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JTJBISPKTJDENCE 
 
 Relation to the Social Sciences, 
 
 DENIS CAULFEILD HERON, Q.C., 
 
 Member of Parliament for the County of Tipperary. 
 
 SAN FRANCISCO : 
 SUMNER WHITNEY & COMPANY. 
 
 NEW YORK : KURD & HOUGHTON. 
 
GKFTOF 
 
 Bancron 
 LIBRARY 
 
CONTENTS. 
 
 CHAPTER I. 
 
 PAGE 
 
 Introduction The Social Sciences 1 
 
 CHAPTER II. 
 
 Ethics in relation to Jurisprudence 19 
 
 CHAPTER III. 
 
 Political Economy in relation to Jurisprudence 30 
 
 CHAPTER IV. 
 
 Jurisprudence 46 
 
 Distinction between Ethics and Jurisprudence 51 
 
 Limits of Jurisprudence 54 
 
 Development of Sympathy 60 
 
 Definitions in Jurisprudence historically considered 68 
 
 The Scientific Definitions in Jurisprudence 82 
 
 Political Jurisprudence 91 
 
 Province of Government Taxation 100 
 
 Taxes on Justice 116 
 
 Duties of Government Education 121 
 
 Divisions of Jurisprudence 129 
 
 Codification 138 
 
 The Study of Jurisprudence 145 
 
 CHAPTER V. 
 
 Historical Review . . ... 154 
 
 861334 
 
CHAPTER I. 
 
 INTRODUCTION THE SOCIAL SCIENCES. 
 
 Jurisprudence is the Science of Positive Laws. 
 
 It has been observed that laws are by the public 
 considered as something distinct from common life, 
 and the common affairs of society. Yet, to one 
 truly reflecting upon the nature of laws, few sub- 
 jects ought to be more interesting. The whole 
 fabric of society rests chiefly on the law. The 
 social and political life in which we live, the free- 
 dom which we enjoy, all result from the labors of 
 the wise and good in this department of human in- 
 telligence. And the Science of Jurisprudence con- 
 cerns not individuals, but the community. The 
 pleasures of knowledge, the glories of the refined arts, 
 are known to few. Laws are praised or cursed by 
 every fireside. Each nation lives in the cottage as 
 well as in the castle. And unless the beauty of 
 legislation and the excellence of statesmanship 
 dwell in the feelings and condition of the people, 
 government acts like the Epicurean gods, who en- 
 joyed their existence careless of humanity. 
 
 The object of a History of Jurisprudence is to 
 exhibit the circumstances which have attended the 
 establishment of existing positive laws. But the 
 exposition of the dead laws which have been super- 
 
 JURISPRUDKffCE 1. 
 
- INTRODUCTION. 
 
 K'(k<- is : n:v;-aral>h- interwoven with that of the 
 living laws which have superseded them. And in 
 this investigation are furnished the great examples 
 for the art of legislation. 
 
 Bolingbroke has observed, that to enable one to 
 take a commanding view of the field of law and 
 legislation, there arc two principal vantage grounds 
 on which it is necessary to mount history and 
 metaphysics. The road is smooth and flowery to that 
 vantage ground offered by history. There has been 
 no want of those who have ascended to it, and taken 
 post upon it. To that which belongs to the region 
 of metaphysics, the road is rugged and full of 
 thorns. Few have attempted to gain it ; fewer have 
 succeeded in placing themselves in a position whence 
 a view at once clear and extensive could be obtained. 
 
 Many of the definitions which I shall adopt 
 may be controverted. They are attempts to give 
 some precision and accuracy to the most difficult 
 department of Social Science. Lord Bacon has said 
 that civil knowledge is conversant about a subject 
 which, above all others, is most immersed in matter 
 the hardest to be reduced to axiom. Aristotle, in 
 the Politics, condemns the pursuit of a delusive 
 geometrical accuracy in moral reasoning. Still, the 
 first principles of Jurisprudence arc maxims of 
 reason which pervade all human laws, and the ob- 
 servance of which is discovered by experience to be 
 essential to happiness and security. 
 
THE SOCIAL SCIENCES. 3 
 
 I have attempted to sketch an outline of the sub- 
 jects and divisions of Jurisprudence, its limits and 
 province. 
 
 The word " law," in its widest sense, is used to 
 designate those natural principles which are incident 
 to and govern all things, animate and inanimate. 
 The entire of physical nature is subject to certain 
 laws the laws of gravitation, of light, of heat. In 
 the Institutes of Justinian, the term " law " is ex- 
 tended to the instincts of animals, and natural 
 law is therein defined to be that which nature has 
 implanted in all living things. " For this is not proper 
 to men exclusively, but belongs to all animals, 
 whether produced in the earth, in the air, or in the 
 water." Hooker says : " That which doth assign 
 unto each thing the kind, that which doth moderate 
 the force and power, that which doth appoint the 
 form and measure of working, the same we term a 
 law/' All nature obeys certain rules, and animals 
 are governed by fixed instincts. The bee and the 
 beaver have built for thousands of years with the 
 same degree of perfection. The celestial bodies 
 have from the period of creation rolled in their or- 
 bits, subject to the laws of matter. And the term 
 " law," in its general philosophical sense, is no less 
 applicable to the phenomena of the mind than to the 
 phenomena of matter. The processes of the mind 
 are as uniform as the processes of matter. The 
 mode in which the mind arrives at a conclusion is as 
 
4 INTRODUCTION. 
 
 fixed and unalterable as the mode in which an apple 
 falls to the ground. But, in Jurisprudence, the 
 meaning of the word law is limited. Law is a rule 
 of civil conduct prescribed and enforced by the 
 State. 
 
 A science is a collection of the fundamental 
 truths concerning the same subject-matter, arranged 
 in methodical order. 
 
 Philosophy is the explanation of the phenomena 
 of the universe. The objects of philosophy arc the 
 discovery of what is true and the practice of what 
 is good. 
 
 The explanation of a phenomenon is the reference 
 of the fact to be explained to some known principle. 
 
 The properties and motions of matter form the 
 subject of natural philosophy and its subdivisions : 
 thus, the science of astronomy treats of the laws 
 which govern the heavenly bodies ; the science of 
 mechanics treats of the laws of weight and motion. 
 
 Similarly, mental philosophy treats of the laws 
 which regulate the power's, faculties, and affections 
 of the human mind and its development. 
 
 Mental philosophy has been divided into two 
 parts : one treats of man in his individual capacity, 
 the other of man as a member of society. But 
 these parts are divided by an uncertain line, and 
 each encroaches upon the distinct province of the 
 other. The first branch of mental philosophy dis- 
 s the individual mind, its intellectual as well as 
 
THE SOCIAL SCIENCES. 5 
 
 its moral and active powers, the faculties of the un- 
 derstanding, and those of the will. The second 
 branch of mental philosophy treats of the social de- 
 velopment of the human race, and has been termed 
 the Political Science, or the Social Science, or So- 
 ciology. 
 
 Moral Duties, Exchanges, and Laws are the three 
 subjects of the Social Science. 
 
 Ethics, Political Economy, and Jurisprudence 
 form the three divisions of the Social Science. 
 
 Notwithstanding considerable progress has been 
 made in some of the physical sciences, especially in 
 astronomy, still, of many common occurrences in 
 nature, the laws are either unknown, or at least are 
 not reduced to that precision to which science ought 
 to aspire. 
 
 Prevision is- the test of science. Few branches 
 of knowledge as yet can bear that test. 
 
 But the possibility of a science which can treat 
 of the laws of society is denied. Even in the nine- 
 teenth century our writers maintain the exploded 
 doctrines of the ancient Sophists, and insist that, in 
 the domain of laws and politics, there exist no laws 
 of laws leges legum. Mr. Hallam says : " If it is 
 meant that any systematic science, whether by the 
 name of Jurisprudence or Legislation, can be laid 
 down as to the principles which ought to determine 
 the institutions of all nations, or that, in other 
 words, the laws of each separate community ought 
 
6 INTRODUCTION. 
 
 to be regulated by any universal standard in mat- 
 ters not depending upon eternal justice, we must 
 demur to receiving so very disputable a proposi- 
 tion." 1 
 
 This passage is obscure. If the term " eternal 
 justice " be intended to apply only to those principles 
 of right which can be enforced in the most advanced 
 state of society, then the doctrine is erroneous. Many 
 things are right in one state of society which are 
 wrong in another. Slavery appears to have been 
 suited to some ancient systems. Trial by jury is 
 adapted for a people, honest, fair-dealing, tolerant, 
 and free; it does not produce unmixed good 
 amongst a people divided into fanatical parties, 
 hostile to one another. Trial by jury, although 
 right, cannot be introduced into every country. 
 Slavery, although wrong, cannot be at once abol- 
 ished. 
 
 Similarly, Professor Sedgwick, in his discourse on 
 the Studies in the University of Cambridge, says : 
 "If, in moral reasoning, it be mere mockery to use 
 the language of abstraction, and to build up systems 
 by trains of a priori reasoning, it is assuredly not 
 hsurd to affect the forms of inductive proof in 
 political speculation. Every political as well as 
 every moral principle practically involves the de- 
 termination of the will, and thereby becomes at once 
 
 1 Literature of Europe, Vol. 2, p. 586, 3d Ed. 
 
THE SOCIAL SCIENCES. 7 
 
 separated from that class of investigations in which 
 we consider the immutable relations of physical 
 phenomena." l The various causes of obstruction 
 to the progress of the scientific cultivation of laws 
 have been frequently enumerated. Modern jurists 
 have fallen into confusion, vagueness, and obscurity 
 of thought from not having distinguished at the 
 outset ethics or morals from compulsory human 
 law ; and they have considered both under one gen- 
 eral appellation. They have adopted a kind of a 
 priori method of investigation, instead of the in- 
 ductive method ; they have assumed general prin- 
 ciples, not warranted by actual observation of facts ; 
 they have invented systems of law and government 
 by inductions from careless or imperfect observa- 
 tion, or even by the mere force of imagination, and 
 then adapted the facts of history to these ideal or 
 fictitious systems. 
 
 However, it is a great step in the progress of sci- 
 ence that the existence of laws is admitted in those 
 operations of nature which form the subject of 
 the physical sciences. But, even where men have 
 the choice of different modes of action, certain con- 
 sequences follow from adopting one course of action 
 or the other. Nor are such laws observable merely 
 in the conduct of the individual. They are more to 
 be observed in the conduct of multitudes, and in. the 
 
 1 5th -EcL 1850, p. 81. 
 
8 INTRODUCTION. 
 
 rise and fall of great nations, in the records of 
 crimes, and the annals of justice. If an army be 
 marshaled confusedly if the general have no sym- 
 pathy with his soldiers if they do not obey him 
 with promptitude, zeal, and fidelity, there will be 
 but an unsuccessful campaign against the force 
 where order, discipline, and enthusiasm prevail. 
 Faith, labor, honesty, and perseverance have, as" 
 they always had, their power to elevate in the scale 
 of humanity the men and nations which adopt 
 them. 
 
 At the present period of philosophy, therefore, it 
 is not pretended that the Science of Society is in a 
 very advanced state. It is easier for the astronomer 
 by observation to ascertain the rules of celestial me- 
 chanics it is easier for the geologist to discover the 
 history of the earth's mutations than for the jurist 
 to trace those circumstances in human affairs which 
 guide men to truth in politics and laws. In all hu- 
 man probability, Sociology will be the last science 
 to be perfected. Of its three component parts, the 
 domain of Ethics alone has been scientifically culti- 
 vated by the greatest intellects for a long period in 
 history. But Adam Smith, late in the eighteenth 
 century, gave the first great impulse to the study of 
 Political Economy. Benthain and Savigny, names 
 of very recent memory, have, in the present genera- 
 tion, analyzed and historied Jurisprudence. 
 
 Yet, though the Physical Sciences have been 
 
THE SOCIAL SCIENCES. 9 
 
 first cultivated with some degree of success, the 
 study of the Social Sciences appears more important 
 with regard to human progress. Most of the pro- 
 cesses of nature, the subjects of the Physical Sci- 
 ences, are beyond the dominion of man ; and though 
 he may be affected by their result, still he cannot 
 control them. The earth sweeps through space 
 round the sun, careless of the populations which it 
 bears ; the sun revolves round some distant and un- 
 known center of gravitation ; the causes of light 
 and heat are mysteries. The earth, with all its mil- 
 lions of the human race, inspired by love, genius, 
 and ambition, is in creation but a whirling speck of 
 dust ; and were it at this moment to vanish into 
 nothingness, its loss would be unfelt, unseen by the 
 galaxies which throng the firmament. But most of 
 the subjects of the Social Sciences are within our 
 dominion ; and with ourselves alone it rests whether 
 we will use and combine the materials of civilization, 
 or leave those materials unused, and remain in ig- 
 norance, poverty, and misery. 
 
 It is therefore idle to declare an aversion to Po- 
 litical Science : in so doing, persons state their in- 
 difference to the happiness of mankind. It is true 
 that the moral and legal sentiments of mankind are 
 various in different stages of civilization. At the 
 present day, in every country, all opposing parties, 
 Conservatives and Progressists alike, contest the 
 first principles upon which Political Science is 
 
10 INTRODUCTION. 
 
 founded? but a similar strife has occurred in the 
 infancy of all sciences. What varied theories have 
 existed in astronomy! The boundaries between the 
 virtue of justice and the other virtues are not 
 yet so distinctly defined as to fix the limits of com- 
 pulsory law. Time will fix thosd limits. In legis- 
 lation, the historical and analytical schools have 
 hitherto been opposed. But it is the business of 
 science to unite them, for actual legislation ought 
 always to be a compromise between history and 
 philosophy. Since all our external actions react 
 upon our fellow-men, we ought to strive to regulate 
 them according to the laws of human association, 
 by the aid of those very Political Sciences which 
 some persons despise. All legitimate interests are 
 in harmony, and the healthful prosperity of one 
 promotes the prosperity of all. The study of the 
 Social Sciences will foster disinterestedness, sympa- 
 thy, patriotism, enthusiasm for all that is good and 
 great. Even if the study of the Political Sciences 
 were prohibited, their practice could not for a single 
 moment be suspended. There arc nations in which 
 the theory of government lias never been the sub- 
 ject of reflection or discussion ; nevertheless, they 
 are governed. If, then, the Social Sciences be ob- 
 scure, let us throw light upon them ; if they be un- 
 certain, let us endeavor to fix them; if they be 
 speculative, let us establish them upon reason and 
 experience. 
 
THE SOCIAL SCIENCES. 11 
 
 In every science the principles are natural and 
 fixed. Very few principles as yet have been dis- 
 covered in any science. There are natural and fixed 
 principles of legal right and illegal wrong, as there 
 are natural and fixed principles of gravitation. If 
 the laws of exchanges were properly understood, 
 legislative interference would no more attempt to 
 control the rise and fall of prices than the rise and 
 fall of the barometer, or of the tides. If the true 
 principles of Jurisprudence were acted upon, absurd 
 and wicked legislation would disappear. 
 
 The study of Jurisprudence is so intimately con- 
 nected with its kindred branches of Sociology, that 
 it is necessary to compare and define their several 
 limits. The three Social Sciences, Ethics, Political 
 Economy, and Jurisprudence, are so united that it is 
 difficult to treat of their subjects without the equal 
 assistance of the jurist, the economist, and the 
 moral philosopher. 
 
 The object of the Science of Jurisprudence is the 
 discovery of the relations which ought to be estab- 
 lished by the Positive Law, and the best means to 
 enforce such relations. 
 
 The object of Political Economy is the discovery 
 of the laws which regulate the exchangeable value 
 of commodities, and the discovery of the best means 
 to determine the distribution of wealth. 
 
 Thus, each science, as to its own subject-matter, 
 strives to attain the true objects of philosophy, the 
 discovery of truth and the practice of good. 
 
12 INTRODUCTION. 
 
 Many kindred branches of knowledge assist these 
 studies. Of all the sciences which aid the progress 
 of Sociology, the most important is Statistics. 
 
 Statistics is the science of social facts expressed 
 in numerical terms. It is most intimately allied to 
 the three Social Sciences. All have for their end 
 the amelioration of the social state. All guide, 
 by the light of an exalted reason, administrative 
 and political powers. But the Social Sciences pro- 
 ceed with boldness into the most elevated region of 
 
 o 
 
 speculative systems, whilst Statistics is a science of 
 facts, which in rapid figures enumerates the wants of 
 nations, their daily progress, and all the fortunate or 
 unhappy individualities of their destinies. 
 
 The Science of Statistics aids the practice of the 
 Social Sciences in detailing the population of a 
 country, its fertility, its means of communication 
 and defense. This science fixes the numbers of the 
 army which guarantees the independence of the 
 State. It assists in the just imposition of taxes. It 
 tells the quantity and value of the productions of 
 agriculture and manufactures. It traces the prog- 
 ress of the national education, which makes men 
 better 'by enlightening them. It gives the details of 
 the machinery and cost of justice. It traces the 
 history and causes of disease, and points out the 
 true course for sanitary -reform. It illustrates, by 
 novel and exact truths, a crowd of objects which 
 arise from day to day, agitate public opinion, and 
 exhibit problems to be solved by the Social Science. 
 
THE SOCIAL SCIENCES. 13 
 
 "Working steadfastly at these subjects, wise men 
 have developed the Social Sciences, and the human 
 race has progressed in civilization. Civilization is 
 that condition of social life possessed by a moral, 
 educated, and wealthy community, enjoying public 
 security and liberty under the protection of law. 
 The first requisite of society is security. When 
 property is not secure from foreign ambition or civil 
 commotion, or from crime, accumulation cannot 
 proceed, nor can wealth remain in that degree 
 which is necessary to provide persons with the lux- 
 uries and decencies of civilized life. No one would 
 till the earth unless under the certainty that a rea- 
 sonable share of the harvest would be enjoyed by 
 himself. No one would voluntarily live and work 
 in that country which is continually ravaged by 
 foreign armies. Public liberty is as essential an in- 
 gredient of civilization as public security or order. 
 By public liberty I mean freedom of discussion, 
 freedom of action, including absolute personal lib- 
 erty, 'a free press, and a representative government. 
 But wherever there is tolerable security, even without 
 any high degree of liberty, morality, or knowledge, 
 wealth may still accumulate. Still, morality, or the 
 sense of right, is the essential ingredient of a high 
 order of civilization, and exercises the most remark- 
 able influence on the prosperity of nations, and their 
 success in art and war. Facility of communication 
 is also an important part of advanced civilization. 
 
14 INTRODUCTION. 
 
 A country cannot be considered united, nor can it 
 possess the stability of centralized government, un- 
 less there be easy and ready means of communicat- 
 ing from the capital to the different parts of the 
 empire. The Romans were well aware of this AY lien 
 they constructed the roads which remain to the 
 present day memorials of the Roman greatness. 
 But the recent triumphs of mechanical science have 
 surpassed the rude efforts of ancient times ; and the 
 railway, the steamboat, and the electric telegraph 
 are among the most important agents in the diffu- 
 sion of knowledge and the maintenance of freedom. 
 In nothing, however, have the civilized nations of 
 modern times more surpassed the civilization of the 
 ancients than in the knowledge and education of the 
 people. Hence, it is reasonable to entertain a hope 
 that our present civilizations will not be lost, like 
 those of Egypt, Greece, or Rome. The first liter- 
 ary State was Athens, possessed of the little terri- 
 tory of Attica, containing a population inferior to 
 that of some English and Irish counties. Although 
 books then were enormously dear and it is re- 
 corded of Plato that he once paid 300 for an in- 
 different volume still there was in Athens a popu- 
 lar education of a high order. Thus, Homer and 
 th*e Rhapsodists publicly recited their poems ; the 
 plays of ^Eschylus and Sophocles were performed 
 in the presence of 30,000 spectators ; the history of 
 Herodotus was read at the Olympic games ; the 
 
THE SOCIAL SCIENCES. 15 
 
 odes of Pindar were sung at Delphi ; ^Escliines and 
 Demosthenes addressed the people in the assembly ; 
 the glorious statues and temples of the Ionian race 
 were another and a splendid part of their edu- 
 cation. In Eome, there was no popular literature. 
 The military aristocracy encouraged the people in 
 their warlike spirit by wild-beast shows and gladia- 
 torial combats. The early Romans organized gov- 
 ernment and war, but left art for other races. The 
 northern conquerors of the Roman Empire despised 
 learning. The great majority of their kings, counts, 
 and dukes were unable to write their names. Their 
 signature was a seal, signum, impressed on their 
 deeds. In effect, the improvement of the mechan- 
 ical arts, the invention of printing, and the general 
 use of paper first rendered a cheap literature and 
 popular education possible. There is a great differ- 
 ence between the first Gazette published at Venice, 
 and the Times of the latter half of the nineteenth 
 century. The first Gazette contained fragments of 
 doubtful news ; now, more than by anything else in 
 England, the people are educated by the newspapers, 
 that with such industry collect, and with such rap- 
 idity disperse, information every morning to the 
 working intelligence of the empire. The education 
 of the people is increasing every day among all the 
 nations most advanced in civilization. It was even 
 recently the fashion to discuss whether education 
 ought to be extended to the people ; but, whilst 
 
16 INTRODUCTION. 
 
 learned men discussed these things, the laboring 
 classes have become comparatively educated, and 
 are an element in society. And, by the aid of 
 printing and the diffusion of education, one clever 
 man can now speak to tens of thousands more than 
 Demosthenes ever electrified in the popular assembly. 
 
 Such are the present prospects of civilization. It 
 is plain that if the civilized nations of Europe and 
 America were left to themselves, untrammeled by 
 the feudal forms, and freed from despotism, whether 
 monarchical or democratic, a long career of progress 
 would be before us. But the same cause which has 
 so often checked civilization for centuries may again 
 devastate Europe. War is the greatest foe of 
 progress. War has often annihilated the most mag- 
 nificent civilizations. Foreign aggression ruined 
 Egypt. A foreign war destroyed Carthage ; and 
 the northern coast of Africa has never recovered 
 from the devastations committed two thousand years 
 ago by the Eoman soldiers. Rome, by war, de- 
 stroyed the Grecian civilization. The northern 
 barbarians annihilated the Roman Empire. The 
 Mahometans conquered the civilization which, un- 
 der the Greek emperors, a second time arose on the 
 banks of the Hellespont. In every country the 
 ruins of lost civilizations appear, destroyed by war. 
 
