distinct power which would impose on all classes, and 
 in the whole course of their life, respect for the supreme 
 rights of general interest. In other words, he demands a 
 moral and intellectual authority which might serve as a 
 guide to the opinions of men and enlighten their conscience : 
 a spiritual power whose decisions in all questions of great 
 importance would be received with the same respect and 
 deference as the judgment of the astronomers in a matter 
 of astronomy. The conception of such an authority in 
 moral and political matters would seem to imply that 
 thinkers have arrived, or are about to arrive, at a certain 
 unanimity, at least on essential points, as in the other 
 sciences. To this the methods of positive science are 
 tending ; and the uncontested authority which the astro- 
 nomers enjoy in astronomical matters would in great 
 social questions be common to the positive philosophers, 
 who would possess the government of minds under these 
 two conditions : that they should be in their spheres 
 wholly independent of the temporal government, and that 
 they should be peremptorily excluded from that govern- 
 ment in order to be able to give themselves solely to the 
 guidance of public education. 
 
 In no system, however, is the interference or surveil- 
 lance of the State restricted to the higher instruction. 
 We have already seen how the colleges, which were in- 
 stituted to provide an asylum for poor students, gradually 
 took on the teaching of the universities, making use of 
 their professors. During the religious wars, they had 
 much to suffer, and then they had to bear the competi- 
 tion of the Jesuits. In France, after the expulsion of 
 the order in 1762, the University of Paris again took
 
 222 PHILOSOPHY OF RIGHT. 
 
 possession of the colleges, which it opened only after 
 the Eevolution. 
 
 The instruction given in the colleges was not adapted 
 for all the citizens, as is shown by the following words 
 of Saint-Marc de Girardin. " Every time that the course 
 of events has given origin to a new society, occasion is 
 given for a new education to arise ; for education always 
 forms the social state. Have you in the Middle Ages a 
 society that is wholly religious ?. Then the education will 
 be theological. In the fifteenth century, society eman- 
 cipates itself, and it becomes secular and temporal, After 
 the French Eevolution, there is born a new society, a 
 commercial and industrial society, ! which demands an 
 appropriate education. Our education has the defect 
 of being too special, too exclusive ; it is good for forming 
 learned men, literati and professors who are no longer 
 theologians, as was the case in the fifteenth and sixteenth 
 centuries. To-day, we need merchants, industrialists, 
 agriculturists, and our education is not fitted to form 
 them." 1 
 
 In the course of the eighteenth century various 
 attempts were made to found schools in which the 
 teaching of things (realities) should be substituted for 
 the teaching of words. The first of these was instituted 
 by Councillor Hecker at Berlin in 1747; but it failed. 
 The creation of the Realschulen or Burgerschulen was re- 
 served for our century. In 1829 Spilleke reorganised the 
 school of Hecker, giving it the character which still 
 forms at present the basis of technical instruction. He 
 was the first to understand that such institutions ought 
 to preserve a scientific character, and not to be merely 
 mechanical and empirical, and that they should serve 
 as a preparation for the purpose of practical life as the 
 gymnasia do for the so-called liberal professions. England, 
 which holds so tenaciously by its traditions, has had to 
 
 1 De Vinstruction intermidiare ct de son itai dans U midi de I'Allemagnc. 
 Paris, 1835.
 
 SCIENCE. 
 
 223 
 
 establish quite recently middle class examinations; and 
 even the Universities of Oxford and Cambridge confer 
 a diploma in most of the subjects of the faculties : 
 " Turn in litteris Anglicis, in historiis, in linguis, in 
 mathematica, in scientiis physicis et in caeteris artibus 
 quae ad juventutem educandam pertinent." France was 
 slower in accepting the new teaching, but it finally in- 
 stituted it by the law of 2ist July 1865, under the title 
 of Enseignement secondaire sp&iale. The reaction in 
 favour of classical study and the Imperial University, 
 had rendered the intentions of the convocation vain. 
 Italy preceded France in establishing technical teach- 
 ing by the law of public instruction of I3th November 
 1859. 
 
 But is there not a way of co-ordinating secondary 
 technical instruction with classical teaching ? A mode 
 of doing so exists in the United States, where the common 
 schools embrace primary instruction at all its stages, as 
 well as that given in the German Eealschulen, and a part 
 of that which is given in the Italian gymnasiums and 
 lyceums. The pupil passes successively from the first 
 rudiments to grammar and arithmetic, not neglecting 
 drawing and music. The Grammar School and the High 
 School add the ancient and modern languages, literature, 
 history, geography, geometry, algebra, chemistry, physics, 
 and natural history. In this system of study, the ancient 
 languages do not occupy the centre of knowledge as in 
 the gymnasiums and lyceums; but mathematics, the 
 physical and natural sciences, history, geography, the 
 language of the country and foreign languages, form 
 more the basis of the instruction. Greek and Latin, 
 which are taught in the Grammar Schools and the 
 High Schools, are made the subject of study both on 
 account of the beneficial influence which they exercise 
 on the understanding, and because they form part 
 of the examinations for admission to colleges and uni- 
 versities. In the colleges there are carried on studies
 
 224 PHILOSOPHY OF RIGHT. 
 
 in humanity and rhetoric, and the bachelor's degree is 
 conferred. 1 
 
 At the basis of the educational pyramid both in Europe 
 and in America is the primary instruction. Luther wrote 
 a celebrated letter on this subject to the municipal coun- 
 cils of the cities of Germany, which runs as follows : 
 
 " DEAR SIRS, Since we daily spend so much on guns, 
 streets, highways, &c., in order to procure peace and 
 worldly prosperity for a city, we ought for far better 
 reasons to spend something for the poor youth by keeping 
 one or two schoolmasters for them. The whole power and 
 strength of Christianity lies in posterity, and if the youth 
 are neglected it will go with the Christian Churches as 
 with an uncultivated garden in the spring. There are 
 people who serve God with the strangest practices, by 
 fasting, wearing a penitent's shirt, and doing a thousand 
 other things from piety ; but they are lacking in true 
 religion which consists also in training the children well. 
 They do like the Jews who left their temple to sacrifice 
 on the summits of mountains. But believe me, it is much 
 more necessary to instruct our own children than to get 
 absolution, or to pray and make pilgrimages and fulfil 
 vows. In my opinion the authorities should take steps to 
 compel the subjects to send the children to school. . . . 
 If they can compel healthy subjects to carry lance and 
 musket, to mount the ramparts and to perform all sorts 
 of military services, how much more ought they to impose 
 the duties on the subjects of sending their children to 
 school, because there is a worse war with Satan to be car- 
 ried on. And if I could or were compelled to give up 
 my office of preaching and my other occupations, I would 
 take up no vocation rather than that of a schoolmaster 
 or teacher, because I believe that next to preaching this 
 is the most useful, the greatest, and the best calling; 
 and indeed, I don't know to which I should give the 
 preference." 
 
 1 Cf. Hippeau, L' inttruction publique auxEtats-l'nis, 2nd ed. Paris, 1872.
 
 SCIENCE. 
 
 225 
 
 We do not wish to take the position of maintaining 
 that Catholicism is hostile to the school; yet it is cer- 
 tain that after the Reformation, and especially since the 
 French Ee volution, it has regarded it with a certain dis- 
 trust; and whereas in the Protestant schools the master 
 is a half-pastor, the teacher in Catholic countries always 
 assumes more of the lay character. 
 
 Ought the State to follow the opinion of Luther and 
 make elementary instruction obligatory ? The French 
 philosopher Cousin gave his judgment for the affirma- 
 tive in his report to the Chamber of Peers on the law 
 of primary instruction of 1833. "A law which would 
 make primary instruction a legal obligation has not ap- 
 peared to us more above the powers of the legislator 
 than the law in reference to the national guard, or 
 the one which you have just passed with regard to 
 forced expropriation for the sake of public utility. If 
 the reason of public utility is sufficient to entitle the 
 legislator to lay his hands on property, why should not 
 the reason of a much higher utility suffice to entitle 
 him to do less, namely, to require that the children 
 shall receive the instruction indispensable to all human 
 creatures in order that they may not become hurtful to 
 themselves and to the whole of society." An absolute 
 necessity would excuse the legislator for having recourse 
 to coercive measures when he had exhausted all the means 
 of persuasion, as would be subsidies to municipalities for 
 the founding of numerous schools and prizes for the poor 
 children who attended them. This is the system followed 
 in England, while in many States on the Continent re- 
 course is taken by preference to penalties. The Articles 
 326-329 of the Italian law of i3th November 1859 already 
 referred to, declared that primary instruction was obliga- 
 tory ; and if fathers, or those who exercise the paternal 
 authority, neglected to send their sons to the communal 
 school, without providing effectively in another manner for 
 their instruction, they were threatened with being punished 
 
 VOL. i. r
 
 226 PHILOSOPHY OF RIGHT. 
 
 according to the penal laws, which, however, had assigned 
 no penalty in particular for this offence. But this is 
 provided for by the Articles 3 and 4 of I5th July 1877, 
 regarding the obligation of elementary instruction. The 
 first article authorises the syndic to exhort, and then 
 to admonish negligent parents ; and the second article 
 subjects them to a fine ranging from 50 centimes to 10 
 francs, which may gradually be applied in consecutive 
 years. 
 
 What are the relations which the State ought to main- 
 tain between religion and science ? "We answer, their 
 complete independence, but) without this degenerating 
 into hostility. In the preceding chapter we have seen 
 that it is impossible to confine religion within the precincts 
 of the Church, and it is equally impossible to exclude it 
 from the school. Eeligious instruction ought to be given 
 in the schools and colleges by the ministers of the Church 
 of the majority, the right of keeping away from it being 
 reserved for dissenting pupils. In the universities, facul- 
 ties of theology ought to be maintained with the consent 
 of the ecclesiastical authority, and chairs ought to be 
 founded for the principal cults in the State. Under a 
 system of liberty of teaching, where instruction is given 
 at all stages, whether supplied by private individuals or by 
 corporations, the State should maintain its part as super- 
 visor and custodian of the law, in order that religion and 
 science may not commit usurpations.
 
 CHAPTER III. 
 ART. 
 
 THE true is the. Idea considered in itself as thought; but 
 when the Idea appears blended with the external reality, 
 and is perceived by the mind without being carried back 
 to its abstract generality, it may become the beautiful. 
 The imagination produces the beautiful by uniting to- 
 gether a sensible form taken from the external world and 
 an intelligible type furnished by the reason, through 
 means of a mental individualisation which it takes from 
 itself, and which, conjoined with the other two elements, 
 constitutes the ideal type. When the Idea overpasses 
 the form, we have the sublime ; when it is in a certain 
 equilibrium with it, we have the beautiful. We see the 
 sublime appearing first in the arts, because it is nearer 
 to the Idea. 
 
 The positivists attack the beautiful, as they have 
 attacked the good and the true, by their theory of the 
 relativity of our cognitions. They maintain that the 
 beautiful is but a play of our faculties, an illusion of the 
 mind. Some years ago, writes Herbert Spencer, I read 
 in a German author whose name I do not now remember, 
 that the aesthetic feelings spring from the impulse to 
 play. The proposition has remained in my mind, because 
 if it does not contain the whole truth, it is the germ 
 of it. Grant Allen, in his Physiological Esthetics, goes 
 back directly to sexual selection as the source of the 
 cesthetic pleasure, just as Littrd had made every kind of 
 
 altruistic sentiment spring from it. In his application 
 227
 
 228 PHILOSOPHY OF RIGHT. 
 
 of this theory, however, Herbert Spencer does not fail to 
 note what is special to the beautiful, as he wishes to 
 exclude from it all that is necessary or even useful to life, 
 as well as every interested desire. Then returning to his 
 fixed idea of play, he foresees the abdication of art in 
 favour of science, that humble Cinderella hitherto hidden 
 by the domestic hearth, but destined yet to eclipse her 
 proud sisters and to- reign as a queen. Strauss, on the 
 other hand, shows himself less severe, asserting that 
 poetry and music will be able to co-exist with science, 
 occupying, however,, the place of religion. 
 
 How did the beautiful arts arise? Were they an 
 imitation, or a creation ? A poetical writer says that the 
 forms of the mountains are the architecture of nature ; 
 the peaks, furrowed by the lightning,, are her statuary ; 
 the shadows and the light are her painting ; the murmur 
 of the wind and the waves, her harmony ; and the whole 
 together, her poetry. Art sought to imitate inanimate 
 nature by architecture, and animated nature by sculpture 
 and painting. Music served as a passage to the arts of 
 speech. The end of art is not imitation, but the repre- 
 sentation of the beautiful, the revelation of the universal 
 harmony. Art arouses in us feelings that are calm and 
 pure, and incompatible with the gross pleasures of the 
 senses. It elevates the mind above the common life, and 
 predisposes it for generous actions by the affinity which 
 reigns between the ideas of the divine, the true, and the 
 beautiful, from which its social influence arises. 
 
 Art begins as the interpreter of the religious ideas, and 
 expresses through symbols the relations of the invisible 
 principle with the objects of nature. The symbol is an 
 image which represents an idea, and is distinguished from 
 the signs of language in that there is a natural and not 
 an arbitrary or conventional relation between its image 
 and the representative idea. Thus the lion is the symbol 
 of courage; the circle, of eternity; the triangle, of the 
 Trinity. But the symbol represents the idea only on one
 
 ART. 229 
 
 side, and is ambiguous in its nature; nor can it express 
 that equilibrium between the idea and the form which is 
 the characteristic note of the beautiful Much has been 
 said of oriental art as being symbolical by its nature ; but 
 this was done in the ardour of discovery; and thereafter 
 it was reduced to its just value. 
 
 In oriental art Hegel sees imagination in the state of 
 ferment, or thought which is vague, and confused. The 
 principle of things is not yet grasped in its spiritual 
 nature ; the ideas as to God are empty abstractions, and 
 the forms which represent Him bear a character that is 
 exclusively sensible and material. Still immersed in the 
 contemplation of the sensible world, and having neither 
 measure nor fixed rules wherewith to value the reality, 
 the oriental imagination is lost in vain endeavours to 
 penetrate into the general meaning of the universe, and 
 it is not able to use for the expression of its profoundest 
 thoughts anything but gross images and representations, 
 in which is manifested the crudest opposition between 
 the idea and the form. The imagination thus passes from 
 one extreme to another without guide and without purpose, 
 and it presents us at the same time with combinations the 
 most grand, the most whimsical, and the most grotesque. 
 Hegel likewise finds in the Indian poetry scenes of human 
 life that are full of sweetness, of graceful images and 
 tender feelings of nature ; but as regards its fundamental 
 conceptions, the spiritual is overwhelmed by the sensible. 
 Thus in it we often find the lowest triviality alongside 
 of the noblest situations, and an absolute lack of proportion 
 and precision. The sublime is only the unmeasured ; and 
 as regards the basis of the myth, the imagination, seized 
 by vertigo, and incapable of regulating the movement of 
 thought, loses itself in the fantastic, and produces only 
 enigmas that are void of any element of reason. 
 
 Hegel shows more severity towards the Chinese art, 
 which he excludes from his Esthetics, for reasons which 
 we transcribe from his Philosophy of History. " Generally,"
 
 230 PHILOSOPHY OF RIGHT. 
 
 he says, " this people have a great aptitude for imitation, 
 which they have applied not only to the common things of 
 life, but also to art. Yet they have not succeeded in reach- 
 ing the beautiful. Their painting lacks perspective and 
 shading, and they even reproduce European pictures accord- 
 ing to this method. A Chinese painter knows well how 
 many scales there are on the back of a carp, and how many 
 indentations are found on a leaf; he knows the various 
 forms of the trees and the bending of their branches ; but 
 his dexterity is not founded on the sublime, the ideal, and 
 the beautiful." 
 
 India has left us not only her interminable poems, but 
 also her temples, many of which are hollowed out in the 
 sides of mountains, and are supplied with artificial pillars of 
 wood which imitate the trunks of trees with their branches. 
 Works in beams of wood distinguish the Aryan peoples. 
 The Semites, not having forests nor trees fitted for con- 
 struction, erected monuments with stones well or ill joined 
 together, and without any cement. The Turanian races 
 used smaller stones, and sometimes bricks, and they in- 
 vented cement in order to hold them together. 
 
 Tradition points to the tower of Babel as the first 
 monument, and the latest erudition is showing us Turanian 
 and Semitic races prior to their division in possession 
 of those regions which afterwards became Chaldea and 
 Assyria. We may cast a glance on the remaining monu- 
 ments of those races in order to follow the progress of 
 art. In the level plains of India, the temples consist of 
 small edifices which are identical in structure, and which 
 are heaped on one another in order to attain the desired 
 mass. Through all the East, architecture is the art par 
 excellence ; and sculpture is only a vast hieroglyph which 
 recalls the attributes of the divinity. The gods and 
 heroes are represented large, and the secondary spirits 
 smaller; the divinities possess as many heads as they 
 have qualities, and as many arms as they have functions. 
 Painting consists solely in coloration, and is symbolical.
 
 ART. 231 
 
 The god Shiva, who represents the sun or the fire, is 
 painted red ; and Vishnu, who represents the moist element, 
 water, is painted azure. 
 
 The Assyrians and Persians constructed palaces which 
 also served as temples and as national archives. They 
 are built of bricks coated with stucco and with bas-reliefs 
 in stone or gypsum, which represent the national history, 
 which is also illustrated by numerous inscriptions. In 
 their ancient buildings the Egyptians began to use clay 
 and reeds, for which they afterwards substituted stone. 
 The most recent researches have put beyond doubt the 
 almost exclusively Semitic origin of the Egyptians. 1 They 
 practised the worship of death, and their principal monu- 
 ments are tombs in the form of pyramids. There is found 
 in them evidences of a very great observation of nature, 
 and a certain artistic discernment. Under the twenty- 
 third dynasty the Egyptians adopted a column which 
 seems to have originated the Doric order. With the 
 Greeks sculpture and painting ceased to be simple acces- 
 sories of architecture, and they introduced into it a new 
 element, the art of grouping personages together, or what 
 we call composition. The Greeks besides created style 
 and taste, that is to say, they perfected the expression of 
 created things without taking account of the hieratic 
 types ; and they acquired that attitude and habit which 
 conduces to a reasoned choice. This is explained when 
 we reflect that in Greece the works of art were not as in 
 the East entrusted to servile hands, nor were they destined 
 merely to satisfy the need of the beautiful felt by certain 
 social classes, but they were produced by artists and 
 artisans freely associated together, and were destined to 
 give pleasure to all the citizens. The Romans, occupied 
 with politics and administration, sought for usefulness in 
 the beautiful arts. In architecture, they preferred the arch 
 to the architrave ; they constructed magnificent bridges, 
 
 1 Maspero, ITistoire anciennt del peuples de I'Orient, p. 16, 4th ed. 
 Taris, 1886.
 
 23 2 PHILOSOPHY OF RIGHT. 
 
 aqueducts, and cloacse, and they invented special kinds of 
 edifices, such as baths and amphitheatres. 
 
 In the Greco-Eoman art, the lines are straight and 
 sometimes monotonous in their simplicity; they do not 
 rise to any great distance from the soil, but constitute a 
 sort of horizontal architecture, or a style in length. On 
 the contrary, in Persia the ancient Assyrian architecture 
 made progress ; its lines preferred to run in curves and 
 shot upwards towards the heaven, forming a sort of 
 perpendicular architecture, or a style in height. Some 
 distinguished authors maintain that the Byzantine art 
 was descended from the Persian art. The foundation of 
 Constantinople was a reeonquest of the East which had 
 already made its influence felt through Christianity. The 
 conical form predominated in the Byzantine architecture, 
 and was adopted by the Mussulmans. 
 
 In the West, the Churches continued to be bad imitations 
 of the basilicas of the first Christian emperors. The roof 
 was supported by a framework visible in the interior ; 
 but towards the year 1000, the model began to be altered. 
 For the framework the arch was substituted ; buttresses 
 were added to the walls to support them, and the relations 
 between the elevation and divisions were changed. The 
 form of the church was modified into a Latin cross with 
 a large nave, flanked by two smaller ones. The new 
 style was called the Romanesgiie, and it was generally 
 used in the south down to the fourteenth century. The 
 north was not satisfied with it, and it added to it the 
 ogive form and the thousand arrows that seem to dart to 
 heaven. The style of architecture which is improperly 
 called the Gothic arose in France in the eleventh and 
 twelfth centuries along with the Chansons de geste, scho- 
 lasticism, and the communes. It was a product of the 
 Ptoman style as the Arabic architecture was of the 
 Byzantine style. The two styles were closely allied. 
 The ogival had remained a long time in the East in a 
 sporadic state, and certainly the great builders of the
 
 ART. 233 
 
 twelfth century did not go thither to get it. The Gothic 
 architecture, however, was au effort of abstraction, and 
 the architects, enamoured of their designs, weakened the 
 mass of their buildings. 
 
 The Eenaissance of the ancient literature recalled atten- 
 tion to the still existing monuments of antiquity, and 
 Italy produced a band of great artists who adapted purity 
 of design to massive greatness. Society enlarged its basis 
 more and more ; and architecture lost its fine taste, sacri- 
 ficing beauty to utility. In sculpture, Greece remained 
 incomparable, having reproduced the human form with 
 greatest perfection. It is enough to cast a glance on the 
 sarcophagi of St. Constance and St. Helena, discovered 
 in the excavations of the Nomentan and Labican ways, 
 and transported into the Museum of the Vatican, to be 
 convinced of how much Christianity had caused sculpture 
 to retrograde. These two sarcophagi are in porphyry, 
 and of rose colour. On the first genii and angels are 
 represented as gathering and pressing the grape ; and on 
 the other horsemen are triumphing over their enemies. 
 The vine and Bacchus serve as a transition to the new 
 mysteries, whose characteristics are completed by the 
 representation of corn, sheaves, and bread. But how 
 clumsy are these angels and genii when compared with 
 the Dionysuses of the beautiful days of the ancient art, 
 and what decline is not marked by these cavaliers of the 
 age of Constantine ! In the Middle Ages more attention 
 was given to expression than to execution, but this was 
 corrected by the llenaissance, although in the last works 
 of Michael Angelo there is seen a strong development 
 of muscle, which has been further exaggerated by the 
 modern realistic school. 
 
 The Greeks began to make use of painting in order to 
 give greater relief to the forms of architecture, but it was 
 not long till they also used it to imitate nature, and also 
 to reproduce human facts. Coming down the course of
 
 234 PHILOSOPHY OF RIGHT. 
 
 ages and arriving at Herculaneum and Pompeii, we find 
 two distinct elements in painting. One of these is purely 
 conventional and decorative, and it is represented by a 
 single colour and a combination of tones in order to 
 please the eye; and the other, which we t shall call natu- 
 ralistic, aims at reproducing animated scenes and complete 
 landscapes. These two elements seem to be mixed up in 
 that kind of painting which is called Arabesque, and 
 which Vitruvius considered a corruption of art. In the 
 pictures of Herculaneum and Pompeii, we find perspective, 
 well-modelled figures, and a dramatic effect carried even 
 to exaggeration in the mosaics. Visiting the catacombs, 
 we find no longer perspective, difference of planes, or 
 well-modelled figures ; and composition itself seems to be 
 wanting. On the contrary, we observe an immovable 
 hieratic form, a tendency to suppress the effects obtained 
 from the Greeks and from the Greco-Eomans, in order to 
 attain to naturalism and to painting on the large scale. 
 This return to the past commenced among the Greeks of the 
 East, where it still subsists, and it also laid hold of those 
 in the West, where it lasted till the fourteenth century. 
 
 All the traditions of ancient art, however, were not 
 then extinguished. Duccio of Sienna and Cimabue of 
 Florence fixed their attention on the ancient designs, 
 studying them from the side of perspective and of anatomy. 
 Ehumor says they understood the value of these, and 
 applied themselves to soften the leanness of those bony 
 figures which had been drawn with all possible geometri- 
 cal rigidity. Giotto, in order to imitate nature better, no 
 longer varnished his colours with wax, like the Byzantines ; 
 and he thus preserved their brilliancy and truthfulness, so 
 as, according to Boccaccio, even to produce illusion by them. 
 Masaccio gave greater roundness to his figures, and Beato 
 Angelico of Fiesole gave them more feeling. Leonardo 
 da Vinci acquired the secret of the forms of the human 
 body, and he attained that serenity of expression which
 
 ART. 235 
 
 arises from the perfect balance of our faculties. Perugino 
 transmitted to Eaffaello all the depth of feeling charac- 
 teristic of the Florentine School, and he united with it 
 the purity of design characteristic of antiquity, thus bring- 
 ing art to its final perfection. Correggio by the magic of 
 chiaroscuro, and Titian by the richness of his colouring, 
 brought ideality always nearer and nearer to reality. 
 
 Eeality is the dominant characteristic of the Flemish 
 and Dutch Schools of painting. But common life has also 
 its poetry, and the excellence of the artist consists in 
 seizing it. The two Van Eycks filled up their pictures 
 with a thousand accessories, which, however, were always 
 expressive, and did not diminish the importance of the 
 principal subject. Eembrandt is entirely impregnated 
 with the Protestant faith, and on his canvas he draws the 
 human rather than the divine. The other nations took 
 their models from Italy and from the Netherlands. 
 
 The arts of speech followed the same course of develop- 
 ment. Language, as used by poetry, was full of images, 
 to which metre was soon added, which then brought with 
 it rhyme. "Among all the arts," says Hegel, "poetry 
 has specially the power of revealing to consciousness the 
 spiritual life, the passions which agitate the soul, the ideas 
 which predominate in the mind, the course of human 
 things, and the divine government of the universe. 
 Hence it was the teacher of humanity, and its influence 
 was universal." l Poetry first presents us with a picture 
 of the moral world in its external existence, and represents 
 it under the form of a great action in which gods and men 
 take part. This kind of poetry attaches itself to the 
 figurative arts, revealing to us the objective impersonal 
 
 1 Hegel, Cours d'esthttique, tra- lated by W. Hastie into English, 
 
 duction de Ch. Bernard, voL iv. with much facility and elegance, 
 
 p. 150. Paris, 1851. Hegel's system Edinburgh, 1886. [The Philosophy 
 
 of ./Esthetics has been summed up of Art. An Introduction to the 
 
 by Professor Michelet of Berlin, scientific study of Esthetics, by 
 
 one of his most faithful disciples, Hegel and C. L. Michelet. Trans- 
 
 and Michelet's summary along with lated from the German hy W. 
 
 Hegel's Introduction has been trans- Hastie, B.D. Edinburgh, 1886.]
 
 236 PHILOSOPHY OF RIGHT. 
 
 side of existence in the sense that the action takes the 
 form of an event entirely extraneous to the poet, and is 
 completed independently of the human will by an external 
 fatality. Many of the lower kinds of poetry, such as the 
 epigram, the ancient elegy, the gnomic poetry, the cos- 
 mogonic and philosophical poems, may be considered as 
 belonging to epic poetry, inasmuch as the idea which 
 informs them is> expounded in itself without the poet 
 uniting to it his own reflections and personal feelings. 
 Thus we have the expression of a complete fact in the 
 epigram, or a succession of maxims and sentences in 
 gnomic poetry having the object of setting clearly forth 
 a moral truth, or again a description of the great scenes of 
 nature, a narration of the genesis of beings and of the 
 cosmic revolutions, and a poetical exposition of the laws 
 of the universe and of the first discoveries of science. 
 Lyrical poetry, on the contrary, has a personal and sub- 
 jective character. The poet does not relate, but he enjoys, 
 suffers, and often rebels against the external reality. And 
 when the struggle is not limited to complaints,- but is 
 changed into action, which the various actors carry on 
 under our eyes, then arises dramatic poetry, which describes 
 the conflict of human liberty with fate, as in the ancient 
 dramas, or with the passions, as in the dramas of modern 
 times. Or lastly, it shows us the contrast between the 
 will and the petty accidents of life which produce no evil 
 but beget laughter. 
 
 In order to express its proper conceptions in words, art 
 does not always require metre and rhyme, but may even 
 use the manner of common language. Thus we have 
 the various kinds of narrative, descriptive, oratorical, and 
 didactic. The first two are on the confines of poetry 
 when they trace out the vicissitudes of the human heart, 
 as in the novel and the romance ; or they depict battles 
 and other great events, as in history, when treated artisti- 
 cally ; or they describe the various beauties of nature, as 
 in travels. Eloquence is excluded by many from the
 
 ART. 237 
 
 beautiful arts, because it has a purpose of utility ; but in 
 order to attain it, it is often obliged to move the affections, 
 and always to connect its ideas in such a way as to induce 
 persuasion in the minds to which it is directed, and this 
 persuasion cannot be obtained without artistic dexterity. 
 The same may be said of the didactic kind of composition, 
 of which we have also essays in verse which both delight 
 and instruct. 
 
 Summing up, we may say that, in the figurate arts, the 
 East distinguished itself in architecture, Greece in sculp- 
 ture, and Italy and the Netherlands in painting. The 
 ideal of the peoples of the East was supernatural and 
 overwhelming force, as revealed in the great phenomena 
 of nature ; the ideal of Greece was man contemplated in 
 all his physical and moral vigour, as the hero ; and the 
 ideal of modern times has been the soul, which, without 
 despising its terrestrial limits, aspires to heaven. Thus 
 in poetry, the East has given us the Ramayana, Maha- 
 bharata, Shahnameh, the poems of Antar, and the Book 
 of Job, which all belong to the epopee, and, exceptionally, 
 the Psalms of David, the Indian Sakuntala r and certain 
 Chinese dramas. Greece began with Hesiod and Homer, 
 and then produced Pindar and Anacreon, Aeschylus, 
 Sophocles, Euripides, and Aristophanes. The modern 
 times start with Dante and Petrarca, but find their com- 
 plete expression in Shakespeare, Moliere, Ariosto, Cer- 
 vantes, Schiller, Goethe, Lamartine, Victor Hugo, Manzoni, 
 and Leopardi. 
 