 The project of perpetual peace was prominently 
 brought forward by Kant toward the close of the 
 eighteenth century. Some of the articles of his the- 
 
THE SOCIAL SCIENCES. 17 
 
 oretical treaty of a perpetual peace are essential to 
 study. One of the most important is the disband- 
 ing of those vast armies which now consume the 
 wealth of the most powerful States. Standing 
 armies miles perpetuus ought to disappear en- 
 tirely with time. For these, appearing always 
 ready for the combat, incessantly threaten other 
 powers with war, and incite States to surpass one 
 another in the number of their troops. This rivalry 
 is a source of expense, which ends by rendering 
 peace more burdensome than a short war. National 
 debts ought not to be contracted for the purpose of 
 interests external to the State. This system of 
 credit is a treasure always ready for war. The 
 only security for the preservation of universal peace 
 is in the freedom of the constitution of each State. 
 Where citizens are free, and have in their own hands 
 the government, they hesitate to declare against 
 themselves the calamities of war ; but where the 
 subjects are not citizens, the sovereign and the gov- 
 erning classes, having little to fear for their personal 
 comforts, may declare war upon the most frivolous 
 reasons. 
 
 The abolition of standing armies, the restriction 
 of national debts, and the independence of repre- 
 sentative constitutions are considered by Kant to be 
 the only guarantees of peace. But these are most 
 doubtful topics. Republics have been the fiercest 
 aggressors in history. And the standing armies 
 JURISPRUDENCE 2. 
 
18 INTRODUCTION. 
 
 and police of Europe are necessary, as well against 
 the foreign enemy as against the internal sedition 
 which, like Communism in France, attacks order, re- 
 ligion, and property. 
 
CHAPTER H. 
 
 ETHICS IN RELATION TO JURISPRUDENCE. 
 
 Ethics is the Science of Moral Duties. 
 
 The purpose of the Physical Sciences throughout 
 all their provinces is to answer the question, " What 
 is ? " They consist only of facts, arranged accord- 
 ing to their likeness, and expressed by general names 
 given to every class of similar facts. The purpose 
 of the Moral Sciences is to answer both the ques- 
 tions, " What is ? " and " What ought to be ? " They 
 aim at ascertaining the rules which ought to govern 
 voluntary action, and to which those habitual dis- 
 positions of mind which are the source of voluntary 
 action ought to be adapted. 
 
 The possibility of erecting Ethics into a science 
 can be consistently disputed by those only who ques- 
 tion the veracity of that consciousness which im- 
 mediately shows to us the existence and operation 
 of a moral faculty. 
 
 The arguments against the existence of a moral 
 faculty are generally founded upon the gross in- 
 sensibility to moral distinctions exhibited by unedu- 
 cated children, or savage nations ; or upon instances 
 of persons who, from various causes, have counted 
 those things right which we deem wrong, or es- 
 
20 ETHICS IN RELATION 
 
 teemed actions as praiseworthy which we regard 
 with abhorrence. But such exceptional and anom- 
 alous cases are nothing to the purpose. When we 
 are told of the absurdities and self-contradictions 
 believed, or at least professed, by whole nations as 
 certain truths when we are reminded that children 
 and uneducated peasants do not readily assent at 
 first hearing to the very axioms of science we arc 
 not apt to be greatly disconcerted by such cavils 
 against the existence of reason. The case is similar 
 with respect to imperfect or diseased manifestations 
 of our moral nature. Moral blindness, if it really 
 exist at all, is a phenomenon far too rare to be taken 
 into account in the psychology of man. The goitre 
 is indeed a melancholy instance of the evil results 
 of a depressing physical condition ; the Chinese 
 woman's foot displays remarkably the power of bad 
 training; but the anatomist of healthy humanity 
 does not describe goitres and club-feet as our nor- 
 mal condition. Hume, who industriously trav- 
 ersed the history of our race to collect all the 
 instances of aberration which have resulted from 
 neglect or imperfect study of the moral conscious- 
 ness, is constrained to conclude *that the principles 
 upon which men reason in morals are always the 
 same, though their conclusions are often very differ- 
 ent ; and Dugald Stewart observes, no less beauti- 
 fully than ingeniously, that the histories of hum an 
 imbecility are, in truth, the strongest testimonies 
 
TO JURISPRUDENCE. 21 
 
 which can be produced to prove how wonderful is the 
 influence of the fundamental principles of morality 
 over the belief, when they are able to sanctify in the 
 apprehension of mankind every extravagant opinion 
 which early education has taught us to associate 
 with them. Such are their opinions. Though the 
 obscure character of psychological law, the influence 
 of predominating passions, or the capricious action 
 of human volition may interfere with the inferential 
 process in morals and though the peculiar difficul- 
 ties by which the moral philosopher is embarrassed, 
 arising from the unavoidable use of a terminology 
 impressed with the laxity of colloquial language, may 
 render futile the attempt to compete with the geo- 
 metrician in the simplicity and lucidity of his deduc- 
 tionsyet his process is identical with the geometri- 
 cal method. Could we, indeed, shut out human 
 volition, and the action of disturbing fancies, man- 
 kind would no more differ about the conclusions to 
 be drawn from the primary elements of Ethics than 
 about the deductions from geometrical postulates 
 and definitions. Nor are the Moral Sciences alone 
 exposed to the uncertainty arising from disturbing 
 influences. There are elements in meteorology and 
 in the laws of the tides which are unaccountable, 
 and for which allowance must be made in the cal- 
 culations which compute their effects in any given 
 instance. We are not, then, to relinquish, on ac- 
 count of these disturbing influences and great 
 
22 ETHICS IX RELATION 
 
 obstacles, the erection of an imposing group of 
 Moral Sciences on grounds quite as solid as those 
 which refer to the material world. We find a 
 scientific basis furnished to Ethics in the laws of 
 our moral constitution ; their nature, value, and the 
 truths guaranteed by them can be determined only 
 by inductive investigation the common method of 
 " The Athenian Yerulam and the British Plato." 
 
 It is quite evident that Bacon meant his method 
 to be applicable to psychology and morals as well as 
 to physics. In the one branch of philosophy, as in 
 the other, there should be an orderly observation of 
 facts, accompanied by analysis, or, as he expresses 
 it, the necessary exclusions of things indifferent. 
 This should be followed by a process of generaliza- 
 tion, in which we seize on the points of agreement. 
 The only essential difference between the two lies 
 in this, that in the one we take the senses, and in the 
 other consciousness, as our informant. 
 
 The only question of any difficulty respecting an 
 inductive treatment of morals, seems to be this : 
 does such a treatment mean that there are no a priori 
 or intuitive principles of moral guidance, which, in- 
 stead of deriving their authority from experience, 
 are fitted and intended to sanction experience ? Does 
 not such a procedure expose us to the danger of 
 substituting empirical generalizations and accidental 
 associations for necessary truths and eternal princi- 
 ples? of confounding, like the Athenian sophists, 
 
TO JURISPRUDENCE. 23 
 
 an average morality with an absolute standard of 
 rectitude ? 
 
 This objection is based on a misapprehension of 
 the scientific process. To identify ethical trutli with 
 vulgar credence, or to adjust it to the fluctuating 
 standard which the popular market supplies in every 
 age to the demands of each succeeding generation, 
 would be fatal to the very idea of a real moral law. 
 A series of facts brought forward to show the gen- 
 eral acknowledgment among men of a moral truth, 
 must be carefully distinguished from an induction 
 of a physical law from facts observed. The princi- 
 ples operate a priori, and independently of experi- 
 ence ; they cannot become known to us, or be em- 
 ployed as philosophic principles, till we have de- 
 termined their nature, rules, and limits by method- 
 ized observation. The distinction between moral 
 good and evil the obligation to shun the evil and 
 do the good are laws which, like the laws of logic, 
 man discovers in his own nature, and which have 
 their origin in himself, as they have their application 
 in his actual life. Moral laws are put into a man's 
 soul or mind as into a treasury or repository some 
 in his very nature, some in after actions, by educa- 
 tion and positive sanction. The moralist refers for 
 judgment on the necessary truths he enounces, not 
 to voluminous statistics, however undeniably useful 
 such records may be as a definite expression of cer- 
 tain facts in our social economy, and entitled as they 
 
24 ETHICS IX RELATION 
 
 are to an intermediate place between morals and 
 politics; lie bids the student descend into h is own 
 consciousness the depths of his own personality 
 and observe what .he finds there. 
 
 Mental laws thus inductively determined are 
 henceforward to be regarded as primary principles, 
 and are open at once to the sweeping range of direct 
 deduction. And again, experience has its part, in 
 which there is an immensity to be done, not in the 
 way of invading the domain of the exact science, 
 but in that of extending our knowledge of the facts 
 to which it is to be applied. Where the science of 
 intuitive morals ends, there the science of the ex- 
 perimentalist meets it; and, by a process which 
 modern logicians have named traduction, we pass 
 from one order of reasoning to the other, and com- 
 plete a Science of Ethics practically applicable to 
 every detail of life. And thus, a method, con- 
 structed after the aphorism of Bacon, secures to the 
 experimental as well as to the purely rational ele- 
 ment its own approximate value, assigns to each its 
 own place, and shows how the two are inseparably 
 united, and how they mutually confirm and illus- 
 trate each other. 
 
 The preceding general views may be illustrated 
 by the following passage from Kant : " It is more 
 particularly in the region of morals that Plato dis- 
 covers his ideas. Moral truth rests upon liberty, 
 and liberty is under the government of laws which 
 
TO JURISPRUDENCE. 25 
 
 spring from the reason itself. Whoever would rest 
 the idea of virtue upon experience, and establish as 
 a model that which can scarcely serve as an ex- 
 ample in any important practical application, would 
 render virtue altogether uncertain, make it depend- 
 ent upon time and circumstances, and render the 
 formation of any rules impossible. Every one, on 
 the contrary, can see that if any person were held 
 up to him as a model of virtue, it is only in himself 
 that the true type exists, to which the proposed 
 model might be compared, and, consequently, ap- 
 preciated. Now, this type is the idea of virtue ; the 
 objects of experience may, indeed, serve as examples 
 to show that what the reason demands is, up to a 
 certain point, possible in practice ; but the arche- 
 type itself is not there. Because a man never acts 
 in accordance with the pure idea he has of virtue, 
 it does not follow that the idea itself is a mere 
 chimera ; for it is only by means of this idea that 
 moral judgments are formed at all ; it is, con- 
 sequently, the foundation of moral perfection, so 
 far at least as this is possible, considering the 
 obstacles which human nature presents, which are, 
 however, indeterminate. The Republic of Plato 
 has become proverbial as the expression of an imag- 
 inary perfection ; and Brucker ridicules the notion 
 that a prince could never govern well unless pene- 
 trated by the theory of ideas. But, instead of 
 throwing aside Plato's thought as useless, under the 
 
26 ETHICS IN RELATION 
 
 pretext that it is incapable of realization, would it 
 not be better to attempt a development of it, and by 
 renewed efforts draw it from the obscurity in which 
 that excellent genius has left it? The obstacles 
 arise less, perhaps, from the inevitable evils attached 
 to human nature than from a neglect of these verit- 
 able ideas in legislation. There can be nothing 
 more unworthy of a philosopher than to appeal to 
 an experience which is acknowledged to be in con- 
 tradiction to these ideas ; for what would have been 
 the experience itself if the institutions in question 
 had been established under happier auspices, conform- 
 ably to ideas, and if, instead, other ideas, gross and 
 rude, just because they are derived from experience, 
 had not rendered every good design useless ? In 
 all that has reference to the principles of morals 
 and legislation, where ideas alone render experience 
 possible, Plato possesses a merit that is peculiar to 
 him, and which we are prevented from recognizing 
 only because we judge according to empirical rules, 
 whose value as principles is as nothing compared 
 with that of ideas. In reference to external nature, 
 experience may, indeed, furnish rules, since, in this 
 case, it is the source of truth ; but in reference to 
 morals, experience is the mother of illusion ; and it 
 is altogether error to reason from that which is 
 done, or attempt to limit it by laws which have 
 especial reference to that which ought to be done." 
 The historical method of inquiry has been recom- 
 
TO JURISPRUDENCE. 27 
 
 mended by some, as by Schleiermacher, with whom 
 Ethics is an investigation of human nature in its 
 forms and tendencies developing itself in history. 
 It must be conceded that history supplies to Ethics 
 its most valuable illustrations ; but as human action 
 is always presented in history as a complex web, in 
 which good and evil are mixed together, it is need- 
 ful to have a test to determine which is the one and 
 which the other. We are thus brought back to the 
 inductive investigation of man's moral constitution 
 as the only method of constructing a scientific Ethics 
 in reference to Jurisprudence. 
 
 A most successful illustration of this inductive 
 treatment of moral phenomena will be found in 
 the ethical writings of Butler : " There are two 
 ways," writes Butler, "in which the subject of 
 morals may be treated. One begins from inquiring 
 into the abstract relations of things ; the other from 
 a matter of fact, namely, what the particular nature 
 of man is, its several parts, their economy or con- 
 stitution i from whence it proceeds to determine 
 what course of life it is which is correspondent 
 to this whole nature. In the former method the 
 conclusion is expressed thus that vice is contrary 
 to the nature and reason of things; in the latter, 
 that it is a violation or breaking in upon our own 
 nature." Of the former method, the system of 
 Clarke that virtue is a conformity with the relations 
 of things ; and that of Wollaston that virtue con- 
 
28 ETHICS IX RELATION 
 
 sisted in acting according to truth, arc the most 
 eminent examples. These systems, which were 
 recommended by the intellectual spirit of the age in 
 which they were produced, when the splendid dis- 
 coveries of Descartes, of Leibnitz, and of Newton 
 had so dazzled the mind of Europe, have now be- 
 come obsolete. The latter procedure was universally 
 employed by the ancient moralists ; and Butler, sys- 
 tematically applying it, " occupying the unassail- 
 able ground of an appeal to consciousness," has es- 
 tablished, by reasons superfluously conclusive, not 
 merely the existence, but also the authoritative char- 
 acter and the implicit sanction of the moral law. 
 It is as invested with these majestic attributes of 
 eternity, immutability, and universal authority, that 
 the greatest masters of philosophy and eloquence, 
 both in ancient and modern times, have loved to 
 contemplate and depict the moral faculty. Thus, 
 Cicero says : Right reason is itself a law congenial 
 to the feelings of nature, diffused among all men, 
 uniform, eternal, calling us imperiously to our duty, 
 and peremptorily prohibiting every violation of it. 
 Nor does it speak one language at Rome and another 
 at Athens, varying from place to place, or from time 
 to time ; but it addresses itself to all nations and to 
 all ages, deriving its authority from the common 
 Sovereign of the universe, and carrying home its 
 sanctions to every breast by the inevitable punish- 
 ment which it inflicts on transgressors. Seneca 
 
TO JURISPRUDENCE. 29 
 
 says : There is a holy spirit throned within us, of our 
 good and evil deeds the Guardian and the Observer. 
 As he is treated by us, even so he treats us. Fene- 
 lon says : Le Maitre interieur et imiversel dit tou- 
 jours et partout les memes verites. Under the same 
 aspect the moral law is presented by Kant, when he 
 calls it the Categorical Imperative, whose absolute 
 rule is, Act according to a maxim which would ad- 
 mit of being regarded as a general law for all acting 
 beings. And Lord Brougham says : There is a law 
 above all the enactment of human codes the same 
 throughout the world the same in all times it is 
 the law written by the finger of God upon the heart 
 of man. 
 
CHAPTER III. 
 
 POLITICAL ECONOMY IX RELATION TO JURISPRU- 
 DENCE. 
 
 Political Economy is the Science of Exchanges. 
 
 The bountiful earth, under the varying influences 
 of soil and climate, produces different things useful 
 and agreeable to man. In tropical climates, nature 
 turns every field into a garden : there trees of beau- 
 tiful form bear rich fruits ; there grow the shrubs 
 from which we obtain our spices, and variegated 
 flowers bloom in wanton profusion. The organic 
 richness and abundant fertility belonging to such 
 districts enable them to produce the luxuries of 
 civilized life. Countries more temperate afford vines 
 and wheat. Some places abound in iron and coal ; 
 others in gold and silver. All civilized nations re- 
 quire to exchange some of their own productions 
 for those of others, and upon such exchanges does 
 the very existence of civilized life depend. 
 
 Between one country and another obstacles exist 
 seas, mountains, rivers, forests. These things throw 
 difficulties in the way of transit ; and to facilitate 
 the operations of commerce, the ingenuity of man 
 invents speedy and safe modes of conveyance. 
 Canals are made, harbors widened, rivers deepened, 
 
POLITICAL ECONOMY. 31 
 
 navigation improved. Rapid steamers triumph 
 against the winds ; railways tunnel the Alps and 
 bridge the Mississippi and the Ganges. Political 
 Economy shows how inconsistent it is that States 
 should undergo the greatest expense, by building 
 magnificent railways to facilitate intercourse, and at 
 the same time should check intercourse by commer- 
 cial restrictions and taxes which artificially raise 
 prices. 
 
 All the phenomena which occur in the free inter- 
 changes of the productions of one place for those 
 of another the rise and fall of prices, and the rea- 
 sons for the respective values of commodities, all 
 the questions connected with capital and labor, 
 everything relating to exchanges it is the province 
 of Political Economy to investigate. No subjects 
 can be more important ; and the investigation of 
 them upon sound principles, now proceeding in most 
 of the civilized nations of Europe, must eventually 
 produce important results on the commerce, the 
 prosperity, the progress of the world. 
 
 At first, when this science began to be extensively 
 cultivated, objections were made to it, on the grounds 
 that wealth is not a proper subject for our study, for 
 with it increase also corruption and vice. Persons 
 have derived ideas of this kind from the early 
 study of the Greek and Roman writers ; the minds 
 of classical students retain through life the ideas of 
 Cincinnatus nobly poor, and the black broth upon 
 
32 POLITICAL ECONOMY IN 
 
 which Leonidas and his Spartans lived. The Ro- 
 man writers praised sumptuary laws, and declaimed 
 with all the strength of their powerful language 
 against the degeneracy of their fellow-citizens from 
 the old Republican times, ere they knew the refined 
 arts of Greece, or enjoyed the plundered riches of 
 the East. 
 
 But no fatal union necessarily exists between na- 
 tional wealth and national corruption. Greece at 
 the time of her greatest material prosperity flour- 
 ished most in eloquence, in arts, and arms. The 
 Netherlands, in the time of Charles V, were the 
 most industrious and, for their amount of territory, 
 the wealthiest nation in the world they exhibited 
 no want of devoted heroism, no want of fiery inde- 
 pendence. And although England, like ancient 
 Tyre, has her merchants who are princes, her traf- 
 fickers who are the honorable of the earth, she still 
 sits very glorious in the middle of the seas, and en- 
 riches the kings of the earth with the multitude of 
 her riches and her merchandise. We may banish, 
 then, the idea that the abundant returns of in- 
 dustry, the fruits of genius, the boundless extent of 
 commerce, the exuberance of wealth, and the culti- 
 vation of the liberal arts are enervating to the na- 
 tional spirit or dangerous to the national liberty. 
 Liberty depends upon the structure of the govern- 
 ment, the administration of justice, and the intelli- 
 gence of the people. It has little to do with wealth, 
 or poverty, or soil, or climate. 
 
RELATION TO JURISPRUDENCE. 33 
 
 The Science of Political Economy is of recent 
 origin. 
 
 In the first stages of society, wealth, in the pres- 
 ent popular meaning, can scarcely be said to exist. 
 The wandering tribes of savages live by hunting 
 arid fishing ; their habitations are formed of the 
 bark of trees ; their wealth consists of the skins 
 which they wear, their weapons of the chase, and 
 their canoes. 
 
 In the progress of society, the next step to this is 
 the pastoral state, in which tribes of men, united 
 under the patriarchal system of government, have 
 flocks, and live upon their produce. 
 
 From this, the transition to the agricultural state 
 is easy, in which there are more opportunities for 
 accumulating wealth, and in which civilization rap- 
 idly progresses. Next in history arise the civilized 
 nations of antiquity of which we have authentic 
 record. 
 
 In Egypt and many other Oriental nations there 
 was great wealth ; but they labored under oppres- 
 sive despotisms. The bulk of the population was in 
 slavery. The government, owning all the land of 
 the country, was enabled to compel the cultivators 
 to labor, and then to deprive them of the produce. 
 The Pyramids of Egypt have often been mentioned 
 with wonder, as evidences of the greatness of that 
 civilization which was able to leave such great 
 memorials. To me, on the other hand, reflecting 
 JURISPRUDENCE 3. 
 
34 POLITICAL ECONOMY IX 
 
 that they were raised by forced unpaid labor of 
 thousands of miserable beings perishing at the task, 
 they have always seemed to exhibit only proofs 
 of the senseless vanity of tyrants, who dragged 
 so many of their subjects together, and forced 
 them unpaid to raise useless heaps of stones, when 
 those unhappy persons would have been better em- 
 ployed in building comfortable though perishable 
 houses for themselves, and living there with their 
 families. 
 
 In Egypt, the sacerdotal caste alone attended to 
 intellectual affairs, whilst the rest of the population 
 was sunk in ignorance. The entire system of castes 
 was strictly enforced. These castes still prevail 
 throughout the East ; and the system this moment 
 may be seen in full vigor in parts of India, where 
 Brahmins and their children's children must be 
 priests forever where the descendants of soldiers 
 must always be soldiers where none of the natives 
 who live strictly according to the tenets of their 
 religion, can leave the trade or business which their 
 fathers followed. 
 
 In modern civilized societies there are many ex- 
 amples of men of humble birth raising themselves 
 to the highest position and the greatest fortunes. 
 Under the ancient tyrannies it was impossible for 
 the phenomena attending the free competition of 
 capital and labor to arise ; it was impossible for the 
 principles of taxation to be discussed, since taxes 
 
RELATION TO JURI^PKUDEXCE. 35 
 
 were nothing but plunder taken by the powerful 
 from the humble. 
 
 In these old times the universal reign of rapine 
 prevented the study of the Social Sciences from 
 nourishing ; notwithstanding that, some nations suc- 
 cessfully cultivated literature and the arts. Things 
 now only practiced by the outcasts were then the 
 pursuits of the leaders of society. Thus, Homer 
 introduces Nestor asking Telemachus whether he 
 and his friends were pirates or merchants : 
 
 " Say, what the cause "why, traversing the main, 
 Steer you from port to port in quest of gain ? 
 Or to and fro, like roving pirates stray, 
 "Who, injuring others, cast their lives away ? " 
 
 Odyssey, Book III. 
 
 The writer evidently did not consider that pro- 
 fession dishonorable which now is punished by the 
 rope, and to destroy which civilized nations now 
 offer head-money for slain pirates. 
 
 Athens, in the time of Pericles, flourished in 
 wealth ; her poets and orators hold still a foremost 
 place amongst the intellects of the world ; her archi- 
 tecture is still a model for us ; her art is still con- 
 templated by all succeeding time with admiring de- 
 spair. Rome, under the later Republic, and in the 
 time of the Emperors, accumulated such wealth as 
 London now can scarcely rival, and in taste and art 
 surpassed the Paris of the Napoleons. Why, then, 
 did not those countries cultivate the science which 
 
36 POLITICAL ECONOMY IN 
 
 treats of the operations that bring the produce of 
 one climate to another, and enable the inhabitants 
 of any district enjoying a fair share of wealth to 
 possess the luxuries of the most remote zones, with- 
 out the discomforts attending their production? 
 One reason was, the utter contempt with which 
 trade was regarded by the classic times. The citi- 
 zens of the ancient States, even those enjoying the 
 highest degree of freedom, all despised trade. Those 
 branches of commercial and manufacturing industry 
 which have raised our modern civilization to so 
 great a height, and without which it would at once 
 disappear, were scorned by the warlike citizens of 
 Greece and Rome. Plato excluded tradesmen from 
 his Republic. Cicero, although in most respects so 
 far in advance of his age, thought commerce only 
 not very despicable " hand admodumvituperanda." 
 He says also : " I do not wish the same people to 
 be the ruler and the carrier of the world " " Nolo 
 eundem populiwn imperatorem, et portitorcm esse 
 terrarum." Yet it has been the boast of Venice, 
 Holland, and England, in succession, to be the 
 carrier of the world. The Romans prohibited com- 
 merce to persons of birth, rank, and fortune, and 
 no senator was allowed a vessel larger than a boat 
 sufficient to carry his wine, corn, and fruits. The 
 military aristocracy of Rome, without trade or 
 commerce, sought wealth in the only manner which 
 can take the place of production plunder. The 
 
RELATION TO JURISPRUDENCE. 37 
 
 wealth of Rome was plunder taken openly from the 
 countries successively overrun by the victorious 
 Roman armies ; the principal taxes by which in 
 latter times the Roman govarnment subsisted were 
 tributes drawn from conquered provinces. 
 
 The very sense in which the word tributum came 
 to be used shows how unfair was this one of the 
 earliest taxes in Rome. It was called tributum, be- 
 ing paid by the thirty plebeian tribes instituted, as 
 has been supposed, by Servius Tullius. It derived 
 its subsequent meaning from being a partial tax, not 
 paid by the patricians, and a badge of servitude 
 upon the plebeians. I am aware that it is a moot- 
 point amongst historians whether these tribes in- 
 cluded the patricians or not ; but I consider that the 
 sense in which the word tributum came to be used 
 finally is upon this question decisive. 
 
 The wealth of Rome was principally plunder 
 drawn from conquered countries. As each partly 
 civilized nation in turn yielded to the terror of the 
 Roman armies, its wealth, accumulated for centu- 
 ries, was transferred to Rome and spent in a season. 
 While nations thus afforded plunder, Italy flour- 
 ished in wealth, and was covered with the most 
 magnificent public and private edifices. But when 
 no more new countries could be overcome, and when 
 the tributes could no longer be exacted from the in- 
 habitants of the provinces, the resources of Italy 
 were not sufficient to keep those magnificent edifices 
 
POLITICAL ECONOMY IN 
 
 
 
 from mouldering to decay. The ancient world had 
 within it the fatal principles of decay the despot- 
 ism of the government, the tyranny of the governing 
 races, the slavery and ignorance of the masses of the 
 people. The old civilization fell to pieces upon the 
 invasion of the hardy barbarians of the north, and 
 the Dark Ages for a time covered Europe with a 
 cloud. 
 
 When learning began again to be cultivated, and 
 when the European universities were founded, the 
 old prejudice against trade and commerce still sur- 
 vived. The feudal system nourished. The princi- 
 ple of the feudal system was, that a dominant race 
 tyrannized over a subjected one. The feudal lords 
 extorted from the serfs their property, and insisted 
 on their labor without paying them for it. No man 
 could possess the absolute property of the land. 
 The greatest contempt was manifested for trade. 
 Warriors, in the early ages, contemned the rights of 
 property in all unable to protect themselves by arms. 
 No nobleman or gentleman in the feudal times would 
 sully himself by embracing any profession, except 
 that of arms or the church. As a proof of the 
 great contempt for trade which once existed in En- 
 gland, now the first commercial nation upon the 
 earth, the most lucrative and flourishing branches of 
 trade were there permitted to fall into the hands of 
 despised strangers the Jews and Lombards. The 
 Jews invented bills of exchange, without which, or 
 
RELATION TO JURISPRUDENCE. 39 
 
 some similar documents, the vast mercantile opera- 
 tions now based upon credit could not be conducted. 
 The Lombards invented shipping insurances. In 
 this state of society none of the phenomena could 
 prominently appear which arise from the free dis- 
 tribution of property, and from the unrestrained 
 competition of capital and labor. None would con- 
 sider about the cheapest and best mode of taxation, 
 whilst taxes were the property of governing races, 
 who consumed them all for their own benefit, and 
 were careless about the welfare of the producers. 
 War was then the great business of nations, and the 
 attention of government in matters of taxation was 
 directed merely to the most effectual means of rais- 
 ing the supplies to meet the expenses of continual 
 warfare. The best statesman was he who raised 
 most taxes with least trouble from the oppressed 
 common people. 
 
 The great discoveries of the fifteenth century be- 
 gan to destroy feudalism. The invention of gun- 
 powder caused the castles and armor of the barons 
 to be useless, by means of which they had been 
 enabled so long to prevent and defy any general law 
 of the realm, and to live upon the plunder of the 
 poor. It was found that a regiment of laborers, dis- 
 ciplined for six months, and armed with the weapons 
 introduced by this wonderful discovery, were supe- 
 rior in the battle-field to the bravest knights, mounted 
 on splendid horses, and clad in costly armor. But 
 
40 POLITICAL ECONOMY IN 
 
 the new weapons were expensive ; there, again, the 
 wealth of the towns was of more use than the chiv- 
 alry of the castles. The great invention of print- 
 ing diffused knowledge amongst all. The great 
 geographical discoveries gave a new impetus to com- 
 merce, which, from its wealth and extended opera- 
 tions, began no longer to be despised. Slavery by 
 degrees vanished from the whole of Western Eu- 
 rope. Thus, with the decline of the feudal system, 
 arose that commercial and manufacturing spirit 
 which is now beginning to be one of the great mov- 
 ing powers of the world. 
 
 Once, therefore, that the settled conditions of 
 modern society began to arise in Western Europe, 
 the serfs, emancipated from the feudal system, were 
 enabled to dispose of their labor at the price which 
 they considered sufficiently remunerative for them ; 
 merchants, under the protection of the law, no longer 
 feared that their property would be taken from them 
 at the will of some baron ; wealth rapidly accumu- 
 lated, and some men, instead of working with their 
 own capital, began to live upon the profits of their 
 capital lent to others. In consequence, all the nice 
 and complicated questions connected with capital, 
 labor, wages, and taxation began to attract the at- 
 tention of learned men, and from their studies and 
 writings upon these important subjects has arisen 
 the modern science of Political Economy. The ori- 
 gin of this science is cotemporaneous with the spread 
 
RELATION TO JURISPRUDENCE. 41 
 
 of modern civilization, the increase of commerce, 
 the rise of public liberty. 
 
 And briefly reviewing the history of Western 
 Europe, we may see that the march of civilization 
 has been steady and progressive. First, the serfs 
 are emancipated, then trade becomes honorable, and 
 from these conditions, combined with some others, has 
 arisen the great middle class, displaying the highest 
 social activity, and cultivating the greatest spirit of 
 industry ever witnessed in the world. Having ac- 
 complished so much, the spirit of progress now 
 directs its efforts to solve the social difficulties of 
 society; and in this, one of its chief aids is the 
 Science of Political Economy. 
 
 Some have despaired of continual progress, and 
 assuredly all over the earth we behold the ruins of 
 lost civilizations. In Central America, amidst for- 
 ests a thousand years of age, the traveler beholds 
 ruins of statues and temples that rival Athenian art 
 and Egyptian architecture. They lie, broken and 
 defaced, memorials of great and civilized nations, 
 whose very names ages ago perished from human 
 memory. Babylon, Nineveh, Carthage, once were 
 great cities, and now are either heaps of ruins 
 or effaced from the earth. Still, we may anticipate 
 that progress may have a long career. Sometimes 
 for centuries it has been interrupted, yet since the 
 dawn of history there is evidence of its continuance. 
 "VYe behold upon the earth places like the impassable 
 
42 POLITICAL ECONOMY IX 
 
 morasses of the Amazon, breathing forth devastat- 
 ing epidemics, and affording to the few creatures in 
 human form that linger there, the means of drag- 
 ging on but a dull and joyless existence, without 
 usefulness or dignity. Comparatively recent history 
 informs ns that when the Athenian civilization 
 flourished, the greater part of Europe, and now its 
 most flourishing and civilized part, bore the same 
 character. When Pericles lived his glorious exist- 
 ence, those countries which, under the names of 
 France and Germany, are covered with rich corn- 
 fields and beautiful vineyards, and have produced so 
 many great and good men, were disfigured with 
 rocks and marshes, and were inhabited by uncivil- 
 ized men not very superior to the present New 
 Zealanders. The rivers, which then formed noisome 
 swamps, have been taught to keep their channels, 
 and are covered with steamers ; the rocks arc built 
 into libraries and cathedrals, and the descendants of 
 the savages who dwelt there have been brought 
 under the dominion of law, and into the habits of 
 peaceful life. So also, in the North and South 
 Americas, Australia, and the islands of the Pacific 
 and Southern Oceans, savage life is everywhere be- 
 ing replaced by civilization. 
 
 In the popular liberty which has enabled so many 
 men of humble birth in modern times to raise them- 
 selves to the honorable positions which they have 
 
RELATION TO JURISPRUDENCE. 43 
 
 adorned, we see the best proofs of the high charac- 
 ter of our modern civilization. In the development 
 of society, civilized nations have arrived at that 
 stage where commerce is free, where industry is 
 honored. The fruits of labor are protected by the 
 law, its exertions are respected. 
 
 The study of the Social Sciences has aided to pro- 
 duce these sentiments, beginning to pervade the 
 heart of modern society. I have always considered 
 that the study of the Social Sciences, such as Juris- 
 prudence and Political Economy, should form a part 
 of the general education of all, the poorest as well 
 as the richest in the land. 
 
 The sciences may be placed in two divisions. Some 
 of necessity need to be known only to those who 
 practice them professionally. We all can enjoy the 
 fullest benefit of the mechanical sciences, notwith- 
 standing our ignorance of them. Few are acquainted 
 with the mechanism of the steam-engine, yet millions 
 enjoy the benefits of railway traveling. But sci- 
 ences, like Morality, Jurisprudence, Medicine, and 
 Political Economy, derive their efficacy, not from the 
 knowledge concentrated in particular professions, 
 but from the general correct knowledge of them 
 diffused through the public ; and these sciences have 
 this striking peculiarity, that no one confesses his 
 absolute ignorance of them. Every one every day 
 practices Morality, Jurisprudence, Medicine, and Po~ 
 
44 POLITICAL ECONOMY IN 
 
 litical Economy, let them be good or bad and they 
 are often very bad. Hence arises the importance of 
 general education upon these subjects. And as re- 
 gards Political Economy, I may say there are no 
 subjects more interesting than those about which 
 this science is conversant. They are those which 
 concern every individual in the community ; they are 
 those upon which, in a very great measure, individ- 
 ual and national prosperity depend. There is no one 
 who does not buy and sell, who does not pay taxes, 
 " who does not employ labor or is employed. And 
 there cannot be upon earth a study of more extended 
 dignity and usefulness, more becoming to philan- 
 thropy and patriotism, than the requisite and practi- 
 cal reform of the social institutions of the country 
 the solution of the social difficulties of the day. 
 It is right to cultivate this social knowledge. By 
 the study of these liberal sciences we shall the more 
 assist the diffusion of the sentiments now spreading 
 throughout the world, and by means of which all 
 enlightened men regard the human race, without 
 distinction, as one family aspiring to one common 
 aim the development of the faculties with which 
 they have been endowed. The Social Sciences are 
 of no one country, they belong to the entire world. 
 Those who cultivate them, though separated by dis- 
 tance and by language, yet understand one another. 
 Fellow-countrymen in thought, they form one vast 
 intellectual society of citizens of the world, pursu- 
 
RELATION TO JURISPRUDENCE. 45 
 
 ing the same end, the discovery of universal truth 
 animated by one feeling, the patriotism of civili- 
 zation. 
 
CHAPTER IV. 
 
 JURISPRUDENCE. 
 
 The term Jurisprudence has been used in very 
 different senses. Originally, it meant the science of 
 right. Afterward, it was used to mean knowledge 
 of the principles of law, or skill in its practice. In 
 the Institutes of Justinian, Jurisprudence is defined 
 to be the knowledge of what is just and unjust. 
 Upon the revival of learning in Europe, in the six- 
 teenth century, Jurisprudence was used to signify 
 knowledge of the Roman law. The term has also 
 been used, in a sense borrowed from the French, to 
 imply a collection of the principles belonging to 
 particular branches of law thus, Equity Juris- 
 prudence, Maritime Jurisprudence. The term has 
 also been used to signify the whole body of the law 
 of a State thus, the Jurisprudence of England. 
 
 The philological meanings of legal terms best il- 
 lustrate legal history. There are three phases in 
 the development of law the religious, technical, 
 and scientific. In the origin of society, every dis- 
 puted question in law is referred to the decision of 
 God. In all languages the legal terms of pleading 
 causes originally imply the idea of prayer. Trials 
 are by ordeal and by battle amongst all nations in 
 an early state of civilization. 
 
JURISPRUDENCE. 47 
 
 In the second phase of law, nations, by means of 
 pre-appointed evidence and forms of a minute and 
 cumulative nature, endeavor to attain certainty. 
 Seven Roman citizens were originally necessary to 
 attest a Roman will. Under the English law, 
 twelve jurors must unanimously find a prisoner 
 guilty before he can receive punishment. Justice, 
 under such a system, becomes minute and technical. 
 The judges often knowingly do what is unjust in 
 carrying out the letter of the law. The maxim of 
 this second phase is, " Let justice be done though the 
 heavens should fall " -fiat justitia mat codum. Jus- 
 tice and the corresponding terms in this phase of 
 law mean equality of division in all languages. 
 
 Finally, men begin to perceive that there are nat- 
 ural principles of right and wrong ; and, in the 
 third phase of law, endeavor to attain truth and 
 justice by the aid of reason and experience. 
 
 Whilst the first and second phases prevail amongst 
 a nation, law cannot be scientifically cultivated. In 
 the third phase, the possibility is admitted of arriv- 
 ing at a complete science of law or science of right. 
 In other words, the possibility is admitted of col- 
 lecting and arranging in methodical order the fund- 
 amental principles which explain the origin of laws 
 and their development toward perfection. Some 
 term is necessary to denote the science of law. Ju- 
 risprudence has been the word adopted. No science 
 can possibly be developed without method, nonien- 
 
48 JURISPRUDENCE. 
 
 clature, and classification. " Nomina si pereant, 
 perit et cognitio rcrum." Method facilitates com- 
 prehension, abridges labor, assists the memory, and 
 trains the intellect to accurate judgment. In every 
 species of knowledge, disorder in language is at 
 once the effect and the cause of ignorance and error. 
 Nomenclature can only be perfected in proportion 
 as truth is discovered. The classification of laws 
 has never yet been adopted upon the grand scale 
 demanded by Jurisprudence. If a system of law 
 were correctly framed, and if codes of laws were 
 drafted on one true principle by all civilized nations, 
 the language of each race would serve as a glossary 
 by which all systems of Positive Law might be ex- 
 plained ; whilst the matter in each code would afford 
 a test and standard by which all might be tried. 
 Thus classified and illustrated, the practice of every 
 nation might be a lesson to every other, and man- 
 kind might carry on a mutual intercourse of ex- 
 perience and improvements as easily in law as in 
 every other domain of art and science. 
 
 By law is here understood Positive Law- that is, 
 the law existing by position, or the law of human 
 enactment. Jurisprudence is the Science of Positive 
 Laws, and, as such, is the theory of those duties 
 which are capable of being enforced by the public 
 authority. Jurisprudence, so treated, may take its 
 place as one of those inductive sciences in which, by 
 the observation of facts and the use of reason, 
 
JURISPRUDENCE. 49 
 
 systems of doctrine have been established which are 
 universally received as truths among thoughtful 
 men. 
 
 But Jurisprudence, in its investigation of the ori- 
 gin, principles, and development of law, obviously 
 furnishes rules which teach men to acknowledge and 
 select good laws, to shun evil laws, and to practice 
 the existing laws and apply them skilfully. Hence, 
 Jurisprudence is not only the Science of Positive 
 Laws, but is also the art of legislation and the prac- 
 tice of advocacy. A jurist may state principles of 
 law in his study, enact laws in the senate, or ad- 
 vocate rights in the forum. 
 
 A science is a collection of truths ; an art is a 
 collection of rules for conduct. 
 
 The end of science is truth. The end of art is 
 work. 
 
 Since science is conversant about speculative 
 knowledge only, and art is the application of knowl- 
 edge to practice, Jurisprudence, when applied to 
 practice, whether in making of laws as in legislation, 
 or in the actual working of the law as in advocacy, 
 is an art ; but Jurisprudence, when confined to the 
 theory of law, is strictly a science. 
 
 The same term may be strictly applied to both 
 the science and its corresponding art, as logic is not 
 only the science of thought, but is also the art of 
 reasoning. So that I may give an example taken 
 from the practice of the law conveyancing is the 
 
 JURISPRUDENCE 4. 
 
50 JURISPRUDENCE. 
 
 science and also the art of alienation. If, by an in- 
 vestigation of the laws of property, we elicit and 
 systematize the principles which govern its dis- 
 position, we arc then forming the science. If we 
 apply this knowledge in the alienation of property, 
 we are skillful in the art. 
 
 The art may exist without the corresponding 
 science having arrived at any degree of cultivation. 
 If the knowledge applied to practice be merely ac- 
 cumulated experience, it is empirical ; but if it be 
 illustrated by history and philosophy, and brought 
 under general principles, it becomes a science. 
 Thus, Sir Edward Coke was an empirical lawyer ; 
 his writings are a chaos of ill-digested learning. 
 Judge Story was a scientific jurist of a high class, 
 who in his works rises from rules of practice to the 
 principles of eternal justice. 
 
 In every age and country different laws produce 
 different results, the same laws generally producing 
 the same results. Observing, then, the actions of 
 mankind differing in the different grades of civiliza- 
 tion, it is possible to estimate what rules for human 
 conduct in civil society produce the most beneficial 
 effects. If the Physical Sciences regard what is, 
 and the Mental Sciences both what is and what ought 
 to be so the jurist, in the investigation of the science 
 of right, should strive to make the actual law ap- 
 proach the ideal of legal perfection. 
 
ETHICS AND JURISPRUDENCE. 51 
 
 DISTINCTION BETWEEN ETHICS AND JURISPRUDENCE. 
 
 Thus, Jurisprudence as an art, or legislation, lias 
 the same ratio to Jurisprudence as a science which 
 the rules of practical morality bear to the Science 
 of Ethics. 
 
 Bentham has correctly denned the limits between 
 the provinces of Ethics and Jurisprudence. 'Ethics 
 exhibits the rules of three classes of human actions 
 prudence, probity, and beneficence. Legislation 
 interferes directly by means of punishment only. 
 Punishment 1 should not be applied when it is ground- 
 less, inefficacious, unprofitable, or needless. 
 
 The cases where the punishment would be un- 
 profitable constitute the great field for the exclusive 
 interference of Ethics. 
 
 Punishment as applied to guilt may be unprofita- 
 ble in both or either of two ways : by the expense 
 to which it would amount, even supposing it to be 
 confined altogether to delinquency ; or by the danger 
 there may be of involving the innocent in the fate 
 designed for the guilty. 
 
 Of the rules of moral duty, those which stand 
 least in need of the assistance of the legislator are 
 the rules of prudence. If one err in respect of 
 prudence, it must arise either from some inadvertence 
 or misapprehension with regard to the circumstances 
 on which his happiness depends. The rules of pro- 
 
52 ETHICS AND JURISPRUDENCE. 
 
 bity are those which, in point of expediency, stand 
 most in need of legislative assistance. 
 
 The idea of right is the bond between Ethics and 
 Jurisprudence. Practical morality has been defined 
 to be the art of directing the actions of individual 
 men to the production of the greatest possible 
 quantity of happiness by means of such motives as 
 offer themselves. The art of legislation teaches how 
 a multitude of men composing a community may be 
 disposed to pursue that course which is most con- 
 ducive to the happiness of the entire community by 
 means of motives which are applied by the legisla- 
 tor. Ethics and Jurisprudence differ in the means 
 which they employ. They coincide in one general 
 ultimate end, the happiness of mankind by the reg- 
 ulation of human action. 
 
 The distinction between Ethics, or the Science of 
 Moral Duties, and Jurisprudence, or the Science of 
 Positive Laws, is compulsion by public authority. 
 
 And thus discussing Positive Laws upon the in- 
 ductive method examining the different legislative 
 systems of different nations, and their results upon 
 the happiness of mankind comparing slavery with 
 freedom, ignorance with knowledge, accordingly as 
 these have been checked or developed by the great 
 forces which have swayed human destinies we, by 
 the observation of facts and the use of reason, se- 
 lecting the good, eloigning the bad, may gradually 
 arrive at that system of law which is most in con- 
 formity with natural justice. 
 