 Sounds variously combined were also adopted to express 
 the various affections of the soul. Thus we find among 
 all peoples musical instruments employed to give the 
 signal of battle, to excite the courage of the combatants, 
 and to- animate all kinds of religious and civil assemblies. 
 Among the Greeks, music was of peculiar importance. 
 Pythagoras invented the three- footed lyre in imitation 
 of the tripod of Delphi. It consisted of three lyres
 
 238 PHILOSOPHY OF RIGHT. 
 
 harmonised, the one according to the Dorian measure, 
 the other according to the Phrygian measure, and the 
 third according to the Lydian measure ; and they were 
 held together upon a movable base which the player 
 made to turn with his foot, thereby substituting one lyre 
 for the other without any one perceiving it. 1 To Pytha- 
 goras is also attributed the discovery of the musical pro- 
 portions, and the mode of determining the depth or height 
 of tones by the greater or less rapidity of the vibrations 
 of chords, as well as the invention of notes, although this 
 seems to belong to Terpander. Music and poetry were 
 inseparable companions in Greece. Archilochus of Paros 
 is regarded as the inventor of lyrical poetry, only the 
 heroic hexameter having been used before him. He in- 
 troduced the accompanying recitative, which was adopted 
 by the tragic and dithyrambic poets. The Greek drama 
 was composed of monologues, dialogues, and choruses. 
 The first two were declaimed, and the chorus was chanted 
 in a measured rhythm. In the time of Aeschylus, there 
 were as many as twenty in the chorus, but they were re- 
 duced by a law to fifteen. Every ode was divided into 
 strophe, antistrophe, and epode. The first was chanted 
 when the chorus turned to the right ; the antistrophe 
 when it turned back to the left ; and the epode when it 
 stood still. The odes of Pindar were chanted in the same 
 manner; and all the poets understood music and them- 
 selves regulated the chanting of their verses. The Greeks 
 were not acquainted with harmony in the sense given to 
 this word now, but they knew how to direct and lead 
 vocal and instrumental masses. 
 
 The music of the Romans was similar to that of the 
 Greeks, and Vitruvius says expressly that musical science 
 being obscure in itself, remained entirely unintelligible 
 to those who did not know the Greek language. Horace 
 
 1 The Greeks bad besides the tween the Phrygian and the Lydian. 
 
 Ionian measure, intermediate be- The Lydian measure was specially 
 
 tween the Dorian and the Phrygian, sweet and voluptuous, and the Ionian 
 
 as also the ^Eolian, intermediate be- was also pathetic and soft.
 
 ART. 239 
 
 called it the friend of the temple ; and the first Christians 
 were accustomed to sing psalms without the aid of any 
 instrument, until organs were introduced in the seventh 
 century. Ambrose developed the art of singing in the 
 churches of the West ; Gregory the Great effected various 
 reforms upon it ; but the title of creator of church music 
 must be assigned to Giovanni Palestrina. He exhibited 
 such majesty and style, such truthfulness in expression, 
 and such a noble simplicity in modulation, that he has 
 only been equalled by Handel and a few other masters. 
 The use of oratorios became common in the sixteenth 
 century, especially in the Catholic States of Germany; 
 but the Protestants continued to sing psalms, and admitted 
 no other instrument into their churches than the organ. 
 The origin of the composition of these oratorios goes 
 back to the popular mysteries or moralities, just as the 
 origin of the lyrical drama may be traced to the madrigals 
 which were sung in friendly gatherings, their motive 
 being taken from the verses of Petrarca and of Tasso. 
 The first application of the chanted declamation of the 
 Greek tragedy to the profane lyrical drama, seems to 
 have taken place in the representation of the Orpheus 
 (Orfeo) of Angelo Poliziano in 1475. The Daphne, written 
 by Rinuccini, and set to music by Peri, obtained a great 
 reputation. Carissimi perfected both sacred and profane 
 music, and after him Scarlatti, Porpora, Paesiello, Cimarosa, 
 and Pergolesi prepared the way for Rossini, the real 
 creator of modern music. In Germany, instrumental 
 music got the upper hand, and Mozart, who had much of 
 the Italian school, was succeeded by Beethoven, "Weber, 
 Meyerbeer, and lastly by Puchard Wagner. 
 
 We have seen how Greece freed itself from the symbols 
 of the East in order to live in a just equilibrium between 
 spirit and matter. There is no atmosphere more favour- 
 able to art. In place of a theocracy and a hierarchy of 
 castes, or even a monarchy, the Greeks founded the city, 
 which produced other cities even to the number of three
 
 2 4 o PHILOSOPHY OF RIGHT. 
 
 hundred, such as Miletus, which spread its colonies over 
 all the shores of the Black Sea, Taine has put the ques- 
 tion : " How did they live in such a city ? " And he 
 answers it thus : " A citizen worked very little, as he 
 usually received his support from subjects or tributaries, 
 and he was always served by slaves, the poorest of them 
 possessing at least one of these domestic servants. Athens 
 counted four of them for every citizen ; and other cities, 
 like ^Egina and Corinth, possessed some four or five hundred 
 thousand of them ! On the other hand the citizen had no 
 great need of being served. He was sober, like all the 
 refined races of the south, and he could live on three olives, 
 a morsel of garlic, and the head of an anchovy. His 
 clothing consisted of a half shirt, a large cloak like that 
 worn by shepherds, and a pair of sandals. His house 
 was a narrow building, badly constructed, and far from 
 solid. Bobbers penetrated into it by making a hole in 
 the wall. It was, however, sufficient to sleep in ; and a 
 bed and two or three elegant jars were its principal 
 furnishings. The citizen, having few wants, passed his 
 time in the open air. As he had neither to serve king nor 
 priests, he was sovereign in his own city. He chose his 
 own magistrates and pontiffs, and was also capable of 
 being raised to these offices ; and although but a tanner 
 or a blacksmith, he judged in the courts the gravest 
 political causes, and deliberated in the assemblies on the 
 greatest affairs of the State. He spent his life in the 
 public squares discussing the best means of preserving 
 and aggrandising his city, in reviewing its alliances, treaties, 
 constitution, and laws, in listening to the orators, and in 
 perorating himself, up to the moment when he had to go 
 on board to start for the conflict. The young men passed 
 the greatest part of the day in the gymnasiums, exer- 
 cising themselves in wrestling, boxing, leaping, running, 
 throwing the discus, and strengthening their muscles and 
 making them supple. They wished to have the body as 
 robust, as well developed, and as beautiful as possible, and
 
 ART. 24 i 
 
 no other education has better attained this end. From 
 these habits of the Greeks, there sprang quite special 
 ideas. The ideal personage in their eyes was not the 
 thinking mind, or the delicately sensitive soul, but the 
 naked body, sprung from a good race, and of beautiful 
 growth, well-proportioned, active, and dexterous. This 
 mode of thinking was manifested in a thousand ways. 
 In the first place, while the Carians, the Lydians, and 
 their other barbarous neighbours were ashamed to show 
 themselves naked, the Greeks threw off their clothes 
 without hesitation, in order to wrestle or to run. In the 
 second place, in their great national festivals, the Olympian, 
 Pythian, and Nemean games, it was the nude man who 
 triumphed. The youth of the first families gathered at 
 these games from all points of Greece and from the most 
 distant colonies, prepared by long exercise according to a 
 particular rule of life and by constant labour for engaging 
 in them ; and there, under the eyes and amid the applause 
 of the whole nation, being divested of their garments, 
 they wrestled, engaged in boxing, hurled the discus, and 
 competed in races on foot or in chariots. The victorious 
 athlete in the foot-race gave his name to the Olympiad; 
 and the greatest poets celebrated it. Pindar, the most 
 illustrious lyric poet of antiquity, has sung only of the 
 chariot races. When the victorious athlete returned to 
 his home, he was carried aloft in triumph, and his strength 
 and agility became the pride of his country." 1 
 
 Sculpture was the Greek art par excellence, architecture 
 and painting serving only as its accompaniments. The 
 temple awaited the god who was to inhabit it, and sculp- 
 ture created for it the most beautiful form of living 
 beings. Painting, so long as it did not acquire an exist- 
 ence by itself, was reduced to a simple colouring of the 
 statue or of the materials of architecture. The arts of 
 articulate or inarticulate speech were developed parallel 
 
 1 Philosophic dc I' Art, p. 102. Paris, 1865. 
 VOL. I. Q
 
 242 PHILOSOPHY OF RIGHT. 
 
 to the arts of design ; and in the great national festivals of 
 Greece, athletes, sculptors, painters, musicians, poets, and 
 historians were crowned. 
 
 The Dorians, the founders of the Olympian games, ex- 
 cluded the contests in music and poetry which took place 
 at the beginning at the Delian festival and at the Olympian 
 games. Lycurgus, following the rigorous prescriptions of 
 the Dorian genius, prohibited the beautiful arts, excepting 
 music, dancing, and a severe poetry. In like manner, Pytha- 
 goras founded his school on meditation and silence, with- 
 out prohibiting poetry, and leaving a large field for music. 
 Plato exaggerated the Doric tendency when he banished 
 the poets from his State. This is how he wrote in this con- 
 nection in Book III. of his Eepullic : " If ever there should 
 arrive in our State a man skilled to represent many parts, 
 and capable of all kinds of imitation, and should wish to 
 recite to us his poems, we would pay him homage as we 
 would to a sacred being who is marvellous and enchanting ; 
 we would say to him that in our State we have no one 
 like him, and after having sprinkled his hair with per- 
 fumes and adorned his head with fillets, we should send 
 him away." In Book X., he gives his reasons for such 
 exclusion as follows : " We say of all the. poets beginning 
 from Homer that their fictions, whether they have virtue 
 or any other thing as their object, only imitate phantasms, 
 and never reach reality. When a painter draws a shoe- 
 maker, he understands nothing of his art, and yet when 
 the people look at his colour and sketching, they believe 
 they see a real shoemaker. Furthermore, in order not to 
 be accused of hardness and coarseness towards poetry, we 
 may say that this accusation about it, is of ancient date 
 (and here he quotes various passages). Nevertheless, 
 if imitative poetry (for he admits lyrical poetry) could 
 prove to us by good reasons that it ought not to be 
 excluded from a well-governed State, we should receive 
 it with open arms." With the same rigour, he ex- 
 cludes the Lydian and Ionian measures in music, and
 
 ART. 243 
 
 he admits only the Doric on account of its earnestness, 
 and the Phrygian which was employed in religious 
 hymns. 
 
 The beautiful arts held the place of national institutions 
 in Greece ; for every one felt himself happy to speak the 
 beautiful tongue of the Greeks, thereby distinguishing 
 themselves from the barbarians, and to take a part in the 
 intellectual combats. The initiative, however, was entirely 
 left to the individual, as the State maintained neither 
 museums, nor academies, nor schools of the beautiful arts. 
 The Romans, on the contrary, showed themselves at first 
 averse to the fine arts. " The Klephte," says Michelet, 
 " after the combat, sings on the solitary mountain. The 
 Roman, having returned to his city with his booty, cavils 
 with the senate, lends out at usury, litigates and pleads. 
 His habits being those of a jurisconsult, he grammatically 
 interrogates the law, or tortures it by dialectic to make 
 his case out of it. Nothing is further from poetry, which 
 began in Rome with the patrician disciples of mute 
 Etruria, which in her feasts prohibited singing and only 
 permitted pantomime. Being magistrates or pontifices, 
 the patres had to preserve in their language that solemn 
 conciseness proper to the oracles, which we admire in 
 their inscriptions. As to the plebeians, they represented 
 in the city the principle of opposition, of struggle, of 
 negation, or of interest, and all this had nothing poetical 
 about it. If there were popular songs at Rome, they 
 belonged to the clients who attended the banquets of their 
 patrons and combated for them and celebrated the common 
 exploits of the gens." l Among their clients and slaves, 
 after the second Punic war, the patricians received 
 various Greeks, for the instruction of their children and 
 themselves. Paulus ^Emilius, an austere pontifex and 
 a scrupulous augur, had in his family Greek pedagogues, 
 grammarians, sophists, rhetoricians, sculptors, and painters. 
 
 1 Histoire de la rtpublique romaine, c. vi. p. 372. Bruxelles, 1840. .
 
 244 PHILOSOPHY OF RIGHT. 
 
 Scipio Africanus had as a client and panegyrist, the 
 famous Ennius, who was born in Magna Graecia, and who 
 imitated the Greeks with some originality. The national 
 poet of old Italy was Naevius of Campania, who preferred 
 the Saturnine verse to the Greek hexameter, and wrote 
 many popular satires against the patricians, by whom he 
 was persecuted. 
 
 But men like Paulus ^milius and the Scipios were 
 exceptions; for when Mummius took Corinth, and the 
 king of Pergamos offered him a hundred talents for a 
 picture, he said: "There must be something magical in 
 that canvas," and he sent it to Rome. To those who had 
 assigned to them the task of transporting the pictures 
 and statues he had seized, he said: "Take care not to 
 damage them, for if you do, you shall be condemned to 
 make them again ! " 
 
 Fashion introduced into Eome the luxury of the fine 
 arts, and we find in the Theodosian Code that the 
 emperors were wont to assign rooms in the public 
 buildings to painters and sculptors, both to work in, and 
 to exhibit their productions. 
 
 Christianity radically changed the conception of life by 
 sanctifying pain, poverty, humility, and ugliness. The 
 artistic opposition between paganism and Christianity is 
 beautifully expressed in Goethe's poem, "The Bride of 
 Corinth." Christianity enlarged the basis of society ; and 
 the little cell in which the statue of the Greek god was 
 enclosed, and the portico under which the procession of 
 the free citizens wound, were no longer sufficient. The 
 multitude needed an enormous building which they also 
 used for civil purposes, and it was provided with immense 
 arches and colossal pillars, which were constructed by 
 several generations of workmen who believed they were 
 labouring for the salvation of their souls. With the Re- 
 naissance came the alliance of Christianity with ancient 
 art, and it produced! marvellous masterpieces. After 
 the French Revolution the basis of society was enlarged
 
 ART. 245 
 
 anew. Comfort, a thing unknown in the ancient world, 
 rendered our habits prosaic ; scepticism made inspira- 
 tion more difficult ; and the governments, by founding 
 museums, schools of fine art, and periodical exhibitions, 
 undertook to further the arts of design, while those of 
 speech were maintained and advanced by the industry of 
 ihe publisher.
 
 CHAPTEE IV. 
 
 INDUSTRY. 
 
 HITHERTO we have looked at the mental development of 
 man without taking account of the necessities that sur- 
 round him. But he cannot apply his mind to worship, to 
 science, or to art, without sustaining his body. The earth 
 only brings forth when it is bathed with the sweat of his 
 brow. Labour, however, was not a malediction but a re- 
 habilitation. The earth was really cursed only to Cain, 
 to whom God said: "When thou tillest the ground, it 
 shall not henceforth yield unto thee her strength." Never- 
 theless the Lord permitted him to build a city, to which 
 he gave the name of Enoch, from whom was born Tubal 
 Cain in the sixth generation, " who was the instructor of 
 every artificer in brass and iron." 
 
 Leaving the Semitic traditions for the Aryan traditions, 
 we find that the cultivators and the artisans sprang from 
 the thighs of Brahma, while the priests were brought forth 
 from his mouth, and the warriors from his arms. Many 
 centuries before our era, history shows us the Pelasgi 
 spread over all the shores of the Mediterranean from 
 Etruria to the Bosphorus, in Arcadia, Argolis, Attica, 
 Latium, and perhaps also in Spain, where they left every- 
 where indestructible monuments in walls formed of enor- 
 mous blocks of stone without any cement. " We are 
 astonished," says Michelet, " to see a race that was spread 
 through so many countries disappearing in history. Its 
 
 various tribes perish ; they are absorbed among foreign 
 "246
 
 INDUSTRY. 
 
 247 
 
 nations, or, at least, they lose their names. There are 
 no other examples of a ruin so complete. An inexpiable 
 malediction is attached to this people ; all that its enemies 
 tell us of it, is ill-fated and bloody. To them belong the 
 women of Lemnos, who slaughtered their husbands in 
 one night ; they were the inhabitants of Agylta, who 
 stoned the Phocean prisoners. Perhaps this ruin of the 
 Pelasgi, and the hostile tone of the Greek historians with 
 regard to them, may be explained by the contempt and 
 the hatred inspired in the heroic tribes for the agricultural 
 and industrial populations which had preceded them. 
 In fact, this was the character of the Pelasgi. They 
 worshipped the subterranean gods who guarded the 
 treasures of the earth; as agriculturists or miners they 
 tore open its bosom, in order to draw from it gold or corn. 
 These new arts were odious to the barbarians ; every 
 industry they did not understand ' was regarded by them 
 as magic. The mysteries of the initiations which the 
 various corporations of artisans practised, lent appearance 
 to the most odious accusations. The magical worship of 
 flame, that mysterious agent of industry, that violent 
 action of the human will upon nature, that mixture and 
 soiling of the sacred elements, those traditions of serpent 
 gods and of dragon men of the East who worked by fire 
 and magic : all this terrified the imagination of the heroic 
 tribes. They had only the sword to use against the 
 unknown powers of which their enemies disposed ; and 
 everywhere they pursued them by the sword. It is related 
 that the Telchines of Sicyon, of Boeotia, of Crete, of Ehodes, 
 and of Lydia, poured at will the water of the Styx on 
 plants and animals. Like the magicians of the Middle 
 Ages, they predicted and raised tempests. They pretended 
 to heal diseases ; and could they not also smite any one 
 at will? The Cabiri of Lemnos, of Samoihrace, and of 
 Macedonia the same name designating the gods and the 
 worshippers were forgers and miners like the Cyclopes 
 of the Peloponnesus, of Thrace, of Asia Minor, and of
 
 248 PHILOSOPHY OF RIGHT. 
 
 Sicily, who, with a lamp fixed on their forehead, penetrated 
 into the depths of the earth." x 
 
 Max Miiller expresses the opinion that the Turanian 
 or Tartaro-Finnic race had preceded the Semitic and 
 Aryan races. Wherever these two races penetrated, 
 they found savage peoples which they exterminated, 
 but whose memory survived under the representation of 
 giants, of magicians, or of animals. Some of these peoples 
 attained to civilisation ; as the Cushites and the Hamites 
 in Western Asia and in Africa, and the Chinese in Eastern 
 Asia. This primitive civilisation had a materialistic 
 character, with a religious and poetic instinct that was 
 little developed, a feeble sentiment of art, a tendency 
 to elegance and to refinement, a great aptitude for the 
 manual arts and for the applied sciences, a positive spirit 
 inclined to commerce, to comfort, and to amusement. It 
 had no political life, but instead of it an administration 
 so complicated that it has not been equalled in Europe, 
 except in the Eoman Empire and in modern times. The 
 traces of the Cushite and Hamite civilisation disappeared 
 at the contact of the Aryan civilisation, but the Chinese 
 form of it still subsists in our day. 
 
 Labour supposes property: (i) in our own faculties, 
 and (2) in the matter to which they are applied. This is 
 evident in the case of material labour; but all doubt 
 will also cease in regard to intellectual labour, whenever 
 it is considered that the artist is master of the marble 
 which he sculptures, and the writer of the pages to 
 which he entrusts his ideas, as in like manner the pro- 
 fessor and the physician are masters (at least for the 
 moment) of the attention of the scholar and the body of 
 the invalid. 
 
 Property, like society, is natural to man as endowed 
 with liberty. Liberty consists in the full possession 
 of oneself, in the capability of developing the proper 
 activity of one's own talent, and enjoying its fruits. 
 
 1 Histoire de la repuUique romaine, c. iii. p. 283.
 
 INDUSTRY. 249 
 
 The free man labours, and then possesses. Property 
 involves the right to labour, to form capital, to exchange, 
 and to donate. As property is not extinguished with 
 death, so when a person has not disponed, the positive 
 law dispones for him according to his presumed will. In 
 principle, then, all men have implicitly the right to use 
 external things for the rational ends of life. But as 
 these are not separate external things sufficient for all, 
 society has established rules according to which the 
 individual may acquire, preserve, or lose the immediate 
 power over them. The State, which represents society, 
 has not divested itself on this account of all right of in- 
 terference, but has always a supreme dominion (dominium 
 eminens) over property, which it exercises by means of 
 the protection, the guarantee, and the rules which regulate 
 the use of it, as is specially the case with forests and 
 mines. By its imposts, it assigns to itself a part of 
 property, and reserves the right to dispose of it by 
 means of expropriation for the public utility. Accord- 
 ingly the State, with its eminent dominion, represents the 
 social side of property, and establishes the organic bond 
 that binds it to the various generations when it determines 
 the modes of transmission and of succession. 
 
 It was only slowly that this comparatively perfect 
 form of property was reached. The investigators of 
 positive Law have explored all the corners of the earth 
 in order to find the transitions from one form of it to 
 another. It may suffice to refer to Sir Henry Sumuer 
 Maine (Ancient Law; Lectures on the Early History of 
 Institutions; The Village Communities of the East and 
 West) and M. Emile Laveleye (De la proprie'te' ct de scs 
 formes primitives'), and to indicate their conclusions. 
 
 Sir Henry Sumner Maine, in the works referred to, 
 shows that the family and ownership of property were 
 organised in an identical manner among the old Aryan 
 peoples from Ireland to India. The population was 
 divided into clans or tribes whose members believed
 
 250 PHILOSOPHY OF RIGHT. 
 
 themselves to be connected by a family bond as the 
 descendants of a common ancestor. At the head of the 
 clan there were found chiefs, whom the Irish traditions 
 called "kings." When the clan was numerous, it was 
 subdivided into groups, whose members were united with 
 each other by a bond of kinsmanship, and subject to a 
 chief whom the Anglo-Irish legists designate under the 
 name of " capita cognationis." These groups corresponded 
 to the Roman gens, to the Greek 761/09, and to the gentes 
 or cognationes hominum of Germany, among whom, as 
 Csesar relates, the soil was divided every year. The 
 juridical and political unit in the social order was not, as 
 in the present day, the isolated individual, but the family 
 group, denominated Sept, which corresponds exactly to the 
 Zadruga, a family community which the Germans more 
 properly designate house-communion. The Sept resembled 
 those family groups, societies of companions or frarescheux, 
 the confraternities which in the Middle Ages assembled 
 in France in one large house (the Sella), and which 
 cultivated the soil in common, and divided its products 
 among each other. India, even in our day, offers us in 
 the joint-family, as the English call it, the exact image 
 of the Celtic Sept of Ancient Ireland. The joint-family 
 forms a moral person which acquires property, and has 
 a perpetual duration like all corporations of mortmain; 
 and it offers the perfect type of that archaic mode of 
 undivided enjoyment which is found in all primitive 
 agricultural societies. It embraces all those persons who 
 might have participated in the funeral sacrifices of the 
 common ancestor. It resembles the agnatic family of the 
 Eomans, which comprehended all those who might have 
 been subject to the authority of the common progenitor, 
 if he had been still alive. According to the decisions of 
 the courts of justice in India, no member of the family 
 has a separate right to any part of the common property, 
 but its products ought to be put in charge, and then 
 divided according to the rules of an undivided enjoyment.
 
 INDUSTRY. 251 
 
 The members of the family are united, as it is said in 
 India, by their food, their worship, and their land. The 
 Irish tribe constituted a civil person which was maintained 
 by itself, as is said in the Brehon Laws. At first it was 
 perpetuated with the possession of the land " the land is 
 a perpetual person;" but it was also able to subsist 
 without cultivating the soil, by the exercise of some 
 industry. A part of the territory of the tribe, probably 
 the arable land, was divided among the different families 
 of the clan; although these quotas were subject to the 
 control of the community. "Every one," says the law, 
 '' ought to preserve his land undiminished without selling 
 it, without burdening it with debts, and without giving it 
 away in payment by right or contract." As in all the 
 ancient customs, alienation was permitted only with the 
 consent of the whole community, and so it is still practised 
 in India. The obligation to follow the same rotation of 
 crops in the order of cultivation the Flurzvmng, as the 
 Germans call it is in this system as strict as in the 
 Eussian mir, and in the old German village. The words 
 of Tacitus : Area per annos mutant, are w r ell interpreted 
 in this sense by Belot. The annual abandonment of the 
 settlements was caused by the nature of the soil, the 
 scarcity of manure, and the insufficiency of the agri- 
 cultural instruments. 1 In another passage Tacitus had 
 laid emphasis on the nature of the proprietorship, stating : 
 Ayr 'i pro numero cultorum al> universis in vices occupantur 
 quos mox inter se secundum dianationcm partiuntur. This 
 division was no longer annual, as in the time of Caesar, 
 but it was made at indeterminate periods. The phrase of 
 Tacitus, apud eos nullum testamcntum, is applicable, not 
 only to the Germans, but to the Irish Celts, and to all 
 the primitive peoples. 
 
 Laveleye remarks that " so long as primitive man lives 
 by the chase, by fishing, and by the gathering of wild 
 
 1 Cf. Nantucket, tude sur les diierscs sortca de proprtitte primitive!. 
 Paris, 1884.
 
 252 PHILOSOPHY OF RIGHT. 
 
 fruits, he does not think of appropriating the land, and he 
 considers as his own only the objects he has captured or 
 fashioned by his hand. Under the pastoral regime, the 
 notion of territorial property begins to dawn. It is 
 attached, however, only to the space which the herds of 
 each tribe habitually range over; and frequent quarrels 
 break out on the subject of the limits of these ranges. 
 The idea that an isolated individual could claim a part of 
 the soil as exclusively belonging to himself, does not yet 
 occur to any one ; the conditions of the pastoral life are 
 absolutely opposed to it. At the moment at which the 
 Eomans and the Greeks appear in history, they had 
 arrived at a state of civilisation which is more advanced 
 and more modern than that of the Germans of Tacitus. 
 They had already passed for a long time from the pastoral 
 regime ; they cultivated corn and the vine, and nourished 
 themselves less on flesh. It was agriculture which furnished 
 them with the greatest part of their subsistence. Never- 
 theless there still remained very recognisable traces of the 
 primitive regime of the community. Thus cattle would 
 not have been able to serve as a means of exchange, had 
 not the greatest part of the land been a common pasturage, 
 to which every one had the right to send his herds and 
 flocks. The two customs are so closely connected, that 
 the one cannot be conceived without the other. With 
 individual and limited proprietorship I cannot receive 
 oxen in payment; for how shall I nourish them? If 
 cattle are used as instruments of exchange, it may be 
 inferred from the fact that a great part of the soil is 
 collective property." * 
 
 Leaving the Greeks aside, we shall accompany Mommsen 
 in his exposition of the origin of property in the soil 
 among the Eomans. " Among the Eomans the land was 
 for a long time common good, and the ownership of 
 immovable property is very recent. At first the owner- 
 ship of property was limited to the possession of slaves 
 
 1 De la propriety et de $es formes primitives, p. 4, 151. Paris, 1882.
 
 INDUSTRY. 
 
 253 
 
 and cattle (familia pecuniaque). . . . Mancipatio, the first 
 and universal form of sale, springs from the ancient period 
 in which ownership did not yet extend to the earth, 
 because it took place only in reference to those objects 
 which the hand of the acquirer could seize. The possession 
 of lands was originally a common possession, and it was 
 undoubtedly divided among the different family unions ; 
 only the products were divided according to households. 
 In fact the agrarian community and the city, constituted 
 by family unions, were connected by close relations with 
 each other ; and long after the founding of Eome, we still 
 meet true communists who lived together and cultivated 
 the soil. The language of the old laws shows that riches 
 at first consisted in herds and real rights, and that it was 
 only much later that the soil was divided as private pro- 
 perty among the citizens. The original land estate was 
 called heredium, from lures, and it contained only two 
 jugcra (about one acre and a third), a space like the extent 
 of a garden, and little greater than the small field enclosed 
 by hedges among the Germans. If the two jugera did 
 not suffice to support a family, it received a part of that 
 common land of the tribe or State, which was the original 
 acjer publicus, and which gradually grew through the con- 
 quests of the kings and of the republic, and which was 
 very soon usurped by the patricians. This usurpation 
 was the occasion of the struggle of centuries between the 
 patricians and the plebeians, till the time of the emperors ; 
 and to the plebeians it was a question of life. A group of 
 families which formed a clan inhabited a village (yicus or 
 pagus), the union of clans constituted the nation (populus) 
 or the State (civitas) ; and the State had, as its centre, a 
 fortified place or a citadel, which was always situated 
 upon a height." 
 
 In its development property followed the status of the 
 persons connected with it. At first the only proprietors 
 were the cives optima jure. Their property was called 
 dominium quiritarium, and they were able to vindicate
 
 254 PHILOSOPHY OF RIGHT. 
 
 it from any one. The necessities of life compelled the 
 recognition of another species of property, called that in 
 bonis, or dominium bonitarium seu naturale, to which the 
 ancient law did not concede any right of action. The 
 praetor supplied this by the actio Publiciana, which took 
 the place in this connection of vindicatio. The citizens no 
 sooner became all equal under the empire, than these old 
 distinctions disappeared, and the right of property con- 
 sisted of these three elements : (i) The right to use the 
 thing without otherwise appropriating its fruits, that is, 
 to apply it simply to one's own use, advantage, and enjoy- 
 ment (Jus utendi) ; (2) the right to gather the fruits pro- 
 duced by the thing (Jus frucndi) ; (3) the right to draw 
 from the thing a utility by changing it, transforming it, 
 and even destroying it (Jus abutendi), which, in the 
 juridical language of the Eomans, did not mean to make 
 a bad use of it, as it is written in the Institutes : expedit 
 reipuUicae ne sua re quis male utetur. 
 
 Under these free proprietors lived the cultivators or 
 farmers and the slaves. The former were also called 
 rustici, originarii, adscriptitii, inquilini, tributarii, censiti, 
 words which all indicated a class of men who lived on 
 the land and were engaged in agricultural labours. They 
 were not slaves ; they were able to marry at will, and to 
 have recourse to magistrates on occasion of grave injuries 
 to their persons, or in reference to exactions that went 
 beyond use and wont. They constituted a part of the 
 estate like the cattle (servi tcrrae glebae inliacventcs), and 
 they were not entitled to abandon it under any pretext, 
 the proprietor having a right to reclaim them even from 
 among the ranks of the clergy. The fruits of the land 
 belonged to them, and they owed to the proprietor only 
 an unalterable proportion in commodities (redditus annuae 
 functionis) fixed by custom. The slaves possessed a 
 peculium, but it was always at the disposal of their 
 master. 
 