ETHICS AND JURISPRUDENCE. 53 
 
 But the duties of the jurist and the legislator are 
 perfectly distinct. The business of the jurist is 
 merely to state those general principles which are 
 true in all times and under all circumstances. The 
 legislator must regard the historical development of 
 the people. And it cannot be too often repeated that 
 all actual legislation must be a compromise between 
 history and philosophy. No two nations ever ex- 
 isted having precisely the same standard of morality 
 embodied in their laws. In no nation is the moral 
 standard the same at different periods of its devel- 
 opment. The law is always below the moral 
 standard of the best citizens, and above that of the 
 worst. The legislator must take heed that his leg- 
 islation coincides with the public opinion of the 
 mass, or the enforcement of a law becomes impossi- 
 ble. Thus, dueling where the issue was fatal was 
 murder, punished with death by the common law of 
 England, but the law could not be enforced until 
 late in the nineteenth century. 
 
 There is not in the whole compass of human af- 
 fairs so noble a spectacle as that which is displayed 
 in the progress of Jurisprudence, where we may 
 contemplate the cautious and unwearied exertions of 
 a succession of wise men through a long course of 
 ages, withdrawing every case as it arises from the 
 dangerous power of discretion, and subjecting it to 
 inflexible rules of Positive Law. 1 
 
 1 Mackintosh. 
 
54 LIMITS OF JURISPRUDENCE. 
 
 What can be more instructive than to search out 
 the first obscure and scanty fountains of that Juris- 
 risprudencc, which now waters and enriches whole 
 nations w^ith so abundant and copious a flood ; to 
 observe the first principles of right springing up, in- 
 volved in superstition and polluted by violence, un- 
 til, by length of time and favorable circumstances, 
 it has worked itself into clearness ; to view the 
 laws, sometimes lost and trodden down in the con- 
 fusion of wars and tumults, and sometimes over- 
 ruled by the hand of power then victorious over 
 tyranny, growing stronger and more decisive by the 
 violence they have suffered enriched even by those 
 foreign conquests which threaten their entire de- 
 struction softened and mellowed by peace and 
 religion, and improved and exalted by commerce, 
 by 'social intercourse, and that great opener of the 
 mind, ingenuous science. 1 
 
 LIMITS OF JURISPRUDENCE. 
 
 Justice alone of the virtues can be enforced by 
 the public authority. Jurisprudence considers what 
 range of human actions may come within the cog- 
 nizance of justice, and what rights are capable of 
 being protected by the Positive Law. Gratitude 
 and benevolence are virtues, but incapable of being 
 enforced by legal means, whereas, if one citizen take 
 
 1 Edmund Burke. 
 
LIMITS OF JURISPRUDENCE. 55 
 
 the property of another, there is compensation, or 
 punishment, or both. 
 
 The true objects of the Science of Jurisprudence 
 are the knowledge of the legal relations which ought 
 to be established by the Positive Law, and the ascer- 
 tainment of the best means to enforce such rela- 
 tions. 
 
 These true principles of Jurisprudence are at the 
 very base of the science of politics, and the due 
 ascertainment of the province of government is 
 perhaps the most important question of modern 
 times. But the province of government is solely 
 concerned with those human actions which are 
 capable of being enforced by the public authority. 
 It is idle for a government to try to enforce those 
 duties which are incapable of being enforced by it. 
 Duties such as these are not easy of definition, but 
 an idea of them may be obtained by an exhaustive 
 process of reasoning. 
 
 There are certain virtues of exalted character 
 which can be attained only by persons of the most 
 splendid moral and physical organization, placed in 
 circumstances where these innate qualities have been 
 developed to the highest pitch of excellence. When 
 Leonidas died for liberty and civilization in the pass 
 of Thermopylas, he performed a duty to mankind ; 
 but what law could enforce the self-devotion of 
 which we read the famous examples in ancient 
 history ? 
 
56 LIMITS OF JURISPRUDENCE. 
 
 That I may take a recent example : During the 
 battle of Paris, in 1848, when the Archbishop of 
 Paris advanced with the crucifix in his hand to meet 
 the terrible Faubourgs St. Antoine and Marceau, 
 careless about death, provided he brought peace, lie 
 was performing a duty, but a duty incapable of en- 
 forcement. The most exalted virtues, exemplified 
 in the great actions which ennoble humanity, are 
 attainable by few, and are beyond legislation. 
 
 There is another class of virtues manifested in 
 external action, impossible to be enforced by legis- 
 lative authority. Virtues such as these are less 
 difficult to attain, and are more generally diffused, 
 but still are abhorrent of compulsion. 
 
 Such is the virtue of benevolence. 
 
 Vincent de Paul devoted his life to the comfort 
 of the afflicted. Las Casas toiled for years in the 
 cause of the oppressed Indians. Howard visited all 
 Europe, not to survey the sumptuousness of palaces 
 or the stateliness of temples ; not to make accurate 
 measurements of the remains of ancient grandeur, 
 nor to fornva scale of the curiosity of modern art; 
 not to collect medals, nor to collate manuscripts : 
 but to dive into the depths of dungeons, to plunge 
 into the infections of hospitals, to survey the man- 
 sions of sorrow and of pain, to take the gauge and 
 dimensions of misery, depression, and contempt, to 
 remember the forgotten, to attend to the neglected, 
 
LIMITS OF JURISPRUDENCE. 57 
 
 to visit the forsaken, and to compare and collate the 
 distresses of all men in all countries. 1 
 
 Nor is this exalted benevolence confined to such 
 eminent persons. In our own time, Florence Night- 
 ingale organized a band of Sisters of Charity, who 
 braved pestilence in the distant hospitals of Scutari, 
 that they might afford relief to the agony of our 
 wounded soldiers. A name in the page of history 
 and the public thanks of a nation are great rewards 
 for such services. But many abandon the splendor 
 of a patrician life, the ties of family and home, and 
 the luxuries of the civilization of the nineteenth 
 century, in order, living an obscure existence, to 
 console misery in the abodes of the poor. Benevo- 
 lence, like friendship and gratitude, is beyond legis- 
 lation. 
 
 Again, that we may proceed from the virtues 
 which are shown in relations with other persons to 
 those virtues which chiefly concern the individual 
 the law cannot enforce prudence, caution, self-control 
 from vice, or a proper disposition in the expenditure 
 of money. Within recent memory, in England, 
 some gentlemen spend hundreds of thousands in 
 supporting the Italian opera, others lavish hundreds 
 of thousands on the turf. But the State cannot as- 
 sume with success the guardianship of fortune. 
 Next to the Crown lands, the worst managed prop- 
 erty possessed by the English community is under 
 
 1 Edmund Burke. 
 
58 LIMITS OF JURISPRUDENCE. 
 
 the Receivers of the Court of Chancery. The law 
 cannot enforce wisdom in managing one's own, or 
 beneficence in dealings with others; such things 
 must be left to the discretion of individuals, to the 
 progress of education, and to the results of an en- 
 lightened public opinion. 
 
 So, Positive Law appears to be powerless against 
 the vice of intoxication, and can only punish the 
 wretched drunkard who publicly offends against 
 decency and order. The vice of drunkenness de- 
 pends upon the will. In recent times, two great 
 aids have been discovered to assist the drunkard's 
 will the use of a limited period in abstinence, and 
 sympathy or fellow-feeling in abstinence. The 
 greatest drunkards can abstain from drink if the 
 time of abstinence be definitely fixed, so that they 
 can look forward to a period when they can use 
 their liberty again. Next comes the aid of sym- 
 pathy. Men can do together and in company what 
 they cannot do by themselves. Anything that is 
 difficult to do, any exertion of resolution, any kind 
 of self-denial, is made easier by the aid of sympathy, 
 by knowing that other persons are feeling and doing 
 the same thing. Father Mathew and other leaders 
 of the temperance movement in England and Ireland 
 well understood this principle of human nature 
 when they organized the votaries of temperance 
 into an army with medals, bands, and banners. But 
 
LIMITS OF JURISPRUDENCE. 59 
 
 no law has ever been successful in preventing the 
 vice of drunkenness. 
 
 Now, if it be impossible to enforce by public 
 authority, first, the most exalted virtues ; secondly, 
 dispositions toward others, such as benevolence and 
 friendship ; thirdly, virtues belonging to the class 
 of prudence and self-control, how much more im- 
 possible must it be to force the individual sentiments 
 of the mind into the particular form ordained by 
 any human law. Yet in this last particular how 
 many governments have erred ! 
 
 But the individual acts of the mind are independ- 
 ent, and belief of anything rests upon the amount 
 of evidence offered in respect of the fact to be 
 proved, and the natural capacity of the mind for 
 judgment. Belief is independent of the will. 
 
 At present, by the universal consent of civiliza- 
 tion, what is involuntary deserves neither reward 
 nor punishment at the hands of the magistrate ; but 
 through the history of all nations, in the examples 
 of religious persecution is seen the fearful amount 
 of misery caused by persons invested with the 
 supreme power attempting to enforce belief a thing 
 incapable of being enforced. And this alone is suf- 
 ficient to show the importance of ascertaining the 
 province of government the importance of the 
 Science of Jurisprudence. 
 
60 DEVELOPMENT OF SYMPATHY. 
 
 DEVELOPMENT OF SYMPATHY 
 
 The end of government is the security of rights. 
 The natural rights of man are life, liberty, and prop- 
 erty. To protect these rights has been the professed 
 and real object of all the systems of civil polity that 
 ever illumined the world with a ray of freedom. 
 These rights, in the first beginnings of civilization, 
 are not only practically insecure, but, even in theory, 
 are imperfectly acknowledged. Where slavery still 
 exists these rights are imperfect. The aggressive 
 wars of our own times show that the rights of stran- 
 gers to their lives and property are not yet perfectly 
 admitted by the civilized States of the world. 
 
 The theory of Hobbes is not wholly wrong, that, 
 agreeably to the lowest law of nature, man aims at 
 the injury of his neighbor when a stranger to him. 
 To savages, all strangers are enemies; everything 
 unknown is an object of fear Omne ignotum pro 
 horribili. In all languages, the same word originally 
 signified both stranger and enemy. But the more 
 persons know one another, they generally love one 
 another the more. 
 
 During the progress of civilization the sympathy 
 of man for his fellow-creatures extends in an ever- 
 widening circle. At first, none but immediate rel- 
 atives are held entitled even to the common rights 
 of life and property. Slaves are without rights. 
 But in the advanced nations a poor-law provides for 
 
DEVELOPMENT OF SYMPATHY. 61 
 
 even the outcasts of society, and humane legislation 
 prevents cruelty to animals. 
 
 The first nucleus of society must have been the 
 family, although nowhere in savage life has an 
 isolated family been discovered unconnected with 
 others by language or kindred. The existence of 
 language proves that everywhere men exist in in- 
 tellectual communities. 
 
 The family develops into the tribe. *Men, whilst 
 in the stage of the tribe, fanatically regard its inter- 
 ests beyond anything else. They do not yet recog- 
 nize the positive rights of other men, belonging to 
 other tribes v to their lives, liberties, and properties. 
 They do not hesitate to rob and murder persons even 
 belonging to neighboring tribes, speaking the same 
 language, and having the same national origin. 
 Thus, the Arabian tribes were engaged in mutual 
 war before Mahomet for a time united them. The 
 right of private war between the feudal barons was 
 one of the most difficult to be abolished. The clans 
 of the Scottish Highlands, up to the time of their 
 disorganization, maintained the right of private war. 
 The Indian tribes of North America still massacre 
 one another when opportunity may offer. The petty 
 tribes and nations of Africa still are engaged in 
 deadly mutual strife, scarcely interrupted by their 
 common danger from the superior arms and civiliza- 
 tion of the Europeans. Yet during this phase the 
 tribes of the same race in process of time regard one 
 
62 DEVELOPMENT OF SYMPATHY. 
 
 another with less animosity than they regard persons 
 belonging to other races. The Berbers of Northern 
 Africa are sometimes mutually at peace, but toward 
 Christians they entertain perpetual hostility. They 
 rob and murder Christians whenever an opportunity 
 may offer ; nor do they perceive that they violate 
 any natural right, or transgress any natural duty. 
 
 Sympathy develops from the tribe to the nation, 
 and thence to the race. The word dy/uos originally 
 means parish; democracy now means the govern- 
 ment by a people. In ancient Greece, though piracy 
 at first was not a dishonorable profession, the rights 
 of all Hellenes were finally recognized ; but the rest 
 of mankind were still considered barbarians, perpet- 
 ual enemies, without natural rights to life, liberty, or 
 property. The Roman citizen united many nations, 
 but warred upon the rest of the ancient world. The 
 Proconsul in the Roman theater applauded the sen- 
 timent: "Homo sum,) Jiumani nil a me alien um 
 puto" but he disregarded it in the foreign province. 
 Still the acknowledgment of the rights of humanity, 
 and the consequent fusion of races, unceasingly pro- 
 ceed. In modern Europe, the different States of 
 France, once independent, fiave coalesced into one. 
 The old kingdoms of Spain are now under one 
 government. The British Islands, in which have 
 existed such diversities of races and language, arc 
 now a United Kingdom. Most of the Sclavonic 
 races have coalesced under the Empire of Russia. 
 
DEVELOPMENT OF SYMPATHY. 03 
 
 The disorganization and re-organization of Europe 
 simultaneously proceed. The equilibrium of States 
 is overthrown, whilst the harmony of nationalities is 
 constituted. Italy is under one government. The 
 Germans have obtained national unity under their 
 Empire. 
 
 Such is the development of sympathy proceeding 
 upon the more ancient idea of the bond of union 
 existing between family, tribe, nation, and race, 
 both for aggressive and defensive purposes. 
 
 Another development of sympathy, more based 
 on reason, arises from the recognition of the equal 
 rights of all men, as citizens of the world, to share 
 in the gifts of providence. Commerce and emigra- 
 tion are the two great agents by which, in modern 
 times, the clannish distinctions of nation or race are 
 obliterated. 
 
 Amongst the races of men whilst in an imperfect 
 state of development, the tie of country is so strong 
 that nothing but the most positive evils of war, pes- 
 tilence, and famine will compel them to abandon 
 their native land. 
 
 In civilized countries, the poor may be divided in- 
 to three principal classes. The first and least nu- 
 merous is composed of those wretched beings, who, 
 from organic deformity, whether manifested in mind 
 or body, are unable to earn their bread ; with them 
 may be comprised the aged and infirm. The next 
 class is composed of the wicked and idle, who refuse 
 
04 DEVELOPMENT OF SYMPATHY. 
 
 to labor for their subsistence, and who, not possess- 
 ing realized property of their own, are supported by 
 the labor and charity of their friends. The third 
 and most numerous class consists of the great masses 
 of mankind, descendants of savages, who as yet 
 have scarce emerged from primitive barbarism, and 
 who, through ignorance of the methods of life, 
 linger always upon the verge of starvation. 
 
 The last division includes the great majority of 
 the poor in every country. 
 
 Ignorance has been the great check to prevent the 
 poor from emigration. Men rather bear the ills 
 they have than fly to others they know not of. But 
 education has dissipated much of old prejudice. 
 The German, English, and Irish poor know that be- 
 yond the Atlantic exists a continent where laws 
 similar to their own are better and more cheaply 
 administered, and where there is plenty of good 
 land to be had at a low rate. The more go v the 
 more will go, until the rate of wages and the rent 
 of land will approximate in Europe and America. 
 
 The beneficial effects of the great European emi- 
 gration to America and Australia in the nineteenth 
 century can scarcely be overrated. Through this 
 emigration millions emerged from poverty into the 
 position of wealthy citizens. The next great ad- 
 vantage to the human family must spring from the 
 fusion of races. The more the population is mixed 
 the more prosperous will be the country. This re- 
 
DEVELOPMENT OF SYMPATHY. 65 
 
 suit arises from the principle of the division of la- 
 bor. Individual races excel in some qualities, and 
 are deficient in others. The French, Italians, Ger- 
 mans, Sclaves, and English of the present day each 
 have their different qualities in which they severally 
 surpass the rest ; and if they were fused into one 
 community of the United States, would each apply 
 themselves solely to those departments of human 
 skill and industry in which they are superior. This 
 principle has long since been perceived, and termed 
 the territorial division of labor. But it never can 
 be completely developed whilst men remaining un- 
 der different governments are separated by interna- 
 tional tariffs, custom-houses, and wars. 
 
 In effect, pure races, like the Turks, languish and 
 become etiolated. The most flourishing communi- 
 ties, like the city of Romulus, have sprung ex collu- 
 vione gentium. In the mythical story of the foun- 
 dation of Rome, Livy tells us that the founder 
 opened an asylum for fugitives the political refu- 
 gees of the neighboring petty States of Etruria and 
 Latium. All the young men for whom society in 
 those States provided no employment, and who be- 
 came its enemies in consequence, as naturally as the 
 sparks fly upward, fled to the protection of the 
 seven hills of Rome. England has owed much of 
 her greatness to being a similar asylum. Hither 
 have fled the artisans of the Netherlands and France 
 from the terror of the Duke of Alva and Louis 
 
 JURISPRUDENCE 5. 
 
G6 DEVELOPMENT OF SYMPATHY. 
 
 XIV, whilst the modern Englishman is the result of 
 the Celt, the Roman, the Saxon, and the Norman. 
 
 In thus mentioning different races, I do not insist 
 upon the intrinsic superiority of one race over an- 
 other ; nor do I use the term " race " to denote differ- 
 ence of origin. At the present time, certain aggre- 
 gations of individuals have developed peculiar 
 mental and physical qualities, and use different lan- 
 guages. So they are termed races. To a great ex- 
 tent, intellect and beauty depend on the advantages 
 of good food and climate. Some races are at the 
 height of prosperity ; others in the lowest depths of 
 degradation. The primitive causes of these things 
 we know no more than the causes which have sunk 
 Atlantic continents into the seas, and raised the 
 Alps from the abysses of some primeval ocean. 
 But St. Paul said at Athens, " God hath made of 
 one blood all mankind to dwell upon the face of the 
 earth." In the lowest Australian savage exists the 
 germ of the intellect of Socrates, of Caesar, of Ba- 
 con, of Newton, of Napoleon. From the most un- 
 sightly Esquimaux at the pole, or negro of the 
 tropics, may, in the process of centuries, be devel- 
 oped forms of godlike strength and beauty, like the 
 living models of the Athenian sculptor. Even in 
 recent historical memory, the splendid Magyar aris- 
 tocrat came from Asia a Tartar savage his lan- 
 guage and origin the same as those of the Lap- 
 landers and Ostiaks. The Daco-Romans of Trail- 
 
DEVELOPMENT OF SYMPATHY. 67 
 
 sylvania are the descendants of the Romans who 
 conquered and colonized the ancient world. But a 
 thousand years of prosperity have changed the 
 Magyar into one of nature's finest types of man. 
 Under a thousand years of oppression the Rouman 
 peasantry have much degenerated from the type of 
 the ancient Roman 'legionary. 
 
 For the polished Athenian, for the Roman citizen, 
 for the feudal lord, sympathy with mankind did not 
 exist. The stage of civilization at which no nation 
 has yet arrived to which all nations have a slow 
 but certain tendency is that in which men shall en- 
 tertain the same sympathy toward all mankind 
 which has been felt by them for family, tribe, na- 
 tion, race ; in which the crime of killing a stranger 
 in aggressive war shall be regarded as murder is 
 now regarded ; in which the liberty of the individ- 
 ual shall be completely developed, and in which the 
 absolute power of individual governments disap- 
 pearing under international systems, men, true citi- 
 zens of the world, shall possess over the earth their 
 rights, and by the law the means of enforcing them. 
 
 Still, although all human races upon the earth 
 are in a state of progress tending toward the same 
 legal civilization, there need be no apprehension 
 that the nations of the world will so fall into one 
 sink of level avarice. The gifts of nature are va- 
 riously scattered amongst the children of great 
 national families, and the brilliant variety of genius. 
 
68 DEFINITIONS IN JURISPRUDENCE. 
 
 taste, and imagination in races constitutes the splen- 
 dor of mankind. The types of nationalities disap- 
 pear with difficulty, and there is in nature one uni- 
 form variety. Grandeur and beauty would vanish 
 from the earth if it were smoothed into level plain- 
 ness. As the soldiers of all civilized nations use 
 the same arms, so once that the laws shall be dis- 
 covered under which we best may live in happiness, 
 all nations in a similar state of civilization will 
 adopt them. But the glorious diversity of man- 
 kind must ever still proceed. 
 
 DEFINITIONS IN JURISPRUDENCE HISTORICALLY 
 CONSIDERED. 
 
 Jurisprudence embraces a great portion of what 
 has been considered by various writers under the 
 heads of Ethics, Polity, Political Philosophy, and 
 Political Economy. Writers on Political Economy, 
 in particular Adam Smith and John Stuart Mill, 
 have discussed in their economical works many of 
 the subjects of Jurisprudence. But Political Econ- 
 omy is only the science of exchanges. It has de- 
 veloped the great principle that exchanges should 
 be free. Political Economy, starting from this 
 principle, teaches as its corollaries that the perma- 
 nent and regular increase of human comfort is 
 grounded upon the absence, so far as depends on 
 law, of all favored classes, professions, and pursuits ; 
 
DEFINITIONS IN JUKISPEUDENCE. 69 
 
 in the equal protection afforded by the law to every 
 citizen, and the unrestricted liberty of spending as 
 he pleases his honest earnings. It teaches that the 
 machinery of trade and commerce should be left 
 free ; that every system of restrictions or prohibi- 
 tions on commercial intercourse cuts off the foreign 
 market, diminishes the number of our buyers and 
 the demand for our produce, and so checks produc- 
 tion. It teaches that all men should be permitted, 
 without the interference of their government, to 
 produce whatever they consider it most to their in- 
 terest to produce; that they should not by law be 
 prevented from producing one thing, or by law be 
 bribed to produce another ; that they should, so far 
 as is consistent with public morality, be left alone, 
 and allowed to follow their own interests as they 
 please. 
 