 The Germans as we are told by Caesar, Tacitus, and
 
 INDUSTRY. 255 
 
 Ammianus Marcellinus had likewise agriculturists and 
 slaves. The former were hereditary cultivators of the 
 lands which were conceded to' them for a regulated con- 
 sideration ; the latter were bound to domestic services or 
 to the cultivation of the lands reserved for the daily uses 
 of the family. In the bosom of the families were formed 
 the lands which elected a chief for some distant expedi- 
 tion. Tacitus says : " If a tribe languishes in the idle- 
 ness of a long peace, the principal youths go to the nations 
 which are at war, because repose is irksome to this people. 
 The warriors become illustrious in the midst of dangers; 
 and it is only by means of war that they can preserve 
 many followers." x 
 
 The Roman Empire was invaded by these bands, whicli 
 brought with them the organisation of the tribe, with the 
 addition to it of the bond of military subordination. The 
 chiefs spread themselves over vast domains, where they 
 lived along with a few companions in arms. The organi- 
 sation of the tribe could not but be altered by their 
 change of place. In Germany the sovereignty in relation 
 to general affairs belonged to the assembly of the heads 
 of families or proprietors ; and in reference to particular 
 affairs, to every single head of a family. This last species 
 of sovereignty had a double origin and a double character. 
 On the one hand, it had the bonds and the customs of the 
 family, the proprietory head being the chief of the clan, 
 surrounded by his relatives, down to the most distant 
 grade, and in every kind of condition ; and on the other 
 hand, it was founded upon conquest and force, a part of 
 the territory having been occupied with arms in their 
 hands, and the conquered having been reduced almost to 
 slavery. After the conquest the reunion of the common 
 assembly became always more difficult ; and consequently 
 there remained only the second form of sovereignty, which 
 extended itself, not only over the cultivators and slaves 
 of the Roman world, but also over the free men who had 
 
 1 DC morib. Germ, c. xiy.
 
 2 5 6 PHILOSOPHY OF RIGHT. 
 
 come from Germany. Guizot accordingly says : " How 
 was it possible for those who were living beside a chief who 
 had become a great proprietor possessed of a thousand 
 means of influence, and whose superiority increased every 
 day, to preserve long that equality and that independence 
 which the companions of the same band formerly enjoyed ? 
 Evidently this could not be. Those free men who, after 
 the invasion, still lived for some time around their chief, 
 were not long in becoming divided into two classes : some 
 received benefices, and, having become proprietors in their 
 turn, they entered into the feudal association ; others, 
 always fixed in the interior of the domains of their ancient 
 chief, fell either into a condition entirely servile, or into 
 that of cultivators working a part of the land under obli- 
 gation to discharge certain services or performances." 1 
 
 Three centuries had passed from the time of Tacitus, 
 and temporary possession had become converted into 
 proprietorship. The first act by which the barbarian 
 invaders affirmed their power over the conquered Romans 
 was the partition of the lands. Thus arose the feudal 
 system (feodum, from fe or fee, wage, and od, possession), 
 which ruled property during the Middle Ages. However, 
 by degrees, the kings from grands fiejfieux became really 
 heads of the nation, and claimed for themselves all the 
 sovereign prerogatives. Nevertheless, those thousand 
 abuses did not cease which had confused the persons with 
 the land, to the shame of all the powers of the legists, 
 who strove to bring about the triumph of the conception 
 of the Roman proprietorship and of absolute monarchy, 
 which attributed to the king not the dominium eminens, 
 but full proprietorship in the goods of their subjects. It 
 so appears in this passage in the Instructions written 
 by Louis XIV. for the Dauphin : " Everything that is 
 found throughout the whole of our States, of whatever 
 nature it be, belongs to us by the same title. You ought 
 to be persuaded that kings are absolute lords, and have 
 
 1 Ilistoire dela Civilisation en France, Lecon xsxiii.
 
 INDUSTRY. 257 
 
 full right of disposal over all the goods possessed by 
 ecclesiastics and laymen so as to use them at any time." l 
 
 The French Revolution of 1789 limited the powers of 
 the king, and removed all confusion between persons and 
 possessions. In the celebrated night of the 4th August, 
 Feudalism was abolished, all personal servitude being 
 made to cease without any compensation, and facility being 
 given for redeeming every real servitude. By personal ser- 
 vitude, says the Instructions of i$th June 1791, is meant 
 a subjection imposed on the person, and which he has to 
 bear only because he exists or dwells in a particular place. 
 The report of Merlin adds : " There are abolished without 
 possibility of restoration personal servitudes and the rights 
 which are derived from them or which represent them ; 
 that is to say, such as are not sprung from contracts of 
 infeudation or from taxation, and which are due only from 
 persons independently of all possession of the soil, and 
 which have as their basis only the bold usurpations of 
 feudalism maintained by the power of the lords of the soil, 
 legitimated by the law of the strongest"* These wise 
 restrictions were set aside by the Legislative Assembly, 
 which respected only the rights resulting from a primitive 
 concession of the soil, rights which, however, were not 
 respected by the Convention. 
 
 After a long course of centuries, the notion of property 
 returned to what it was in the Roman Law, to which 
 corresponds, in the main, Article 544 of the French Civil 
 Code, which became Article 436 of the Italian Code, and 
 which runs as follows : " Property is the right to enjoy 
 and to dispose of things in the most absolute manner, 
 provided that there is no use made of it which is forbidden 
 by the laws and the regulations." 
 
 Among the other non-Aryan races property passed 
 through nearly the same changes. The Mosaic law for 
 
 1 Henri Martin, 77 istoirede France, droit fr annals, vol. ii. p. 94. Paris 
 t. xiii. p. 259, 4th ed. Paris, 1854. 1859. 
 Laferridre, Essai sur I'histoire du
 
 258 PHILOSOPHY OF RIGHT. 
 
 maintaining property in the same tribes and in the same 
 families, cancelled debts every seven years, and com- 
 manded the restitution of alienated lands every forty- 
 nine years at the great Jubilee. Among the Arabians, 
 property consisted in movable objects and in cattle ; and 
 even in the present day the land in Algeria belongs in 
 common to the members of the douar or village, to whom 
 it is distributed by the Cadi. After the Mohammedan 
 Conquest the lands abandoned by the infidels, and divided 
 among the believers, constituted a real individual property 
 which was transmissible by sale, donation, and succession. 
 The Koran and the Sunna acknowledge full proprietorship 
 in desert lands that have been rendered fruitful by labour. 
 " If any one gives life to a dead land," says Mohammed, 
 "it belongs to him." Nevertheless, the free proprietor- 
 ship, called mulk, is an exception in Mussulman countries. 
 Fabrics and trees form objects of property, but not the 
 land that supports them called emertt which belongs 
 to the State, and is given in simple enjoyment to private 
 individuals. The Christians are simple tributaries, the 
 hereditary possession of the land belonging to them on 
 condition of labour and of tribute. Originally such tribute 
 was assigned to the Arab chiefs in certain given territorial 
 circumscriptions, which have been erroneously compared 
 by writers to feus, although, as Eenan points out, the 
 most essential element in the feudal system, the land, 
 was wanting in the arrangement. 
 
 Of the nations belonging to the Turanian race, China 
 has practised all the systems of ownership in property 
 from complete community to equal division of the soil ; 
 and this latter arrangement has been carried so far as to 
 demand that every possessor should cultivate his share 
 with his own hands, a refinement not yet reached by the 
 modern socialists. Nevertheless, according to Eugene 
 Simon, formerly French consul in China, a portion of the 
 property is inalienable in the case of every family. At 
 the beginning, this inalienable part extended to thirty
 
 INDUSTRY. 259 
 
 hectares (about seveuty-four acres), but now it is reduced 
 on the average to three or four hectares, and is called the 
 patrimonial field. Of 330 millions of hectares which 
 constitute the territory of China, from 70 to 75 millions 
 are found thus restricted. The patrimonial field represents 
 the whole tradition of the family. It is there that we 
 find established their habitation and their burying-ground ; 
 in it rises the hall where twice in the month the family 
 assembles to judge the delinquencies and the offences and 
 shortcomings of the members of the family; and it is 
 there where the family archives are preserved. Accord- 
 ing to Simon, this system keeps the inhabitants in the 
 country instead of turning their minds from cultivation, 
 and driving them into the cities, as is the case in Europe. 
 
 America was peopled by a northern offshoot or branch of 
 the Turanian race. To the greater part of the population 
 of the new continent the land was common to the tribe 
 for the purposes of the chase and fishing; and custom 
 recognised only movable property. However, the two 
 empires of Peru and Mexico raised themselves to a cer- 
 tain degree of civilisation. Here is what Robertson writes 
 regarding the system of ownership in property : " The 
 state of property in Peru was no less singular than that 
 of religion. . . . Neither individuals nor communities had 
 a right of exclusive property in the portion set apart for 
 their use. They possessed it only for a year, at the ex- 
 piration of which a new division was made in proportion 
 to the rank, the number, and exigencies of each family. . . . 
 In the Mexican Empire the right of private property was 
 perfectly understood, and established in its full extent. 
 Every person who could be denominated a freeman had 
 property in land. . . . The tenure by which the great 
 body of the people held their property was very different. 
 In every district a certain quantity of land was measured 
 out in proportion to the number of families. This was 
 cultivated by the joint labour of the whole ; its produce
 
 260 PHILOSOPHY OF RIGHT. 
 
 was deposited in a common storehouse, and divided among 
 them according to their respective exigencies." l 
 
 Facts, the sons of the free will, had an influence upon 
 ideas, the daughters of reflection. Minos and Lycurgus 
 reduced to laws the Dorian customs that prevailed in the 
 island of Crete and at Sparta. Pythagoras raised them 
 to a doctrine in the maxim : " Everything is common 
 among friends." It is still disputed as to whether 
 Pythagoras wished to found an institute of education for 
 wise men and statesmen, or set forth a social ideal. The 
 first hypothesis is the most probable ; and thus his com- 
 munion would only have been voluntary, and limited 
 to a certain period of life. 
 
 Plato, in the Republic, set himself to formulate this 
 ideal by abolishing individual property and the family. 
 He was not long in perceiving that he had gone much 
 beyond the mark ; and, wishing to take account of the 
 prejudices and of the weakness of his compatriots, he 
 delineated in the Laws the plan of a society less perfect 
 but more adequate to the ideas of his time. However, 
 the dream of community of possession always followed 
 him. Here is how he expresses it in Book ix. : " I declare, 
 in my quality of legislator, that I do not regard either 
 yourselves or your goods as your own, but as belonging 
 to all your family, which with all its goods belongs to the 
 State." Under the guidance of these principles, he divides 
 the territory into 5,040 portions, a number equal to that of 
 the active citizens, that is, of those who have the right to 
 participate in the administration of the State and to carry 
 arms. Each of these portions is inalienable and indivi- 
 sible ; and they are distributed by means of the lot. The 
 use of the precious metals and borrowing at interest, as 
 well as the industrial and commercial professions, are 
 severely interdicted from the active citizens. The trades 
 are exercised by slaves under the direction of free artisans, 
 
 1 The History of A merica, Book vii.
 
 INDUSTRY. 261 
 
 who are devoid of political right; and commerce is left 
 to strangers, choosing out the least corrupt among them. 
 Every active citizen is to be entitled to transmit at his 
 death to one of his sons the portion of land possessed by 
 him ; but the laws are formally opposed to allowing more 
 than one portion to fall into the same hands. The citizens 
 might possess movable riches up to four times the value 
 of their lands ; but how were they ever to acquire them, 
 not being able either to work, or to use monies in gold 
 or silver, or to borrow on interest, or to carry on trade ? 
 Perhaps by booty acquired in war. All the citizens were 
 to be fed at one table, at the expense of the State. In 
 order to maintain the balance between the number of 
 citizens and the portions of the land, the magistrates were 
 from time to time to interdict generation ; and if this 
 remedy turned out insufficient they were to think of 
 founding a colony abroad. As to women, they are not to 
 be common as in the Eepublic ; but they are to take part 
 in the labours of the men, as also in the dangers of war. 
 
 Aristotle observes that property is an essential part 
 of the Family and also of the State, because men have 
 wants, and ought to have wherewith to satisfy them. He 
 maintains against Plato the utility and the legitimacy of 
 property ; considering it, however, as a fact, the origin of 
 which it is idle to investigate. The law, agriculture, and 
 booty appear to him three modes of acquisition, equally 
 legitimate. Occupancy, even by means of force, seems to 
 him the useful beginning and principle of property. And 
 indeed in antiquity, property could not appear but as a 
 violent fact, protected afterwards by the law, which modi- 
 fied it arbitrarily every day. Nothing was more common 
 among the ancients than the intervention of the Govern- 
 ment in the distribution of properties, division of lands, 
 abolition of debts, and the prohibition of any abandonment 
 of one's patrimony. All these provisions which we regard 
 as contrary to right, were very frequent in the republics 
 of Greece ; and Aristotle cites various examples of them.
 
 262 PHILOSOPHY OF RIGHT. 
 
 Christianity tempered the rigour of property by charity. 
 "We bring all that we possess, says Justin Martyr, and 
 divide it \vith the needy. Everything is common among 
 us except the women, says Tertullian. .St. Peter had 
 expressly acknowledged the right of property ; for, in the 
 passage of the Book of Acts, in which Ananias and his 
 wife are shown to be punished with death for having 
 concealed a part of their possessions, we read these words : 
 " Whiles it remained, was it not thine own ? and after it 
 was sold, was it not in thine own power ? " 
 
 The community of goods was, therefore, entirely volun- 
 tary, and the Fathers of the Church explain to us how 
 that riches and poverty exist in order to furnish the rich 
 with occasion for their liberality, and thfe poor with 
 occasion for patience. It will suffice to cite the passage 
 of the letter of St. Augustine to Hilary, in which he 
 recalls the fact that Jesus Christ, in His answer to the 
 rich man who asked Him what he should do in order to 
 be saved, did not say, " Go and sell all that you have," 
 but only "Keep the commandments." And he adds that 
 the Redeemer, when He says that it is very difficult for a 
 rich man to enter into the kingdom of heaven, does not 
 condemn riches, but the immoderate love of them. Then, 
 coming to the text in the Gospel which says, " If ye would 
 be perfect, go and sell all that you have, and give to 
 the poor," St. Augustine proves that these words contain 
 an advice, and not a precept. "Jesus Christ," he says, 
 " distinguishes precisely between the observance of the 
 precepts of the law and a more elevated perfection ; 
 because, on the one hand, He teaches if ye would attain 
 to eternal life, keep the commandments; and, on the 
 other hand, if ye would be perfect, go and sell all that 
 you have." Why then, exclaims the sainted doctor, 
 should the rich who do not attain that degree of per- 
 fection, not be able to be saved if they keep the com- 
 mandments ; if they give that it may be given to them, 
 if they pardon that they may be pardoned ? This attitude
 
 INDUSTRY. 263 
 
 and contention of the Church have never been belied : for 
 in the first century it condemned the communism of the 
 Nicolaitans ; in the second, third, and fourth centuries it 
 repudiated the communism of the Gnostics ; in the fifth 
 century, that of the Pelagians ; and in the Middle Ages, 
 that of the Cathari, the Paterini, the Fraticelli, the Lollards, 
 and others. 1 
 
 In modern times not a few attacks have been directed 
 against individual property. Sir Thomas More, Lord 
 Chancellor of England, when a young man, wrote his De 
 nova insula Utopia? in imitation of Plato's Republic. He 
 admitted slavery, to which those who were condemned 
 for grave crimes and prisoners of war were to be reduced. 
 Its only variation from Plato's conception consists in all 
 classes, including even the magistrates, being obliged to 
 apply themselves for some hours to manual labour, which 
 was then beginning to be held in esteem, and in admitting 
 liberty of conscience, the need of which was being strongly 
 felt. The impress of Plato's mind is still more clearly 
 seen in the Civitas Solis of Thomas Campanella, in which 
 there is advocated promiscuity of women, and their perfect 
 equality with men both in rights and in duties. Old men 
 and matrons, under the surveillance of the chief physician 
 and the triumvir Amor, provide for the satisfaction of the 
 desires without ever losing sight of the perfection of the 
 race. A supreme head assigns labour and rewards it. 
 
 A century later, Morelly published "The Code of 
 Nature" (Le Code de la nature, 1755), of which the follow- 
 ing are the fundamental laws : 
 
 " i. Nothing in society shall belong as property to 
 any one individual except the things of which he may 
 make use at the moment for his wants, his pleasures, and 
 his daily labour; 
 
 * Thonissen, Le socialisme dans le Bacon's New Atlantis and an analysis 
 passe, oh. iv. p. 93. Bruxelles, 1850. of Plato's Republic, and Notes by I. 
 2 Utopia, new edition, with Lord A. Saint-John. London, 1852.
 
 264 PHILOSOPHY OF RIGHT. 
 
 " 2. Every citizen shall be considered a public man, and 
 maintained at the expense of the State ; 
 
 " 3. Every citizen shall contribute to the public utility 
 according to his powers, his talent, and his age ; and by 
 this standard his duties shall be regulated conformable 
 to the laws of distribution." 
 
 Eousseau a few years before had said that " Society is 
 the universal and sovereign proprietor of all that is 
 possessed by its members ; " and elsewhere he says 
 again that the fruits belong to all, and the land to 
 nobody. 1 
 
 Whatever may have been the influence on the French Ee- 
 volution of Eousseau and the other writers of the eighteenth 
 century, such as Diderot, Mablay, Linguet, and Bissot de 
 Warville, who were all opposed to individual property, 
 yet the Convention put the declaration at the head of the 
 Constitution of 1793 that property is "the right which 
 belongs to every citizen to enjoy and dispose of his goods, 
 his revenues, and the fruit of his labour, or of his in- 
 dustry." Nevertheless, in 1 797, after the fall of Eobespierre, 
 Babeuf founded the Sect of Equals, whose conspiracy was 
 discovered just at the moment when it was about to take 
 action. In their manifesto to the French people it was 
 written that if the Constitution of 1793 was a step to- 
 wards equality in fact, there was needed another revolu- 
 tion, and the last in order to make all social difference 
 disappear. May all the arts perish if need be, if only we 
 attain to actual equality. Various projects of decrees had 
 been designed to bring this desire to effect. We may note 
 that which instituted national workshops. 
 
 The unsuccessful attempt of Babeuf was taken up 
 again by Louis Blanc in 1848. He had been preceded 
 by Fourier and Saint- Simon, the first of whom had 
 developed the idea of attractive labour sketched by Sir 
 Thomas More, all the inhabitants of a State being divided 
 into so many groups of 3,200 persons each, which would 
 
 1 Contrat social, Discours sur Vorigine de Vinegalite. Dijon, 1751.
 
 INDUSTRY. 265 
 
 have to absorb all capital and industries ; and the latter 
 had taken from Campanella the idea of a supreme head, 
 the distributor of labour and of its reward according to 
 the work done. 
 
 The last and most violent adversary of property was 
 Proudhon, who wished to reduce it to an indefinite pos- 
 session. Property, he said, has a just foundation, which 
 is the liberty of the labourer to possess the fruit of his 
 labour ; but property became unjust by becoming capital. 
 On the other hand, community, although it springs from / 
 a just idea, is the most odious of the forms of injustice, / 
 because it ignores personality. How is this antithesis 
 to be reconciled ? The synthesis is furnished to us by 
 the idea of mutuality. The ideal society is an association 
 of free workers who are independent, who live in families 
 without any other capital than their instruments of 
 labour, and who exchange their products according to 
 the principle of mutuality, which is thus formulated : 
 "Equal wages for an equal time of work." The State 
 will be made up of these associations of workers ; and 
 there will be no idle consumers, no political government, 
 almost no magistrateship or police, except such as shall 
 be spontaneous, special, and local. Hence Proudhon's 
 system has taken the name of Mutualism and Anarchism. 
 There is still another system called Collectivism, which 
 consists in taking possession (according to some, by means 
 of purchase, or, according to others, by force) of the 
 material instruments of production, in order to put them 
 at the disposal of the manual labourers. 
 
 Let us now cast a glance at the views of those who 
 maintain individual property. Thomas Aquinas repro- 
 duced the theory of Aristotle, explaining that property, 
 if not a natural right, is not contrary to natural right, 
 to which he adds " per adinventionem rationis humauae," 
 or by law. Grotius could not rise in regard to property 
 above what was taught by the Roman jurisconsults. He
 
 265 PHILOSOPHY OF RIGHT. 
 
 sees the origin of it in occupation, and he acknowledges 
 the part belonging to work in mobiliary and industrial 
 accession. 
 
 Locke was the first to find the origin of property in 
 labour. What is the principle, he asks, by which, 
 without convention and without the intervention of 
 authority or law, man becomes proprietor in the universal 
 community ? This principle, he answers, is labour ; for 
 although the land and the lower creatures are common, 
 yet every one has a particular right to his own person. 
 The labour of his body and the work of his hands are 
 undoubtedly his own property : whatever he has re- 
 moved out of the state of nature by means of his toil 
 and his industry belongs to him, for as this toil and 
 industry are his own exertion, no other ought to appro- 
 priate the fruits of it, and all the more when there 
 remain for others similar common things. He adds, 
 treating specially of property in land : " But the chief 
 matter of property being now not the fruits of the earth 
 and the beasts that subsist on it, but the earth itself, as that 
 which takes in and carries with it all the rest : I think 
 it is plain that property in that too is acquired as the 
 former. As much land as a man tills, plants, improves, 
 cultivates, and can use the product of, so much is his 
 property. He by his labour does, as it were, enclose 
 it from the common. Nor will it invalidate his right 
 to say everybody else has an equal title to it; and 
 therefore he cannot appropriate, he cannot enclose, with- 
 out the consent of all his fellow-commoners, all mankind. 
 God, when He gave the world in common to all mankind, 
 commanded man also to labour, and the penury of his 
 condition required it of him. God and his reason com- 
 manded him to subdue the earth, i.e., improve it for the 
 benefit of life, and therein lay out something upon it 
 that was his own, his labour. He that in obedience to 
 this command of God, subdued, tilled, and sowed any 
 part of it, thereby annexed to it something that was his
 
 INDUSTRY. 267 
 
 property, which another had no title to, nor could with- 
 out injury take from him." l Locke concludes that the 
 limits of moderation should not be exceeded, and that in 
 appropriating a quantity of things greater than our wants, 
 we in a certain way take what belongs to others. It is 
 the great question of the limitation of the right in pro- 
 perty which thus presents itself to his mind. 
 
 The later writers, except those who, like Montesquieu, 
 founded the right of property on the law, have done 
 nothing but clear up and amplify what was indicated 
 by Locke. The political economists from Quesnay to 
 Turgot patronised the theory that property is derived 
 from labour; and in recent times Carey and Bastiat 
 maintained that all revenue or rent from land had its 
 origin in labour. 2 Beaudrillart called the first occupiers 
 not the privileged holders, but the martyrs of property. 
 " This expression martyrs, which has escaped from me," 
 he adds, " I will not withdraw, but I shall maintain and 
 explain it. Often people do not know what they are 
 speaking of when they speak of the naked land. The 
 naked land is the bramble and the reptile ; it is the 
 pestilential marsh ; it is struggle and suffering under 
 the most painful forms ; it is often death coming in 
 consequence of horrible privations and maladies which 
 slowly consume the heroic pioneer of culture and civilisa- 
 tion, and upon whom sophists afterwards will call down 
 a malediction as all their reward. People believe that 
 it is the land which made the primitive proprietor. The 
 truth is that the proprietor became such only after having 
 made the land: made the land, I say, not doubtless as 
 regards its matter, in regard to which man creates nothing, 
 but as regards its valug, the only mode of creating which 
 has been given to man." 3 
 
 1 Two Treatises of Government, II. Patrick James Stirling, LL.D., 
 c. v. 5th ed. London, 1728. F.R.S.E., 2nd ed. ; and especially 
 
 2 See Bastiat's Harmonies of Dr. Stirling's note at p. 274. 
 Political Economy, translated with 3 Dittcours d'ouverture du court an 
 notice of his life and writings by College de France. Paris, 1858.
 
 268 PHILOSOPHY OF RIGHT. 
 
 The philosophers also have been inspired by the words 
 of Locke already indicated, namely, that the labour of his 
 body and the work of his hands are man's patrimony. 
 Labour, says Cousin, is only a continuous and regular 
 application of human liberty, or of the active and volun- 
 tary force which constitutes our ego ; it is only a prolonged 
 occupation. Labour makes property sacred, but it is the 
 respect due to the person which renders labour itself 
 sacred. 1 
 
 Kant had already maintained that specification gave 
 rise to a sort of provisory property, which, in order to 
 become definite, needed the consent of all the members of 
 society. Accordingly contract, not the respect due to the 
 human person, was the origin of the right of property, 
 according to Kant. 
 
 Fichte held by the doctrine of natural right, declaring 
 it to be a personal right of man in relation to nature that 
 he ought to possess a sufficient sphere of action in order 
 to draw from it his means of subsistence. This physical 
 sphere ought to be guaranteed by the social activity in 
 order that it may be made profitable by labour. Thus 
 all ought to labour, and all ought to have wherewithal to 
 labour. The younger Fichte, in his System of Ethics, says 
 that the right to possess is an immediate and inalienable 
 right which precedes all law. Property is possession con- 
 formable to the right guaranteed by the State, and it is 
 instituted for the general good. Whence it follows that 
 the proprietor is bound juridically to use his property 
 well. " We shall yet come," he says, " to a social organi- 
 sation of property which will lose its exclusively private 
 character by becoming a true public institution. Then it 
 will no longer be sufficient to guarantee to every one pro- 
 perty legitimately acquired, but it will also be necessary 
 to enable him to obtain the property which comes to him 
 as the result of his legitimate labour. . . . Labour is a 
 duty towards oneself and others, and he who does not 
 1 Histoire de la philosophic morale au X VIHme, Siecle. Legon vii.
 
 INDUSTRY. 269 
 
 labour does injury to others, and therefore deserves to be 
 punished." 
 
 Ahrens, in his Cours de droit naturcl, adds that property 
 is the realisation of the means and conditions necessary 
 for the development, physical or spiritual, of every indi- 
 vidual, in the quality and quantity conformable to his 
 rational needs. For every man property is the condi- 
 tion of his life and of his development. It is based on 
 the very nature of man, and ought therefore to be con- 
 sidered as a primitive and absolute right, not resulting 
 from any external act, such as occupation, labour, or 
 contract. As the right is directly derived from human 
 nature, it is enough to be a man to have a right to a 
 property. 
 
 It is evident that the three last mentioned authors have 
 confounded potentiality with actuality, and right with its 
 realisation; and we reserve for the second part of our 
 work on the Subjects of Right, the determination of the 
 exact limits between the individual and society. 
 
 The limitation of the right of property has greatly 
 exercised the mind of the philosophical political economist 
 John Stuart Mill. "It is no hardship to any one," he 
 says, " to be excluded from what others have produced : 
 they are not bound to produce it for his use, and he loses 
 nothing by not sharing in what otherwise would not have 
 existed at all." Mill thus acknowledges a free activity 
 anterior to labour, and lie respects its effects. But his 
 ideas become less precise when he treats of property in 
 land. The land he represents as the original inheritance 
 of all mankind. " When the ' sacredness of property ' is 
 talked of, it should always be remembered, that any such 
 sacredness does not belong in the same degree to landed 
 property. No man made the land. It is the original 
 inheritance 'of the whole species. Its appropriation is 
 wholly a question of general expediency. When private 
 property in land is not expedient, it is unjust." 
 
 There are certain things, Mill says, which cannot enter
 
 270 PHILOSOPHY OF RIGHT. 
 
 into commerce without necessarily becoming a monopoly, 
 among which is the land, which gives a revenue to the 
 proprietor as the price of his monopoly. Mill would leave 
 intact the produce of labour and of capital, but he is of 
 opinion that the State may and ought to put a special tax 
 on the rental, which would restore to society the part 
 which belongs to it in the individual property. He would 
 give the proprietors the choice of giving up their land to 
 the State at the current market price, supposing they were 
 not willing to submit to the special tax. 1 
 
 Others again propose the legal redemption of all im- 
 movable property. 2 
 
 It is not surprising if this theory, known as the Nation- 
 alisation of the Land, has been proposed only in England, 
 where from many historical reasons which we cannot here 
 enter upon, the land is found in a few hands, and where 
 it has become almost impossible to acquire it. But the 
 International, an association of workmen, has wished to 
 extend this operation also to the Continent, where the 
 land circulates in the market like any other ware, and is 
 oftener offered than asked. 
 
 The conclusion Laveleye comes to in the work already 
 referred to, is more logical. He would restore gradually 
 the primitive village community, which still exists in 
 some of the cantons of Switzerland under the name of 
 Allmenden. Such property would be divided into several 
 categories according to the nature of the land, and would 
 thus give forest, meadow, and arable lands. Every family 
 would have the use of the forest, of the meadow, and of 
 a portion of the other lands, under the obligation of culti- 
 vating it so as to draw from it its greatest possible produce. 
 The partition would be revised from time to time in order 
 to preserve the limits of equity, and to make room for 
 new families. Thus the potentiality of proprietorship 
 
 1 J. S. Mill, Principles of Political applying such a project to England 
 Economy, Book ii. c. ii. in his Manual of Political Economy. 
 
 * See Fawcett on the difficulty of London, 1874.
 
 INDUSTRY. 271 
 
 would be combined with its actuality ; and by equality 
 in fact being made to hold place with equality in right, 
 all social revolution would be rendered impossible. In 
 order to attain this ideal without violent commotions 
 various means are proposed. These are the following: 
 I. To establish a maximum in material possessions ; 2. To 
 reduce to the fourth degree, or at most to the seventh, 
 successions db intestate ; 3. To restrict the power of 
 bequest by will to such persons only as are included 
 within the said degrees of relationship ; 4. Finally, expro- 
 priation for the public utility. As the lands might return 
 to the community they would be distributed to the most 
 indigent families, to which there ought likewise to be 
 furnished a sufficient capital. The methods of cultiva- 
 tion ought to be prescribed by the commune, from which 
 machines would also be held. In a word, co-operation is 
 to be substituted for individual interest. It is not con- 
 sidered that in such a system liberty would be sacrificed 
 without advantage being obtained, unless emigration were 
 to be imposed in order to keep up at a level of equality 
 the number of those participating in the system. Besides, 
 this is applicable only to small villages, as it is not possible 
 to divide into infinitesimal fractions the lands which sur- 
 round the large cities. 
 
 But is individual property not to have any corrective ? 
 The laws ought to provide that it may be accessible to all, 
 and that it shall not accumulate in a few hands. A good 
 system of beneficence of which we shall speak in Chapter 
 VI. should come to the aid of those who cannot obtain it 
 under any form. The field is open to all, and the less 
 fortunate cannot complain of not finding a place except 
 by paying, since it is due to the capital accumulated by 
 the labour of those who have preceded them that they 
 find an extensive public domain, both material and in- 
 tellectual, and that they are put into a condition for 
 developing their faculties. 
 