 But law has been only recently illustrated by its 
 kindred sciences ; very recently the existence of a 
 science of society has been suspected ; but recently 
 has Political Economy or Jurisprudence been taught 
 in the universities of the United Kingdom of Great 
 Britain and Ireland. However, the general prog- 
 ress of society has told upon the progress of Juris- 
 prudence in the British Islands. Our criminal law 
 has made wise and merciful progress from the time 
 when trial by ordeal and battle existed from the 
 time when mute prisoners were pressed to death 
 from the time when Sir Edward Coke prosecuted 
 
70 DEFINITIONS IN JURISPRUDENCE. 
 
 Sir TTalter Raleigh from the time of Chief Jus- 
 tice Jeffrey's bloody western assize from the time 
 when prisoners were not allowed counsel to speak 
 in their defense. So from the period when Lord 
 Mansfield presided in the King's Bench, the doc- 
 trine and practice of our commercial law have 
 been rapidly extended and improved. From the 
 reign of William IV, the law of real property in 
 England is undergoing a process of wise and bene- 
 ficial reform. Independently of legal science, the 
 progress of the nation in wealth and the arts intro- 
 duces new species of property, and necessitates 
 cheap and expeditious forms of procedure. 
 
 Still science aids the progress of society, and 
 a knowledge of law is incomplete without the 
 knowledge of what Bacon terms the law of laws 
 leges legum. One of the chief uses of Social Sci- 
 ence is to teach clever men to do rapidly what ages 
 with difficulty accomplish by the involuntary action 
 of mankind. As Sir Edward Coke says, the reason 
 of the law is the life of the law for although a 
 man can tell the law, if he knows not the reason 
 thereof he shall soon forget his own superficial 
 knowledge. But when he finds the right reason of 
 the law, and so brings it to his natural reason that 
 he comprehends it as his own, this will not only 
 serve him for the understanding of that particular 
 case, but of many others. The knowledge of law 
 is complicated. To know is properly to understand 
 
DEFINITIONS IN JURISPRUDENCE. 71 
 
 a, thing by reason, and through its causes : Cognitio 
 legis est copulata et complicata. Scire autem est 
 proprie rem ratione et per causam cognoscere. 
 
 It has been maintained by many that politics and 
 laws cannot be reduced into a science : the ancient 
 Sophists were of opinion that there were no such 
 things as right and wrong by nature, but only by con- 
 vention. That which appears just and honorable 
 for each city is so for that city so long as the opin- 
 ion is entertained, was one of their maxims. The 
 opinions of the Sophists may have been exaggerated 
 by their great opponent, Plato : still, I believe they 
 did protest energetically against the possibility of 
 metaphysical science, whilst Plato, against them, 
 maintained in the doctrine which Pope has poet- 
 ically translated : 
 
 "All nature is but art unknown to thee; 
 All chance, direction which thou canst not see; 
 All discord, harmony not imderstood; 
 All partial evil, universal good." 
 
 The possibility of metaphysical science, and, in 
 particular, of the complete development of a science 
 of law and government, is now admitted. The 
 great system of Jurisprudence, says Sir William 
 Jones, like that of the universe, consists of many 
 subordinate systems, all of which are connected by 
 nice links and beautiful dependencies, and each of 
 which is reducible to a few plain elements. If law 
 be a science, and really deserves so sublime a name, 
 
1'2 DEFINITIONS IN JURISPRUDENCE. 
 
 it must be grounded upon principle, and claim an 
 exalted rank in the empire of reason ; but if it be 
 merely an unconnected series of decrees and ordin- 
 ances, its use may remain, though its dignity may 
 be lessened ; and he will become the greatest law- 
 yer who has the greatest natural or artificial mem- 
 ory. 
 
 So Edmund Burke has said that we are all born 
 in subjection, all born equally, high and low, gov- 
 ernors and governed : in subjection to one great 
 immutable and predestined law prior to all our de- 
 vices and prior to all our contrivances paramount 
 to all our ideas and all our sensations antecedent to 
 our very existence, by which we are knit and con- 
 nected with the eternal frame of the universe, out 
 of which we cannot stir. And he has described the 
 Science of Jurisprudence as the pride of the intel- 
 lect, the collected wisdom of ages combining the 
 principles of original justice with the infinite vari- 
 ety of human concerns. 
 
 So, also, Vico considered that the development of 
 society, like the heart of man, was subject to one 
 constant, universal, and divine law ; the variable 
 application and progress of which depended upon 
 the uncertain will and erring nature of man ; and 
 he hence conceived the hope of discovering the 
 eternal principles of the natural law. 
 
 In Jurisprudence, a law, properly so-called, is a 
 rule of conduct addressed to creatures capable of 
 
DEFINITIONS IN JURISPRUDENCE. 73 
 
 feeling an obligation by means of reason ; or a law 
 may be defined as a general command given by one 
 intelligent being to another. 
 
 St. Thomas Aquinas defined law as a certain rule 
 and measure according to which any agent is led to 
 act or restrain from acting : Lex est qucedam regula 
 et mensura, secundum quam inducitur aliquis ad 
 agendum, vet ab agenda retrahitur. This definition 
 is plainly too indefinite and extensive. Suarez gives 
 another description, and says a law is a certain 
 measure of moral acts, of such a kind that by con- 
 formity to it they are morally right ; by discordance 
 with it, morally wrong : Lex est mensura qucedam 
 actuum moraliam, ita ut per conformitatem ad illam 
 rectitudinem moralem Jiabeant^ et si ab ilia discordent 
 obliqui sunt. 
 
 Up to the present time, four great divisions of law 
 have been enumerated by jurists : Divine Law, 
 Natural Law, International Law, and Positive Law. 
 
 With the pagan philosophers, following Plato, the 
 Divine Law was the sovereign reason existing in the 
 mind of God. 
 
 The doctors of the Middle Ages termed this 
 principle of nature the Eternal Law. The Divine 
 Law, with Plato, is the governing reason existing in 
 the mind of the Universal Deity, which theologians 
 also acknowledge, but call the Eternal Law. Lex 
 ergo divina apud Platonem est ratio gubernatrix 
 universi in Dei mente existens, quam legem etiam 
 
74 DEFINITIONS IN JURISPRUDENCE. 
 
 TJieologi agnoscunt serf leg cm wtcrnam appellant* 
 
 The Positive Divine Law is that which has been 
 immediately promulgated by God. Lex posit mi 
 divina dicitur, quce ab ipso Deo immediate lain c*t 
 ct toti Icyi naturali addita. Our duty as to the Di- 
 vine Law is simply to know it and obey it. 
 
 The Natural Law, according to Grotius, consists 
 in certain principles of rectitude of reason, which 
 enable us to know whether an action is morally right 
 or wrong according to its congruity with a reasona- 
 ble and social nature. Jus naturale est d let < it urn 
 rectce rationis indicans actui alicui, ex ejn* cotircni- 
 entia vel disconvenientia cum ipsd naturd rution<tH, 
 incsse moralem turpitudinem aut necessitatem mora- 
 Icm, et consequenter ab auctore naturae ipso dco talem 
 actum aut vetari aut prozvipi. The Natural Law is 
 thus considered under two aspects : first, its nature 
 and essential qualities ; secondly, its obligatory force. 
 
 Grotius compiled this definition from the previous 
 authorities. But in Jurisprudence it can scarcely 
 be adopted as correct. This definition of Natural 
 Law embraces the whole sphere of both moral and 
 legal duty.. In Jurisprudence, however, Natural 
 Law cannot include so wide a circle. It only in- 
 cludes the rights and duties capable of being en- 
 forced by the power of the State. 
 
 It is most important in legislation to avoid inter- 
 meddling with the peculiar province of Ethics or 
 Divinity. The Divine Law is the province of the 
 
DEFINITIONS IN JURISPEUDENCE. 75 
 
 theologian, Ethics is the province of the moral phil- 
 osopher. Neither uses the compulsion which it is 
 the province of the legislator to employ. 
 
 Natural Law may accordingly be correctly defined 
 as the theory of that part of our duties which, in 
 reason and equity, is capable of being exacted. 
 
 On the other hand, if Jurisprudence be viewed as 
 only one branch of the Social Science whose object 
 is to ascertain the great natural law of the progress 
 and development of society, and according to what 
 laws men may best live in happiness then Juris- 
 prudence may be held to include the entire domain 
 of the rights and duties which come within the 
 
 O 
 
 province of Positive Law, Ethics, and Theology. 
 The definition of St. Chrysostom might then be 
 adopted, that Natural Law is the instinctive knowl- 
 edge of good and evil (*tvro6&axrot ?/ yvo5Si$ r&v 
 naXf^Vy nal roar ov roiovroov^). As civilization pro- 
 ceeds, Jurisprudence continually encroaches upon 
 the kindred sciences, and embraces an ever-widening 
 range of social rights and obligations. I repeat an 
 illustration. In the early ages of society, human 
 slaves have no rights. In modern times, animals 
 are recognized as having a right to good treatment, 
 and cruelty is punished by the Positive Law. 
 
 The purposes of laws were distinguished by 
 Modestinus: to command, to forbid, to permit, or 
 to punish. 
 
 The laws rendered effectual by rewards were de- 
 
76 DEFINITIONS IN JURISPRUDENCE. 
 
 fined to be of two species : first, those the object of 
 which is to induce men to do something which all 
 men are unable to do such as those which offer a 
 reward for scientific inventions ; secondly, those 
 laws the object of which is to make men more vig- 
 ilant in the performance of legal duties, or in the 
 enforcing of other laws such as laws offering re- 
 wards for the detection of offenders. 
 
 The civilians attempted to point out the laws 
 made by States not conformably to the law of na- 
 ture ; thus, slavery was described as an institution 
 of the law of nations contrary to the law of nature. 
 Domat, following the civilians, has divided all laws 
 into immutable, and mutable, or arbitrary. The 
 former are defined as those which, being principles 
 of the law of nature, cannot be changed without 
 violating those natural obligations upon which the 
 order of society is founded ; the latter are defined 
 as those which are not principles of Natural Law, 
 and which, as they are not essential to the obliga- 
 tions in which society is founded, may be changed 
 without violating those obligations. 
 
 These definitions arc erroneous. In one stage of 
 society, slavery is as natural as freedom in another 
 stage. In barbarous countries, order cannot be main- 
 tained without a despotism impossible in free coun- 
 tries. Tyranny is equally the result of the natural 
 law of one stage of society, as liberty is of another. 
 The problem of society is to combine order with 
 
DEFINITIONS IN JURISPRUDENCE. 77 
 
 freedom. According to a natural law, society ap- 
 pears to progress from barbarism to civilization ; 
 and to assist that progress, the Social Sciences con- 
 tribute their aid by ascertaining under what positive 
 laws men in their present stage of civilization best 
 may live in happiness. 
 
 There have been thus two principal definitions of 
 Natural Law. The Institutes define Natural Law as 
 that which nature has taught to animals. The In- 
 stitutes assert that this law belongs, not to the hu- 
 man race alone, but to all animated beings which 
 are produced in the heavens, the earth, or the sea. 
 This is erroneous, because in Jurisprudence nothing 
 can be properly called a law, except a rule of con- 
 duct addressed to and binding on creatures capable 
 of feeling an obligation by means of reason. Cicero, 
 on the other hand, says : Ex qua ilia lex quam Dei 
 humano generi dederunt recte est laudata ; est enim 
 ratio mensque sapientis adjubendum et ad deterren- 
 dum idonea. 
 
 The definition of Justinian is not a legal defini- 
 tion, but one which might be placed as an axiom for 
 any science. But, again I repeat, Natural Law, le- 
 gally defined as a subject of Jurisprudence, is the 
 theory of those duties capable of being enforced. 
 
 The fundamental principle and starting point of 
 Natural Law is the natural equality of the rights of 
 all men. But in society this theoretical equality is 
 speedily destroyed by the diversity of their respect- 
 
78 DEFINITIONS IX JURISPRUDENCE. 
 
 ivc and reciprocal duties and rights, as members of 
 families, as reasonable beings living under tlie social 
 state, and as having voluntarily entered into and 
 contracted obligations with one another by express 
 or tacit consent. 
 
 The Natural Law includes all the principles of 
 right common to just men living in civilization. 
 And the doctors of the Middle Ages, accordingly, 
 have denned Natural Law as the principle in the hu- 
 man mind by which the just is discerned from the 
 unjust. Thus, Suarez says : The Natural Law which 
 pertains to moral philosophy and theology is that 
 which is seated in the human mind to distinguish 
 good from bad. Lex ergo naturalis propria quce 
 ad moralem doctrinam et tJieologiam pertinet, est ilia 
 quce Jiumance menti insidet ad discernendum hon- 
 estum a turpi. 
 
 Positive Law is the law of human enactment. It 
 is called Positive as existing by position. For hence 
 it is called Positive as it were added to Natural Law, 
 not necessarily flowing from it. Whence by some 
 it is called fixed law. Inde enim positiva dicta est 
 quasi addita naturali legi non ex ilia necessario ma- 
 nans. Uhde ab aliquibus jus positum vocatur. 
 With former jurists, and before the importance of 
 International Law was recognized, Positive Law 
 was held to mean the law enacted by the sovereign 
 government of an independent political society. It 
 must now be taken to include also International 
 
DEFINITIONS IN JURISPRUDENCE. 79 
 
 Law, so far as the latter is capable of being ascer- 
 tained and enforced. The element of compulsion 
 to obedience through the public force distinguishes 
 the Positive Law from all others enumerated by 
 jurists or moralists. 
 
 Sir William Blackstone and others have termed 
 this species of law Municipal Law. But the term 
 is inappropriate. Derivatively, the word " munici- 
 pal" refers to a corporate town. Blackstone defines 
 Municipal Law or, as it should be termed, Posi- 
 tive Law as a rule of civil conduct prescribed by 
 the supreme power in a State, commanding what is 
 right and prohibiting what is wrong. 
 
 Now, the error of this definition is, that a law 
 prescribed by the supreme power in a State is still 
 a law, even though it does not correspond with the 
 latter part of this definition, and command what is 
 right and prohibit what is wrong. The essence of 
 a positive law is compulsion by the public authority ; 
 and provided the force of a State be employed to 
 compel obedience to any rule of civil conduct, such 
 rule is a law. A bad law is that which imposes an 
 obligation without doing any service.. There have 
 been evil laws in all ages, yet they have not the less 
 been laws. 
 
 Internal Positive Law is, therefore, a rule of civil 
 conduct prescribed by the supreme power in a State. 
 
 It is defined as a rule, in order to distinguish it 
 from anything in the nature of a sudden command, 
 
80 DEFINITIONS IX JURISPRUDENCE. 
 
 a request from an inferior, an advice from a friend, 
 or a compact between equals. 
 
 It is termed a rule of civil conduct, that it may 
 be distinguished from the rules of moral conduct, 
 with which, as such, the public law does not inter- 
 fere. The criminal branch of Positive Law docs 
 not punish vices, only crimes. The civil branch of 
 Positive Law is concerned with the maintenance and 
 enforcement of private rights, where the violation 
 of them has not affected directly the public security. 
 Individual wickedness is not punished directly by 
 the law, except where it interferes with the happi- 
 ness of others in a manner of which the laws can take 
 cognizance. The prodigal may squander his fortune 
 in dissipation, the fool may waste it by reckless 
 mismanagement, the miser may bury it from his 
 friends and the world, but the law is unable to en- 
 force prudence in dealing with one's own, or benev- 
 olence toward others. Such things must be left to 
 the progress of knowledge and education, for jus- 
 tice alone, of all the virtues, can be enforced by the 
 public authority. 
 
 Again, the rule of law is prescribed that is, 
 promulgated by the official power of the State, and, 
 in the last resort, enforced. Laws, to be obeyed, 
 must be known. Yet ignorance of the law must 
 never be permitted to be urged as an excuse for any 
 accountable citizen. Ignorantia juris neminem ex- 
 cusat. No man ought to be permitted to profit by 
 
DEFINITIONS IX JURISPRUDENCE. 81 
 
 his ignorance of the law, so as to place himself in 
 a more advantageous position than another, who did 
 not neglect to make himself acquainted with those 
 rules to which every member of the society ought 
 to conform. 
 
 In the Institutes of Justinian the subjects of law 
 are divided into persons, things, and actions. This 
 arrangement has been followed, in modern times, in 
 the Code Frederic, the Code Napoleon, and by Sir 
 William Blackstone, in his Commentaries upon the 
 Laws of England. It is a most unscientific division, 
 and has checked the progress of the' Science of 
 Jurisprudence in Germany, France, and England. 
 
 Leibnitz first pointed out that the Roman arrange- 
 ment confounds fact with law, and assumes as the 
 objects of law persons and things, which are no 
 more the objects of human law than they are the 
 objects of the greater number of the arts and 
 sciences. Such a division is founded, not upon 
 matters of law, or differences in the component parts 
 of law, but upon matters of fact, or differences in 
 substances mental and material, tending to indefinite 
 repetitions. The Roman division of things into 
 corporeal and incorporeal is equally wrong. The 
 term "incorporeal things " was a mere fiction to hide 
 the confusion of ideas. All these incorporeal things 
 are only rights to the services of men. 
 
 The compilers of the Roman Code set out with a 
 wrong division into two parts which are not exclu- 
 
 JURISPRUDEXCE 6. 
 
82 DEFINITIONS IN JURISPRUDENCE. 
 
 sive with regard to each other rights of persons, 
 rights of things. They were led to this division by 
 a species of grammatical symmetry. But there is no 
 correspondence between the two terms, except as to 
 form. There is none as to sense. The term " rights 
 of persons " is clear. It means rights conferred by 
 the law on persons, rights which persons may en- 
 joy. But if this explanation be transferred to the 
 term " rights of things," it leads to an absurdity. 
 Things can have no rights belonging to them. The 
 law confers no rights on things. The law does not 
 favor things. Instead of " rights of things " the ex- 
 pression ought to be " rights of persons over things." 
 The change appears slight. But it overthrows the 
 nomenclature the division of rights, the pretended 
 arrangement of the Roman lawyers adopted by 
 Blackstone, and according to which he has classified 
 the objects of law. 
 
 THE SCIENTIFIC DEFINITIONS IN JURISPRUDENCE. 
 
 Such have been the views of some most eminent 
 jurists in their department of knowledge. I pro- 
 pose a more convenient division and nomenclature of 
 Jurisprudence and Positive Law. In the present 
 state of the science, the following classification of 
 its departments appears correct: 
 
 Jurisprudence is the Science of Positive Laws, 
 the Art of Legislation, and the Practice of Law. 
 
DEFINITIONS IN JURISPRUDENCE. 83 
 
 A Positive Law is a rule of civil conduct pre- 
 scribed and enforced by a State. 
 
 In the Positive Law of every nation there are two 
 elements the philosophical and the historical. The 
 first element to be acknowledged is the philosophi- 
 cal. The absolute ideas of justice and truth consti- 
 tute its essence. But these ideas assume different 
 forms in different States. Prejudices, manners, and 
 passions change and deform them. And, in law, 
 history becomes associated with philosophy. From 
 this union the Positive Law of every State arises. 
 And Positive Law becomes an association of univer- 
 sal principles and of national maxims, of rational 
 axioms and of political adages. Legislation ought 
 to be a compromise between history and philosophy. 
 
 The end of Jurisprudence is utility, or the happi 
 ness of mankind. Nor is this principle peculiar to 
 Jurisprudence. But it has been the professed and 
 real end of all the sciences and arts. The greatest 
 happiness of the greatest number is the true object 
 of legislation. 
 
 All the sciences and arts have for their end and 
 aim utility, civilization, and the happiness of man- 
 kind. 
 
 Civilization is the highest development of the 
 physical and intellectual faculties of mankind. 
 
 Jurisprudence, like every other mental science in 
 the discussion of subjects within the domain of the 
 
84 DEFINITIONS IN JUKISPRUDENCE. 
 
 will, considers not only what the law is, but what it 
 ou2;ht to be. 
 
 O 
 
 The virtue of justice is the disposition to give 
 every man his right. 
 
 Justice alone, of all the virtues, can be enforced 
 by the public authority. 
 
 Legal relations are those which arise from the 
 natural constitution of mankind, and which give in- 
 dividuals a right to the use of force as necessary to 
 society. 
 
 The subjects of Jurisprudence are rights and 
 their correlative duties. 
 
 Rights are defined by Jurisprudence. 
 
 Legal duties are enforced by the Positive Law. 
 
 The three natural rights of man are life, liberty, 
 and property. 
 
 Eights arise between persons concerning either 
 persons or things. 
 
 Actions, or forms of legal procedure, are the means 
 by which the performance of rights is insured, or 
 by which the violation of rights is redressed. 
 
 An action is the legal demand of a right. 
 
 o o 
 
 Actions include both a civil action, or the legal de- 
 mand of a right by an individual in which the end 
 sought is cither performance of a contract, or com- 
 pensation for breach of contract, or compensation 
 for injury and a State prosecution, in which the end 
 is punishment. 
 
 If the different rights and duties incident to man 
 
DEFINITIONS IN JURISPRUDENCE. 85 
 
 in society be analyzed, they naturally divide them- 
 selves into four classes : 
 
 Those which arise between individuals, in such a 
 manner that the community is not immediately 
 concerned with them. 
 
 Those which arise between individuals in such a 
 manner that the community is directly concerned, 
 and directly suffers by the violation of the right. 
 
 Those which arise between individuals and their 
 government. 
 
 Those which arise between different States, or 
 the subjects of different States. 
 
 Rights and duties arise between individuals in 
 such a manner that the community is not immediate- 
 ly concerned with them. For example, in a civil- 
 ized country, if a merchant do not deliver corn to 
 a purchaser according to the contract of sale, the 
 violation of the right of property does not imme- 
 diately cause any injury to the rest of the com- 
 munity. 
 
 Eights and duties arise between individuals in 
 such a manner that the community is immediately 
 concerned, and immediately suffers by the infringe- 
 ment. If a burglar break into a house at night, or 
 if a highway robber assault and murder a traveler, 
 the rest of the community are directly injured, 
 independently of the parties immediately wronged. 
 Persons in the neighborhood of the burglary are 
 put to the expense of protecting their houses by ad- 
 
86 DEFINITIONS IN JURISPRUDENCE. 
 
 ditional safeguards. Perhaps they are obliged to 
 pay additional taxes for police. Terror is diffused. 
 A sense of wrong is therefore sustained by the com- 
 munity, and vents itself in the punishment of the 
 offender with an intensity proportioned to the degree 
 of injury caused by him, and the degree of suffer- 
 ing felt by the people. 
 