 Thus far we have seen the basis of property in the
 
 272 PHILOSOPHY OF RIGHT. 
 
 respect due to the human personality, its origin in occu- 
 pation or labour sanctioned by conventional law, and its 
 collective or individual form according to the different 
 stages of civilisation. It now remains for us to consider 
 it under the aspect of quantity and quality. Viewed 
 in reference to quantity, we have exclusive property, or 
 co-proprietorship (condominium}, according as a physical 
 or moral person possesses the rights of ownership over the 
 whole thing, or over an ideal part of it, as for instance 
 a sixth, a third, &c. The co-proprietor has all the rights 
 included in ownership, but he cannot exercise them 
 isolatedly. Under the point of view of quality, proprietor- 
 ship may be full and whole, or incomplete and divided. 
 Ownership is full when all the rights are exercised by 
 a physical or moral person. It is divided when one has 
 the right to dispose of the thing and the other to enjoy 
 it, provided, however, that it be possible to obtain a 
 consolidation of such rights, as occurs between the pro- 
 prietor, the usufructuary, and the user, as well as between 
 the dominium utile and the dominium directum in emphy- 
 teusis. The Koman laws also admitted the right of 
 surface, which consisted in the buildings constructed on 
 the soil, or on the area of a lower story, or in plantings 
 made on the soil of another. The right of surface is not 
 found in the French Code, nor has it an equivalent in 
 the Italian Code; but theory and jurisprudence have re- 
 tained it and qualified it as a species of dominium utile. 
 In practice, we find that public administrative bodies grant 
 building areas under the obligation of their restitution 
 after an assigned period of enjoyment. The permission 
 obtained to build on the foundation of another is no longer 
 considered as a right of surface. Ownership in property 
 may undergo dismemberments by necessary or conven- 
 tional servitudes, and it may obtain increments by 
 means of accession immovable, or movable and industrial. 
 The first arises from alluvion, or by a piece of land re- 
 moved by instantaneous force. The rule of alluvion is
 
 INDUSTRY. 273 
 
 contiguity, and that of insular accession is proximity, 
 except when this happens by instantaneous force, in which 
 case the proprietor of the ground removed preserves his 
 ownership. Movable accession arises from conjunction 
 or union, specification, and mixture or confusion. When 
 two movable things belonging to different owners come 
 to be united in such a way as to produce a single whole, 
 to which of the two do they belong? If they can be 
 separated without perceivable deterioration of the one or 
 the other, with the right of separation each one regains 
 his own thing. But if they cannot be separated without 
 deteriorating either the one or the other, the accessory 
 follows the principal. But if the accessory thing is much 
 more precious than the principal, the latter follows the 
 former. Such is the general rule. 
 
 Industrial property is guaranteed in Italy by the Law 
 of 3Oth August 1868, which secured the exclusive use in 
 commerce of distinctive trade-marks and signs. It is 
 encouraged by the exclusive right which is wont to be 
 granted to discoverers and inventors. The oldest law of 
 this kind is the English Statute of 1623, suggested by 
 Lord Bacon. The American colonies imitated the example. 
 The French Law of January 1791 followed. It was 
 adopted in the law now in force of $th July 1844, which 
 served as a model for the legislative decree of 3Oth 
 October 1859, regarding industrial patents, and it was 
 extended to the whole kingdom by another law of I3th 
 February 1864. 
 
 Movable property was the first to arise and the last 
 to be developed. It has been developed by means of 
 industry, man beginning to employ his muscular energy, 
 then using that of the animals, and finally directly adopt- 
 ing natural agents. What a difference there is between 
 the sharpened stake of the savage and the perfected 
 plough, between the hollowed trunk of a tree and the 
 steamboat, between the spindle and the domestic loom, 
 and between the spinning-wheel and the power-loom! 
 
 VOL. i. s
 
 274 PHILOSOPHY OF RIGHT. 
 
 Society feels the benefit of all industrial progress, and 
 mechanical contrivance promises to reduce man to the 
 simple director of material labour, making the forces of 
 nature to labour for him. This beneficent influence is 
 not restricted to the mode of production, but it extends 
 also to the consumption of the products, because as the 
 products cost less, a greater number will be able to use 
 them, and thus industry will not only have abolished 
 slavery, but it will also abolish misery. Thus the 
 economist, F. Passy, exclaims : " Industrial property, in- 
 stead of taking anything from the fund of the community, 
 is just the constant agent which forms this fund ; and 
 the price when it is freely agreed to, is not an obstacle 
 to the exchange of the gifts of nature, but facilitates it 
 by rendering them accessible to all." 
 
 "What are the relations of industry with religion, science, 
 and art ? If in the past religion assigned it a very sub- 
 ordinate place, yet it did give it a place in the social 
 organisation in Italy and in Egypt. The collegia opificum 
 of the Eomans resembled the confraternities of the Middle 
 Ages, when industry put itself under the protection of a 
 Saint. Now that the great factories are substituted for 
 domestic industry, the intervention of religion becomes 
 always more necessary. Who knows whether we shall not 
 see the religious corporations rising again under an indus- 
 trial form? Day-nurseries and infant asylums take the 
 place of the domestic hearth in the absence of the mother ; 
 but by what shall these be animated, if not by the spirit 
 of religion ? Science, again, is often occupied with the 
 interests of industry; for it would return to its rudi- 
 mentary state without the aid of mechanics, physics, 
 and chemistry. Art adds taste to industry, that special 
 quality which renders the commonest objects of life so 
 valuable. 
 
 The State cannot deny to industry those guarantees 
 which it concedes to religion, science, and art, as it also 
 constitutes a legitimate end of human activity.
 
 CHAPTEE V. 
 COMMERCE. 
 
 INDUSTRY cannot be" conceived as existing without Ex- 
 change. Even in the patriarchal state, the individuals 
 produced for the family, and not each one for himself. 
 Commodities then formed almost the only product, and 
 services were regarded rather as a form of work than as a 
 matter of exchange. By degrees wants increased, and it 
 became necessary to provide things required for the use 
 of the clan, of the village, &c., and the effect of competi- 
 tion began to make itself felt. 
 
 It is not only products or services that are exchanged 
 for other products or services, but almost every human 
 relation may sensu lato be called an exchange. Thus the 
 Eomans were in the habit of including in the jus commercii 
 et conmibii all the civil right which by degrees came to 
 be conceded to the Plebeians. Vico thinks that in the 
 earliest times all the clients were called nexi, as being 
 bound, for the word "nexum" signified obligation, as 
 appears from the text of the XII Tables : " Cum nexum 
 faciet manicipiumque," &c., and the contractors were 
 called nexi. 
 
 Modern society is distinguished from that of the early 
 ages by the great number of its relations of Contract. 
 In primitive times the individual did not enjoy any sepa- 
 rate right by himself. He obeyed certain rules of action 
 which were imposed upon him by the conditions under 
 which he was born. The individual members of a family 
 could not enter into contracts, because the family would 
 275
 
 276 PHILOSOPHY OF RIGHT. 
 
 not have taken any account of the obligations which 
 might have been imposed upon them. The heads of the 
 family were able to undertake obligation for it ; but it 
 happened very rarely, and with such formalities, that the 
 slightest inobservance of them produced the nullity of 
 the obligation. Examples are to be found in the history of 
 the Eoman Law, which show us how the Eomans began 
 to dispense with one part of the ceremonial, and how the 
 other parts were simplified, and how it was allowable to 
 pass entirely from them under certain conditions. Thus 
 it came about that certain contracts could be made with- 
 out any ceremony, and they were properly those on 
 which the activity and energy of the social relations 
 depended. 
 
 The Eoman scholars defined the " nexum " as omne 
 quod geritur per aes et libram. 1 The first use of the nexum 
 was to give solemnity to the alienation of goods, and it 
 then came to be applied to the contract, which was con- 
 sidered as an incompleted sale. When the subject of the 
 contract was not to be- forthwith executed, the nexum was 
 regarded as artificially prolonged in order to give time to 
 the debtor. Erom the nexum four forms of contracts took 
 origin : Verbal Contracts, Written Contracts, Eeal Con- 
 tracts, and Consensual Contracts. It was only to these 
 four classes of contracts that obligatory force was given, 
 and in the case of any of the first three it was necessary 
 to observe certain formalities, as the simple consent of the 
 contracting parties did not suffice. In the verbal contract 
 the vinculum juris was established by means of a stipula- 
 tion, that is, a demand and a reply; the demand came 
 from him who received the promise, and the reply came 
 from him who promised. In the contract by writing an 
 inscription was entered in the account-books of the families 
 
 1 " Nexum Manilius scribit omne dentur. Hoc verius esse, ipsum ver- 
 
 quod per libram et aes geritur, in bum ostendit, de quo quaeritur. 
 
 quo sint mancipi ; Mucius Scaevola, Nam idem quod obligatur per lib- 
 
 quae per aes et libram fiant, ut obli- ram, neque suum sit, inde nexum 
 
 gentur, praeterquam quae mancipio dictum." VAKK.
 
 COMMERCE. 
 
 =77 
 
 and on tablets, and in the real contract it was necessary 
 that the delivery of the thing should be a subject of pre- 
 liminary agreement. 
 
 In the course of time Real Contracts were distinguished 
 into Nominate, as mutuum, commodatum, deposition, pignus, 
 and Innominate, according to the formulae, do ut dcs, do ut 
 facias, facio ut des, facio ut facias : many contracts of this 
 kind receiving such special names as permutatio, precarium, 
 the contractus aestimatorius, which consisted in a commis- 
 sion to sell a subject, and the contractus suffragii, the pur- 
 pose of which was to obtain some favour from the prince 
 by means of remuneration given to a courtier or to another 
 person of high position who was not obliged by his office 
 to perform the act in request. 
 
 Four Nominate Contracts mandatum, societas, emptio- 
 venditio, locatio-conductio belong to the class of consensual 
 contracts, the consent of the parties being sufficient to 
 render them complete without the need of any formality ; 
 and on this account they were derived from the right of 
 nations (jus gentium}. 
 
 Besides Contracts there were also Pacts in use, which 
 did not induce civil action. Many of these, however, ob- 
 tained civil authority from the Praetors (pacta praetoria\ 
 from the Imperial Constitutions (pacta legitima\ or some- 
 times they were immediately adjoined to contracts of good 
 faith (pacta adject a). 
 
 The Roman Law has always distinguished Obligation 
 from Convention. It denned the former thus : Obligatio 
 cst vinculum juris quo necessitate astringimur ad aliquid 
 dandum vel praestandum vel faciendum vel non faciendum ; 
 and it defined the second : Conventio est duorum pluri- 
 umque in idem placitum consensus. Looking to the origin 
 of Obligations, they were divided into three classes, ac- 
 cording as they arose ex contractu, ex delicto, or ex variis 
 causarum Jiguris. The last class was subdivided accord- 
 ing to the analogy which they have with a contract or a 
 delict into obligations quasi ex contractu ct quasi ex delicto.
 
 278 PHILOSOPHY OF RIGHT. 
 
 They arose from a reason of natural equity acknowledged 
 by the law, as when the captain of a vessel binds the 
 owner, the agent, the merchant, &c. The Quasi-contracts 
 comprehend the carrying on of the affairs of others 
 (negotiorum gestio), tutory (tutela), curatory (curatela), the 
 acceptance of a succession (additio hereditatis), the ad- 
 ministration of a thing which has accidentally become 
 common or of a succession still undivided, and the pay- 
 ment of a debt not yet due. The Quasi-delicts are acts 
 of negligence which result in harm to others. 
 
 Some more recent Jurisconsults make obligations spring 
 ex facto, ex lege, seu ex aequitate, and they include the 
 contract, as also being a fact, in the first class. 
 
 Among the interpreters of the Eoman Law, it will be 
 enough to refer to Domat and Pothier, who have freed 
 this part of the Eoman Law from the rubbish of the past, 
 and have introduced into it as much of Customary Law as 
 was necessary. The compilers of the French Civil Code 
 only reduced their treatises to Articles. 1 
 
 According to the French Civil Code, conventions are 
 obligatory by the simple consent of the parties, without 
 its being necessary that there be delivery of the thing or 
 the execution of the act on the part of one of the con- 
 tractors, or any extrinsic formality. 2 In principle this is 
 contrary to the Eoman Law, according to which, as a 
 general rule, the consent of the parties is not sufficient to 
 render a convention civilly obligatory ( 2, lust, de Ollig. 
 
 3, 13). 
 
 Contracts are divided in the Civil Code into unilateral 
 and synallagmatic (sensu lato), according as one of the 
 parties is bound by obligation to the other without that 
 
 1 See in Locr^'s Legislation civile, thec, and surrogation without the 
 commerciale et criminelle, the dis- consent of the creditor. The Italian 
 courses of Bigot, Pre"ameneau, Civil Code wholly like the French 
 Favard, Joubert, and Moricault. Code as regards the matter of con- 
 Vol. vi. Bruxelles, 1836. tracts requires the notarial act 
 
 2 The French Code requires a only for ^donations _ and nuptial 
 notarial act for donations, contracts deeds. 
 
 of marriage, constitutions of hypo-
 
 COMMERCE. 279 
 
 other party being bound, or according as the two parties 
 are bound reciprocally towards each other. These Synal- 
 lagmatic Contracts are subdivided into perfect and im- 
 perfect, according as the prestations to which the parties 
 are bound are or are not considered to form the equivalent 
 of each other. The perfect Synallagmatic Contracts are 
 commutative when the equivalent consists in a certain 
 advantage for each of the parties ; they are aleatory when 
 the equivalent consists either only in reciprocal proba- 
 bilities of gain or loss, or in a probability connected with 
 an advantage that is certain for one or other of the 
 parties. 
 
 Contracts are also distinguished into contracts with an 
 onerous title, and contracts with a gratuitous title, or con- 
 tracts of beneficence. Contracts are of an onerous title 
 when the advantage which they procure for one or other 
 of the parties is obtained only by means of a prestation 
 that is executed or promised. Contracts are of a gratuitous 
 title when they secure to one or other of the parties some 
 advantage independent of any corresponding prestation. 
 Synallagmatic Contracts are all, and necessarily, of onerous 
 title ; but Unilateral Contracts are not always contracts 
 of beneficence. 
 
 Contracts are called Contracts of Acquisition or of 
 Guarantee, according as their object is to increase or 
 simply to guarantee the patrimony of the two parties, 
 or of one of them. They are nominate or innominate, 
 according as the law does or does not indicate them under 
 a special denomination. The rules established by the 
 Civil Code for contracts in general are applied to all 
 contracts, whether they be nominate or innominate ; but 
 the rules that are particularly laid down for the various 
 nominate contracts are applicable only by analogy to 
 innominate contracts. 
 
 The Quasi-contracts are licitous (allowable) and volun- 
 tary facts, from which there result, of full right, either 
 certain unilateral obligations on the part of him who
 
 280 PHILOSOPHY OF RIGHT. 
 
 performs them, or certain reciprocal obligations towards 
 those to whom such facts have brought damage or ad- 
 vantage. The Civil Code in respect of quasi-contracts 
 speaks only of the gestio negotiorum, or the receipt of in- 
 debitum. Nevertheless the administration of a particular 
 thing still undivided among several persons who are not 
 united by a social relationship of contract, when it is 
 taken up without mandate by one of the beneficiaries, 
 presents all the marks of a quasi-contract. The other quasi- 
 contracts found in the Eoman law are embraced, accord- 
 ing to the classification of the French and the Italian 
 Civil Codes, in the category of Legal Obligations. 
 
 Every human activity may be the subject of contract, as 
 a prestation may consist either in the prestation of a thing 
 or in the accomplishment of an act. A contract which 
 is without a subject, or which has in view a prestation 
 that is physically impossible, is considered as non-existent. 
 The subject ought to be determined at least in its species, 
 and it ought to offer some pecuniary advantage to one of 
 the two contractors, without which the execution could 
 not be demanded in court, as all questions of doing re- 
 solve themselves into questions of giving. Finally, the 
 subject ought to be licitous, or, in other words, it ought 
 not to be contrary either to moral custom or to public 
 order. The cause ought to be true and licitous. The 
 existence of the contract is proved by testimonies or by 
 titles, according to the amount of the sum and the cir- 
 cumstances in which it was instituted. All the subjective 
 conditions requisite for the validity of contracts, will be 
 treated in the sequel. 
 
 Almost contemporaneous with the compilation of the 
 French Civil Code, Kant was occupied with the classifica- 
 tion of contracts from the purely philosophical point of 
 view. "All Contracts," says Kant, "are founded upon 
 a purpose of acquisition, and are either A. Gratuitous 
 Contracts, with unilateral acquisition; or B. Onerous 
 Contracts, with reciprocal acquisition ; or C. Cautionary
 
 COMMERCE. 2 8r 
 
 Contracts, with guarantee of what has been already ac- 
 quired. A. The Gratuitous Contracts are i. Deposi- 
 tation ; 2. Commodate ; 3. Donation. B. The Onerous 
 Contracts are I. Contracts of Permutation or Reciprocal 
 Exchange, including I. Barter; 2. Purchase and Sale; 
 3. Loan. II. Contracts of Letting and Hiring. C. The 
 Cautionary Contracts are I. Pledge; 2. Suretyship; 
 3. Personal Security. 1 
 
 Kant's classification has been retained by Hegel, by 
 Ahrens, and by Gans, but Gans observes that it does not 
 contain the contract of Association. Trendelenburg, in his 
 Naturreclit, has tried to give another simpler Classifica- 
 tion of Contracts as follows : " In relation to their objects 
 Contracts have principally in view either a donation (where 
 there is an advantage without a counter-exchange), or a 
 simple exchange (permutation by prestation and counter- 
 prestation), or an agreement with regard to a common 
 affair (association). These three Species of Contracts have 
 this in common, that they represent originally an agree- 
 ment of different wills. In contrast to these there is a 
 species of contract which aims at resolving a plurality 
 of claims which have already arisen in a commercial 
 relation, and which consequently tends to a division 
 (transactions)." z 
 
 Hitherto we have used the word Commerce in its widest 
 juridical signification. But it is also employed in a more 
 limited acceptation, to indicate the relations which arise 
 from the Exchange of present or future values, relations 
 
 1 See Kant's Classi6cation more obligationibus repetisse cernuntur, 
 
 fully in the English translation of et raro quid sane docent, ubi ab illo 
 
 his Philosophy of Law, p. 122. jure recedunt. Neque hoc mir- 
 
 (T. & T. Clark, 1887.) Excepting andum : nam sublato certo obliga- 
 
 the last contract, which belongs to tionum fundamento, quod ipsorum 
 
 international law, these are the negotiorum natura ex juris civilia 
 
 Nominate Contracts of the Civil sanctionibus constituitur, fragment* 
 
 Law. Warnkonig truly remarks : tantum et inanes definitiones tradi 
 
 Illi ipsi scriptores si quis eornm necesse est. Doctrina jitrit philo$., 
 
 doctrinas examinaverit, NIL FERE p. 158. 
 
 NISI jcaia BOMANI HEGULAS de J Naturrecht, Th. ii. c. I.
 
 282 PHILOSOPHY OF RIGHT. 
 
 which constitute the object of Commercial Law, properly 
 so called. Such Exchange forms the habitual occupation 
 of certain individuals who buy in order to sell again, and 
 it requires to be regulated in a special manner. The 
 positive laws, following the guidance of reason, have 
 modified in behoof of these persons the rules of certain 
 contracts, such as Sale, Location, Mandate, Security, and 
 Association; and they have created certain special con- 
 tracts in this connection, such as the Letter of Exchange, 
 Bottomry, and Maritime Insurance. Commercial Sale is 
 distinguished by the speciality that it can be carried out 
 in regard to a thing of which the seller is not the owner, 
 and that the purchaser can obtain compensation at the 
 expense of the seller when he is not punctual in the 
 execution of delivery. The hire of work in the matter 
 of Commercial Contracts is called Commission, and has 
 special rights and duties, as when it is applicable to 
 transports. Mandate is often transformed into a contract 
 of commission, and the commissioner does not bind the 
 committer, but only himself, towards third parties. Com- 
 mercial guarantee necessarily requires a written act after 
 it amounts to a certain sum ; aud the permission of the 
 judge is required for the sale, which has to be carried out 
 by public auction, except in the case of Banks authorised 
 by their statutes to receive deposits and to give advances. 
 The subject may not remain after valuation in the power 
 of the creditor, as is the case with the civil pledge. 
 
 The contract of association or society in Commercial 
 Law has undergone the greatest modifications. In the 
 Civil Law, certain persons associated themselves together 
 without a bond of copartnery, for a particular matter of 
 business, mostly in relations of patrimony, and third 
 parties were obliged to call them severally before the 
 competent tribunal. In Commercial Law, on the contrary, 
 such persons are bound altogether (conjundim) and for 
 all their goods in such a way that they form a juridical 
 being with a fixed domicile, and the act constituting its
 
 
 COMMERCE. 283 
 
 existence is to be drawn up in writing, and accompanied 
 with all the guarantees of publicity. This species of 
 association is called by a collective name, and we find 
 some examples of it in ancient times, especially at Rome, 
 where they were formed for military supplies and for the 
 collection of the taxes, with a capital divided into shares 
 which were transferred by public or private acts. There 
 is a second kind of association, in which some of the 
 members are held responsible to third parties with all 
 their substance, while others are bound only for the 
 capital they have invested ; the former being called Com- 
 manditanti, and the latter Commanditari. Troplong sees 
 the origin of this kind of association in the contract of 
 Cheptcl (in cattle), of which an example is already found 
 in the last period of the Empire. It was, however, in the 
 tenth and eleventh centuries, and through the operations 
 of Italian merchants, that this mode of association assumed 
 its commercial form. The prejudices against interest on 
 money, and the dread of staining the nobility of their 
 house by appearing as merchants, induced many to adopt 
 this plan of association. The latest kind of such associa- 
 tion was the Anonymous Company, which is a simple 
 association of capital. The credit transactions of the 
 association are only binding on the acting administrators 
 of it ; but its formation, as well as the regulation of the 
 shares, is subject to the approval of the civil tribunal as 
 a matter of voluntary jurisdiction. The Association or 
 Company with a limited liability has been introduced in 
 England and France under the form of the anonymous 
 association, and it does not require the approval of the 
 Government. A last form of such associations is that 
 which is called the " Society with variable capital." Its 
 statutes make entrance or withdrawal free to members, but 
 under the condition that the common capital must not 
 be altered by more than a tenth of the whole. It has 
 received legal existence in France and in Belgium. 
 
 In 1844 certain weavers of Kochdale afterwards called
 
 284 PHILOSOPHY OF RIGHT. 
 
 the Equitable Pioneers entered, into combination, in order 
 to obtain the means of living at a cheaper rate. Their plan 
 was to purchase sugar and tea in bulk, in order to sell 
 them retail to themselves and others at the current prices, 
 then dividing the profits among all the members of the 
 association at the end of the year. The same principle was 
 likewise applied to production, by giving the workmen an 
 interest in the success of an undertaking, from a certain 
 part of their wages being invested in shares. Germany 
 made a happy application of the co-operative principle to 
 credit by means of Advance Societies ( Vorsclmss-vereine). 
 They soon became People's Banks (Volksbanken), the 
 founder of which was Schulze-Delitsch, in 1851. He 
 united industrious operatives into societies, so that by 
 paying a trifling sum at entry, and with a small monthly 
 contribution, they accumulated reserve funds. The society 
 then borrowed money at interest under the collective 
 guarantee of all its members, and distributed it among 
 those who applied for it. In this way every industrious 
 operative who obtained admission into one of these 
 societies was sure to find the sum which he required to 
 carry on his little industry. 
 
 The new Italian Code of 1882 allows every kind of 
 society or association to take the co-operative form. But, 
 in order to render these associations accessible to all, it 
 is enacted that the share shall not exceed one hundred 
 francs. To hinder any one who has subscribed for a large 
 number of shares from imposing his own will upon the 
 other members, the Code interdicts the holding of shares 
 to more than five thousand francs, and it prescribes that 
 in the meeting of shareholders a vote shall be given to 
 every person without taking account of the number of 
 shares held. Finally, in order to avoid speculations on 
 'Change, it is laid down that the shares shall be nominated, 
 and that it shall not be allowable to cede them without 
 the consent of the council of managers or the meeting of 
 shareholders, according to the conditions provided in the
 
 COMMERCE. 283 
 
 statute. The voluntary withdrawal of members is per- 
 mitted, but they remain bound to third parties for a 
 period of two years for the operations current, and up to 
 the amount of the shares held. 
 
 We come now to Contracts of a purely Commercial 
 origin, namely, the Bill of Exchange and Maritime Ex- 
 change or Bottomry. In Athens the idea was already 
 formed of a Bill payable to order, and the Letter of Ex- 
 change was not entirely unknown. In a harangue of 
 Isocrates against Pasion, we find that a certain Stratocles, 
 when about to set out for Pontus, preferred to leave a 
 sum with a young man of that country then residing in 
 Athens, receiving a letter to his father that he should 
 pay him it in Pontus, and the banker Pasion guaranteed 
 the contract. Cicero, writing to Atticus, asked him if 
 he should convey a sum to his son in Athens by way of 
 exchange or in kind. In ancient times, transference by 
 endorsement was unknown, so that it is rightly held that 
 the Bill of Exchange was invented in the Middle Ages, 
 and probably by the Jews. The German Law of Exchange 
 does not recognise any difference in the legal effects of a 
 Bill of Exchange and of a Note payable to order, regard- 
 ing them both as by their nature acts of commerce. This 
 principle is adopted in the new Commercial Code of the 
 kingdom of Italy of 1882. The Letter or Bill of Exchange 
 is defined as a commercial obligation to make payment 
 at a definite place and time of a sum to the order, mediate 
 or immediate, of the possessor of this obligation. On the 
 other hand, the Note payable to order is an obligation 
 to pay at a determinate time a certain sum to the legiti- 
 mate possessor of the claim. Both are transferred by 
 endorsation. 
 
 Transactions in Bottomry or Maritime Exchange (focnus 
 nauticum] were known to the Romans, and Cato was able 
 to make large profits by them. In the Contract of 
 Bottomry, the debtor is discharged from repaying the
 
 286 PHILOSOPHY OF RIGHT. 
 
 capital and interest if the ship perishes in the course of 
 the voyage. On the contrary, if fortune favours it, he 
 has to restore the sum borrowed at "nautical interest," 
 which is much higher than the ordinary rate. After the 
 invention of the compass and of navigation by steam, the 
 dangers at sea were greatly diminished, and this contract 
 began to fall into disuse. 
 
 The last of the Commercial Contracts is that of Marine 
 Insurance, which consists in undertaking the risks that 
 may be run by a vessel and its cargo during the voyage. 
 By paying a small premium, security is given against all 
 accidents at sea. Marine Insurance has served as a type 
 to all other kinds of insurance. 
 
 The merchant is favoured by special privileges in regard 
 to the means of proof at law. He is entitled to establish 
 his proof by the commercial books in which all his obliga- 
 tions are regularly entered, and these are valid against 
 him as evidence, and may be used as valid evidence 
 against third persons, provided they are merchants having 
 transactions with him ; he can also establish his proof by 
 the books of public officers regularly kept; and finally, 
 by the oral testimony of witnesses, without limit as to the 
 amount, whenever the judicial authority believes it con- 
 venient. By making a declaration of his bankruptcy 
 (which, however, must neither be fraudulent nor culpable), 
 a merchant may be released from all obligations to his 
 creditors. Moreover, a majority of the creditors, who 
 represent three-fourths of the claims, by drawing up an 
 agreement, are able to compel opposing creditors to accept 
 it, and to avert the bankruptcy. A special jurisdiction, 
 with adequate knowledge of the commercial usages, will 
 have to decide all differences that may arise. 
 
 It may be asked, What have the other branches of 
 human activity done for commerce ? Even from the most 
 remote times religion came to the aid of commerce. 
 Commerce took its start in the wallet of the pilgrim and
 
 COMMERCE. 287 
 
 on the back of the camel. The moat celebrated temples 
 of antiquity, of which some were founded in the oasis of 
 the desert, and were places of rest and refreshment for the 
 caravans, became the centres of the greatest markets. In 
 Africa, such were the temple of Jupiter Ammon, and of 
 Meroe and Assum in Abyssinia ; and in Asia there were 
 Manoraba or Mecca in Arabia, Palmyra in Syria, and 
 Pataliputra (the Palibothra of Megasthenes, now Patna) 
 in India. 
 
 Commerce was carried on by land, and with much 
 difficulty, so that only goods of great value could be 
 transported, such as the precious metals, pearls, perfumes 
 from natural products, and byssus (the finest tissue of 
 Indian cotton), the superfine woollen tissues of Thibet, 
 some of the silks of China, and of the works in ivory 
 from India. 
 
 By degrees the commerce of the coasts sprang up, and 
 it stretched from the Arabian Sea, touching the Persian 
 Gulf, and on to India, and perhaps to China. In the 
 Mediterranean Sea, the Phoenicians, who came, according 
 to Herodotus, from the Eed Sea, occupied the coasts of 
 Asia and of Africa, and, advancing by the columns of 
 Hercules, spread themselves over the shores of Spain. 
 They found rivals in the Greeks, who covered with their 
 colonies the Euxine Sea, the Palus Mceotis, and Magna 
 Graecia, founded Cyrene in Africa, Marseilles in Gaul, and 
 lastly Alexandria, the greatest emporium of antiquity 
 With the development of maritime commerce there were 
 transported, not only objects of luxury, but also com- 
 modities, and especially corn. The Boinans were not a 
 commercial people, but their highways, their harbours, 
 and their maintenance of so many different nations iu 
 unity, indirectly aided the progress of commerce. 
 
 The Arabs may be called the successors of the Eomans, 
 if regard is given to the extent of the empire of the 
 Caliphs, which stretched from the Tagus to the Indus. 
 Europe groaned under the barbarian invaders, but by
 
 288 PHILOSOPHY OF RIGHT. 
 
 degrees the ancient Roman cities rose again, first in Italy, 
 then in Germany along the Ehine, and others were 
 founded in Flanders and on the Baltic, which were bound 
 in league among themselves. This great movement had 
 been aided by the Crusades, which poured the West upon 
 the East, erected a Latin empire at Constantinople which 
 lasted fifty-four years, and a kingdom at Jerusalem which 
 lasted eighty-six years. The Xorth carried into Italy its 
 products in wool, hemp, flax, and building timber, in order 
 to exchange them for the products of the East. Silk was 
 raised by means of the few silkworms which two monks 
 brought in their staffs to Justinian; and the cultivation 
 of it spread into Greece, Italy, and France. Navigation 
 was rendered more secure by the use of the compass and 
 the astrolabe. 
 
 The course of commerce was disturbed by the founding 
 of the Ottoman Empire in the thirteenth century, and 
 more than ever by the conquest of Constantinople and 
 of Egypt. The need was then felt to find a new way to 
 India and China. The Portuguese succeeded in finding 
 it by sailing round Africa, and discovering the passage 
 of the Cape of Good Hope, and they made Lisbon the 
 emporium of the Eastern commerce. Voyages of dis- 
 covery were then multiplied, and Christopher Columbus, 
 going in search of the Indies by the western ocean, found 
 a new world. Science likewise came to the aid of com- 
 merce. Doria taught how to take advantage even of con- 
 trary winds ; and Galileo having discovered the satellites 
 of Jupiter by means of observations on their eclipses, 
 showed the way to determine the latitude of any particular 
 place. Eailways and the electric telegraph have now 
 turned the whole earth into a common market-place. 
 
 Art did not advance commerce, but it was greatly aided 
 by commerce. The Medicis at Florence co-operated by 
 their riches in creating many masterpieces; and the 
 Flemish and Dutch schools were really born in the bosom 
 of trade.
 
 COMMERCE. 289 
 
 Industry thus furnishes the material of commerce, and 
 if its first development took place in the East, this arose 
 from the fact that production, both natural and artificial, 
 had its cradle in that favoured land of the sun. And 
 now that iron and coal play the principal part in indus- 
 trial production, commerce shows its predilection for the 
 North. 
 
 In ancient times the State did not show itself in any 
 way particularly favourable to commerce any more than 
 to industry ; but neither did it oppress it with special 
 burdens, as it has been shown superabundantly that 
 customs tariffs were then mere fiscal imposts. The errors 
 of the mercantile system, which made wealth consist 
 principally in the precious metals, generated the prohi- 
 bitive system, and thereafter the colonial system, which, 
 instead of aiding commerce, injured it, as it did not 
 supply the consumers with all that they desired. Men 
 came to understand that wealth consisted in all kinds of 
 products and was born of labour ; yet prohibition did not 
 therefore cease, but was transformed into protection. It 
 is only since the first quarter of the present century that 
 the State has restricted itself to its mission of guardian- 
 ship in relation to commerce, and has been gradually 
 reducing the customs tariffs to simple fiscal dues.
 
 CHAPTEE VI. 
 MORALITY. 
 
 IN distinguishing ethics from jurisprudence and morality 
 from right, we explained that the former considers the 
 internal forum, and the latter the external forum. How- 
 ever, we added " that the internal ends of morality are the 
 moving forces of right." 1 Society cannot leave to the 
 caprice of individuals the whole of morality, although 
 it is now accurately distinguished from legal right. 
 
 History shows us public power rising from the house- 
 hold, and in the ancient States various institutions safe- 
 guarded private morality. At Sparta, it may be said that 
 private life in a manner did not exist, as the whole time 
 of the citizens was there regulated. At Athens there was 
 entire liberty, but the Areopagus watched over the habits 
 of the people, and jealously scrutinised the conduct of 
 all candidates for public offices. At Eome two magis- 
 trates were appointed in the year 444 B.C., to whom 
 were entrusted the material and moral supervision and 
 censorship of the republic. They watched the public 
 revenues, drew up the list of the senators and knights, 
 marking with disgrace whoever had in any degree forfeited 
 the public esteem. Under the Empire, they became in- 
 struments of the rancour of the emperors. By degrees 
 the Church appropriated the censorship of morals, and 
 the ecclesiastical decisions became also of civil authority. 
 After the French Eevolution, the State became secular, 
 and certain great moral principles were formulated into 
 
 1 Prolegomena, p. 1 2 1. 
 290
 
 MORALITY. 29r 
 
 articles of law, such as : " The son, whatever may be his 
 age, ought to honour and respect his parents ; " " The law 
 grants no action for payment of a debt contracted at play, 
 or for a wager." The guardianship of other principles 
 was entrusted to a discretionary power called police, the 
 ideal of which is traced in a circular by the minister 
 Fouche' in 1815 as follows: "Calm in their movements, 
 prudent in their investigations, everywhere present, and 
 always protecting, the police ought to keep an eye on 
 the progress of industry and of morals, for the sake of the 
 happiness of the people and the repose of all. It is 
 instituted like justice in order to secure the execution of 
 the laws and not to infringe them, to guarantee the liberty 
 of the citizen and not to attack it, to secure the safety of 
 virtuous men, and not to poison the source of social enjoy- 
 ments. It should neither extend itself beyond what the 
 public or private safety demands, nor check the free 
 exercise of the faculties of man and of his civil rights 
 by a violent system of precautions." According to the 
 scope of these principles, the police have an immediate 
 authority over public places, and especially over public 
 exhibitions and shows, public women, &c. 
 
 Beneficence is a private virtue, but society cannot re- 
 main entirely strange or indifferent to the misfortunes of 
 the citizens. It leaves associations to take action; but 
 on great occasions, such as a flood or a conflagration, it 
 intervenes directly. The principal argument advanced 
 to keep the Government away from works of beneficence, 
 is that the State has no goods of its own, and to give to 
 one anything in the way of relief, would be to take from 
 others as a tax. The same objection might be raised 
 against several of the public services, but it does not pre- 
 vent the Government from discharging such services as 
 are really of general interest. The fundamental principle 
 of all society is that every one ought to provide for] his 
 own wants and for those of his family by means either 
 acquired or inherited ; for all activity would cease if men
 
 292 PHILOSOPHY OF RIGHT. 
 
 were to count on anything else than their own labour. 
 But in the case of sudden and immediate misfortunes a 
 germ of love has been placed by God in every breast, and 
 in all civilised countries there are not wanting benevolent 
 foundations supported by common contributions or en- 
 dowed by rich benefactors, to which the State has been 
 ready to grant a civil personality. 
 
 The Constitution of the French Eepublic of 4th 
 November 1848 sought to determine in its preamble the 
 relations of the citizens and of the State in the matter of 
 beneficence as follows : " The French Eepublic is demo- 
 cratic, one, and indivisible. It recognises rights and 
 duties, anterior and superior to positive laws. It has as 
 its principles liberty, equality, and fraternity; and as its 
 basis the family, labour, property, and public order. . . . 
 Eeciprocal duties are binding on the citizens towards the 
 Eepublic, and on the Eepublic towards the citizens. The 
 citizens ought to love their country, to serve the Eepublic, 
 to defend it at the cost of their lives, and to share in the 
 burdens of the State in proportion to their fortune ; they 
 ought to secure the means of existence by labour, and in 
 foresight to provide resources for the future ; they ought 
 to co-operate for the common well-being by aiding each 
 other fraternally, and promote the general order by observ- 
 ing the moral laws and the written laws which regulate 
 society, the family, and the individual. The Eepublic 
 ought to protect the citizen in his person, his family, his 
 religion, his property, and his work, and to put within 
 the reach of every one the instruction indispensable to all 
 men. It ought by fraternal assistance to secure the exist- 
 ence of the necessitous citizens, either by procuring for 
 them work within the limits of its resources ; or in default 
 of the family to which they belong, by giving aid to those 
 who are not in a state to work." 
 
 The commentary on this somewhat too elastic decla- 
 ration is found in the General Eeport presented to. the 
 Assembly by Thiers in the sitting of 24th January 1850,
 
 MORALITY, 293 
 
 in the name of the Commission of Beneficence and Public 
 Provision. The reporter lays it down as a principle that 
 the State is not an abstract and insensible being, that 
 there are isolated and accidental evils for which private 
 beneficence is sufficient, but that there are also general 
 evils which afflict whole classes of citizens which require 
 collective and social beneficence. He maintains, how- 
 ever, in several places the spontaneity of such acts of 
 beneficence, whether public or private, wishing them to 
 be free, but co-ordinated as far as possible. In the 
 first period of life, he says, it is necessary to take up 
 and nourish the child which the mother abandons from 
 shame or insensibility, to succour the mother who has the 
 courage not to abandon it, to watch over day-nurseries 
 or infant homes, to prevent the tender powers of youths 
 from being abused by labour, to take care if they fall into 
 crime that the correction shall not become the occasion of 
 greater perversion, and in fine, to protect them in the first 
 stages of their life. In the adult age, the man is respon- 
 sible for himself, and the State can only reserve a good 
 part of the public works for times of crisis, keeping ready 
 the plans of such works and the means of executing them. 
 Societies for mutual help are the most appropriate means 
 of avoiding disasters, and poorhouses should serve only 
 for temporary reception of strong men till there is found 
 work to employ them. For cases coming under disease 
 and old age, provision should be made by hospitals and 
 hospices, and especially by banks of deposit in which a 
 small annual contribution is applied to provide a pen- 
 sion for old age. The reporter wished to see such banks 
 administered by the Government and constituted on the 
 tontine principle, that is to say, that the share of the one 
 who dies first should go to the benefit of the survivors. 
 
 Let us see how such ingenious institutions are consti- 
 tuted. Chateaubriand asks: How did the ancients do 
 without hospitals? And he answers that they had two 
 means of getting rid of the poor and of the unfortunate,
 
 294 PHILOSOPHY OF RIGHT. 
 
 which the Christians no longer possess, namely, infanticide 
 and slavery. This statement has been found too absolute 
 by recent writers, who have remarked that the Mosaic 
 legislation, with its Sabbatic year and its jubilee, was 
 all inclined in favour of the poor. In pagan antiquity we 
 likewise find consoling maxims, as in Homer's verse in 
 the Odyssey, which says that " guests and the poor are 
 under the protection of Jove," and in the passage of Cicero, 
 beginning " hominum caritas et amicitia gratuita," &c. The 
 institutions of the patronate and of hospitality, the leges 
 agrariae, the leges anonariae, the largitiones or congiaria, 
 the epulae and sportula,weTe directed to relieve the people 
 from their distress. There were not wanting societies of 
 mutual help, such as the (f>parplat at Athens, and the soda- 
 litates at Eome. In the time of Hippocrates the Greeks 
 caused the sick to be carried into the temples of .^Esculapius 
 in order to invoke the favours of the divinity and the aid of 
 his ministers. At Eome the temples likewise served to 
 receive strangers who fell sick, and slaves who had been 
 abandoned by- their masters. At Athens, the Cynosarges, 
 an ancient temple dedicated to Hercules, was destined for 
 the reception of illegitimate children, who were reared at 
 the expense of the republic. Augustus granted help to 
 parents with a numerous offspring; and oSTerva wished 
 that in all Italy, orphans should be nourished at the public 
 expense. In many Greek cities there arose public edi- 
 fices, named yepovTotcofAeZa, devoted to keeping old men 
 who deserved well of the country ; and at Sardis, the house 
 of Crcesus served as an asylum for old men who had 
 become unable to work. Various laws in the Digest 
 imposed on the cities the duty of consecrating the sur- 
 plus of their revenues to the support of children and of 
 indigent old men. 
 
 "With all this, paganism cannot be called charitable. 
 It deified force, beauty, and pleasure, and held that the 
 unhappy had somehow merited the wrath of the gods. 
 The institutions above enumerated had almost all a
 
 MORALITY. 295 
 
 political origin. The struggle of the rich and poor was 
 fierce in the ancient cities. The first drew almost all the 
 things necessary for their wants from the labour of the 
 slaves, and the second claimed a right to idleness in 
 order to attend to public affairs. Dionysius of Halicar- 
 nassus says that Eomulus having put a great distance 
 between the patricians and the plebeians, and having 
 excluded the latter from the senate and from all public 
 offices, required for the sake of the security of the State 
 to find a means of bringing the two orders together and 
 uniting them by some tie ; and therefore he ordered that 
 every plebeian should choose a protector among the 
 patricians. The continual wars of Home compelled the 
 plebeians to neglect their fields and fall into debt. The 
 little farm was very soon eaten up by the accumulation 
 of interest, and the person of the debtor was made 
 responsible for the rest. The law of the XII Tables 
 says: "Let the rich man be surety for the rich man; 
 and whoever will, let him be surety for the poor man. 
 The debt being admitted and the cause adjudged, let there 
 be thirty days' respite. ... If no one become surety for 
 him, let the creditor take him with him and bind him 
 with ropes or chains, which may weigh fifteen pounds 
 or less if the creditor so wishes it. Let the prisoner 
 live at his own expense, or let there be given to him a 
 pound of meal or more at pleasure." Happy was it for 
 him, exclaims the historian Michelet, if by a prudent 
 emancipation, he was able to preserve his sons. And 
 the same writer adds, although all the kings of the 
 earth came to pay homage to the Eoman people repre- 
 sented by the senate, this people was rapidly extinguished, 
 being consumed by war and by devouring legislation. 
 The Eoman, spending his life in the field beyond the 
 sea, did not return to visit his little estate. A constant 
 exchange took place between Italy and the provinces, 
 the former sending her sons to die in distant countries, 
 and receiving in return millions of slaves, some of whom,
 
 296 PHILOSOPHY OF RIGHT. 
 
 attached to the land, cultivated it aiid fattened it with 
 their bones, and others, crowded in the cities, ministered 
 to the vices of their masters. The emancipated slaves 
 and their offspring ended by forming the Eoman people, 
 and in the time of the Gracchi they almost alone filled 
 the forum. One day, Scipio .ZEmilianus, exasperated by 
 their interrogations, uttered these memorable words : 
 " Taceant, quibus Italia noverca est ; non efficietis ut 
 solutos verear, quos alligatos adduxi." 
 
 Appian describes to us the remedies that were vainly 
 tried to save the middle class. The following are almost 
 his words: In the successive conquests of the various 
 countries of Italy, the Eomans used one part of the 
 territory for building cities, or founding in the already 
 existing cities, colonies of Eoman citizens. The part of 
 the territory of which the right of war had made them 
 proprietors was distributed to the colonists if it was already 
 cultivated, or sold, or farmed. But if, on the contrary, it 
 had been devastated by war, as often happened, they put 
 it up to auction in the state in which it was found for an 
 annual return in kind, that is to say, for the tenth of 
 the produce if it was adapted for being tilled, and for a 
 fifth if covered with trees. The pasture lands were subject 
 to a tribute in great and small cattle. It was the design 
 of the Eomans to increase the Italian race, which had now 
 been broken by all kinds of labour, and to procure for 
 themselves national auxiliaries. It turned out quite the 
 contrary, because all its citizens adjudged to themselves 
 the greater part of these uncultivated lands, and in the 
 course of years they were declared immovable proprietors 
 of them. They acquired often by main force the neigh- 
 bouring estates, and entrusted their lands' and herds to 
 the management of slaves, the freemen having been often 
 summoned to military service. Hence it came about that 
 the large proprietors became very rich, that the rural 
 districts were populated with slaves, while the freemen 
 diminished, in consequence of their misery, the imposts,
 
 MORALITY. 
 
 297 
 
 and the military service, and more than all, from the 
 preference given to the slaves. This state of things 
 excited the discontent of the Eoman people, who saw the 
 Italian auxiliaries diminishing and their power compro- 
 mised in consequence of the great multitude of slaves. 
 The remedy for so great evils was not easy, since it was 
 not absolutely just to strip the citizens of their possessions 
 which they had aggrandised, improved, and covered with 
 buildings, seeing that they had enjoyed them for long 
 years. The tribunes of the people had with very great 
 trouble got a law adopted which prohibited the possession 
 of more than 500 jugera of land, and a herd of more than 
 one hundred in large animals, and fifty small ones. The 
 same law had enjoined the proprietors to employ a certain 
 number of freemen as overseers and inspectors of their 
 estates. This law was accepted under the religious obli- 
 gation of an oath, a fine having been fixed for those who 
 contravened it. The surplus of the 500 jugera was to be 
 sold at a low price to the poor citizens ; but neither the 
 law nor the oath was observed. Some citizens to pre- 
 serve appearances transferred the lands under fraudulent 
 contracts to their friends, but the greater number defied 
 the law. 
 
 From the year 260 from the foundation of Rome, the 
 consuls had begun to buy corn in Etruria and Sicily in 
 order to sell it at a lower price to the poor citizens. In 
 time, Sicily did not suffice, and Sardinia and Africa became 
 the granaries of the empire. In the time of Caesar, the 
 legally entitled poor who received tessara frumentaria 
 were 320,000 ! To celebrate his triumph, 22,000 tables 
 were spread in Rome, each with three couches, on which 
 reclined 198,000 guests from among the populace and the 
 soldiers. The Falernian wine was distributed in jars, and 
 the Chian wine in profusion. Augustus made frequent 
 distributions of money after the death of Cffisar, giving at 
 one time 600 sesterces a head, 400 after the victory of 
 Actium, and later even 800. Csesar had reduced the
 
 298 PHILOSOPHY OF RIGHT. 
 
 Ussarae frumentarice to 150,000, but under Augustus they 
 reached the earlier number. The clients under the empire 
 lost their moral character. This is how the Count de 
 Champigny describes them : " It is still dark, and the poor 
 man is busy brushing his old toga in order to hasten to 
 the heights of the Carinae and of Ooelius. As the client 
 of everybody, he goes to knock at every gate ; he crowds 
 in the street before the threshold of every rich man, 
 elbows and reviles his companions in servitude, feels 
 himself threatened by the rod of the ostiarius, struggles 
 into the courtyard, and by bribing the slaves penetrates 
 into the atrium, sees passing before him friends of the 
 second or third class, whispers to the nomenclator a name 
 which that slave mangles, obtains a languid smile from 
 the patron, a sleepy glance, a disdainful salute which looks 
 like a yawn, and as the reward of so much trouble puts 
 into his basket a little sausage, or the magnificent largess 
 of twenty-four solidi." l 
 
 The true and real beneficence did not arise till later in 
 the time of the Antonines, under the influence of the Stoic 
 philosophy, which was in this respect the precursor of 
 Christianity. 
 
 When Jesus Christ appeared on the earth, the Hebrews 
 were no longer called Israelites, but Jews; the kingdom 
 of Israel had become Judea, and the twelve tribes of the 
 Promised Land were reduced to the single kingdom of 
 Judah, which was five times conquered, and had become 
 in the end a Roman tetrarchy. After the Babylonian 
 captivity, the law of the Jubilee and the other Mosaic 
 institutions which protected the poor were no longer ob- 
 served. Jesus Christ found the problem of human misery 
 intact, and He sought to resolve it by voluntary poverty 
 and the rehabilitation of labour. Voluntary poverty 
 was exercised by giving all, or part of one's own goods 
 to the poor, and by making them common to all the faith- 
 ful by gratuitous loans and by hospitality. The rehabili- 
 
 1 Les Cesars, t. iv. 4th ed. Paris, 1868.
 
 MORALITY. 299 
 
 tation of labour is found in these words of St. Paul : " If 
 any would not work, neither should he eat ; " and by 
 his own example, for at certain times he preached and 
 at others he fabricated tent-cloth in order to earn his 
 bread. 
 
 Alms were distributed through the diaconates, which 
 were true institutions of beneficence. The origin of the 
 diaconate is found in the Acts of the Apostles (chap. vi. 
 1-6): "And in those days, when the number of the 
 disciples was multiplied, there arose a murmuring of 
 the Grecians against the Hebrews, because their widows 
 were neglected in the daily ministration. Then the twelve 
 called the multitude of the disciples unto them and said, 
 It is not reason that we should leave the word of God, and 
 serve tables. Wherefore, brethren, look ye out among 
 you seven men of honest report, full of the Holy Ghost 
 and wisdom, whom we may appoint over this business. 
 But we will give ourselves continually to prayer, and to 
 the ministry of the word." There were at Eome seven 
 diaconates administered under the surveillance of the 
 bishop by seven district deacons, one for each ward, and 
 by them a head was chosen who was called the arch- 
 deacon. The deacons were aided in the discharge of 
 their office by acolytes, sub-deacons, and deaconesses, the 
 number of whom was in proportion to the requirements 
 of the service. The distributions of alms were made at 
 the gate of the churches or in the interior, or in a special 
 place called the diaconium, or lastly, at the homes of the 
 recipients. 
 
 During the first three centuries, charity had no other 
 treasury than the alms of the faithful, no other ministers 
 than the bishops and deacons, no other centres than the 
 diaconates, and no other asylums than the houses of the 
 poor. But when the militant church had changed the 
 cross into a crown, when the humble bishop had become 
 an opulent prelate, when the pompous imperial donation 
 was substituted for the modest oblation of the faithful,
 
 3 oo PHILOSOPHY OF RIGHT. 
 
 and when at last the great ones of the earth had embraced 
 the faith of the poor, then the faith became aristocratic, 
 and the riches \vhich had been transformed into poverty 
 became riches again ; the diaconate was dissolved, and the 
 individual charity of the first Christians became petrified 
 into the hospital. 1 This happened in 325 at the Council 
 of Nicea, when the Church universal assembled for the 
 first time in all its splendour under the presidency of the 
 Emperor Constantine. The construction of the churches 
 was changed in many of their parts, and the dwelling- 
 house of the bishop became the episcopal palace. And 
 then there arose an infirmary, a leper-house, a hospitium 
 separated from the palace, under the special direction of a 
 clerical head. 
 
 An asylum, opened at first for strangers, came to be 
 destined for the Christian poor, who were aided in it like 
 the strangers, and no longer succoured at home. The 
 Council of Nicea in its Qoth Article had ordered the 
 building in every city of a public asylum under the name 
 of Xziwdochium, Designed at first only for pilgrims and 
 strangers, these Xenodochia were opened at length to all 
 sufferers, and when they became insufficient for their 
 purpose, it became necessary to create special hospitia ; 
 and thus alongside of the Xenodochia destined for 
 hospitality, there arose Nosocomia for all who suffered from 
 disease, Ptochotrophia for the poor, Arginoria for incur- 
 ables, Brephotrophia for foundlings, Orphanotrophia for 
 orphans, Gerantocomia for the aged, Paramonaria for 
 invalid workmen, &c., &c. A law of Justinian contains 
 the nomenclature and the regulations of these charitable 
 institutions. 
 
 Justinian recognised the bond which unites beneficence 
 with religion ; and he placed all the dispositions of the 
 dying under the special surveillance of the bishops and 
 archbishops in order that they might see to their being 
 executed. The Canon Law assimilated the goods of pious 
 
 1 See Moreau-Christophle, Du probteme de lamisere. Paris, 1851.
 
 MORALITY. 3 oi 
 
 institutions with the goods of the Church, so much so 
 that some writers even came to maintain that they be- 
 longed to the Church, thus denying a separate individuality 
 to institutions of beneficence. Hence these institutions 
 stood for a long time under the jurisdiction of the bishops, 
 both on their spiritual side and in the administration of 
 their patrimony ; and when any one attempted to with- 
 draw himself from it, the councils were solicited to 
 confirm their subjection. This, however, did not go on 
 permanently. The State claimed its share of supervision 
 in the time which preceded the French Eevolution. We 
 may refer for an instance to the administration of the 
 Tanucci at Naples. After the Concordat, however, coun- 
 cils of hospitals were established; bishops were called 
 to take part in them ; and they intervened specially 
 in the settling of the budgets when they were discussed. 
 A decree of the lieutenancy of Naples of i/th February 
 1861, regarding the administration of pious works, abro- 
 gated every preceding disposition which excluded the 
 free action of the civil authority, or which prescribed the 
 obligatory interposition or interference of the bishops. 
 The law of 3rd August 1862 assigned to the provincial 
 committees the guardianship of pious works under the 
 higher supervision of the Minister of the Interior. In 
 the most absolute manner, it respects their individuality, 
 leaving every one of these institutions to be administered 
 according to the rules established by their founders, or 
 by old customs. 
 
 Things have gone quite otherwise in England. In the 
 time of the Saxons, the island was populated by freemen, 
 proprietors, and soldiers ; and almost all these were reduced 
 by the Norman conquest to a state of servitude or nearly 
 so. But they rose again and succeeded in getting their 
 prestations in labour and natural things determined ; 
 and then in getting them converted into fixed burdens 
 which were not subject to augmentation. However, when 
 personal services were transformed into land burdens, the
 
 302 PHILOSOPHY OF RIGHT. 
 
 Lord of the manor began to make war on the small pro- 
 prietors. Having no longer a right to their services, he 
 had no interest in keeping up many vassals ; and thus he 
 found it more advantageous to have to do with a single 
 farmer, and to limit the number of the co-participants 
 in the pasturage and forests. The high price of wools in 
 the fifteenth century contributed to increase the pasture 
 lands ; and the breaking up of the small properties has 
 continued till our day by means of the Enclosure Acts 
 successively passed from 1710 to 1843. These laws 
 permitted the Lord of the manor to appropriate under 
 various pretexts the communal property up to more than 
 7,000,000 acres. Whereas in the Middle Ages and in the 
 sixteenth century the Copy-holders had been despoiled 
 because their proprietory titles were in the custody of the 
 feudal archives, we see to-day the small powers disappear- 
 ing, not from usurpation, but by purchase. When a small 
 holding is exposed for sale, it is almost always acquired 
 by a rich capitalist, because the expense of examining into 
 the titles of origin is considerable. Thus the large hold- 
 ings became compacted, and then they fell into mortmain 
 from the law of primogeniture and substitutions. In the 
 fifteenth century, according to Chancellor Fortescue, Eng- 
 land was cited as an example to Europe on account of 
 the number of its proprietors and the property of its in- 
 habitants. In 1688, G. King estimated the number of 
 proprietors at 180,000, without counting 16,560 noble 
 proprietors. In 1786 there were still in England 250,000 
 proprietors ; but the most recent statistics give only 
 30,760. This number is not to be taken literally, but 
 it is certain that in England there are whole provinces 
 in the hands of some five or six persons. "Do you 
 know," said John Bright, in a speech delivered at 
 Birmingham on the 27th August 1866, "that the half 
 of the soil of England is possessed by 150 individuals, and 
 the half of the soil of Scotland belongs to ten or twelve 
 persons ? Are you aware that the monopoly of property
 
 MORALITY. 3 c 3 
 
 is incessantly increasing, and that it is always becoming 
 more exclusive ? " l 
 
 Before the Norman conquest, the obligation to succour 
 the poor was incumbent on their relatives and on the 
 rich. Afterwards it devolved on the Church and the 
 feudal lord; and when the bonds of feudalism were 
 relaxed, the poor found relief only from the Church. 
 The State intervened from time to time only with its bar- 
 barous laws against vagabonds and mendicants ; but after 
 the suppression of the convents by the Protestants, the 
 State had to take the place of the Church, and it adopted 
 the maxim proclaimed by the Canon Law that the poor 
 had a right to nourishment and shelter. The laws of 
 Henry VIII., Edward VI., and Elizabeth, gave legal value 
 to this duty, which in itself was entirely moral. The statute 
 of Elizabeth of ipth December 1601, divides the poor 
 into the able-bodied, invalids, and children, and commands 
 the procuring of work for the first at home, the giving of 
 relief to the invalid, and the teaching of a trade to the 
 children : all this to be done at the expense of the respec- 
 tive parishes. In 1834, this statute was modified to the 
 extent that there were formed Unions among the parishes 
 in order to maintain workhouses in which the able-bodied 
 poor were to be obliged to work, and the guardians were 
 to be elected by the taxpayers. The tax was thus 
 lessened; but on account of the power assigned to the 
 guardians to grant domiciliary relief, it has been tending 
 to rise again. The economists are unanimous in their cry 
 that the poor-rates should be gradually abolished; 2 but this 
 wish cannot be listened to so long as the land is not free 
 
 1 See the work of Laveleye England and Wales, but in 1824 
 already referred to, and Fawcett On taxation for the poor was also intro- 
 the British Labourers. London, 1878. duced into Scotland, although the 
 Also Boutmy, Developpcment de la social conditions were somewhat dif- 
 constitution ct de la socittS, politique ferent. It was extended to Ireland 
 en Angleterre. Paris, 1887. in 1838, and notwithstanding the 
 
 2 See Fawcett, Pauperism, its reforms of 1843, it prov.-d .juit- -in 
 Causes and its Remedies. The sufficient to cope with the sufferings 
 statutes referred to applied to of that unfortunate country.
 
 304 PHILOSOPHY OF RIGHT. 
 
 from the bonds which bind it, namely, primogeniture, 
 entails, and substitutions of every kind. The law of 
 primogeniture is the rule in successions of immovable 
 goods, but the will of the testator may change it. It is 
 common both to the nobility and to the common citizens. 
 Substitutions now render the title uncertain, and cause 
 heavy expense for legal inquiries in cases of purchase. 
 By adopting the principles of the French legislation in 
 matters of succession, testament, and contracts, property 
 would be made divisible, and the old yeomanry would 
 rise again without any impediment being caused to it by 
 the new methods of cultivation. 1 The peasant proprietor 
 is the true remedy against the proletariate; and where 
 the lands are arable, association may harmonise the 
 holding of small properties with cultivation on the large 
 scale. 
 
 Between the English system of legal charity and the 
 continental system of free charity, the choice is not 
 doubtful. The first is the offspring of special circum- 
 stances, and with these it will cease ; the second, as 
 embodied in our Italian Law of the 3rd August 1862, 
 will gradually resolve the problem of poverty. Is this 
 indeed possible ? In view of facts we may at least say that 
 mechanical invention is promising to reduce man to the 
 simple director of material labour by making the forces 
 of nature work for him, and that if the progress of industry 
 has abolished slavery, it may also abolish poverty. On the 
 other hand, instruction will make labour more efficacious, 
 and education will promote economy. Societies for in- 
 surance will always tend to confine within narrower limits 
 the function of hospitals and other charitable establish- 
 ments ; and physical misery will cease at the same time 
 as moral misery. 
 
 1 The best English jurists advo- Amos : An English Code, its diffi- 
 cate codification, as may be seen by culties and the mode of overcoming 
 the treatise of Professor Sheldon them. London, 1873.
 
 CHAPTER VII. 
 JUSTICE. 
 