 Revenge is the origin of punishment. In the 
 early stages of society, punishment is severe accord- 
 ing to the hatred against the offender, and the indig- 
 nation which his neighbors feel toward him. The 
 accumulated rage of a community against an indi- 
 vidual murderer demands his death. Finally, in 
 the more advanced stage of society, the reforma- 
 tion of the criminal is attempted, and punishment 
 is used only as an example and a means for the pre- 
 vention of crime, that the punishment may reach a 
 few, the fear, all: ut poena ad paucos, metus ad 
 omnes perveniat. 
 
 The division of Positive Law which enforces 
 the performance of contracts and gives individuals 
 compensation for a violation of their rights, is 
 termed the Civil Law. The division of Positive 
 Law which punishes offenses is termed Criminal 
 Law. If performance can be enforced, or if dam- 
 ages completely satisfy the loss, and if the public 
 security is not weakened by the injury, the matter 
 may safely be left to the Civil Law. But whenever 
 the public security is endangered, compensation is 
 
DEFINITIONS IN JURISPRUDENCE. 87 
 
 insufficient to vindicate justice, and punishment 
 must be added. 
 
 A crime is that violation of a right for which the 
 State provides punishment. 
 
 The chief end of the Civil Law is the enforcement 
 of contracts or compensation, the chief end of the 
 Criminal Law is punishment ; but in many cases 
 both have a concurrent jurisdiction. 
 
 If we desire to ascertain whether a violation of 
 the natural rights of man life, liberty, and prop- 
 erty come within the province of the Civil or of 
 the Criminal Law, we have only to ascertain 
 whether such violation concern the individual im- 
 mediately and the community remotely, or whether 
 the interest of the community be not thereby di- 
 rectly affected. 
 
 Rights and duties arise between individuals and 
 their governments. 
 
 The procedure to redress the violation of a right 
 is in all the rude stages of society vague, violent, 
 and uncertain. The savage, who has been wronged, 
 waylays and assassinates the enemy, or else, in the 
 struggle, falls the victim of superior strength. 
 In time, the authority of the law assumes the place 
 of uncertain strife ; and the process by which man- 
 kind submit their disputes to the cognizance of le- 
 gal tribunals is perpetually developed further. 
 
 At first, only the rights arising between subjects 
 are determined and protected by the law, whilst the 
 
DEFINITIONS IN JURISPRUDENCE. 
 
 sovereign remains above the law. Under barbaric 
 despotism, the sovereign acknowledges no legal rule 
 binding upon him in his conduct toward his sub- 
 jects. 
 
 But in time the relations between the government 
 and the people become subjected to certain positive 
 laws. And the body of law determining the rela- 
 tions between individuals and their governments is 
 generally termed Constitutional Law, or Political 
 Law the latter term is preferable. 
 
 The things of the world must be appropriated 
 whenever that appropriation is necessary, for the 
 purpose of rendering them as beneficial and valua- 
 ble as their nature admits of their being made. 
 
 The business of government is to promote the 
 happiness of mankind, by means of rewards and 
 punishments. The rewards, however, in most cases, 
 are given indirectly to the energetic and able men 
 who carry on the political and legal business of the 
 society. 
 
 Government is a necessity. If all men were cul- 
 tivated, virtuous, and talented, they would discharge 
 toward others all the duties of life better than any 
 government could enforce them. A community of 
 such persons would be a law unto themselves, need- 
 ing no coercion ; and each individual would be 
 urged by the spontaneous impulses of his own na- 
 ture to do right. Rivers, in the comedy of " False 
 Delicacy," well says : " Laws were never made for 
 
DEFINITIONS IN JURISPRUDENCE. 89 
 
 men of honor they want no law but the rectitude 
 of their own sentiments, and laws are of no use 
 but to bind the villains of society." 
 
 However, laws are of use to bind others besides 
 villains ; and the object of every good government 
 is, by means of laws, to strive to bring all its sub- 
 jects up to that standard of duty which the wisest 
 and best of themselves attain. 
 
 If this, then, be the necessity for government, we 
 have to consider what right a government has to 
 coerce and punish its subjects upon occasion. 
 
 It is necessary to define the three natural rights 
 of men life, liberty, and property. 
 
 Natural liberty is the individual's right of not 
 being obliged by any judgment or will with which 
 his own judgment and will do not coincide. But, 
 scientifically defined in Jurisprudence, liberty is 
 freedom of action, controlled only by laws tending 
 to promote the greatest happiness of the greatest 
 number. 
 
 Slavery is obligation of service unlimited in ex- 
 tent or time. 
 
 Property is the right of using. 
 
 The right of property is founded upon its subser- 
 viency to the subsistence and well-being of man- 
 kind. The institution of property is necessary for 
 social order. The exclusive appropriation of things 
 is essential for the full enjoyment of them. The 
 sense of property is bestowed upon mankind for the 
 
90 DEFINITIONS IX JURISPRUDENCE. 
 
 purpose of rousing them to action. It is the prin- 
 cipal foundation of social improvement. It leads to 
 the cultivation of the earth, the institution of gov- 
 ernment, the establishment of justice. 
 
 In the right of property, Bentham includes four 
 things : 
 
 1. The right of occupation. 
 
 2. The right of excluding others. 
 
 3. The right of disposition, or the right of trans- 
 fer to others. 
 
 4. The right of transmission, in virtue of which 
 the integral right is transmitted after the death of 
 the proprietor, without any disposition, on his part, 
 to those in whose possession he would desire to 
 place it. 
 
 All modern civilized life, in Western Europe, rests 
 upon the two institutions of property and marriage. 
 
 The original titles to property are occupancy and 
 labor. Finders are keepers by common consent, 
 where there has been no previous appropriation. 
 What a man has produced by labor is his own. 
 
 The secondary titles to property are consent and 
 inheritance. 
 
 Consent includes gift, sale, and exchange. 
 
 The right of inheritance by children of the prop- 
 erty of their parents depends on three principles : 
 the children may have contributed by their labor 
 to the formation of the property ; naturally they 
 expect to receive it, and the State's gift to them of 
 
DEFINITIONS IN JURISPRUDENCE. 91 
 
 the property prevents disappointment; lastly, by 
 the receipt they are prevented from becoming a 
 burden to the people. From the inheritance by 
 children to the inheritance by relations the transi- 
 tion was easy and obvious. 
 
 Some jurists and publicists have proposed that by 
 law the discretion of the testator should be limited 
 to this : that a certain fixed portion of the property 
 should be distributed amongst the immediate de- 
 scendants, in a ratio suitable to the property and po- 
 sition of the testator. Where persons die without 
 kindred, and intestate, the State must succeed to 
 their property. * In order to avoid contention an ul- 
 timate heir ultimus hceres must be appointed. 
 
 POLITICAL JURISPRUDENCE. 
 
 The great questions of Political Jurisprudence, 
 the right of government to the use of force, the 
 province of government, its duties as the machine 
 of police and order, and as the guide to progress, 
 demand a more lengthened investigation. 
 
 The right of society to enforce the law by pun- 
 ishment may be judged from the following consid- 
 erations : 
 
 When man enters into society he naturally intrusts 
 the three rights of life, liberty, and property to 
 the guardianship of his rulers. 
 
 As every man in his independent state has by 
 
92 DEFINITIONS IX JURISPRUDENCE. 
 
 nature the disposal of his property, he can convey 
 the disposal thereof to society as amply and abso- 
 lutely as he was by separate right entitled thereto. 
 
 It is the right, perhaps the duty, of every man to 
 defend his life, liberty, and property. It is his 
 right to kill or bind those who would grievously 
 wrong him this right he can convey. 
 
 Upon such conveyance it becomes the right and 
 duty of the trustees of society to put to death, 
 or imprison, or inflict any punishment suitable for 
 the prevention of crime, upon all who take away, or 
 attempt to take away, the life, liberty, or property 
 of its members. 
 
 In the infancy of civilization, the private disputes 
 of individuals appear to be decided by arbitrators, 
 chosen and paid by the litigants. Afterward, the 
 State is naturally resorted to as the decider of dis- 
 putes, because it is the only impartial third party 
 possessing the requisite compulsory force. The 
 whole people, in its collective capacity, is incapable 
 of exercising legal power correctly. For such 
 power ought to be exercised with intelligence and 
 impartiality; and from the tribunal must be ex- 
 cluded the aggressor, the injured party, and their 
 friends. Where the judicial body is very numerous, 
 and where the responsibility is much divided, an 
 honest decision in important cases appears impossi- 
 ble. Historical examples of this are the Athenian 
 Courts in political trials, and the decisions of the 
 
DEFINITIONS IN JURISPRUDENCE. 93 
 
 English House of Commons as to contested elec- 
 tions when the entire House voted, before the Gren- 
 ville Act was passed, whick referred such matters 
 to a select committee. 
 
 The three functions of government are the judi- 
 cial, legislative, and executive. 
 
 In the infancy of society, all political powers are 
 united. They are all held in the hand of the sover- 
 eign, and obey his arbitrary will. But, according 
 to the natural law of the division of labor, a sepa- 
 ration of these powers takes place. The sovereign 
 sinks under the weight of duties which surpass his 
 strength, and which cannot be neglected without ex- 
 posing himself to complaints, disagreeable even to 
 despotism. To dissipate alarm,. and prevent resist- 
 ance, the protection of a special authority is given 
 to what citizens hold most dear their property, 
 their personal liberty, their life. The judicial order 
 is founded. By the establishment of tribunals, 
 nations enter into the path of regular institutions. 
 
 In point of time, the judicial power is prior to the 
 legislative, as disputes must have arisen and have 
 been decided before the State thought of enacting 
 a law to regulate future controversy. The duty of 
 Courts of Justice is to apply the law. But, if the 
 law be arbitrary, the security which tribunals ac- 
 complish is illusory and incomplete. As a conse- 
 quence of tlie judicial establishment, law must be 
 rendered certain. The right of legislation in the 
 
94 DEFINITIONS IN JURISPRUDENCE. 
 
 progress of society ceases to belong to the sovereign 
 power, and is transferred to assemblies which repre- 
 sent the nation. 
 
 Two powers, the judicial and the legislative, are 
 thus detached, and acquire a separate existence. To 
 the sovereign is reserved only the executive power. 
 
 The executive power is divided into two branches 
 the political, that is to say, the direction of the 
 general interests of the nation, and the administra- 
 tive, which consists in the accomplishment of the 
 public service. 
 
 Under constitutional government, political power 
 passes to the legislative assemblies representing the- 
 people. The more parliamentary power increases, 
 the more it invades the domain of politics. It con- 
 ducts the policy of a nation by laws, by financial 
 votes. Arrived at its extreme development, it leaves 
 to the executive power only the accomplishment of 
 that which it has previously determined. 
 
 Similarly, in the advanced nations, the institution 
 of police takes the power of punishment from the 
 hands of the central government, and, except in the 
 instances of great crimes, confides it to local admin- 
 istration. 
 
 Police is a system of precaution for the preven- 
 tion of crimes and calamities. 
 
 It is a step in the progress of society, and in the 
 development of the liberty of the individual, where 
 order is maintained under a system of police, not 
 
DEFINITIONS IN JURISPRUDENCE. 95 
 
 under soldiers devoted to the central authority and 
 isolated from the citizens. 
 
 The private law of a State is divided : as to its 
 sources, into common or statute law; as to its sub- 
 ject-matter, into rights and obligations ; and as to 
 the mode of ascertaining and enforcing them, into 
 civil and criminal law. Procedure is the course 
 taken for the execution of the laws. It is the 
 method of employing the instrument called law. 
 
 The laws of procedure are termed adjective, be- 
 cause they assist the enforcing of the substantive 
 laws. The business of a Court of Justice is to ex- 
 amine and ascertain, by legal evidence, the facts ; 
 to apply the law to those facts ; to pronounce judg- 
 ment that such is the law, and that certain conse- 
 quences will follow to individuals, or their property, 
 if the law be not obeyed. 
 
 The Political Law of a nation is the whole of the 
 legal relations existing between the governors and 
 the governed. It determines the organization of 
 the legislative, executive, and judicial powers. 
 
 Political Jurisprudence embraces a wide range of 
 study the constitutional history of the Oriental na- 
 tions, of Greece, of Home, of the Italian Repub- 
 lics, of France, of Germany, of Russia, of England, ' 
 of the United States in a word, of all the nations 
 that have developed important political systems. 
 In the progress and development of society, the 
 most intricate questions arise as to the separation of 
 
96 DEFINITIONS IN JURISPRUDENCE. 
 
 the judicial, legislative, and executive powers of 
 government, and with respect to taxation and colo- 
 nization. 
 
 In Jurisprudence, the term " constitution " of a 
 State embraces the body of the written and un- 
 written fundamental laws which regulate the rights 
 and privileges of magistrates and subjects. 
 
 Union in society is the destiny of man. This 
 does not arise from the social compact of which the 
 philosophers of the eighteenth century dreamed ; it 
 is progressively worked out by the interior develop- 
 ment of the family, and the aggregation of other 
 families. The sense of property is amongst the 
 earliest of our ideas. The child knows he owns his 
 toy as well as the peer knows he owns his land. 
 
 Civil government arises from the desire of men 
 to protect their property and combine order and 
 freedom in their intercourse with one another. The 
 interposition of the State is required to redress 
 wrongs, to determine disputes, to enforce obligations. 
 Without government, no property could be secure, 
 no liberty certain, no civilization completely devel- 
 oped. At first, order is the main purpose of gov- 
 ernment, whilst personal liberty and individual se- 
 curity for property are not so much regarded by 
 those in power. Yet the despotisms of Asia are 
 preferable to anarchy. Men prove this by living 
 and trading under such systems. In effect, where 
 undeveloped and partially civilized communities ex- 
 
DEFINITIONS IN JURISPRUDENCE. 97 
 
 1st, absolute monarchy appears to be the natural 
 form of government as children learn to obey 
 others before they learn to act for themselves. 
 
 The tendency of civilization, as developed in the 
 most advanced countries, is to diminish the great 
 power which the central government possesses in 
 the early stages of society, whilst in modern times 
 the entire force of a country can be more directly 
 used for external purposes. 
 
 With the progress of knowledge the despotical 
 restraint becomes intolerable ; it is no longer neces- 
 sary, and it disappears. Then the liberty of the 
 individual subject is perfect. The importance of 
 the individual governor ceases. Government be- 
 comes the mere machine of police and order. In 
 the more advanced and republican nations, the indi- 
 vidual becomes emancipated from any permanent 
 bond of allegiance. He can transfer his person and 
 property to whatever soil he pleases, secure of equal 
 protection in England or the United States, pro- 
 vided he obey the law. The secret of organized 
 liberty is willing obedience to limited power. 
 
 The forms of government differ in various coun- 
 tries, and from causes hitherto by politicians termed 
 accidents. Yet even politics in time may be re- 
 duced into a science ; and from political history may 
 be derived certain general principles which will 
 hold true at all times and under all circumstances. 
 
 The different forms of government, the distribu- 
 JURISPRUDENCE 7. 
 
98 DEFINITIONS IN JURISPRUDENCE. 
 
 tion in each State of the power by which the people 
 are governed, the influence of such diversities upon 
 the prosperity of the several nations subject to them, 
 these are facts from which must be drawn the prin- 
 ciples which constitute the Science of Political Ju- 
 risprudence. Two systems of government now 
 contend for superiority in the civilized world. One 
 is the system of freedom of popular institutions 
 and of representative government, as exemplified in 
 England and the United States of North America. 
 The other is the system of centralized despotism. 
 The principal political disadvantage of despotism is 
 that it rarely opens a career to the talents of the 
 people. And political dissatisfaction much depresses 
 public industry. The main advantage of the sys- 
 tem of freedom is that it opens a career to talents. 
 Nor does it appear now possible to govern enlight- 
 ened populations by the iron despotic rule of former 
 times. A despotism, to be cheerfully obeyed, must 
 be that of greatness of intellect and knowledge over 
 ignorance and incapacity. Whenever a great man 
 has been a successful despot, he has succeeded by 
 his power of organizing obedience to himself, and 
 by procuring the talent and energy of his fellows 
 to work in whatever direction his genius led. 
 
 Alexander, by his greatness of soul and power 
 of organization, disciplined the soldiers of Greece, 
 marched with ease to the Oxus and the Indus, and 
 overwhelmed the barbaric empires of the day. He 
 
DEFINITIONS IN JURISPRUDENCE. 99 
 
 was cheerfully obeyed. All the clever men of 
 Greece were proud to be captains under him ; but 
 when he died they aspired to be kings, they quar- 
 reled with one another, and the rule of Greece over 
 Asia ceased. So, Caasar and Napoleon were organ- 
 izers of great political revolutions. But in order 
 now to acquire the power of Caesar, one must of 
 necessity be in intellect and power as far superior to 
 the country gentlemen, lawyers, merchants, editors, 
 artists, tradesmen, and students that swarm through 
 modern society, and who develope, criticise, and in- 
 fluence the life in which we live, as these latter are 
 in knowledge, political capacity, power of critical 
 perception, and practical ability, superior to the sen- 
 ators, knights, and plebeians of the last days of re- 
 publican Rome. 
 
 Napoleon, whilst he held power, in many respects 
 used it well. The public works which his adminis- 
 trative genius constructed the code of laws which 
 owes its origin to him these things show what may 
 be done by despotism. But the fall even of Napoleon 
 was hastened by men who insisted on a share in the 
 public government, and were not content with the 
 emperor's promotion of solely military talents. 
 Yet men like Cajsar and Napoleon arise but once in 
 a thousand years. So far as we have record, there 
 were not five other such in all history. And the 
 rules of politics, law, and government must be 
 made with a view to the ordinary capacities of man- 
 
100 PROVINCE OF GOVERNMENT. 
 
 kind, and not with the hope of a perpetual succes- 
 sion of men like Napoleon and Caesar in every 
 State. 
 
 The middle classes never had a career more open 
 to talent than now in England. Competitive exam- 
 ination permits all to enter the great civil and mili- 
 tary services. A great political career is more diffi- 
 cult of attainment for those who are unaided by the 
 advantages of birth and wealth. But many fortu- 
 nate circumstances have developed English liberty. 
 Many centuries have moulded our political organiza- 
 tion. Many races have formed our modern charac- 
 ter. The reckless courage and plastic spirit of the 
 Celt, the genius of the Roman for law and govern- 
 ment, the working earnestness of the Saxon, the 
 chivalry of the Norman these things, aided by that 
 zeal for knowledge which consults the wisdom of all 
 languages and ages, aided by those mechanical in- 
 ventions which circulate the thoughts of the great 
 men of all time through the enlightened populations 
 of these realms all form the constituent elements 
 of the modern civilization of England ; and that 
 civilization will never brook a despotism, however 
 beneficent. 
 
 PROVINCE OF GOVERNMENT TAXATION. 
 
 Security is the principal advantage possessed by 
 modern society beyond every previous stage of man's 
 
TAXATION. 101 
 
 social existence. Security does not now exist only 
 for privileged races or classes,- but, in most civilized 
 countries, is for all. By this protection of the law 
 the public liberty exists, so far as liberty is security 
 against the aggression of the powerful members of 
 society. When we analyze the means by which 
 this modern security is obtained for the pop'tliitlunB 
 of civilized countries, we find it is through the pub- 
 lic machinery of justice and police, supported by the 
 public taxation. The desire for property is one of 
 the strongest springs of social advancement. But 
 unless property be protected, labor ceases. Unless 
 there be security for industry, man will not labor, 
 and taxation is the price paid for security. Not 
 but that there may exist the heaviest burdens of tax- 
 ation with, at the same time, very little security for 
 the taxpayers. The Eoman proconsuls established 
 a system of legalized plunder over the provinces, 
 as the Turkish pachas now do. And all over the 
 world exist examples of countries, once rich and 
 flourishing, reduced, under the heaviest pressure of 
 taxation, by evil laws, above all, by the want of se- 
 curity for industry, to poverty, desolation, and de- 
 cay. So, wherever upon the earth, by law, one man 
 is enabled to reap the fruits of another's labor with- 
 out compensating the latter, there security does not 
 exist in that degree which legislation should seek to 
 attain. Jure naturce cequum est neminen alterius 
 detrimento et injuria fieri locupletiorem. 
 
102 PROVINCE OF GOVERNMENT. 
 
 The amount of taxation may in two ways be ex- 
 cessive in proportion to the security obtained, either 
 ' in consequence of the public functionaries who dis- 
 charge the public duties of justice and order being 
 paid at too high a rate, or in consequence of a por- 
 tion of the inhabitants of the State being excluded 
 fvoii- the benefit of the laws. Slaves are almost 
 excluded from the benefit of the law. In Ireland, 
 &n&l Mr.! Gladstone passed his Land Act, the ten- 
 ants, not being the legal proprietors of the land, 
 were compelled to cultivate at the risk of their im- 
 provements being confiscated by the proprietor to 
 his own use. In the representative governments of 
 modern times there is a constant economic tendency 
 at work, desiring to obtain the highest degree of 
 official aptitude at the least expense. So, in propor- 
 tion to the increasing wealth and population of the 
 most advanced countries, the public business is con- 
 ducted at less cost than in former times. And in 
 such countries as England and the United States, 
 taxation may be said to be the price of security, 
 since but a very small portion of their public gen- 
 eral taxation is squandered uselessly. 
 
 Taxation is one of the subjects which equally 
 are within the limits of Political Economy and 
 Jurisprudence. The study of the Political and Social 
 Sciences is, above all things, most fruitful in bene- 
 ficial results of a practical nature. It teaches us to 
 employ the experience of one age or nation to di- 
 
TAXATION. 100 
 
 rect another, and save it expense, inconvenience, and 
 delay ; it points out the errors committed in former 
 systems of civil and commercial polity ; it shows 
 how such errors are to be corrected or avoided, and 
 how such systems may be most effectually improved 
 in order to advance the happiness of nations. 
 
 Few subjects have exercised so great an influence 
 on the destinies of States as the systems of taxa- 
 tion respectively adopted by them. The word tax- 
 ation is found in all the stirring pages of modern 
 history. Evil systems of taxation have caused 
 many of the revolutions of the world. Who has 
 not heard of the ship-money in England, the tea- 
 duties at Boston, the taille and gdbelle in France, 
 and the consequences which they aided to produce ? 
 Until recent times, few attempts were made to ascer- 
 tain the true principles of taxation, and the mode 
 in which different systems have influenced and do 
 influence the public welfare. The reasons for this 
 are to be found in the military character of the gov- 
 ernments of the ancient world; the principles of 
 the feudal system ; the incorrect ideas which, down 
 to a late period, prevailed, concerning the province 
 of government ; the late diffusion of knowledge and 
 education ; the late rise into respect and importance 
 of the mercantile and manufacturing classes of the 
 community. 
 