 THUS far we have indicated the rules for the attainment 
 of the principal ends in which the good specialises itself. 
 In so doing, we have objectively determined the attribu- 
 tions of the individual and of the State, reserving the 
 consideration of them as Subjects of Right for the Second 
 Part of our work. But what would be the use of excogi- 
 tating those rules without providing in the least for their 
 execution, unless it were only to exclaim with the poet : 
 " The laws are there, but who put hands to them ? " 
 
 The State provides in three ways for the realisation of 
 Right : by preventive means, by commands, and by punish- 
 ment. It provides against it by the preventive institutions 
 of morality, and especially by the police; it commands 
 reparation of injuries and indemnities for every obligation 
 that has not been carried out, or for culpable negligence ; 
 and it punishes every infraction of the social order. 
 
 The first conceptions of a rule of right were indicated 
 in the Homeric poems by the words tliemis, themistes; 
 themis signifying an assistant of Jupiter. When a king 
 judged a cause, his sentence was regarded as the effect of a 
 divine inspiration. Grote says that Jupiter himself was 
 not a legislator but a judge. 
 
 Procedure therefore arose contemporaneously with Right, 
 and it was thus furnished with all the apparatus necessary 
 to impress the imagination of the people. The judge 
 formulated in a sentence the juridical rule which sprang 
 from customary observances, and he was often assisted in 
 
 VOL. I. 305 U
 
 3 o6 PHILOSOPHY OF RIGHT. 
 
 his functions by a number of persons who accompanied 
 the one who was to be judged in the quality of witnesses 
 or conjuratores. It is disputed as to whether the civil or 
 criminal tribunals arose first. But the most recent writers 
 have proved that delicts w r ere at first considered as wrongs, 
 or as violations of individual rights ; and that it was only 
 gradually that the community felt itself injured as the 
 protectress of the social order, and that it intervened at 
 first by single acts, and then with general laws. The 
 principle remained intact that in civil questions the 
 initiative belongs to the individual, but that the penal 
 action is essentially public, although in certain cases of 
 minor importance, action at the instance of the injured or 
 damaged party is rendered necessary to set the case in 
 motion. 1 The consequence is that when this party has 
 selected the civil tribunal, it is held that he has renounced 
 the penal process. 
 
 Both the civil and penal procedures have as their 
 object the reintegration of Eight ; and therefore they re- 
 quire to investigate facts, to examine evidence, and to 
 pronounce a sentence of judgment. Hence the positive 
 institution of justice has established the profession of 
 advocates, who assist the parties in presenting their 
 reasons, and the judges .who pronounce the sentences. 
 And as human judgment is fallible, the decisions pro- 
 nounced may thus be submitted to the re-examination 
 of higher judges, both in regard to the facts in question, 
 and as to the legal right at issue. There the points of 
 resemblance between the two procedures take an end. 
 
 In the civil procedure, the subject of dispute turns on 
 a right, or the contesting of a fact which it is believed 
 may bring damage. Hence the actio (from agere injure) 
 raises the question which is developed ciendo in judicio 
 whoever opposes the right (reus in judicio conventus) ; 
 
 1 This applies to slight wounds, in- property, if committed by collaterals 
 juries, defamations, offences against who do not live together, 
 the moral order of families or against
 
 JUSTICE. 307 
 
 and he having put in an appearance, the action is declared 
 npon him, and the judicial dispute begins (contestatio 
 litis). The defender, denying the existence of the right 
 in the actor, lays down the opposition which he main- 
 tains by the exceptio, a word compounded of capio, which 
 expresses the ancient Quiritarian right of mancipatio, 
 and of extra, which signifies the non-existence of the 
 right in the actor. The judicial process is carried on by 
 the contraposition of the arguments of the actor in reply 
 to those of the reus in the form of the replicatio ; and in 
 that of the arguments of the reus to those already declared 
 by the actor in the form of the duplicatio, and so on, 
 until the judge puts an end to the process by his sentence, 
 assigning the right to him to whom it belongs. Then 
 follows either the acquiescence of the parties, or an 
 appellatio or provocatio. 
 
 The Eomans had no tribunals subordinated to each 
 other, such as would have formed what the moderns call 
 appellate jurisdictions, or stages of jurisdiction. The pro- 
 cess of appeal began to be practised under the Empire ; 
 and it was brought before a magistrate of a higher grade 
 after the commission was obtained from him for doing 
 so within a useful time (dimissoriae litterae"). In order 
 that this remedy might not be abused, the law at first 
 condemned any one who had employed it without 
 sufficient reason to a fine of the third of the value of 
 the subject in litigation, and to four times the cost ; but 
 this rigour was gradually mitigated. 
 
 The French National Assembly by the decree of iQth 
 July 1790, founded the Cour de Cassation, as a supreme 
 court of remedy or appeal. It does not constitute a third 
 grade of jurisdiction, and it judges not so much the suits 
 as the sentences, the object of its institution being to 
 secure the execution and uniform interpretation of the 
 law in all the jurisdictions. 
 
 In speaking of contracts, we distinguished between civil 
 and commercial contracts. In the Middle Ages society
 
 3o8 PHILOSOPHY OF RIGHT. 
 
 being divided into classes, the merchants wished also to 
 have their own special tribunal. And as their demand 
 was founded on the nature of things, this special tribunal 
 survived the Middle Ages. " There arose two species of 
 jurisdictions," says Sclopis: " that of the consuls sent by 
 one State to another foreign State, who had the double 
 office of inspectors over all the acts of the national 
 commerce, and of judges of the merchants their fellow- 
 countrymen who were located in the country where they 
 resided ; and the other, which was also generally called a 
 consular jurisdiction, was exercised in the country itself 
 by judges appointed over all causes relating to mer- 
 chandise. These privileged jurisdictions were a conse- 
 quence of the corporations of arts and trades which existed 
 from ancient times among the Italians." l In France, the 
 edict of 1653 already contained dispositions relating to 
 the institution, competency, and procedure of the consular 
 jurisdictions. The ordinance of 1663 added to them the 
 power of judging causes relating to insurances, maritime 
 exchange, and other obligations regarding commerce by 
 sea, which functions were afterwards assigned to the 
 courts of the admiralty. The decree of the 24th August 
 1790, created tribunals of commerce which judged of all 
 controversies relating to commerce both by land and by 
 sea. The judges of the tribunals of commerce, as the 
 consular judges once were, are elective both in Trance 
 and in Italy. In France, they are elected by all the 
 merchants with letters patent by an absolute majority, 
 with the intervention of three-fourths of the inscribed 
 electors. In Italy, the Chambers of Commerce propose 
 to the king certain names in the form of a list, and their 
 number has to be thrice the number appointed. In 
 appeal, commercial causes which are supposed to be 
 already sufficiently expiscated, follow the course of civil 
 causes. 
 
 The system of proof in civil causes in Italy consists : 
 
 1 See Storia ddla legislazione italiana, vol. i. Toriuo, 1857.
 
 JUSTICE. 309 
 
 I. Of written documents. 2. Of oral witnesses in suits 
 involving value to the extent of 500 francs, or in any 
 case in which there is any beginning made with written 
 proof, or where it has become impossible to procure it ; 
 or lastly, where a document has been lost by some grave 
 accident. 3. Of presumptions or the consequences which 
 the law or the magistrate draw from a known fact to 
 an unknown fact. 4. Of the confession of parties. 5. In 
 the supplementary oath ordained by the magistrate, or 
 the decisory oath offered or referred to by the parties. 
 In commercial causes, the means of proof are enlarged, 
 the account-books of the merchants, which have been 
 regularly kept, being admitted to serve as evidence in 
 causes between the merchants, as well as books of public 
 brokers, or their simple notes. But proof by testimony 
 may be 'always employed when the judicial authority 
 believes it even against what is written (Art. 44, Comm. 
 Cod.). In order to give authenticity to contracts and to 
 judicial acts, the Romans introduced the tdbelliones and 
 executor es, who were in many respects similar to our 
 modern notaries and bailiffs. 
 
 The subject of penal justice is of a different nature, as 
 it has for its principal object not the damage or injury, 
 but the discovery and punishment of the one who has 
 been guilty of a wrong act. It is divided into two periods : 
 the first consists in the investigation of the proof (inqui- 
 sitio), and the second in the discussion of it (disquisitio). 
 In the first, the process is treated according to the inquisi- 
 torial system ; in the second, the judicial procedure is 
 developed under the form of accusation. The judicial 
 procedure cannot have place without a preparatory in- 
 quisition ; but the effect of the latter is limited, as it is 
 not able to decide anything definitively to the prejudice 
 of the party under process on its own basis. Hence the 
 maxim that no one can be subjected to a penal condem- 
 nation, except in virtue of a sentence emanating after a 
 solemn trial in accusatory form. The penal system did
 
 310 PHILOSOPHY OF RIGHT. 
 
 not reach this perfect form until after a long course of 
 ages, and until the accusatory and inquisitorial systems 
 were fused together. The first to appear in history was 
 the accusatory system, which lasted down to the times of 
 the Roman Empire. The principles which it consecrated 
 are the following : i. Every one is free to accuse, but there 
 is no judgment without an accusation, so that, this failing, 
 the State cannot proceed. 2. The judge must be freely 
 accepted, and consequently the best judge is the popular 
 tribunal formed by lot with the right of free challenge. 
 3. The judge cannot make investigation of himself, but 
 he ought to confine himself to pronounce judgment on 
 the proofs advanced by the parties to whom is assigned 
 the function of investigating and preparing the matter for 
 the trial. 
 
 In such a system, the examination of the proofs ought 
 to be made on the triple foundation of the contradiction 
 of the parties, whose presence in court is therefore indis- 
 pensable, of the oral or immediate examination of docu- 
 ments and testimonies on the part of the judge who 
 has to pronounce sentence, and of the publicity of the 
 discussion. 
 
 The germs of the inquisitorial system are found in the 
 last determinations of the Eoman Law. They were de- 
 veloped in the Canon Law by the institution of the 
 inguisitio ex officio, which, through the medium of the 
 Italian practitioners and the statutory laws, passed over 
 into the lay tribunals, and became dominant in the whole 
 of Europe, except England, up to the end of the eighteenth 
 century. The principles by which the inquisitorial system 
 was regulated were the following : I. There is no need of 
 an accuser, because the State in name of the social interest 
 proceeds ex officio to the prosecution, investigation, pro- 
 bation, and punishment of the crime. 2. The judge is 
 appointed by the Sovereign of the State with permanent 
 power, and is chosen from among the jurists, as he has 
 to apply the law to the established facts. 3. The judge
 
 JUSTICE. 3,1 
 
 ought to make examination himself and to investigate 
 the truth without being limited to the proofs adduced by 
 the accuser and the accused in order that he may thus 
 know the guiltiness or innocence of the parties, so that it 
 is given to him to go beyond the requisitions of the con- 
 tending parties in order that the truth may be discovered 
 with regard to the accused and to the guilty ; and accord- 
 ingly, the judge may declare the guiltiness of a party 
 notwithstanding the desistance of the accuser, and in like 
 manner he may declare the innocence of the accused 
 notwithstanding his confession. 4. The foundation on 
 which the judgment of condemnation is raised, is the 
 examination of the proof, but this examination has as its 
 basis the written instruction and what is secret, without 
 the necessity of the form of an immediate contradiction : 
 the discussion of the accusation and the defence sufficing 
 along with the re- examination of the witnesses heard in 
 the process. 5. There are three institutions which serve as 
 a check on the arbitrariness of the permanent judge : a, the 
 proof is regulated by the law, which gives a legal criterion 
 according to which proofs are to be held sufficient or in- 
 sufficient ; b, the double stages of jurisdiction by means of 
 the institution of appeal ; c, the nullity of the acts where 
 the substantial forms of the procedure have not been 
 followed. 
 
 Revolutionary France of 1789 had the merit of fusing 
 these two systems in the Laws of 1791 and in the Code 
 of Criminal Instruction of 1808, from which have sprung 
 most of the existing legislations. The following are. the 
 principles of the so-called Mixed Systems: i. The proceed- 
 ing ex ojficio is conjoined with the form of the necessity 
 of the accusation, the office of public prosecutor in the 
 penal jurisdiction being usually assigned to the public 
 minister. 2. The power of judging is entrusted at the 
 same time to permanent judges skilled in the law, and to 
 sworn temporary judges or juries chosen by lot from tho 
 lists of citizens who by their intelligence and morality
 
 312 PHILOSOPHY OF RIGHT. 
 
 give a guarantee of sufficient aptitude for judging in 
 matters of fact. 3. The written inquisition, being secret 
 and without contradiction, was adopted as a necessary 
 preparation for the proofs, as well as the first stage of the 
 penal procedure ; and the contradictory, oral, and public 
 discussion, was recognised as necessary in the case of 
 sentences of condemnation. 4. The system of legal proofs 
 was abandoned, and the criterion of free moral judgment 
 substituted for it ; but the liberty of conviction was 
 limited within the circle of the proofs taken in legal 
 form. 
 
 For the sake of economy, and in order not to lay too 
 heavy a burden on private citizens, juries are empanelled 
 only in the case of greater accusations (and in cases of 
 offences by the press), and after the sentence of accusation 
 has been formulated. For the slighter offences procedure is 
 taken without the preliminary adjudication of an accusation, 
 and in such cases the same judges pronounce both on fact 
 and on law. There is, however, a remedy in the way of 
 appeal, except in cases of the'slightest offences, which are 
 punished by a pecuniary penalty. 
 
 In all sentences of condemnation there is the supreme 
 remedy of the Court of Appeal, where the law or the form 
 of procedure has been violated. As regards the proof, 
 writings play but a small part in penal cases ; for the 
 delinquents are interested in not leaving writings to found 
 upon, or in destroying them. Accordingly, there is only 
 the testimony of circumstances in criminal cases as matters 
 of fact (generic proof), or of men regarding the doer of 
 the delict (specific proof). The confession of the accused 
 resolves itself into a testimony against himself, and does 
 not form a full proof as in civil cases. 
 
 Hitherto we have supposed both parties present at the 
 trial in court ; but it may happen that the person cited 
 does not appear, and then judgment goes by default, or 
 on the contumacy of the said party. The effects of this 
 are different in civil and penal cases. In a civil case, the
 
 JUSTICE. 3,3 
 
 defendant may render himself contumacious either "by not 
 appointing a legal procurator within the term laid down 
 by the law, or by the procurator he has constituted not 
 presenting himself at the appointed day to conduct the 
 cause. Judgment will then be given, and the defendant 
 will always be condemned, provided the demand of 
 the pursuer is found according to justice. Nevertheless, 
 in the first case, which is called contumacy of the party, 
 when it appears that from unavoidable circumstances the 
 party had not received the citation, he is granted a longer 
 time to give in defences on the issues of the case. This 
 will be intimated to him by an officer of court, and that 
 he may cause the sentence to be quashed by the tribunal 
 for reasons which will have to be expounded. In the 
 second case, which is called the contumacy of the pro- 
 curator, it is supposed that he had no valid reasons to 
 oppose to the pleas in law, and he will undoubtedly be 
 allowed to show opposition to the sentence, but in a shorter 
 terra and in a determinate form. 1 
 
 The effects of contumacy, under the penal tribunal, are 
 different: I. This contumacy does not give occasion to 
 opposition in appealable sentences, because they may be 
 altered by means of appeal. 2. Opposition finds place in 
 sentences not capable of being appealed in order to get 
 the cause to be re-examined under a contradictory form, but 
 a second contumacy makes the opposition produced void 
 and renders the sentence definitive. 3. Condemnation to 
 a criminal penalty is a condemnation pro forma, and it 
 is only civilly effective under certain conditions, but is 
 .unproductive of effect as regards the penalty in its 
 material contents, and falls with the presence of the 
 accused, either by spontaneous presentation, or as the 
 effect of his arrest. 4. Sentences of absolution are valid 
 even when pronounced in contumacia or in absence. 2 
 
 1 There is no need of a legal pro- 3 See Errico Pessina, Sinopii del 
 curator before praetors and tribunals procedimt nto pcnale. Napoli, 1876. 
 of commerce.
 
 3H PHILOSOPHY OF RIGHT. 
 
 Civil sentences are executed on the patrimony of the 
 unsuccessful litigant, and penal sentences are principally 
 executed on the person of the condemned. 1 This is so 
 because the former aim at the reparation of the damage 
 or loss, and the second punish the offence. This brings 
 us to investigate the nature of a criminal act and its 
 penalty, and what is the origin of the right to punish. 
 In the Prolegomena we said that the internal ends of 
 morality are the moving forces of right, and from this 
 arises the necessity of their conservation and develop- 
 ment. This is not attained by simple precepts, but by 
 menace or the application of a castigation. The moral 
 order embraces the totality of our duties towards God, 
 towards ourselves, and towards our neighbours. But 
 ought every violation of duty, or every reprehensible 
 act, to be subjected to human justice ? Human justice, 
 answers Eossi, can only intervene when the duty violated 
 concerns the social order. Xow it is evident that the 
 violation of duties towards our neighbours (including the 
 State, which, as a moral person, represents them), is the 
 only one which can injure the social order in one of its 
 essential elements, namely, the protection of the rights of 
 society as a moral body and of its members. A crime is 
 thus defined as the violation of a duty to the detriment 
 of society and of individuals. This definition, adds Eossi, 
 errs by being too extensive ; for the State in order to pro- 
 tect the free development of man can demand only the 
 fulfilment of the duties which are co-relative to those 
 rights for the protection of which it can employ force, 
 that is to say, of exigible duties. Hence legal crime is 
 properly the violation of an exigible duty committed to 
 the prejudice of society and of individuals, and the 
 observance of which is advantageous or useful to the 
 political order, which may be secured by a penal sanction, 
 and the infraction of which may be ascertained by a court 
 
 1 Personal arrest in a commercial matter was a penal sanction under 
 civil form.
 
 JUSTICE. 3I5 
 
 of human justice. Such a definition eliminates from the 
 penal legislation several categories of reprehensible facts, 
 including those which may be provided for by the natural 
 or religious sanction ; those which the State can deal 
 with by less severe measures, or measures that are less 
 dangerous than those belonging to the penal administra- 
 tion of justice ; and those for which the administration 
 of civil justice provides a sufficient reparation. Besides, 
 this definition guards against the limitation of penal 
 justice, which results from the imperfection of our know- 
 ledge, and while it takes morality as its basis, it finds 
 its limit and measure in utility, meaning by utility the 
 necessities of the social order, which is a means primarily 
 of good, and secondarily of well-being. 1 
 
 Penal justice operates by means of punishment, which 
 is a pain inflicted on the delinquent in proportion to the 
 quality and quantity of the evil done by him, that is to 
 say, according to the importance of the duty violated, 
 and according to the special gravity of the violation of 
 it committed, as determined by the conditions of the 
 concrete and particular fact. The criminal by violating 
 a duty denies a right, and the punishment reaffirms this 
 right both in the consciousness of the criminal and in 
 that of human society. Accordingly, punishment is a 
 means of making right reign, and its essential requisites 
 are that it be directed against the will whicli violates 
 right or puts it in danger, that it serve both as a 
 punishment and as a prevention in case of the criminals, 
 and that it seek the amendment of the guilty. It has 
 to be in proportion to the crime, although no longer with 
 the similitude supplicii, or an eye for an eye, or a tooth 
 for a tooth, which amounted to punishing one crime 
 by another ; but it has to be carried out by depriving the 
 guilty one of the advantages of civil liberty or of part 
 of his fortune. Respect is thus shown to the integrity 
 of the human person by recalling it to its proper destina- 
 
 1 TraiU du droit penal. Paris, 1829.
 
 3i5 PHILOSOPHY OF RIGHT. 
 
 tion. As to the quantity and measure of the punish- 
 ment, it ought to be proportioned to the evil of the 
 crime, that is to say, to the offence and injury it involves. 
 It has not to be equalised with it, otherwise this would 
 be falling again back into the lex talionis ; and such 
 proportion ought to proceed in a ratio compounded of 
 morality and utility. Such a proportion is what has 
 been appositely called by Vico the geometric measure 
 proper to rectoral justice, that is, a measure conformable 
 to the merit or demerit of the persons to whom it is shown 
 that the punishment pertains, and not the arithmetical 
 measure which is proper to equalising or commutative 
 justice, which renders to every one equally his due. 
 
 In order to attain this end, the punishment ought to 
 be moral, personal, divisible, easily capable of estimation, 
 reparable or remissible, equitable or satisfying, exem- 
 plary, reformative, and sufficient. The relationship of 
 the punishment to the crime is thus wholly a truth of 
 intuition which awakens an echo in the conscience. The 
 faculty of reflection ought therefore to lend an ear to 
 the revelations of the conscience, to compare them with 
 each other, while eliminating the disturbance produced 
 by the too excited passions, and then to give consideration 
 to the social danger in order to determine what ought 
 to be the degree of severity. Beginning from the gravest 
 crime, it will be easy to descend gradually to the lightest 
 crimes. It follows that death cannot enter into the 
 catalogue of punishments, as it is neither reparable nor 
 reformative, and as it extinguishes instead of diminishing 
 the human personality. 
 
 Before applying the punishment, it is incumbent to 
 consider the degree of imputability in the doer, and the 
 objective evil. If he acted in defence or under the 
 impulse of an irresistible force, he is exempt from any 
 punishment, as he has a justification for what he did. 
 If he was infected by mental disease, frenzy, lunacy, or 
 intoxication, his responsibility vanishes ; and if he yields
 
 JUSTICE. 3 , 7 
 
 to provocation it diminishes ; and hence arises the theory 
 of excuses. Our positive law is not satisfied with this 
 general estimation of imputability, but admits an estima- 
 tion quite special to the individual doer under the desig- 
 nation of extenuating circumstances, which have the effect 
 of lowering the punishment by certain degrees. 
 
 With regard to the objective evil, the crime may be 
 attempted, frustrated, or consummated, and the punish- 
 ment increases in proportion unless the party desists 
 voluntarily from the criminal act. On these considera- 
 tions, there is founded the theory of tentative crime and 
 its various degrees. 
 
 Sometimes several wills are united with the object of 
 committing a crime. This wrong association aggravates 
 the moral evil and often also the objective evil, the first 
 being produced not in one, but in several wills, and the 
 second becoming more easy, more inevitable, and often of 
 more gravity, from the concurring of many forces directed 
 to a guilty end. Finally, the falling again into crime is 
 an indication of a depraved mind, and threatens greater 
 social danger ; and hence repetition and relapse into crime 
 are more severely punished. 
 
 Such are the principles to which criminal law has 
 attained. The question now arises as to whence criminal 
 right takes its origin. We have already said that at first 
 crimes were considered as private affairs, which were 
 treated mostly as the subject of composition. But it 
 was not long till society felt itself injured in each of its 
 members by such deeds, and hence arose thejudicia populi 
 and quaestiones perpctuae. Punishment was established 
 according to the crime, and it was avoided by the accused 
 before it was pronounced if he preferred to go away into 
 banishment ; or, in other words, to renounce the benefits of 
 the civil association. At the beginning, therefore, society 
 established a compensation with the view of turning aside 
 private vengeance ; and later, it used punishment in its 
 own defence, that is to say, with the view of preventing
 
 3 i 8 PHILOSOPHY OF RIGHT. 
 
 crimes, obliging the criminal to expatriate himself, if he 
 was not willing to submit to it ; and finally, it looked to 
 his inward amelioration. The penal doctrines were de- 
 veloped in consequence ; and there were some who derived 
 the right of punishing from vengeance, such as Mario 
 Pagano, and others from the need of social defence, as 
 Beccaria. Romagnosi holds that punishment has not as 
 its object to take away an evil that has been already com- 
 mitted or to re-establish morality, or to exact a useless 
 vengeance, which would be a second crime, but that its 
 aim is to repress the criminal impulse by means of 
 example, and that the punishment ought to be related to. 
 it in its quality and its measured quantity. The Bavarian 
 Feuerbach, exaggerating the doctrine of impulse and 
 counter-impulse maintained by Eomagnosi, supposes that 
 all crimes result from deliberation or calculation ; and he 
 proportionates the punishment not by reference to the 
 evil deed committed, but to future and probable deeds. 
 Bentham maintains without ambiguity that virtue is a 
 good on account of the pleasures which it procures ; that 
 vice is an evil on account of the pains which follow from 
 it; and that right properly so called, is the creation of 
 law properly so called. As to the actions which law 
 abstains from ordering or prohibiting, it confers the posi- 
 tive right to do them or not to do them, thus entitling us 
 to remain standing or seated, to eat or to fast, &c. ; never- 
 theless we have the exercise of these rights from the law 
 which raises to a crime any interference which would 
 hinder us from doing them as we please. In order to 
 find the real origin of the right of punishing it is neces- 
 sary to go a considerable way back. 
 
 Plato was the first to recognise the expiatory element 
 of punishment. " If justice," he says in as many words, 
 " is the good and the health of the soul, as injustice is its 
 disease and shame, chastisement is their remedy. Chas- 
 tisement is not a greater evil, which is added to injustice, 
 and heaps up its measure ; it is a good, painful it is true,
 
 JUSTICE. 3I9 
 
 but salutary, which repairs the evil deed. If the man is 
 happy when he lives in order, then when he is out of it, it 
 is of importance for him to enter it again, and he enters 
 it through chastisement. Every culpa demands an expia- 
 tion : the culpa is ugly, because it is contrary to justice 
 and order ; the expiation is beautiful, because all that is just 
 is beautiful, and to suffer for justice is also beautiful." 1 
 
 From the dogma of redemption the Canon Law derived 
 the conception of penitentia which Thomas Aquinas and 
 Dante expounded in the Middle Ages, and which Selden, 
 Leibniz, Yico, Kant, and Mamiani 2 followed in modern 
 times. Grotius and Pellegrino Rossi adopted the principle, 
 but subordinated it to the social necessities. Hegel and 
 Stahl found a happier formula, that of juridical retribution, 
 which has been adopted by various penalists, among whom 
 may be mentioned the distinguished Pessina. The right 
 of punishing is thus derived from justice, which descends 
 from honestas and regulates utility. 
 
 " At the same time," says Mignet, " that this revolution 
 was accomplished in the theories and practice of criminal 
 justice, another revolution was being prepared which was 
 destined to serve as its complement. Men of an elevated 
 mind and of a merciful soul had been touched by the 
 miserable state of degradation into which the criminal 
 fell after having been condemned. They had conceived 
 the generous thought of remedying it by reforming the 
 state of the prisons. Viscount Vilain XIV. in the Low 
 Countries (1775), the virtuous Howard in England (1785), 
 and the Quakers in Pennsylvania, devoted themselves to 
 this pious mission. The condemned, classed according to 
 their age and their crimes, had been subjected to the 
 discipline of silence, of labour, and sometimes of isolation. 
 A beginning had been made to render the prison a place 
 of penitence and education, and alongside of the fear of 
 
 1 From the Gormas, the Republic, mcntl delta filotofia del diritto e 
 and the Laics. icgnatamentc del diritto di punire. 
 
 a Mamiani e Mancini, Fonda- Livorno, 1875.
 
 320 PHILOSOPHY OF RIGHT. 
 
 chastisement, \vhich had been till then the only end of 
 the law, there was now found repentance for the evil deed 
 and the means of no longer falling into it again. This 
 beautiful idea, after much time and many attempts, was 
 thus changing into a vast system under the name of 
 penitentiary reform. It tended to make crimes be treated 
 as infirmities, and the culpable ones as diseased subjects 
 whose fury might be subdued in solitude, if they had been 
 impelled to the evil deed by the violence of their passions ; 
 and it aimed at correcting their vicious habits by the aid 
 of labour, if they had come to them through idleness ; and 
 to enlighten their minds by means of instruction, if ignor- 
 ance had led them astray. By this last improvement, 
 the law from being vindictive had become just, and from 
 being just it became charitable ; and it completed the arc 
 of punishing by the art of healing." l 
 
 The penal system thus became a penitentiary system, of 
 which Livingston in America was one of the principal 
 legislators. He sought an intermediate way between the 
 regime followed in the prison of Auburn, which isolated 
 the prisoners during the night and made them labour 
 together but in silence during the day, and the regime 
 adopted in the prison of Philadelphia, which isolated the 
 condemned day and night, obliging them to labour in 
 their cells. Livingston proposed special prisons for those 
 under trial, other prisons as houses of correction for the 
 condemned who have not yet attained the age of eighteen 
 years, penitentiary prisons for the condemned who were 
 older, and lastly houses of refuge and labour for those 
 who have been liberated. There would thus be places of 
 custody before being judged, penal hospices where cure 
 would be reached, and houses of convalescence to be used 
 for passing from the regime of the moral disease (in the 
 prison) to the regime of cure (in society). For those who 
 have relapsed into crime, he proposes in every case per- 
 petual imprisonment. 
 
 1 Mignet, Notice sur Livingstone. Paris, 1872.
 
 JUSTICE. 32I 
 
 Experience having demonstrated that prolonged isolation 
 is injurious to the body and mind of the condemned, 
 other modifications have been sought in the Crofton 
 regime, which has been also called the progressive 
 system. Professor Prins describes it in the following 
 terms: "The Crofton regime, as practised in England, 
 includes successive stages. The first stage is the cell 
 regime, and it lasts nine months. At the end of this time, 
 the 'second period commences. The cell regime continues 
 during the night and during meals, but work is done in 
 common. This stage is characterised by the system of 
 marks. Good conduct, zeal in work, and activity in the 
 school are valued at so many good points, which by degrees 
 may bring the prisoner on to the third stage, or to the 
 intermediate house, of which the type is Smithfield and 
 Lusk in Ireland. The prisoners there sleep in cells, but 
 in the day they go by detachments of fifty men to work 
 in the open air, and particularly under the supervision of 
 overseers, they apply themselves to the work of clearing 
 lands. At the end of this period they receive their ticket- 
 of-leave as a ticket of conditional liberation. The pivot 
 of the system is the appreciation of the conduct of the 
 condemned by the number of marks obtained. In propor- 
 tion as he receives more points, his situation is ameliorated. 
 It is therefore a regime of encouragement which stimulates 
 the initiative action of the condemned, and puts their future 
 into their own hands, by allowing them to abridge their 
 punishment by labour and good conduct" l 
 
 The small results obtained by the penitentiary system 
 have attracted the attention of certain other criminalists, 
 and this has given origin to a new school. Emile de 
 Girardin, Odilon Barrot, and Alfred Fouille'e in France, 
 Cesare Lombroso, Enrico Ferri, Kaffaele Garofalo, and 
 Alessandro Lioy in Italy, have taken account rather of 
 the delinquent than the crime. By means of anthropology, 
 they believe that they have found physiological characters 
 
 1 Criminal^ et repression, p. 152. Bruxelleu, 1886. 
 VOL. L.
 
 322 PHILOSOPHY OF RIGHT. 
 
 corresponding to the criminal inclinations. Invoking the 
 Darwinian doctrines of heredity and evolution, they have 
 defined the criminal as a contemporary savage. " The in- 
 corrigibility of the criminal," writes Alessandro Lioy, " is 
 one of the postulates of the new school. When the crime 
 is no longer the absolute effect of the will, but the result 
 of an abnormal organism, what wonder is there if some- 
 times the crime turns out to be incorrigible just as certain 
 diseases are incurable ? " * 
 
 After having destroyed the criterion of imputability, 
 there remains to the new school only that of liability to 
 fear, the responsibility increasing with the power of hurt- 
 ing. Punishment is reduced to the elimination of the 
 culprit by death, imprisonment, or deportation. Garofalo 
 exclaims: "Examine the precedents of the criminal, his 
 hereditary and acquired sentiments together with the 
 damage done by him, and you will know to what degree 
 you will be able to eliminate it." It is true that the 
 new school divides delinquents into two classes : habitual 
 criminals and occasional criminals. It shows itself in- 
 flexible towards the former, whom it calls " born criminals," 
 and it goes so far as to declare in the words of Garofalo 
 that nothing hinders the treatment of the insane as in- 
 stinctive delinquents. It shows itself more mild towards 
 occasional delinquents, whom it still believes susceptible 
 of adaptation to the social environment. These ideas were 
 not foreign to the voting of the French law of 2/th May 
 1885, on habitual criminals, and the law of I4.th August 
 of the same year, on the means of preventing the repeti- 
 tion of crime. 
 
 Justice has great efficacy in promoting the attainment 
 of human ends. It is both an end and a means at the 
 same time : it is an end in so far as it pursues the equal 
 partition of the good ; and it is a means in so far as it 
 secures it by force. Those authors who define right as 
 the totality of the conditions necessary for complete human 
 
 1 La nuova scuola penale, p. 26, 2nd ed. Torino, 1886.
 
 JUSTICE. 323 
 
 development, regard it only as a means. Eight, as we 
 observed above, is also a moral power which* man has to 
 attain the good, not only as good, but as useful. Special 
 institutions ought to guarantee the material order, while 
 retributive justice completes distributive justice. 
 
 Before passing on to the second part of our work, we 
 pause a moment to co-ordinate the human ends which we 
 have now severally reviewed. 
 
 History exhibits religion beside the cradle of humanity : 
 then we see science and art separating themselves in 
 order to form their separate domains. Industry and 
 commerce have followed their example, and in the course 
 of time morality and justice have also constituted them- 
 selves separately. 
 
 Eeligion was preponderant in almost all the States of 
 the ancient East. The Old Testament (in i Samuel 
 viii.) shows us how the civil government was substituted 
 for the theocracy. In vain did Samuel insist on the in- 
 conveniences of the monarchy. " Nevertheless the people 
 refused to obey the voice of Samuel ; and they said, Nay ; 
 but we will have a king over us." 
 
 In China, science prevails. A sort of Academy of 
 Moral Sciences definitively regulates the relationships of 
 man with the infinite. A strong central power, with its 
 mandarins, and its occasionally admirable police, gets rid 
 of all that could inflame the minds of the people or stir 
 up too lively discussions. A religion of a simple con- 
 struction crowns the administrative edifice, which has as 
 its basis an elementary instruction widely diffused, and as 
 its support the class of the literati perpetuated from among 
 the academic graduates who compete for the public offices. 
 Industry and commerce flourished among the Phenicians, 
 but they were often subject or tributary to the Egyptians, 
 Persians, or Greeks. Carthage, the great Phenician re- 
 public, carried on war with the aid of mercenaries. 
 
 The beautiful arts shone forth in Greece with the
 
 324 PHILOSOPHY OF RIGHT. 
 
 liveliest splendour; they were almost a national institu- 
 tion. Nevertheless, Greece owed her independence only 
 to the rivalry of the peoples who surrounded her. No 
 sooner had Eome absorbed them than Greece became the 
 prey of the conqueror. 
 
 Eome is considered as the fatherland of morality and 
 of right. So we have the juridical maxim : " Honeste 
 vivere, neminem laedere, suum cuique tribuere." The 
 Eoman legislation has been adopted by all peoples, and 
 it has deserved the epithet of " written reason." 
 
 By the cradle of modern Europe, we find the Church 
 converting the barbarians in order to initiate them into 
 civil life. In the universal disorder, the Church acquired 
 great power ; but when, at the end of the eleventh century, 
 she tried to subject society to the clergy, the clergy to the 
 papacy, and Europe to a vast theocracy, her attempts 
 proved vain. The modern world is composed of hetero- 
 geneous elements which need to be harmonised by each 
 one being accorded its own legitimate sphere of action. 
 "We have endeavoured to determine that sphere of action 
 in this first part of our work. 
 
 And now that "we know the goal, we are able to seek 
 out the way to attain it ; and this will form the subject 
 of the second part of this work.
 
 SUMMARY OF THE FIRST VOLUME. 
 
 PROLEGOMENA. 
 
 How human knowledge is attained. The Absolute must be 
 sought under the relative, and the Divine or human Ideas 
 under the facts generated by them. The ancients regarded 
 things from this double point of view, from the ideal and 
 real aspects, as is seen by Plato and Aristotle. Christianity 
 took up the point of view of Plato; but it understood 
 human nature better, and subordinated the real to the ideal 
 without suppressing it. The modern period began with a 
 certain disgust at the moral sciences ; attention, however, 
 did not continue to be very long absorbed by external 
 nature. After the moral sciences were awakened Bossuet 
 and Vico on the one hand, and Antonio Serra on the other, 
 determined the principal directions of human activity. 
 Till then, practice and speculation were isolated from each 
 other, but the relations among the peoples becoming ex- 
 tended, the influences which ideas had exercised on facts 
 by means of revolutions were better valued. Both in 
 public and private right, theory has been elevated accord- 
 ing as history has presented a new side of the human 
 relations. A scientific treatment of right cannot be carried 
 out without investigating the first principle on which the 
 moral and juridical edifice is based, and this investigation 
 forms the subject of the Prolegomena or Introduction, which 
 is naturally divided into three parts : Metaphysical Specu- 
 lation; Ethics or Moral Philosophy; and Jurisprudence 
 as the philosophy of right 1-8
 
 326 SUMMARY. 
 
 METAPHYSICAL SPECULATION. 
 
 The principal difficulty -which philosophy encounters lies in its 
 point of departure and its method. Hardly had man 
 fixed his look on the external world and upon himself 
 than sensation and ideas captivated his attention. A 
 moment of discomfort produced scepticism, and the need 
 of faith led to mysticism. We find in the history of 
 philosophy the names of other systems than Sensualism, 
 Idealism, Scepticism, and Mysticism, such as Materialism, 
 which is a simple modification of Sensualism, and Pantheism, 
 which admits the unity of substance, but which it is easy 
 to reduce to Idealism if the sole substance is conceived as 
 Idea, or to Materialism if it is conceived as matter. The 
 same may be said of the Positivism now in vogue, which 
 is only a masked materialism .... 9-10 
 
 A considerable part of the East did not advance beyond 
 symbolism and a species of theology. Philosophy began 
 in China and India. China believed from the outset in 
 spirits which symbolised the various forms of nature, and 
 then in the heaven (Tien), the origin of all things. In 
 the sixth century B.C., Confucius extracted a sort of 
 practical philosophy from the ancient sacred books called 
 King. Mencius, his disciple, formulated a sort of mystical 
 pantheism which savours of the influence of the Indian 
 philosophy. Lao-tseu, a rival of Confucius, sets out from 
 a void unity, the Too, from which all beings have their 
 origin, and it seems to have numerous relations with the 
 Pythagorean and Platonic Ideas as they were understood 
 in the School of Alexandria. In India philosophy began 
 with the simple interpretation of the Vedas. Pantheistic 
 idealism predominated, but it was not unaccompanied with 
 Sensualism, Scepticism, and Mysticism . . . 9-12 
 
 In Greece, thought rose to a great height. Sensualism was 
 represented in the Ionic School, and Idealism in the 
 Pythagorean and Italic School. The dialectic of the 
 School of Elea ceases to be a logical instrument, and be- 
 comes in Plato the very law of the movement of Ideas. 
 Aristotle explains the formation of ideas by means of two
 
 SUMMARY. 327 
 
 faculties, sense and intellect. After Plato and Aristotle, 
 philosophy declined, and Epicureanism and Stoicism, which 
 succeeded, have one point in common, namely, that they 
 reduce philosophy to Ethics. Reason, now weary, turns to 
 the East, and seeks repose in the mysticism of the School 
 of Alexandria ....... 1218 
 
 A new light illuminated the human mind with Christianity. 
 What was vague in the Platonic doctrine was rendered 
 precise by St. Augustine. The result was not so success- 
 ful in dealing with Aristotle. A passage of the transla- 
 tion by Boethius of the Isagoge or Introduction of Por- 
 phyry, which raises the question whether genera and 
 species exist in themselves or only in the intelligence, 
 and whether they exist separate from sensible objects, or 
 make a part of these objects, served as a text for the 
 Scholastic philosophy 18-20 
 
 Scholasticism may be defined as the alliance of the Christian 
 dogma with the philosophy of Aristotle. It has three 
 distinct epochs : the first from the eleventh to the 
 thirteenth century, in which philosophy is the ancilla 
 theologiae ; the second from the thirteenth to the fifteenth 
 century, in which the two sciences are most closely allied ; 
 and the third from the fifteenth to the first years of the 
 sixteenth century, when their complete separation began. 
 "What Augustine had done for Plato, Thomas Aquinas did 
 for Aristotle. Anselm approached Plato in his demonstra- 
 tion & priori of the existence of^God by rising in the Mono- 
 logium from imperfect goods to the sovereign good. Occam 
 opens the conflict between religion and philosophy ; Goreon 
 and Thomas a Kempis land in a pure mysticism . 20-26 
 
 The Renaissance, under the guise of the ancient systems, put 
 forward the boldest ideas. Telesio and Campanella attacked 
 Aristotle. Bruno transmitted to Descartes methodic doubt 
 and evidence as the criterion of truth ; to Spinoza he gave 
 the idea of an immanent God ; to Leibniz the germ of 
 the theory of monads and of optimism; to Schelling the 
 famous expressions natura naturans and natura naturata ; 
 and to Hegel the conception that a secret logic presides 
 over the order of the universe .... 26-30 
 
 Modern philosophy begins with Bacon and Descartes. With
 
 328 SUMMARY. 
 
 Bacon are connected Hobbes, Gassendi, and Locke; the 
 first applies the experimental method to politics, the second 
 to erudition, and the'third to metaphysics. From Descartes 
 descend Malebranche, Spinoza, and Leibniz. Yico was the 
 true renovator of philosophy. The human mind sees all 
 ideas in God, who generates ad intra and creates ad extra. 
 This is a new step taken by the Platonic doctrine by means 
 of the principle of creation, which unites the divine to 
 the human ....... 31-39 
 
 The movement, initiated by Bacon and Descartes, was carried 
 out in the eighteenth century by the materialism of Holbach 
 and Lamettrie in France, and by the scepticism of Hume 
 in England. The Scottish School sought in vain to over- 
 come them by the doctrine of common sense. Kant saw 
 acutely that on the one hand the contingent concrete can- 
 not be thought without the generic, and that on the other 
 hand the subjectivity of the judgment cannot be harmonised 
 with the objectivity of the idea. But instead of conjoining 
 the generic and concrete absolute with the perception and 
 objectivising the judgment, he subjectivised the idea, 
 denied perception the power of grasping the contingent 
 concrete, and reduced all cognition to the generic element 
 alone, which, when the concrete is subtracted, could have 
 no other than a subjective value. Fichte held that since 
 we know only what is produced by our thought, only the 
 Ego exists, and it ought to be conceived as absolute, and in 
 virtue of its unlimited energy it begins to determine itself 
 and posits the non-Ego 39~44 
 
 The nineteenth century enters on the work of restoration. 
 Schelling thinks that the Ego can produce the sphere of the 
 practical life, but that it does not generate physical nature. 
 Hegel added the dialectic to the system of Schelling. The 
 universe is the product of the evolution of the absolute Idea. 
 The detractors of Hegel (once his adorers) now maintain that 
 he only substituted the word Idea for the word God, and the 
 becoming for the creation, and they regard his system as a 
 last echo of theology. The absolute idealism has been suc- 
 ceeded in Germany by a species of physiological materialism 
 in Moleschott and Buchner, and by a most desolating 
 pessimism in Schopenhauer and Hartmann . . 44-5 1
 
 SUMMARY. 
 
 329 
 
 Italy reacted against the French sensualism and the German 
 pantheism. Pasquale Galuppi illustrated the direct rela- 
 tion of sensible perception which necessarily supposes the 
 reality of the object, and hence sensible perception is the 
 intuition of the object, by which view he took a step 
 beyond Reid. Antonio Rosmini distinguishes two kinds of 
 perception, the sensitive and the intellective ; and he calls 
 body the co-subject of the mind. The idea of being, 
 although a mere logical and universal possibility, yet con- 
 tains all the ideas with the indeterminable series of the 
 genera and species and their perfect types, and it appears 
 in the conjunction which arises in the intellective percep- 
 tion between sensation and intelligible truth. Vincenzo 
 Gioberti has shown that rational cognition cannot depend 
 on the intuition of a possible being, but on the relation 
 of intelligence to an infinite reality, an inseparable con- 
 dition of all thought and of all existence. The theory of 
 cognition is embraced by Gioberti in the ideal formula: 
 Being creates the existent, which reflection decomposes 
 and language expresses. In the ideal formula, we see 
 the. infinite, the intelligible finite, and not the sensible 
 or phenomenal finite, which in the posthumous works of 
 Gioberti is presented to us as the implicit intelligible which 
 by degrees is explicated. Being is perceived by us only 
 in existence by successive thought, but it is contemplated 
 in itself as creating by immanent thought. In the double 
 state of thought is found the double state of nature, and 
 it is not wonderful for spirit and nature to constitute the 
 existent, which, in so far as it is created by Being, should 
 resemble it. Now Being is one and infinite, and the 
 existent ought likewise to be one, but its unity being finite, 
 it ought to include multiplicity. To Gioberti dialectic is 
 an art, and not the absolute method, nor the perfect 
 science. Mamiani takes a position intermediate between 
 Rosmini and Gioberti, but he maintains it vaguely 51-61 
 
 Laromiguiere and Royer Collard in France, combated sensualism 
 and the materialism of the past century. Maine de Biran 
 studied the voluntary and free activity of the Ego. Cousin 
 endeavoured to wed the pantheistic idealism of Germany 
 with the Scottish philosophy by means of a temperate
 
 330 SUMMARY. 
 
 eclecticism. Auguste Comte, admitting with Kant that 
 we cannot know things in themselves, confines himself to 
 investigate the laws of phenomena, that is to say, their 
 relations of succession and likeness, their positive and real 
 state. According to Comte, philosophy registers and co- 
 ordinates the results of the six fundamental sciences : 
 mathematics, astronomy, physics, chemistry, biology, and 
 sociology, which follow and complete each other in turns, 
 and give us the systematic conception of the world 61-63 
 
 John Stuarfc Mill, Alexander Bain, and Herbert Spencer, have 
 introduced and developed positivism in England. Herbert 
 Spencer is not satisfied with the external study of facts ; 
 he wishes to penetrate into their cause, and he finds that 
 the infinite variety of phenomena depends on the meta- 
 morphosis of force, and that all movements obey the laws 
 of evolution, that is, equivalence, rhythm, and cohesion, 
 which are corollaries of the same -principle, of the persist- 
 ence of force. Matter and motion are manifestations of 
 force variously conditioned. In order to explain nature, 
 recourse is had to other hypotheses. Charles Darwin 
 fertilised the ideas of Lamark, who said that vital force 
 was excited by want and strengthened by exercise. Plants 
 and animals are derived from some ten primordial species 
 by means of the perfecting transmission and the vital 
 struggle. Acquired qualities are perpetuated by heredity 
 and by adaptation to the various conditions in which 
 plants and animals are called to live . . . 63-69 
 
 In Germany, the system of Darwin was received with open arms, 
 and Haeckel began forthwith to show that all organic 
 beings are derived from one primordial form, that is, from 
 the cell or the ovular vesicle formed by spontaneous 
 generation at the first cooling of the earth. But the 
 French chemist Pasteur has advanced a decisive argument 
 against spontaneous generation by showing that the air 
 contains millions of corpuscles organised like germs which 
 diminish as we rise in the atmosphere, and which being 
 eliminated, we no longer obtain the production of in- 
 fusoria ........ 69-71 
 
 Summing up this review of metaphysical speculation,, we see 
 that speculation reached .the highest point in Greece ; that
 
 SUMMARY. 33I 
 
 Christianity perfected Plato and Aristotle ; and that the 
 Renaissance expounded a false Aristotle and a false Plato, 
 interpreting the first in a materialistic sense, and making 
 the second a pantheist. Leibniz wished to act as a recon- 
 ciler, extracting from all the systems a quaedam perennis 
 philosopMa. He applies the principle of contradiction 
 to investigate the possible, and that of sufficient reason to 
 lead us to the real. Vico says more openly that the true 
 is the fact, and that therefore God is the first truth because 
 He is the first Maker. God makes, that is, creates ad extra 
 and generates ad intra. Gioberti has perfected philosophy, 
 distinguishing carefully intuition from reflection, and im- 
 manent thought from successive thought, by which he puts 
 the objectivity of the ideas out of all doubt. He has given 
 the best explanation of the connection between the subject 
 and the object ; and between things and ideas by his theory 
 of the creative act foreshadowed by Vico . . 71-76 
 Psychology is the substratum of metaphysics. Plato considers 
 the soul as an active force, and distinguishes in it the 
 rational part and the animal part from the Supbg. Aristotle 
 defines the soul as the first entelechy of a natural organised 
 body which potentially contains life. The ancient philo- 
 sophy had, however, left a lacuna, that of the free-will 
 Christianity put forward charity, the love of one's neigh- 
 bour, and consequently duty, but right was left in the 
 shade. The first systems of the modern period, those of 
 Descartes and Leibniz, did not assign to the will the place 
 due to it. The former did not distinguish exactly the 
 faculties of the mind, and he confounded the will with 
 the intellect. The latter, denying all reciprocal action 
 among the monads, had recourse to the hypothesis of a 
 pre-established harmony. Vico recognised the fact that 
 knowing is necessary, but willing is free. Kant gave great 
 prominence to the will, and reconstructed in his Critique 
 of the Practial Reason what he had overthrown in his 
 Critique of the Pure Reason. Maine do Biran, studying 
 facts, put the action of the will out of doubt, and in tho 
 present day a whole school of Leibnizians in France is 
 combating the attacks of the positivists . . 77~88
 
 332 SUMMARY. 
 
 ETHICS. 
 
 Ethics came forth full armed from the head of Plato, who 
 summed up Pythagoras, the ancient sages, and specially 
 his master Socrates. He distinguishes the absolute good, 
 which he identifies with God, and which we ought to 
 seek to imitate. The good in everything is order, and the 
 soul in order to be happy ought to be well ordered. The 
 soul effectuates the good by means of virtue, while evil is 
 committed through ignorance. Aristotle attributes greater 
 value to the human individuality. In metaphysics, he 
 had distinguished potentiality and actuality : in ethics, 
 he explains that actuality is identical with the end, and 
 designates as desire the aspiration nourished by every being 
 to pass from potentiality to actuality^ The end of a being 
 can only be the good, and the perfect being will be one in 
 which there will not be potentiality, but everything will 
 be actuality. Man loves action, and is the complement of 
 activity, as beauty is that of youth. Zeno combats plea- 
 sure as unstable and deceitful, and places happiness in 
 the fulfilment of duty or in the observance of the laws 
 of nature 89-91 
 
 Christianity considers morality as a resurrection. The soul 
 has lost its purity by original sin, and the sacrifice of a 
 God was necessary in order to redeem it. The funda- 
 mental precept of Christian morality is this : love God 
 above all things, and thy neighbour as thyself. True 
 perfection consists in the contemplative life, in prayer, 
 and in ecstasy. Plato established a sort of natural society 
 between man and God. Christianity proclaimed man's 
 absolute dependence. Human liberty is not annihilated, 
 but is sustained by divine grace, which is granted to who- 
 ever does not reject it ..... 9192 
 
 The Renaissance attacked the Christian morality, and Bacon 
 denied the superiority of the contemplative life when it 
 does not tend to perfect the active life. He desiderates 
 the study and description of the passions and affections, 
 and this is carried out by Descartes in a treatise which 
 analyses them from the physiological and psychological
 
 SUMMARY. 
 
 333 
 
 side, and in which he teaches how to moderate them. 
 Cartesianism was not favourable to ethics on account of 
 its having failed to recognise the activity of second causes, 
 which exist only in so far as they are created at every 
 moment by God. To Spinoza, good and evil are only 
 relative ideas ; virtue is the power of having adequate 
 ideas, for in inadequate and confused ideas the mind is 
 passive and enslaved. Leibniz vainly substituted con- 
 tinuous participation for creation, and for the absolute 
 passivity of the creatures essential activity regulated by 
 the pre-established harmony. While Germany proceeded 
 to temper the theories of Leibniz, England exaggerated 
 those of Bacon. English utilitarianism is developed in 
 three periods : in the first, ethics is founded by Hobbes 
 on individual interest ; in the second, it is based by Ben- 
 tham on the harmony between individual interests and 
 the general interest ; and in the third, John Stuart Mill, 
 Darwin, Bain, and Herbert Spencer, base it on the general 
 
 interest 93~95 
 
 The Scottish School has corrected the exaggerations of the 
 English utilitarians in founding ethics on sentiment . 95 
 Kant went astray in the labyrinth of his psychology, and in 
 order to escape from it reconstructed in his Critique of 
 the Practical Reason what he had overthrown in his 
 Critique of the Pure Reason .... 96 
 
 Fichte exaggerated the system of Kant in his ethics as well as 
 in his metaphysics. The German philosophy, after having 
 unfolded the conception of liberty in Kant and Fichte, 
 absorbed it in the notion of necessity in Schelling and 
 Hegel. The successors of Hegel have fallen into physio- 
 logical materialism in spite of the protests of the younger 
 
 Fichte, Wirth, and Ulrici 97 
 
 In the eighteenth century France was the echo of the English 
 doctrines, but in the nineteenth century it allied itself with 
 the Scottish School, determined the functions of the will 
 better in Maine de Biran, and gave an objective basis to 
 ethics in Jouffroy. It was not long, however, till Auguste 
 Comte resuscitated materialism under the specious name 
 
 of positivism 9*H?9 
 
 Italy proceeded to restore ethics at the same time as metaphysics.
 
 334 SUMMARY. 
 
 Yico declared that man has a reason capable of knowing 
 the Absolute, and he has freewill, which is moved on the 
 one side by reason and on the other by the senses ; he has 
 further a free activity such as can be directed on both 
 sides. Gioberti defined the good more elegantly as a 
 divine participation, which is imperfectly participable in 
 by the rational and free creatures by means of the know- 
 ledge of the absolute law and the elective conformity of 
 the free-will with that law 100 
 
 The corner-stone of ethics is the question of the freedom of the 
 will, and upon it are concentrated the forces of the posi- 
 tivists. Herzen maintains that volitions are produced by 
 the state of the nervous system at the moment it receives 
 the impression, and by the complex of the impressions 
 derived from without, and that these volitions are awakened 
 by reflex action or association in the internal structure of 
 the nerve centres 101-106 
 
 The free-will consists in the power of doing the contrary of 
 what the moral law enjoins upon us, and in subjecting the 
 reason to inclination : video meliora proboque deteriora 
 sequor 107-111 
 
 THE PHILOSOPHY OF EIGHT. 
 
 The true becomes the good in ethics, and justice in the sphere 
 of right. Man does not always act for a disinterested end, 
 nor in view of an absolute good, but most frequently in. 
 order to obtain what is useful to himself and to others. 
 Plato says that justice makes man into a proportionate 
 whole full of harmony ; it has its realisation in the State, 
 which is man on the large scale, and which has to actualise 
 the whole of the good. Plato thus confounds justice with 
 goodness, and right with morals. On the other hand, 
 Aristotle days down a principle of distinction, maintaining 
 that justice is virtue in relation to others, and that the 
 State ought not to absorb the whole citizen. Stoicism gave 
 greater prominence to the inner man, and proposed -to 
 emancipate the individual from the State, recognising the 
 unity of the human race, and the harmony of all the parts 
 of the universe 112
 
 SUMMARY. 
 
 335 
 
 Christianity weakened the sentiment of right, giving as a re- 
 ligion the preference to morality, and exhorting men to 
 love their persecutors. Scholasticism resuscitated the dis- 
 tinction of Aristotle, and Dante defined right as follows : 
 jus est realis et personalis ad hominem proporlio, servata 
 hominum servat societatem, corrupta corrumpit. Grotius 
 wished to emancipate jurisprudence from theology, and 
 sought the principle of right in sociability, which is taken 
 not as a material fact common to men and animals, but 
 as a mark of reason. Pufendorf declared that by natural 
 right ought to be understood what is ordained by right 
 reason. Thomasius made a step in advance by distin- 
 guishing for the first time right from morals. Leibniz 
 proceeded to confound everything. Wolf stops with a 
 vague idea of perfection. Kant takes up the distinction 
 between morality and right, and makes the last a condition 
 for the explication of human liberty. There is involved 
 in it the power of coercion, seeing that the faculty of re- 
 moving the obstacles to our liberty forms an integrant part 
 of our liberty. Fichte commented on Kant, and wrote 
 noble pages on liberty. Schelling turned to the objective 
 point of view, showing how the divine action which is 
 fatal and unconscious in nature, becomes free and conscious 
 in the spiritual world, where it is manifested as will. In 
 the view of Hegel, right is liberty realised, the universe 
 attaining consciousness in man. Krause keeps himself 
 free of the formulae of Hegel, and approaches Schelling. 
 Ahrens applied the system of Krause to right. Like his 
 master, he believes individuality to be an eternal divine 
 determination without a proper existence of its own. In 
 the first editions of his Cours de Droit Naturel Ahrens 
 separated right in a way from morals, but in the last 
 editions he combined them together without confounding 
 them. Trendelenburg, in his treatise on Natural Right 
 on the Basis of Ethics, marks the return to Platonism 
 corrected by Christianity . . . .113-121 
 
 France exercised a certain influence on the ethics of Germany. 
 Kousseau had proclaimed the freewill to be the essence of 
 man. This principle is the transition to the doctrine of Kan!, 
 of which it is the foundation, as is shown by Hegel . 124
 
 336 SUMMARY. 
 
 The contemporary English School labours to explain right as 
 springing from utility. John Stuart Mill seeks to prove 
 that by means of the principle of solidarity the individual 
 interest is identical with that of the greatest number, and 
 that justice is the principal part of social utility, whence 
 he defines right as a power conceded by society to the 
 individual in the interest of all. Alexander Bain declares 
 the rules of justice the most essential conditions of the 
 social existence. In the view of Herbert Spencer, society 
 is an organism like the human body, whose progress consists 
 in an increasing complication with harmony of functions. 
 Government is a necessary evil, a provisory function, and 
 it ought to limit its own attributes always more by deter- 
 mining the conditions under which individuals will be able 
 to be developed by means of free associations . 125-127 
 
 Italy having known how to derive ethics from metaphysics, 
 has also known how to make right spring from ethics. 
 Vico taught by means of history and philosophy that 
 the honestum is the cause of right, and utility its occa- 
 sion ........ 128-130 
 
 The word Eight signifies in general the direction of an action 
 ' towards a determinate end. Hence the first part of this 
 work will be designated the Objects of Eight, and will 
 treat of the human ends, namely, Keligion, Science, Art, 
 Industry, Commerce, Morality, and Justice, considering 
 them in their essence and in their modality. In another 
 signification, the word Right indicates the power inherent 
 in the human person which cannot be taken away by any- 
 thing whatever ; and this will form the matter of the 
 second part of this work, entitled Subjects of Right, in 
 which we shall treat of the Individual and of Society, 
 beginning with the Family, and- advancing through the 
 Commune and the Province to the State, to Nations, 
 and to Humanity 130-132
 
 SUMMARY. 337 
 
 PART FIRST. 
 
 OBJECTS OF RIGHT. 
 
 CHAPTER I. RELIGION. 
 