 A tax is a portion of the property of individuals 
 living in society, given by them to their government 
 
104 PROVINCE OF GOVERNMENT. 
 
 in exchange for the security which it affords them. 
 Taxation is the general levy of particular taxes 
 upon the community. The word is also used to mean 
 that part of the Science of Jurisprudence or of 
 Political Economy which treats of the manner of 
 levying taxes. The word tax is probably derived 
 from the same root as the verb " to take," and literally 
 means something taken or lifted. In Latin, we meet 
 the words taxare, taxatio in German, taecksc in 
 French, taxer in Italian, tassare. In English, the 
 word task seems originally to have been synonymous 
 with tax. Thus, in the old statute, the confirmatio 
 chartarum, (25th Edward I) we meet the expres- 
 sion, " aids, tasks, and prises." 
 
 The taxes in all civilized countries are devoted to 
 almost the same objects. It is necessary to main- 
 tain an army and navy, to guard our properties and 
 liberties against foreign ambition or domestic sedi- 
 tion. In all civilized societies, the proper admin- 
 istration of justice and the punishment of criminals 
 are necessary for the existence of the community : 
 part of our taxation is devoted to the business of 
 justice and police. In all governments.it is neces- 
 sary to pay the officers at a high rate, in order that 
 able men may be obtained to fill such offices : part 
 of our taxation is devoted to the payment of those 
 who carry on the transactions of government. In 
 all countries it is necessary to support in proper 
 affluence and dignity the head of the nation : and 
 
TAXATION. 105 
 
 every country accordingly pays something to main- 
 tain the head of the nation, whether that head be 
 the chief of a barbarous tribe, or, as in civilized 
 countries, called emperor, king, or president. Part 
 of the taxation of all the old countries of the world 
 that maintain their credit, defrays the interest of 
 the national debt, contracted in former years, when 
 the taxes raised were not sufficient to meet the ex- 
 penditure. 
 
 It has been made a question with some jurists, al- 
 though seldom in modern times, whether the sup- 
 . port of paupers should be provided for at the public 
 expense. Paupers have no absolute right to support 
 founded on the institution of society. It cannot be 
 said that those who possess property are, on account 
 of the possession of that property, bound to feed 
 those who do not possess it, and are unable to main- 
 tain themselves. The latter are not in a worse con- 
 dition than they would have been had society and 
 property never existed. But in relation to civil 
 society, the right of paupers to subsistence may be 
 said to be founded on the obedience to the law which 
 society exacts from them. For breaking the law as 
 regards property they would be punished, but not 
 in modern times starved, or otherwise put to death. 
 If one breaking the law should steal a loaf to satisfy 
 his hunger, he would be imprisoned, but during 
 that imprisonment fed. Would it not, then, be 
 absurd to support the criminal and allow the pauper 
 
106 PROVINCE OF GOVERNMENT. 
 
 who obeyed the law to starve ? The support of the 
 poor, once that their right to support, so qualified, 
 is acknowledged, should not be left to voluntary 
 contributions. These are uncertain, according to 
 the fortune and ability of the benevolent. If they 
 be deficient, starvation ensues. If they be super- 
 abundant, they offer a reward to laziness. It would 
 be unjust to leave the support of the poor only to 
 the benevolent, as this would be an exclusive tax 
 upon the best members of society. Besides, under 
 the voluntary system of relief, a just distribution is 
 almost impossible. The most importunate will ob- 
 tain the greatest quantity of alms, whilst silent 
 poverty will be left unnoticed. In times of famine 
 the support of the poor by private benevolence 
 would be impossible. The principal reason, there- 
 fore, for the support of the poor by a rate is, that 
 it is unsafe for society to leave them without bread. 
 Hunger is a foe to social security. 
 
 As regards the poor who are too far advanced in 
 life to receive education, no provision should be 
 made for them beyond the necessaries of life, other- 
 wise the poor-rate becomes a provision and a pre- 
 mium for the idle, and industry is taxed for the 
 support of laziness. But unquestionably the children 
 who are on the rates should be educated and taught 
 some trade, in order that they may in after-life be 
 able to support themselves, and that they may not 
 be a burden to the community. If all were well 
 
TAXATION. 107 
 
 educated, and possessed of those prudent, indus- 
 trious, and virtuous habits which a good education 
 engenders, none would be cast on the rates except 
 the aged and infirm. 
 
 It has often excited surprise that, with the ad- 
 vance of nations in the wealth, liberty, and general 
 prosperity which compose our modern civilization, 
 poverty at the same time increases, and able-bodied 
 men are unable to support themselves by their labor. 
 The causes of poverty are to be found in the greater 
 amount of labor required as society advances in 
 civilization. Labor increases in intensity with the 
 progress of society. The same amount of labor 
 which in an imperfectly organized and thinly inhab- 
 ited community would be sufficient to maintain a 
 person in tolerable comfort, will, in a more advanced 
 community, scarcely keep him from starvation. 
 The further that the community has made indus- 
 trial progress from the original unproductive habits 
 of the savage, the more does it tax the energies of 
 each individual member, and the less will any one 
 who is indolent, or capable only of the lowest spe- 
 cies of labor, be able to keep pace with the march 
 of society. A Hindoo must practice more produc- 
 tive industry than a New Hollander a Chinese 
 than a Hindoo a Russian than a Chinese ; a mer- 
 chant in a metropolis must work harder than a mer- 
 chant in a provincial town, and, generally speaking, 
 the inhabitants of London exercise more skill and 
 
108 PROVINCE OF GOVERNMENT. 
 
 untiring industry, and require to exercise more, than 
 the inhabitants of any other place upon the earth. 
 With the progress of society, a greater amount of 
 a superior kind of labor is required from us. A 
 great number will continually be left behind in the 
 race of social progress, and will be unable to pro- 
 vide themselves with the necessaries of life. The 
 only means of counteracting this downward tend- 
 ency is by education, which, to speak economically, 
 enables the poor to employ skillful labor, instead of 
 unskilled. A man able to read and write is a more 
 valuable member of society than he who is unable 
 to read and write. Juridical science has discovered 
 the true causes of the evil, and points out the rem- 
 edy the industrial education of the people. The 
 education of the poor is a proper subject to be pro- 
 vided by the State out of the public general taxes. 
 Where the population is well instructed, and early 
 trained to moral, peaceable, and virtuous habits, less 
 expense is required for the police regulations of so- 
 ciety. The difficulty is to guard against the dan- 
 gers of educating the masses above the position in 
 life which they are destined to occupy. Still, under 
 certain limitations, the education of the poor may 
 be considered as an auxiliary measure of security. 
 
 The duties of government, in return for which 
 the public taxes are paid, are the defense of the 
 country, the administration of justice, and the pres- 
 ervation of order, all which may be included under 
 
TAXATION. 109 
 
 the term public protection or security. Taxes are 
 paid in exchange for security. All the taxes paid 
 for the support and maintenance of the executive 
 government, for the purposes of justice, police, the 
 army and navy, and the poor, are all paid in order 
 to obtain security. There are no other purposes for 
 which taxes ought to be raised, except those con- 
 nected directly with public security. The educa- 
 tion of the poor is directly connected with security. 
 But it is at least doubtful whether provision should 
 be made from the public taxes for the education of 
 those who are able to pay for it. !N"o person ought 
 to be supported from the public taxes who does not, 
 by his present services, directly contribute to the 
 public security. Taxes are paid in exchange for 
 security, and ought in rare instances to be applied in 
 any other way. This principle appears very obvious, 
 yet it has been much disregarded. It follows, from 
 this principle, that all applications of the public 
 money, such as loans to capitalists to increase their 
 trade, are improper and mischievous. Some States 
 have lent money to agricultural capitalists for the 
 purposes of drainage, and other similar improve- 
 ments ; other States have lent money to manufac- 
 turing capitalists for their business. But all the 
 treasure of government arises only from taxes 
 taxes levied by constraint upon the community. For 
 a government to take from one portion of its sub- 
 jects in order to benefit another is merely to do a 
 
110 PROVINCE OF GOVERNMENT. 
 
 certain evil for an uncertain good. Even if the taxes 
 were repaid to the State, still the injustice would con- 
 tinue for the time during which they remained tinre- 
 paid. But all public loans, grants, and advances 
 have a natural tendency to be jobbed, misemployed, 
 wasted, and stolen. The capital so lent will always 
 be employed upon branches of industry less pro- 
 ductive than those toward which it would have nat- 
 urally directed itself. The very individuals who 
 borrow the government money at a low rate of in- 
 terest would not employ their own capital similarly, 
 or could not borrow money at the ordinary rate for 
 such investments. Government should not tax its 
 subjects for these purposes, when individuals con- 
 sulting their own interests will not meddle with 
 them. 
 
 All citizens are interested in having public pro- 
 tection for their private property, therefore all are 
 bound to pay taxes to maintain those persons with- 
 out whom this public protection would not exist. 
 All are interested in having this public protection 
 in proportion to the value of their property. But 
 in levying taxation, the principle should be kept in 
 view that all departments of the public service, 
 which do not come under the head of security, 
 should be made to defray their own expenses. Their 
 accounts should be kept separate, and their cost 
 defrayed, not from the public general taxation, but 
 from the moneys raised in the individual services. 
 
TAXATION. Ill 
 
 For example, the post-office should defray its own 
 expenses. The rate of postage ought to be lowered 
 whenever the receipts from that source exceed the 
 expenditure, because a tax upon commercial inter- 
 course is an improper source of revenue. All other 
 expenses which do not come under the head of pub- 
 lic security, should be defrayed by local rates. 
 
 Political Science, cultivated in free countries, has 
 now demonstrated that all taxation should be for 
 the public good, and is justified by necessity alone. 
 Taxes are wages paid by the people to certain of 
 their own number, in exchange for the public serv- 
 ices which are necessary to the existence of pub- 
 lic liberty and security. It is a very common soph- 
 ism to say we are burdened with taxes the country 
 groans beneath the weight of taxes. In most of 
 the old countries of the world the rate of taxation 
 is very high. We pay a great sum for justice and 
 police, but then we have justice and police the se- 
 curity which they afford us, the time which they 
 save us ; and it is very probable that production is 
 neither active nor easy amongst people where each 
 takes the law into his own hands. 
 
 For example : in some countries the judges are 
 very indifferently paid, take bribes, and give their 
 decisions according to the will of the highest bid- 
 der. The consequence in the second instance is, 
 that the merchants of those countries give little 
 credit, from the great difficulty and uncertainty in 
 
112 PROVINCE OF GOVERNMENT. 
 
 recovering their debts. Thus, trade and commerce 
 are paralyzed. Taxation, therefore, is an incident 
 of society. Public order, public liberty, and public 
 justice are as essential to the complete development 
 of the resources of a country, in the production of 
 wealth, as each of the great agents of production 
 capital, labor, and the land. No one would till the 
 stubborn earth, or sow it with seed, if he were not 
 certain that the fruit of the harvest would be reaped 
 by himself. The triumphs of mechanical science, 
 used as an agent of production in modern times, 
 would never have existed if the products had 
 not been secured for the benefit of the producer. 
 The gigantic system of credit now prevalent in com- 
 mercial countries could not have arisen, if the peo- 
 ple had not been willing, in the first instance, to re- 
 munerate and place in an honorable position those 
 members of their own body who discharge the pub- 
 lic functions of justice and order. The natural ad- 
 vantages of soil and climate avail but little, unless 
 use be made of them by the energy, honesty, and 
 ability which are required to lay the foundations of 
 civilization. There are countries where the bread- 
 tree grows spontaneously; where fruits and spices 
 hang upon every shrub ; where the larger kinds of 
 corn grow with but little labor. Yet such favored 
 regions, illumined by a cloudless sun, with valleys 
 cooled by mountain streams every field a garden 
 of variegated flowers, colored with hues unknown to 
 
TAXATION. 113 
 
 colder climates are inhabited by listless savages, 
 who sometimes perish from starvation. These mag- 
 nificent regions are uncultivated and savage, be- 
 cause they never have been inhabited by an ener- 
 getic and laborious race, capable of originating free 
 institutions. Whilst knowledge, capital, and indus- 
 trious labor, fostered by security, raised Venice 
 and Holland from the seas, and made them both 
 the seats of flourishing communities, powerful in gov- 
 ernment and war, the barren wolds of Lancashire 
 have been changed into mines of prosperous wealth 
 worth all Golconda or Peru to show us that of all 
 the gifts with which the earth has been blessed, and 
 those who inhabit it, the greatest is that untiring en- 
 ergy with which man works where there is complete 
 security for the fruits of industry. 
 
 Adam Smith has laid down the four following 
 maxims on taxation, and since they were published 
 they have received the concurrence of every sound 
 writer on Jurisprudence. 
 
 The subjects of every State ought to contribute 
 to the support of the government as nearly as possi- 
 ble in proportion to their respective abilities that 
 is, in proportion to the revenue which they respect- 
 ively enjoy under the protection of the State. The 
 expense of government to the individuals of a great 
 nation is like the expense of management to the 
 joint tenants of a great estate, who are all obliged 
 to contribute in proportion to their respective inter- 
 
 JURISPBUDEXCE 8. 
 
114 PROVINCE OF GOVERNMENT. 
 
 ests in the estate. In the observation or neglect of 
 this maxim consists what is called the equality or 
 inequality of taxation. Every tax, it must be ob- 
 served, once for all, which falls finally upon one 
 only of the three sorts of revenues namely, rent, 
 profit, and wages, from one or other of which the 
 private revenue of all individuals must be derived 
 is necessarily unequal, in so far as it does not affect 
 the other two. 
 
 The tax which each individual is bound to pay 
 ought to be certain and not arbitrary. The time of 
 payment, the manner of payment, the quantity to 
 be paid, ought all to be clear and plain to the con- 
 tributor, and to every other person. Where it is 
 otherwise, every person subject to the tax is put 
 more or less in the power of the tax-gatherer, who 
 can either aggravate the tax upon any obnoxious 
 contributor, or extort, by the terror of such aggra- 
 vation, some present or perquisite for himself. The 
 uncertainty of taxation encourages the insolence of 
 tax-gatherers, the corruption of an order of men who 
 arc naturally unpopular even where they are 
 neither insolent nor corrupt. The certainty of what 
 each individual ought to pay is, in taxation, a mat- 
 ter of so great importance that a very considerable 
 degree of inequality, it appears from the experience 
 of all nations, is not nearly so great an evil as a very 
 small degree of uncertainty. 
 
 Every tax ought to be levied at the time or in the 
 
TAXATION. 115 
 
 manner in which it is most likely to be convenient 
 for the contributor to pay it. 
 
 Every tax ought to be contrived so as both to 
 take out and keep out of the pockets of the people 
 as little as possible over and above what it brings 
 into the public treasury of the State. A tax may 
 either take out or keep out of the pockets of the 
 people a great deal more than it brings into the 
 public treasury, in the following way: 1st. The 
 levying of it may require a great number of officers, 
 whose salaries may eat up the greater part of the 
 produce of the tax, and whose perquisites may im- 
 pose another additional burden on the people. 2d. It 
 may obstruct the industry of the people, and dis- 
 courage them from applying to certain branches of 
 business which might give maintenance and employ- 
 ment to great multitudes. While it obliges the 
 people to pay, it may thus diminish or destroy some 
 of the funds which might enable them more easily 
 to do so. 3d. By the forfeitures and other penalties 
 which those unfortunate individuals incur who at- 
 tempt unsuccessfully to evade the tax, it may fre- 
 quently ruin them, and thereby put an end to the 
 benefit which the community might have received 
 from the employment of their capital. An injudi- 
 cious tax offers a great temptation to smuggling ; 
 but the penalties of smuggling must rise in propor- 
 tion to the temptation. The law, contrary to all the 
 ordinary principles of justice, first creates the temp- 
 
116 TAXES OX JUSTICE. 
 
 tation, and then punishes those who yield to it ; and 
 it commonly enhances the punishment, too, in pro- 
 portion to the very circumstances which ought cer- 
 tainly to alleviate it the temptation to commit the 
 crime. 4th. By subjecting the people to the fre- 
 quent visits and the odious examination of the tax- 
 gatherers, it may expose them to much unnecessary 
 trouble, vexation, and oppression ; and though vex- 
 ation is not, strictly speaking, expense, it is certainly 
 equivalent to the expense at which every man 
 would be willing to redeem himself from it. 
 
 Thus, the fundamental maxims on the subject of 
 taxation are : First, that the subjects of a State 
 should pay taxes according to their ability ; secondly, 
 that the tax should be certain, not arbitrary ; thirdly, 
 the tax ought to be levied at a convenient time and 
 in a convenient manner ; fourthly, the tax ought to 
 be collected at the cheapest rate. 
 
 These true principles of taxation are gradually 
 being adopted in Western Europe. And the states- 
 men of North America have been even more suc- 
 cessful in their adaptation. 
 
 TAXES ON JUSTICE. 
 
 Taxes on justice are unjust and indefensible upon 
 the sound principles of juridical science. 
 
 The duty of protecting property by means of just 
 laws, promptly, uniformly, and impartially admin- 
 
TAXES OX JUSTICE.. 117 
 
 istered, is one of the strongest and most interesting 
 of obligations on the part of government. Mr. 
 Hume looked upon the whole apparatus of govern- 
 ment as having ultimately no other object but the 
 distribution of justice. Lord Brougham has graph- 
 ically expressed the same idea, when he said that 
 the end of the whole paraphernalia of king, lords, 
 commons, army, and navy, was to place twelve hon- 
 est men in a jury-box. The passion to acquire 
 property is incessantly busy and active. Every 
 man is striving to better his condition. Constant 
 struggles and jealous collisions take place between 
 men of property and no property the one to ac- 
 quire, the other to preserve ; and between debtor 
 and creditor the one to exact, the other to postpone 
 payment. We pay taxes in return for the security 
 afforded by government to our properties and liber- 
 ties. We ought not to discourage by a tax the very 
 means by which an injured subject seeks redress 
 from the laws of the realm. 
 
 It was perhaps natural, in the early stages of so- 
 ciety, that the sovereign of a petty State should 
 receive fees from his subjects upon the arbitration 
 of their private disputes. His revenue derived 
 from his private lands, or from tributary exactions, 
 was not sufficient to pay the expenses of juridica- 
 ture, in addition to the other expenses of govern- 
 ment. Even if it were sufficient, the imposition of 
 judicial fees upon suitors was an easy method of 
 
118 TAXES ON JUSTICE. 
 
 raising additional taxes. Thus, the plan of impos- 
 ing taxes upon suitors who wished the decision of 
 the authorized Courts of Law upon their private dis- 
 putes, was originally adopted by every State. The 
 judges, in every country, were originally paid by 
 fees exclusively. The judges accordingly derived 
 an additional source of income from the business 
 in their Courts, and were thus interested in the 
 abundance and protraction of litigation. The judges 
 are now paid in most countries by fixed salaries. 
 However, some of the expenses of justice are still 
 defrayed by suitors. This should not continue. 
 Courts of Justice should be provided at the general 
 expense of the country, in the same way as the 
 army and navy are paid for, out of the public gen- 
 eral taxation. And suitors ought not to be com- 
 pelled to undergo any expense, except that which is 
 naturally incurred by providing legal assistance in 
 order to conduct the particular case. In effect, a 
 tax upon the administration of justice is a direct 
 reward offered for injustice. It is inconsistent that 
 the same legislators should at the same time give 
 rewards for informers and impose taxes on justice. 
 By giving the bounty, they acknowledge that it is 
 right to encourage persons to come forward, and to 
 further the ends of justice ; by imposing the tax 
 they throw difficulties in the way of the legal re- 
 dress for wrongs. It was natural that, in early 
 times, the expenses of justice should be defrayed 
 
TAXES ON JUSTICE. 119 
 
 by suitors. To those rude reasoners it appeared 
 certain that he who obtained a judgment in his 
 favor reaped the principal advantage to be obtained, 
 and, therefore, that it was but right he should 
 bear the expense incurred. But the parties who are 
 compelled to have recourse to legal process, in order 
 to obtain redress for their wrongs, are precisely 
 those who have obtained least benefit from the gen- 
 eral law of the realm. They, at the expense of 
 time, care, and money, have purchased that protec- 
 tion which others enjoy, only paying the ordinary 
 amount of taxation. 
 
 Another objection to taxes on law proceedings is, 
 that they fall upon a man at the period of his dis- 
 tress. At the very moment when something of a 
 man's property is taken from him, and he applies 
 for redress to the public law of the State whereof 
 he is a subject, this is the time chosen to call on 
 him for an additional contribution to the support of 
 the State. To the poor, this often effects a denial 
 of justice. But public justice is a part of the gen- 
 eral system of public protection, which governments 
 in civilized societies afford in return for the taxes 
 which they receive from the people. By the system 
 of Courts of Law, that is, the public arbitration of 
 private disputes, and supported in the last resort by 
 the military power, the rights of all are protected. 
 By a contested case at great cost, a doubtful right is 
 decided. And the decision assists in protecting the 
 
120 TAXES OX JUSTICE. 
 
 rights and liberties of all. Therefore, the parties 
 who suffer some injury to their rights ought not to 
 defray the expense of the public justice by which 
 they are redressed. They are the persons least bene- 
 fited by the law and its administration. The pro- 
 tection which the law affords them is not complete, 
 since they have been obliged to resort to a Court 
 of Justice to execute their rights and maintain their 
 rights against infringement, whilst the remainder of 
 the public have enjoyed the immunity from injury 
 conferred by the law and its tribunals, without the 
 inconveniences of an appeal to them. A precisely 
 parallel case is aggression by a foreign State upon 
 part of our community, and a war in consequence 
 for their redress, and to protect them from further 
 molestation. The parties aggrieved are not com- 
 pelled to pay the expense of the war. In fact, if it 
 were possible to have private rights settled entirely 
 at the public expense, it would be desirable. But 
 this is impossible ; for those whose business it is to 
 manage legal proceedings could never be expected 
 to have the same zeal in individual cases if they 
 were paid public officers, and assigned accordingly. 
 The best system of providing for the expense of 
 public justice appears to be, that the public ma- 
 chinery of the law should be paid for entirely out of 
 the public treasury, whilst suitors should be put to 
 no expense, beyond what the advocacy of their in- 
 dividual cases may demand. 
 