 Between thinking and feeling there is an intermediate state 
 which is called faith. It is distinguished into natural and 
 supernatural, according as it depends on intelligence or on 
 super-intelligence. Philosophy considers the clear side of 
 the idea, and religion the obscure side ; and hence two dif- 
 ferent faculties, intelligence and super-intelligence . 135 
 
 The multiplicity of the religions is explained in two ways: 
 either that they are all heresies of a certain natural religion, 
 or that they are alterations of a religion revealed by God 
 to the first men, and preserved by the Hebrew people. 
 Some Religions have pantheism as their basis, such as 
 the Chinese Eeligion, the Indian Religion, the Egyptian 
 Religion, the Persian Religion, and the Greco-Roman 
 Polytheism. The social effects of the religions were dif- 
 ferent according to places and races. China, being poor 
 in imagination, had a cult that was simple and entirely 
 domestic without the shadow of a hierocracy. In India, 
 some time after the conquest by the Aryans, the sacerdotal 
 class acquired pre-eminence, and the whole of society 
 was arranged in castes. Buddhism, with its principles 
 of equality, did not succeed in overthrowing that social 
 organisation. In Egypt, society was divided into six or 
 seven castes, and every individual had to follow the pro- 
 fession or trade of his father. In Persia, we see classes, 
 not castes. The Greco-Roman polytheism reduced the 
 gods to so many men of a superior nature, and set apart 
 priests to preside over the prayers and sacrifices. Re- 
 ligion was an instrument of government by means of the 
 oracles among the Greeks and of the auspices among the 
 Romans 136-144 
 
 The religions which are founded upon creative monotheism 
 are the Hebrew Religion, the Christian Religion, and the 
 Mohammedan Religion. Charity was not absent from the 
 VOL. i. Y
 
 338 SUMMARY. 
 
 Hebrew Religion, seeing that alms were designated as 
 justice, and property was only emphyteutic, every seller 
 re-entering into possession every fiftieth year. Islamism 
 has no official clergy, and hence no one takes special care 
 of the poor. The Christian Religion looks to eternal 
 salvation, and therefore to morality in the most absolute 
 sense ; the State has terrestrial prosperity as its end, and 
 therefore right in the most human sense. Their efforts 
 are not opposed but convergent, seeing that eternal sal- 
 vation does not exclude temporal prosperity, but would 
 have it subordinated to itself. But as such subordination 
 should be the act of the free-will, the State is under obli- 
 gation to secure the individual his full liberty in matters 
 
 of faith . . 144-151 
 
 The history of the relations of the Church with the State 
 may be divided into ten epochs, during which the Church 
 advances from the catacombs and seats herself hard by 
 the throne of Caesar, which it tries to dominate. After a 
 long struggle, agreements are entered upon, more or less 
 favourable to the Church. After the Reformation the 
 idea of a complete separation gains ground. The maxim 
 of Cavour : A free Church in a free State, was inspired 
 by this idea. But it was modified in its application by 
 his successors, who violated acquired rights, and denied 
 conditions essential to the priesthood. The State being 
 the expression of the majority, will conform its conduct 
 in whole or in part to the dictates of religion, according as 
 there may exist one or more cults in its territory. Every 
 one should be free to believe in his own way, but not 
 to manifest his religious opinions except within limits 
 which shall not infringe the rights of others ; and hence 
 toleration or liberty of worship according to cases. Both 
 the erudite Max Muller and the naturalistic Quatrefages 
 hold that the religious sentiment distinguishes man from 
 the animal. Religion serves besides as a sanction to 
 morality, and therefore it deserves all the respect of the 
 State 151-198
 
 SUMMARY. 339 
 
 CHAPTER II. SCIENCE. 
 
 Science separated itself slowly from religion. The severance 
 began in the East, and was completed in Greece. The 
 Greeks sought the laws of nature no longer in theogoniea 
 but in observation. But while it was permitted to in- 
 terpret tradition allegorically, a direct attack upon religion 
 was not tolerated, as was shown by the danger run by 
 Anaxagoras, and the death encountered by Socrates. The 
 government left education to private enterprise, and it is 
 only in the time of the Koman empire that we find sub- 
 sidised schools 199-203 
 
 Christianity was a kind of reaction against knowledge. But 
 after having spoken to the heart, it felt the need of entering 
 into alliance with the Greek philosophy and appropriat- 
 ing those useful inventions which render the exercise of 
 virtue less severe. On the irruption of the barbarians, the 
 clergy saved what they could of the ancient sciences and 
 letters, copying manuscripts and teaching the seven liberal 
 arts, namely, grammar, rhetoric, and dialectic (triviwri) ; 
 and arithmetic, geometry, astronomy, and music (quad- 
 rivium) 203 
 
 Material necessities drove the Arabs to study the scientific 
 works of the Greeks; but medicine, physics, and astro- 
 nomy were so bound up with philosophy, which at first 
 embraced them all, that the study of it was rendered indis- 
 pensable. The Arabic science and philosophy were but 
 a poor translation of the Greek science and philosophy. 
 To the Arabs we owe the mariner's compass and the system 
 of numeration, which they are said to have borrowed from 
 the Chinese and the Hindus .... 203-204 
 
 The Universities contributed very greatly to the resurrection 
 of knowledge. The school of Salerno shone brightly in the 
 eleventh century, but its origin is lost in the night of time. 
 In 1196, the celebrated Irnerius was called from Ravenna, 
 where he was a judge, to Bologna, to teach the Roman 
 Law. In the course of the twelfth century, there was added 
 to the curriculum the canon law, medicine, theology, and 
 philosophy. Fourteen colleges gathered the students of 
 different nations, some founded by the popes, and others
 
 340 SUMMARY. 
 
 by foreign princes or magnanimous donors. At their side 
 arose colleges and corporations to examine the students and 
 to confer upon them the degree of doctor in theology in 
 name of the pope, and that of doctor in jurisprudence 
 in name of the emperor, by the authority of whom these 
 doctorates were instituted. Literary studies were after- 
 wards added. This served as a type to the other uni- 
 versities of Italy and Europe. England still preserves it 
 in the twenty colleges united around the University of 
 Oxford, and in the seventeen colleges of the University 
 of Cambridge ...... 204-205 
 
 The exact and natural sciences do not owe their progress to the 
 universities, which were wholly absorbed in jurisprudence 
 and theology. Roger Bacon was driven from Oxford be- 
 cause he laid little account on scholasticism and on ratio- 
 cination in general, for its conclusions were regarded by 
 him as only hypotheses when not confirmed by experience. 
 The Renaissance completed the revolution begun by Roger 
 Bacon. Galileo taught that the laws of nature are the 
 simplest of all By mathematical calculation and experi- 
 ence, Galileo discovered the law of gravity and that of the 
 pendulum, the hydrostatic balance, and the telescope, with 
 which he saw the satellites of Jupiter, the phases of Venus 
 and Mars, the spots on the sun, and the mountains of 
 the moon. Francis Bacon of Yerulam reduced to axioms 
 the method followed by Galileo, and himself made dis- 
 coveries. Descartes with his analytical geometry, and 
 Fermat with the first elements of the infinitesimal calculus, 
 which was perfected by Leibniz, paved the way for New- 
 ton, who gave a sketch of the sidereal movements, and it 
 required the common efforts of great mathematicians and 
 great astronomers for the sketch to become a picture. 
 Astronomy brought along with it the development of phy- 
 sics, which was begun by Galileo and carried on by Yolta, 
 Oersted, Ampere, and Melloni. The eighteenth century 
 was not to remain behind the seventeenth century ; it 
 created chemistry by the work of Lavoisier ; and it made 
 physiology more perfect through Bichat, who gave a new 
 direction to medicine, with a more exact knowledge of the 
 organism. The work of Bichat was hardly sketched when
 
 SUMMARY. 341 
 
 he died in his thirty-first year, but it was taken up and 
 carried on by Claude Bernard . . . 206-209 
 
 The extraordinary progress made by the exact and natural 
 sciences led Comte to trace out a new encyclopedia of the 
 whole, independent of metaphysics, and the reverse of what 
 antiquity and the Middle Ages had recognised . 210-213 
 
 Gioberti subordinates the sciences anew to metaphysics, and 
 deduces the encyclopedia of science from the ideal formula. 
 The relations between the State and science may be con- 
 ceived in three ways : as an abstention from teaching, as 
 in the Greco-Roman antiquity ; an indirect interference, 
 as in the Middle Ages ; and a monopoly, as in some modern 
 States. While the action of the State ought to excite 
 at need individual energy, it should not prevent private 
 parties with proper establishments from taking part in 
 the teaching. The German universities were instituted on 
 the type of the ancient University of Paris, which had been 
 copied from the Italian universities. They are corpora- 
 tions in which the State is represented by a curator, and it 
 supplies their needs in so far as their private revenues do 
 not suffice. In return for this aid the Minister of Public 
 Instruction nominates the professors from among three 
 candidates proposed by the Senatus Academicus. The 
 faculties alone have the right to confer university degrees ; 
 and those who aspire at practising a profession are sub- 
 jected in Prussia to a State-examination. In France, be- 
 fore the Law of isth March 1850, and of i2th July 1875, 
 the university had the monopoly not only of the higher 
 teaching, but of the middle teaching. In Italy, this mono- 
 poly is restricted by the Law of i3th November 1859 to 
 the higher teaching alone, and is somewhat tempered by 
 the admission of private lectures. The lyth Article of 
 the Belgian Statute declares that teaching is free ; every 
 preventive provision is prohibited ; and the repression of 
 offences is regulated by the law . . . 214-226 
 
 What are the relations which ought to be maintained by the 
 State between religion and science? We answer, their 
 complete independence, but at the same time this in- 
 dependence must not bo allowed to degenerate into 
 hostility . 226
 
 342 .SUMMARY. 
 
 CHAPTER III. ART. 
 
 > 
 
 The beautiful appears when the Idea presents itself to us com- 
 mingled with external reality, from which it is separated by 
 the mind without being carried up to its abstract generality. 
 When the Idea surpasses the form, we have the sublime ; 
 when it is in a certain equilibrium with it we have the 
 beautiful In the arts, the sublime appears first, because 
 it is nearer the Idea. Art begins as interpreter of the 
 religious ideas, expressing by symbols the relations of the 
 invisible principle with the objects of nature. In oriental 
 art there is displayed fervid imagination, a vague and con- 
 fused thought. In the East, architecture is the art par ex- 
 cellence; and sculpture is still but a vast hieroglyph which 
 represents the attributes of the divinity. With the Greeks, 
 sculpture and painting ceased to be simple accessories of 
 architecture, and they introduced a new element, the art 
 of grouping personages, which we call composition. The 
 Greeks further created style and taste ; that is to say, they 
 perfected the expression of created things without taking ac- 
 count of the hieratic types, and they acquired that practical 
 familiarity with the good and beautiful which leads to a 
 reasoned choice. The Romans, occupied with politics and 
 administration, sought utility in the beautiful arts. In 
 architecture, they preferred the arch to the entablature 
 or architrave ; they constructed magnificent bridges, aque- 
 ducts, and cloacas, and invented buildings of a special 
 kind like the baths and amphitheatres . . 227231 
 
 In the Greco-Roman art, the lines are straight and sometimes 
 monotonous in their simplicity ; they do not rise to any 
 considerable height from the soil, but constitute an archi- 
 tecture that is horizontal and characterised by length. On 
 the other hand, in Persia the ancient Assyrian architecture 
 made progress ; its lines showed a predilection for curves, 
 and they darted up towards the heavens, forming a species 
 of architecture that was perpendicular, and characterised 
 by height. Certain distinguished authors have maintained 
 that the Byzantine art was derived from the Persian. The 
 architecture which is improperly called Gothic was pro-
 
 SUMMARY. 
 
 343 
 
 duced by the style] called, Romanesque, as Arabic architec- 
 ture was produced by the Byzantine style. The two styles 
 were akin. The ogive style had remained a long time in 
 the East in a sporadic state, and the great builders of the 
 twelfth century did not go there to obtain it . 232-233 
 
 In sculpture, Greece remained unsurpassed, having reproduced 
 the human form in greater perfection. The Greeks had 
 made use of painting in order to give greater relief to the 
 architectural forms, but it was not long till they used 
 it to imitate nature and to reproduce also human facts. 
 Christianity occasioned a decline of both sculpture and 
 painting. But by degrees, the traditions of ancient art 
 revived ; and the Italians excelled the Greeks in painting. 
 The Flemish and Dutch School showed great mastery in 
 the reproduction of accessories, and of some of the common 
 objects of life. The other nations were guided by the 
 examples of Italy and the Low Countries . 233-235 
 
 The arts of speech followed the same development. The East 
 began epical and lyrical poetry; and Greece perfected 
 them, adding the drama and the various kinds of prose : 
 narrative, descriptive, oratorical, and didactic. The Eomans 
 showed themselves at first opposed to the arts, but when 
 they conquered Greece, they were morally taken captive. 
 Christianity radically changed the conception of life, 
 sanctifying suffering, poverty, and ugliness, and enlarging 
 the basis of society. But Christianity and ancient art 
 were wedded by the Renaissance, and produced marvellous 
 masterpieces. After the French Revolution, the social 
 basis was again enlarged. Comfort, a thing unknown to 
 antiquity, made our habits prosaic; scepticism rendered 
 inspiration more difficult ; and the governments by found- 
 ing museums, schools of the fine arts, and periodical ex- 
 hibitions, proceeded to aid the arts of design, while the 
 arts of speech were furthered by the industry of the 
 printer. Music, which had served in antiquity as a simple 
 accompaniment of poetry, rose to be an independent art 
 in the seventeenth century with the invention of the 
 lyrical drama, which was due to the Italians. Most of 
 the continental governments now subsidise the lyrical 
 theatres 235-^45
 
 344 SUMMARY. 
 
 CHAPTER IV. INDUSTRY. 
 
 The daily support of man is produced by labour, the spon- 
 taneous fruits of the earth being scarce on the whole. 
 Labour supposes property as ownership (i) of the personal 
 faculties, and (2) of the matter to which they are applied. 
 Property, like society, is natural to man as a being endowed 
 with liberty. Property includes the right to labour, to 
 f own capital, to exchange, to make donations, and to transmit 
 to others ....... 246-249 
 
 In the beginning all men have implicitly the right to use 
 external things for the rational ends of life ; but as 
 such things are not directly presented in sufficiency for 
 all, society has established rules according to which the 
 individual can acquire, preserve, or lose the immediate 
 power over them. The State, which represents society, 
 has always a supreme dominion over property. It claims 
 a part of it in the form of taxes, and it establishes the 
 organic connection between the generations, determining 
 the modes of transmission and succession. . 249-251 
 
 So long as primitive man lived by the chase, fishing, and wild 
 fruits, he did not think of appropriating the land, and 
 he considered as his own only those objects which were 
 captured or fashioned by his hand. Under the pastoral 
 regime, the notion of property in land began to crop up ; 
 but it was limited to the space which the herds of each 
 tribe were wont to traverse. "When the populations became 
 settled, the lands were occupied in common, and divided 
 among the different associated families ; their produce only 
 was distributed according to households. The agrarian 
 community and the city constituted by the union of 
 families, were bound] together by intimate relationships. 
 In its development, property followed the status of the 
 persons 251-253 
 
 Both collective and individual ownership of property have had 
 scientific defenders. Plato was for the first, Aristotle for 
 the second. Christianity mitigated the rigour of individual 
 ownership by recommending alms . . . 254-262 
 
 In modern times, Sir Thomas More and Campanella have re-
 
 SUMMARY. 345 
 
 produced the ideas of Plato slightly modified. Morelly, 
 Kousseau, and other writers of the eighteenth century, also 
 declared themselves averse to individual ownership. In 
 the nineteenth century, Proudhon revived the thesis of 
 Rousseau, along with socialists and communists. Grotius 
 was able to rise above what was taught by the Roman 
 jurisconsults with regard to property. Locke was the 
 first to derive property from labour, which doctrine was 
 adopted by the economists. Some authors, like Montesquieu 
 and Bentham, have made the right of ownership in property 
 depend on the law 263-271 
 
 From the point of view of quantity, ownership is exclusive or 
 joint (condominium), according as one physical or moral 
 person possesses the rights of property over the whole 
 thing or over an ideal part of it, such as a fifth or sixth 
 of the whole. From the point of view of quality, owner- 
 ship may be full and entire, or incomplete and divided. 
 Ownership may suffer dismemberments by necessary or 
 conventional servitudes, and it may have increments by 
 means of accession, immovable, or movable, and industrial. 
 Special [rules of law are established for ownership in pro- 
 perty, whether industrial, artistic, or literary, or in mines 
 and forests 272-273 
 
 What are the relations between industry, science, and art? If 
 in the past, religion assigned a very subordinate position 
 to industry, it nevertheless admitted it within the social 
 organisation in India and Egypt The collegia opificum 
 of the Romans were sorts of confraternities like those 
 of the Middle Ages, when industry put itself under the 
 patronage of a saint. Science has been often occupied 
 with the interests of industry, which would return to its 
 rudimentary state without the aid of mechanics, physics, 
 and chemistry. To industry, art lends taste, that inde- 
 scribable charm which makes the commonest objects of 
 life so dear. The modern States are striving to open up 
 outlets for industry, and to aid its progress by means of 
 more technical and professional instruction . .274
 
 346 SUMMARY. 
 
 CHAPTER V. COMMEECE. 
 
 The word " commerce " has two different significations : in the 
 wide sense, it indicates every human relation ; in the strict 
 sense, it indicates the exchange of products and services. 
 The Romans seem to have used it in the first significa- 
 tion, comprising in the jus commerdi et connubii, which 
 were gradually conceded to the plebeians, almost the 
 whole of civil right. In the primitive times, only the 
 heads of families could be bound by obligations, but 
 they took place very rarely, and with such formalities 
 that the least inobservance of them issued in the nullity 
 of the obligation. The most ancient form of contracting 
 among the Romans was the nexum, which the scholars 
 defined : omne quod geritur per aes et libram. At first 
 the nexum served to give solemnity to the alienation of 
 goods, and then it was applied to other contracts which 
 were considered as incomplete sales. The nexum gave 
 origin to four forms of Contracts : verbal, written, real, 
 and consensual. To these four classes of contracts only 
 was given an obligatory form ; and in the first three, 
 certain indispensable formalities had to be observed, the 
 consent of the contracting parties sufficing only for some 
 of them. Besides contracts, there were Pacts which did 
 not produce a civil action. But many of these gradually 
 obtained this from the praetor or by the imperial constitu- 
 tions, or because they were immediately joined to bond fide 
 contracts ....... 274-278 
 
 Domat and Pothier freed this part of the Roman Law from 
 the rubbish of the past, and introduced into it what 
 was necessary of consuetudinary right. The compilers of 
 the French Code only reduced their treatises to articles. 
 According to the French Code, contracts are obligatory 
 by the sole consent of the parties without there being 
 necessary any delivery of the thing, or the fulfilment of 
 the fact on the part of the contractors or of any extrinsic 
 formalities. Kant, in his Metaphysical Principles of Rigid, 
 classifies contracts according as they have for their object 
 a unilateral acquisition, a bilateral acquisition, or only a
 
 SUMMARY. 347 
 
 guarantee. This classification is practically retained by 
 Hegel, Ahrens, and Gans, but Gans observes that it does 
 not include the contract of society. Trendelenburg tried 
 a simpler classification. Relatively to their content, he 
 says, contracts have principally in view either a dona- 
 tion or a simple exchange, or an agreement of several 
 wills in reference to a common affair. In contrast to 
 these, there is a species of contract which aims at resolv- 
 ing the claims which have already arisen in business (the 
 transaction). In the matter of contracts, positive law 
 hardly leaves anything to be gleaned by the philosophy of 
 right 278-281 
 
 In the strict sense, the word commerce indicates the relations 
 arising from the exchange of present or future values, 
 which constitutes commercial law properly so called. Such 
 exchange forms the special occupation of certain persons 
 who buy in order to sell The positive laws, following the 
 dictates of reason, have modified by a reference to such 
 persons the rules of certain contracts, such as sale, location, 
 mandate, pledge, society, and they have admitted certain 
 specialities, as the letter of exchange, borrowing and lend- 
 ing in maritime exchange, and maritime insurance. The 
 contract of society or partnership suffers greater modifica- 
 tions, such as collective partnerships, anonymous society, 
 co-operative associations, &c 281-286 
 
 All the other branches of human activity promote commerce. 
 From the most remote times religion aided it. Science 
 discovered new ways, new regions, and new products. 
 Steam navigation, railways, and the electric telegraph have 
 turned the whole earth into a single market-place. Art 
 did not promote commerce, but was promoted by it ; in- 
 dustry was, so to speak, the mother of art, giving value to 
 raw materials, and creating others by means of chemical 
 combinations. The State in ancient times did not lay 
 great account on commerce. In modern times, it has 
 sought to protect it by imposing custom tariffs, but now 
 it generally limits itself to removing the obstacles which 
 could not be overcome by private enterprise . 286-289
 
 348 SUMMARY. 
 
 CHAPTER VI. MOEALITY. 
 
 The State cannot leave to the pleasure of the individual the 
 fulfilment of the whole moral law. History shows us 
 public power arising out'of^the family. At Sparta, private 
 life hardly existed, all the hours of the citizens being regu- 
 lated. At Athens, liberty was entire, but the Areopagus 
 jealously scrutinised the conduct of every candidate for 
 public offices. In the year 444 B.C., two magistrates were 
 appointed at Eome to whom the material and moral super- 
 vision or censorship of the republic was entrusted. To- 
 wards the end of the Koman Empire, and during the whole 
 of the Middle Ages, the Church claimed the censorship of 
 manners, and the ecclesiastical prescriptions also obtained 
 civil effect. After the French Revolution the State became 
 secular, and hence the greater importance of the police as 
 the inheritor of the ancient censorship and of the eccle- 
 siastical supervision 290-291 
 
 Public Beneficence is the corrective of individual ownership 
 in property. Not that the State is under obligation to 
 relieve the poor, but it ought to intervene in great national 
 misfortunes, such as inundations and the destruction of 
 whole cities by fire, and it ought to give a good direction 
 to the founding of works of piety. Thiers, in a report 
 presented to the French Assembly of 24th January 1850, 
 enumerates the institutions of beneficence that ought to 
 be promoted ...... 291-293 
 
 Antiquity was not entirely lacking in benevolent institutions. 
 The institutions of the patronate and hospitality, the leges 
 agrariae, the leges annonariae, the largitiones, epulae, spor- 
 tula, and the tessera frumentaria, were directed towards 
 relieving the people from distress. Nor were there wanting 
 societies for mutual help both at Athens and Rome. Some 
 of the dispositions of the Digest enjoined on the cities the 
 duty of consecrating the surplus of the revenues for the 
 relief of children and of the aged indigent . 293-298 
 
 Christianity enlarged the sphere of beneficence. Jesus Christ 
 inculcated voluntary poverty and labour, and St. Paul 
 gave an example of it. Among the first Christians alms
 
 SUMMARY. 349 
 
 were distributed by the Diaconates, -which were real offices 
 of beneficence. During the first three centuries, charity 
 had no other treasury than the alms of the faithful, and no 
 other ministers than the bishops and deacons. When the 
 pompous imperial dotation was substituted for the modest 
 oblations of the faithful, the construction of the churches 
 \vas changed in many of their parts ; the dwelling of the 
 bishop became the episcopal palace, and the poor had a 
 separate building called an infirmary, a leper asylum, or 
 hospice, with a priest specially appointed to it. Justinian 
 recognised the bond which unites beneficence with religion, 
 and put all the bequests of the dying under the special 
 supervision of the bishops and archbishops. The Canon 
 Law assimilated the property of charitable institutions to 
 that of the Church. In the time which preceded the 
 French Revolution, the State claimed its right of inter- 
 ference. The Italian law regarding works of beneficence 
 of 3rd August 1862, while respecting their individuality 
 in the most absolute manner, assigned the guardianship of 
 them to Provincial Committees under the higher supervi- 
 sion of the Minister of the Interior . . 298-301 
 Where property is badly divided, and the transmission of it is 
 fettered, beneficence assumes the form of legal charity. 
 England is an example of this. Before the Norman Con- 
 quest, the obligation to succour the poor was incumbent 
 on parents and on the rich; afterwards it fell upon the 
 Church and the feudal lord, and when the bonds of property 
 became loosened, the poor found no longer any relief except 
 from the Church. After the suppression of the convents, 
 the State had to substitute itself for the Church, and it 
 adopted the maxim of the Canon Law, that the poor had 
 a right to support and shelter. The Statute of Elizabeth 
 of i Qth December 1601 divided the poor into classes, 
 and prescribed that work should be furnished to the able- 
 bodied at home, that relief should be given to invalids, 
 and that a trade should be taught to the children, all 
 at the expense of their respective parishes. In 1834, 
 this Statute was reformed, to the effect that Unions 
 were formed among the parishes, and workhouses were 
 kept up where the able-bodied poor were constrained to
 
 3So SUMMARY. 
 
 labour, guardians being nominated by those who were' 
 
 interested 301-303 
 
 If the progress of industry has abolished slavery, will it suffice 
 to abolish want ? It is necessary to distinguish poverty 
 from want. Poverty is one of the consequences of the 
 natural inequality of men, and cannot disappear. Misery 
 is excess of poverty, and it may be avoided when instruc- 
 tion will make labour efficacious, and education will pro- 
 mote thrift. Provident institutions and insurance will 
 then restrict more and more the function of hospitals and 
 other benevolent establishments, and physical and moral 
 misery will cease at the same time .... 304 
 
 CHAPTEE VII. JUSTICE. 
 
 The general significance of the term Right is the direction of 
 an action towards a determinate end; and hence Vico 
 places the regulative principle in the infinite reason of 
 God as substantially identical with the truth and the order 
 of things. This does not clash with the view that Eight 
 has to serve as the means for the attainment of the other 
 ends above enumerated. Right is an end when it pursues 
 the equal distribution of the good ; it is a means when it 
 secures it by force. The State provides in three ways for 
 the realisation of right : by preventing, commanding, and 
 punishing. It prevents by its institutions of morality, 
 and especially by the police ; it commands restitution for 
 injuries and compensation for every obligation which has 
 not been maintained or which has been occasioned by 
 culpable negligence ; and it punishes all infraction of the 
 social order 305 
 
 Procedure was born contemporaneously with Right and Justice, 
 to which it lent all the apparatus necessary to impress the 
 imagination of the peoples. It is disputed whether civil 
 or penal tribunals first arose; the most recent writers 
 have proved that crimes were first considered as wrongs 
 or as violations of individual rights, and that the com- 
 munity then gradually felt itself injured as the guardian 
 of the social order, and intervened, first by single acts, 
 and then with general laws. Both the civil and penal
 
 SUMMARY. 
 
 351 
 
 tribunals have as their end the reintegration of right, and 
 therefore they require to investigate facts, to weigh evi- 
 dence, and to pronounce sentence. And as human judg- 
 ment is fallible, the decisions ought to be subjected to the 
 re-examination of higher judges, both on the side of facts 
 and that of right. These points exhaust the resemblances 
 between them ...... 305306 
 
 The origin of a civil process arises from the contestation of a 
 right, or the resistance of a fact which it is believed may 
 bring damage. The pursuer or plaintiff begins by setting 
 forth the question, and calling into court whoever opposes 
 the right, by which the action is put before the judicial 
 authority. The defender, denying the existence of the 
 right in the pursuer, lays down his objection, which he 
 maintains by an exception. The process continues by the 
 contraposition of the arguments of the pursuer and the 
 defender, until the judge puts an end to the suit by his 
 sentence, assigning the right to whom it belongs. This 
 is followed either by the acquiescence of the parties, or 
 an appeal The appeal came into use under the Roman 
 empire ; it was carried before a higher magistrate after 
 his permission had been obtained in a useful time. The 
 national French Assembly, as a supreme remedy, founded 
 the Court of Appeal (Cour de Cassation), which does not 
 constitute a third grade of jurisdiction, and judges the 
 sentences rather than the parties, the end of its institution 
 being to secure the execution and uniform interpretation 
 of the law 306-307 
 
 The importance which industry and commerce acquired in the 
 republics of the Middle Ages gave origin to the consular 
 competency with its procedure and jurisdiction, as that of 
 consuls sent abroad and exercised over their countrymen 
 residing there, and also to that other jurisdiction exercised 
 at home by tribunals appointed for all suits relating to 
 merchandise. As this distinction was consonant to the 
 nature of things, it survived the Middle Ages. The 
 judges of the tribunal of commerce both in Italy and 
 France are elective, as the consular judges once were. 
 Before the tribunals of commerce, procedure is more 
 rapid; but commercial causes in appeal, being supposed
 
 332 SUMMARY. 
 
 to be already duly expiscated, follow the course of the 
 civil tribunals ...... 307-309 
 
 In the penal tribunals the subject matter is different, as the 
 principal object in view is not the damage sustained, 
 but the discovery and punishment of the culprit. The 
 process is divided into two parts, the first consisting in 
 the investigation of the proof, and the second in the dis- 
 cussion of it. In the first, the process is treated according 
 to the inquisitorial system ; in the second, the judgment 
 is developed under the form of an accusation. It was 
 the merit of the French Revolution to fuse the two systems 
 in the laws of 1781, and in the Code of Criminal Instruc- 
 tion of 1808, from which most of the existing legislations 
 have taken form. In the most ancient times, the judge 
 was assisted in his functions by a number of persons, 
 who attended the process of judgment in the quality of 
 witnesses or conjuratores. These conjuratores gradually 
 became the judges of fact under the name of jurymen, 
 the function of expounding the question of law and 
 applying the punishment being left to the magistrate. 
 In the case of lighter offences, the same judges pronounce 
 both in matters of fact and law. In such cases, there is 
 the remedy of an appeal, except in the lightest offences, 
 which are punished by a pecuniary penalty. In all sen- 
 tences of condemnation, there is the supreme remedy of 
 appeal on the special ground of violation of law or pro- 
 cedure 39~3 I 3 
 
 Civil sentences are executed on the patrimony, and penal 
 sentences principally on the person ; the former look at 
 the making up of the damage, and the latter also at the 
 punishment of the offence. A crime is the violation of 
 an exigible duty to the damage of society and of indi- 
 viduals, the duty being one of which the observance is 
 useful to the political order, and the infraction of which 
 can be certified by human justice. Punishment is a pain 
 inflicted on the delinquent in proportion to the quality 
 and quantity of the evil, i.e., according to the importance 
 of the duty violated, and the special gravity of the viola- 
 tion committed, which is determined by the conditions of 
 the concrete and particular fact. A crime in violating a
 
 SUMMARY. 
 
 353 
 
 duty negates a right, which the punishment reaffirms both 
 in the consciousness of the culprit and in that of human 
 society. As to the quantity and measure of the punish- 
 ment, it ought to be proportioned to the evil of the crime, 
 that is, to the offence and damage in a ratio compounded 
 of its moral and utilitarian elements. Accordingly punish- 
 ment ought to be moral, personal, divisible, easily valu- 
 able, reparable, and remissible, equal and satisfying, exem- 
 plary, reformative and sufficient Before applying the 
 punishment, it is incumbent to look at the imputability 
 of the agent in order to estimate his responsibility, and 
 to the objective evil, or to the fact as to whether the 
 crime was attempted, frustrated, or consummated. Penal 
 right is the sanction of every kind of right; it springs 
 from justice, which arises from the honestum, and regulates 
 
 utility 314-321 
 
 On the other hand, there is a new penal school which does 
 not look at the evil in itself, but merely at the delinquent, 
 with regard to whom it is necessary to take measures of 
 precaution, eliminating him from society by death or 
 deportation on account of grave crimes, and putting him 
 into a condition where it becomes impossible to do harm, 
 by imprisonment or criminal discipline, on account of light 
 crimes. Accordingly this school substitutes for the criterion 
 of imputability that of liability to fear . . 321-323 
 
 END OF VOL. I. 
 
 VOL. I.
 
 BV BALLANTYNE, HANSON AND CO. 
 EDINBURGH AND LONDON.
 
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