DUTIES OP GOVERNMENT. 121 
 
 The subject of law taxes may be concluded by a 
 quotation from Bentham : " The statesman who con- 
 tributes to put justice out of reach the financier 
 who comes into the house with a law-tax in his hand 
 is an accessory after the fact to every crime : every 
 villain may hail him brother ; every neighbor may 
 boast of him as an accomplice. To apply this to in- 
 tentions would be calumny and extravagance ; but 
 as far as consequences only are concerned, clear of 
 criminal consciousness, it is incontrovertible and 
 naked truth." 
 
 DUTIES OF GOVERNMENT EDUCATION. 
 
 Much discussion has arisen as to the encourage- 
 ment of art, science, and education, by endow- 
 ments from the public moneys. The primary ob- 
 ject of government is security ; but the question 
 arises, Is it advisable for a powerful and wealthy 
 community to make public provision for other pur- 
 poses ? 
 
 The education of the poor by the State, under 
 certain limitations, is a measure of security, and for 
 the poor education should be gratuitous. Places of 
 public amusement, museums, parks, and picture gal- 
 leries, open to the publics-even these may be consid- 
 ered as auxiliary measures of security, inasmuch as 
 they refine the public taste, create more wide and gen- 
 erous judgments, unfold more ennobling pleasures. 
 
122 DUTIES OF GOVERNMENT. 
 
 The craving for excitement and recreation is natural 
 
 O 
 
 to us. The wearied and depressed spirits of those 
 who live the crowded life of laborious cities must in 
 some way be refreshed. When daily labor is per- 
 formed, when the claims of social duty are fulfilled, 
 moderate and timely amusement claims its place as 
 a want inherent in our nature. The rich have a 
 thousand ways of gratifying this natural desire for 
 excitement and relaxation. In England and Ireland 
 the poor have almost but one intoxication by the 
 drinking of ardent spirits. It is right to strive to res- 
 cue the poor from this dominion of the groveling 
 and the vile ; to give them some idea of the grand 
 achievements of antiquity, the magnificent efforts 
 of the human race, the beauty of nature and art. 
 But institutions such as I have alluded to can be 
 supported on a large scale only by public taxation. 
 To make, also, the education of the people with cer- 
 tainty a measure of security, they ought to be in- 
 structed in the principles of law and Political 
 Science. Under the title of law, the children of 
 the people should be instructed as to the criminality 
 and penal nature of the most prominent offenses. 
 It has been remarked that crimes against the person 
 occur more frequently in some districts than others. 
 This is to be attributed not merely to a degree of 
 greater barbarity, but also to a greater ignorance of 
 the law. The danger now to be apprehended from 
 the Socialist sects through Europe arises from the 
 
EDUCATION. 123 
 
 prevalent ignorance of history, of the true nature 
 of man, and of correct political principles. 
 
 The universities of England have been gorgeously 
 endowed, and the middle classes of society princi- 
 pally enjoy their benefits. The magnificent educa- 
 tional charities in England ennoble the country and 
 character of Englishmen. We may reckon these 
 amongst the public endowments for education, 
 although many, if not most of them, are of private 
 foundation. They arose from fortunes acquired in 
 trade and bequeathed by public citizens, with that 
 desire to do good, that noble liberality and zeal for 
 knowledge, which form some of the most promi- 
 nent and best features in the English character. Of 
 late years, vast sums are annually voted by Parlia- 
 ment for the purposes of national education. 
 
 But the question arises, Should colleges and uni- 
 versities be provided out of the public general tax- 
 ation, to educate those of the middle and upper 
 classes who may be able to avail themselves of 
 them? Adam Smith entertained a very strong 
 opinion upon the subject. He considered such en- 
 dowments most injurious to the cause of science and 
 education. He considered that if a man's emolu- 
 ments be precisely the same, whether he does or does 
 not perform some very laborious duty, it is his in- 
 terest either to neglect it altogether or perform it in 
 a careless and slovenly manner ; and that were there 
 no public institutions for education, no system nor- 
 
124 DUTIES OF GOVERNMENT. 
 
 science could be taught for which there was not 
 some demand. A private teacher could never find 
 his account in teaching either an exploded and an- 
 tiquated system of a science acknowledged to be 
 useful, or a science universally believed to be a 
 mere useless and pedantic heap of sophistry and 
 nonsense. Such systems, such sciences, can subsist 
 nowhere but in these incorporated societies for edu- 
 cation, whose prosperity and revenue are, in a great 
 measure, independent of their reputation, and alto- 
 gether independent of their industry. 
 
 Such have been the views of this first of econ- 
 omists upon this important subject. I have given 
 his words they are worthy of the gravest con- 
 sideration. These are among the most serious 
 dangers against which universities have to guard. 
 Adam Smith argues not merely that it is wrong to 
 tax one part of the community for the sake of 
 endeavoring to give a higher class of knowledge to 
 the other, but that these endowments are positively 
 injurious to science and education. Can this be 
 true ? Does independent wealth destroy the desire 
 for knowledge and the zeal to communicate it to 
 others ? And is that poverty which we have learned 
 to mourn as the wretched companion of laborious 
 genius, absolutely then the condition by which that 
 genius is forced to labor ? In most numerous in- 
 stances it certainly has happened that apparently 
 the most triumphant success in a college career has 
 
EDUCATION. 125 % 
 
 been the ruin of the fortunate individual, in every 
 point of view except his material comfort. High 
 and varied talent and strenuous industry have often 
 found in these old universities a sudden grave by 
 obtaining a comfortable and idle competency ! 
 
 And yet few things are greater than a well- 
 conducted national university, wherever it is to be 
 found, or such, at least, as one might be made. A 
 national university at the same time flinging open 
 its gates to all embracing amongst its professors 
 the matured intellect of the nation, affording the* 
 soundest instruction in the varied branches of that 
 social education becoming a gentleman, and em- 
 ploying that special discipline necessary for individ- 
 ual professions cultivating art, elucidating anti- 
 quity, instructing the youth of a nation in the 
 practice of its laws, and with funds for the assist- 
 ance of penniless young men to educate themselves 
 for the professions of their choice this is one of 
 the noblest institutions of civilization. 
 
 Can it be said to be injurious for the nation to 
 continue the primary instruction given to the poor 
 up to the highest order to rescue from the drudg- 
 ery of manual labor the intellects which occasion- 
 ally appear amongst that peasantry which has 
 produced such men as Arkwright and Robert Burns? 
 National education may be understood thus : one 
 grand system of public instruction, given and reg- 
 ulated by the State, commencing from the village 
 
126 DUTIES OF GOVERNMENT. 
 
 school, and proceeding step by step to the college 
 higher still to the institute to the university the 
 gates of science opened wide to all the talents no 
 parish without a school, no town without a college, 
 no city without a faculty one great net-work of 
 intellectual studia, lycea, gymnasia, colleges, chairs, 
 libraries, mingling the radiance of their knowledge 
 over the surface of the country everywhere arous- 
 ing capacities and animating vocations ; in a word, 
 the ladder of human knowledge, held firmly by the 
 hand of the State, placed in darkness the most 
 obscure, and ending in the light. Such a system 
 may yet exist. It does not now. 
 
 A university has two functions : one to be a center 
 for educated intellectual men, to pursue together 
 the investigations of science ; the other as a place 
 for superior education, whether general or profes- 
 sional. The success which has attended the old 
 universities of Europe has arisen principally from 
 their discharging the first function. A college has 
 no magical power to make scholars. The education 
 given by endowed teachers, wholly independent of 
 their pupils, never has been, and never can be, so 
 successful as where a teacher is paid directly for the 
 work which he does. That the portion of collegiate 
 endowments applied for this first purpose has been 
 well-spent money, the names of Sir William Black- 
 stone, Adam Smith, Judge Story, Chancellor Kent, 
 Guizot, Niebuhr, and Savigny prove all lecturers in 
 
EDUCATION. 127 
 
 colleges, and who, by their genius and research, have 
 advanced to the highest degree of excellence the 
 subjects which they taught. Therefore, taxation 
 for the first purpose is right, as a homage to science 
 and art ; and in order to provide their votaries with 
 the means, untrammeled by worldly care, to follow 
 their favorite pursuits. But taxation of the entire 
 community for the education of some of the upper 
 and middle classes, through means of universities, 
 cannot be justified with certainty. Still, incidental 
 to the first function of a university is a certain 
 proportion of education. Unquestionably, in most 
 branches of science, teaching improves the teacher. 
 
 The entire question is one of the greatest difficulty, 
 and not to be settled until a very distant period. In 
 the meantime, vast endowments at present exist for 
 the purpose of giving superior education. And it is 
 our duty to render them as available as possible to 
 satisfy the wants of the age, and to aid the progress 
 of society. 
 
 Education is spreading through the masses of the 
 people, to prepare them for the social changes that 
 ensue in the progress of society. We are advancing 
 in our social phases from system to system, ever 
 nearer to the truths of Political Science. We move 
 slowly ; but there is nothing of which we ought to 
 be so convinced as the slowness of progress. In the 
 scheme of the universe, centuries are but seconds 
 ages produce the diamond. How long did the 
 
128 DUTIES OF GOVERNMENT. 
 
 granite and marble slumber in darkness, from the 
 time they were fused in the primeval earth until 
 the time when the artist's skill wrought them into 
 the Temple of Theseus, the Parthenon, the Colos- 
 seum, St. Peter's ! So those who, in the civilized 
 countries of the world, now cultivate the Social 
 Sciences, are forming the materials from which some 
 future statesman shall rear a social fabric, more en- 
 lightened, more equal, more just, better fitted for 
 the progress of the civilized world. 
 
 It is true that, in this great age of discoveries, of 
 events, of conquests, of freedom, progress is moving 
 at an accelerated pace. In all the free civilized 
 countries of the world, merit, unaided by birth or 
 fortune, can now force its way to the very highest 
 positions. Behold what a future of glory, thought, 
 intelligence, this principle has unfolded ! " A high 
 ambition entertained independently of social station, 
 expansion and boldness in political thought ; desire 
 for intervention in the affairs of the realm ; full of 
 consciousness of the dignity of man as a human 
 being, and of the extent of his power, if he have 
 capacity to exercise it these are sentiments and 
 dispositions altogether modern, the proceeds of 
 modern civilization, and the fruits of that glorious 
 and elastic generality which characterizes it." The 
 exertions formerly made only by privileged races or 
 classes are now participated by all. The entire 
 
 iGuizot's "History of Civilization," Lecture VIE. 
 
DIVISIONS OF JURISPRUDENCE. 129 
 
 community, instead of a small section only, works 
 for advancement. And, in consequence, the human 
 race has within the last two centuries accomplished 
 more material prosperity than in all the former 
 ages. At the same time, we may be assured what a 
 grand career is yet before mankind, when we reflect 
 how minute a portion of the earth is occupied by 
 free civilized men. We are but in the infancy of 
 civilization. To continue this glorious progress the 
 first requisite is social order security. 
 
 DIVISIONS OF JURISPRUDENCE. 
 
 Eights and duties arise between different States 
 or their subjects, and form the province of Inter- 
 national Law. 
 
 International Law. is the rule which civilized in- 
 dependent societies observe toward one another in 
 modern times. So far as it is capable of being 
 enforced, it conies within the province of Positive 
 Law. The term " international " is of recent origin. 
 Dr. Zouch, in 1650, first distinguished jus inter gent es 
 from the Roman jus gentium. D' Aguesseau, in 1757, 
 distinguished le droit entre les nations from le droit 
 de nations. Finally, Bcntham, about the year 1790, 
 invented the term " international." 
 
 A great portion of what is called International 
 Law cannot be yet said to come under the denomi- 
 
 JURISPRUDENCE 9. 
 
130 DIVISIONS OF JURISPRUDENCE. 
 
 nation of Positive Law ; and Political Law is in the 
 same defective condition as International Law. No 
 punishment can be assigned for the offenses of the 
 sovereign. Quis custodiet ipsos custodes ? All that 
 human wisdom has been able to devise is a system 
 of precautions and indirect means, rather than a 
 system of legislation. A treaty between two na- 
 tions is an obligation which does not possess the 
 same force as a contract between two individuals ; 
 and the organization of International Law remains 
 
 o 
 
 most incomplete. In this department of the Science 
 of Jurisprudence there is a great desideratum. 
 The complete recognition of this branch of Juris- 
 prudence will not take place until some international 
 code be adopted by the principal civilized nations, 
 promulgated by their authority, expounded by their 
 international, tribunals, and enforced by their com- 
 bined strength in the last resort. 
 
 The security of the civilized nations of the hu- 
 man race would be fixed, so far as it depends on 
 law, if it were possible now to raise Political and 
 International Laws to the rank of complete and 
 organized sciences. 
 
 In accordance with the fourfold division of Posi- 
 tive Law, I divide Jurisprudence into four parts, 
 termed, respectively, Civil, Criminal, Political, and 
 International. 
 
 Civil Jurisprudence is concerned with those 
 rights which are sufficiently protected by enforcing 
 
DIVISIONS OF JURISPEUDENCE. 131 
 
 performance, or by awarding compensation to the 
 injured party upon any infringement of them. This 
 performance or compensation is enforced by civil 
 process. 
 
 Criminal Jurisprudence punishes the violation of 
 a right on behalf of the community, in many cases 
 where no compensation can be awarded. This pun- 
 ishment is effected by criminal process. 
 
 Political Jurisprudence embraces the province of 
 government, and its relations to the people. 
 
 International Jurisprudence is separated into two 
 divisions, public and private. 
 
 Public International Law defines and adjusts the 
 mutual rights and duties of the governments of dif- 
 ferent States. 
 
 Private International Law defines and adjusts the 
 mutual rights and duties of individual citizens in 
 different States. Within the sphere of International 
 Law are included the greatest social and political 
 problems of the age, amongst them the right of 
 intervention, the liberty of the individual, his inde- 
 pendence of his own government, and his right to 
 call for protection against wrong. 
 
 In point of expression, the whole body of the 
 Positive Law of a State has been usually divided 
 into Common and Statute, or unwritten and written. 
 
 The Common Law is the collection of rules of 
 civil conduct recognized by the members of the com- 
 
132 DIVISIONS OF JURISPRUDENCE. 
 
 iiiunity without any positive interference of the leg- 
 islative power. 
 
 The Statute Law is the law prescribed and pro- 
 mulgated in writing by the supreme power of the 
 State. 
 
 The object of a statute is to fix the nature of a 
 legal relation, by which the existence of that legal 
 relation may be secured against error or caprice. 
 
 Both Common and Statute Law fall under the 
 denomination of Positive Law. They both spring 
 from the same authoritative force the will of the 
 community. And custom is the sign by which we 
 recognize that Common Law which arises and 
 grows amongst a people as naturally and necessarily 
 as their language. 
 
 The Common Law has been called unwritten law, 
 lex non scripta because, without any interference 
 of a legislative body, it is a rule prescribed by the 
 common consent and agreement of the community, 
 as applicable to its different relations, and as capa- 
 ble of preserving the peace, good order, and harmony 
 of society rendering to every man that which of 
 right belongs to him. 
 
 The Common Law is not the production of the 
 brain of one legislator, it is the growtli of time and 
 circumstance, the offspring of the necessities which 
 the manners, religion, and circumstances of a nation 
 have- imposed. Antecedent to all law enacted by 
 the supreme legislative power antecedent to the 
 
DIVISIONS OF JURISPRUDENCE. 133 
 
 existence of the legislative body in a State its in- 
 habitants are governed by customs, spontaneously 
 arising, and binding by the force of common opin- 
 ion. These ancient customs of the people must be 
 recognized by the judges, as much as the general 
 expression of their will through their representa- 
 tives in the legislature, and must, equally with the 
 statutes of a realm, be considered as Positive Law. 
 The sources of the Common Law are in the 
 usages, habits, manners, and customs of a people. 
 Every nation must of necessity have its Common 
 Law, and such law will be simple or complicated in 
 its details, according as the society is simple or com- 
 plicated in its relations. Some practical rules suf- 
 fice a wandering horde of savages ; laws minute and 
 nice in detail are demanded by the exigencies of a 
 nation which agriculture and commerce have en- 
 riched, which civilization and the liberal arts have 
 polished. The Common Law, therefore, is never 
 stationary, but is modified and extended by analogy, 
 construction, and custom, so as to embrace the new 
 relations which spring from a change in the society. 
 In modern times, the new principles which are ar- 
 gued by advocates and determined by judges, are 
 principles of the Common Law, although they are 
 not found in the old books. They are held to be 
 immutable principles, which have slumbered in their 
 repositories, because the occasion which called for 
 their exposition has not arisen. 
 
134 DIVISIONS OF JURISPRUDENCE. 
 
 The Common Law system of England, as admin- 
 istered by the judges of the land, consists in apply- 
 ing to new combinations of circumstances those 
 rules of law which are derived from legal principles 
 and judicial precedents. For the sake of attaining 
 uniformity, consistency, and certainty, those rules 
 must be applied by the judges to all cases which 
 arise where they are not plainly unreasonable and 
 inconvenient. And the judges are not at liberty to 
 reject them, and to abandon all analogy to them in 
 those cases to which such rules have not yet been 
 judicially applied, because the expounders of the 
 law may consider that the rules are not so conven- 
 ient and reasonable as those which they themselves 
 could have devised. 
 
 It was important, under the early feudal govern- 
 ments, that the judges should have been strictly tied 
 up by precedent; but in the present day, in a free 
 country such as England, with judges of the inde- 
 pendence and integrity attained in modern times 
 in England with the publicity of justice, and the 
 liberty of the press as security against corruption 
 it does not seem necessary that the judges should be 
 so bound by the ancient strict rules of precedent, 
 many of which might usefully be relaxed in the 
 progress of society. 
 
 In the* English phraseology another division of 
 law is into Common Law and Equity. 
 
 Equity is defined as the correction of strict law 
 
DIVISIONS OF JURISPRUDENCE. 135 
 
 wherever it is deficient owing to its universality. 
 This definition has been adopted by Grotius and 
 Puffendorf . Grotius says : Equity is properly and 
 simply a virtue of the will, corrective of that where- 
 in the law is deficient on account of its universal- 
 ity. That is equitable by which the law is corrected. 
 Proprie vero et singulariter cequitas est virtus vol- 
 untatis, correctrix ejus, quo lex propter universalita- 
 tem deficit. JEquwn id est quo lex corrigitur. 
 Thus, that species of law which may be termed 
 unwritten, in the sense of not enacted by legisla- 
 tive authority, and which in England is called 
 Equity, is at first wholly distinct from the Common 
 Law, or that part of the immemorial and recognized 
 custom of the realm which is stricti juris ; and is 
 always distinct from the Statute Law, except so far 
 as the Statute Law in the progress of society pro- 
 fesses to regulate the equitable jurisdiction. In 
 its redress of the evils flowing from an unbending- 
 adherence to the rules of Common Law, Equity 
 may be termed, according to SchlegePs definition, 
 the law qualified by historical circumstances. In 
 respect to the Statute Law, the necessity for the 
 application of Equity happens either against the 
 design and inclination of the lawgiver, or with his 
 consent. In the former case, particular facts may 
 have escaped his knowledge, or facts may arise in 
 the progress of society requiring a less strict appli- 
 cation of the law's unbending rule. In the latter 
 
136 DIVISIONS OF JURISPRUDENCE. 
 
 case, the legislator may be aware of all the facts ; 
 but from their number and complexity may be una- 
 ble or unwilling to recite and provide for them. 
 Cases admit of infinite varieties of circumstances: 
 the law must be conceived in general terms. So 
 Mr. Charles Butler has said that Equity, as distin- 
 guished from Law, arises from the inability of hu- 
 man foresight to establish any rule which, however 
 salutary in general, is not, in some particular cases, 
 evidently unjust and oppressive. And in this lie 
 has f ollowed the Digest. Neither laws nor decrees 
 of the senate can be so written that all cases may 
 be embraced wherever and whenever they may hap- 
 pen : but it is sufficient that those be included which 
 most frequently occur. Neque leges neque senatus 
 consulta ita scribi possunt ut omnes casus qua quan- 
 doque inciderint, compreliendantur : sed sufficit ea 
 quce plerumque accidunt contineri. 
 
 The method of administering law in the early 
 history of every people is technical. The system 
 of pleading in the ancient Roman Law, the system 
 of Common Law pleading in England, the formal- 
 ities of written instruments required by statutes 
 all have frequently had the result of deciding cases, 
 not upon the real merits, but upon the most tech- 
 nical subtleties. Judges in the early stages of law 
 in all countries are unable to decide upon conflict- 
 ing evidence according to what is true and just : 
 they endeavor to attain certainty. But in the prog- 
 
DIVISIONS OF JURISPRUDENCE. 137 
 
 ress of society the method of administering justice 
 ceases to be technical, and endeavors to be equitable. 
 Thus, in the history of the ancient Roman Law, 
 the technical system was finally suppressed, and 
 the equitable jurisdiction of the prastor became 
 paramount. 
 
 But the technical meaning of Equity, as used in 
 the English Courts of Law, is different from that 
 meaning which has been employed by moralists and 
 jurists. Equity, as understood by English lawyers, 
 is that portion of remedial justice which is exclus- 
 ively administered by fhe Court of Chancery as 
 contradistinguished from that portion of remedial 
 justice which i,s exclusively administered by the 
 Courts of Common Law. The Courts of Common 
 Law in England are Courts of Limited Jurisdiction, 
 able to give relief only in certain prescribed forms 
 of action, to which the party must resort to give 
 him a remedy ; and if there be no prescribed form 
 to reach the case, he is at law remediless. But the 
 forms in the Courts of Equity are flexible, and 
 their decrees can be adjusted to all the varieties of 
 circumstances which may arise. Thus, the Courts 
 of Equity have had a twofold function : they have 
 relieved against the rigor of the Common Law 
 Courts, as, for example, in the cases which they 
 have held to be not within the spirit, though within 
 the letter, of the Statute of Frauds. And they 
 have also administered justice where it was impos- 
 
138 CODIFICATION. 
 
 sible for the Common Law Courts so to do by reason 
 of their limited jurisdiction and defective machinery. 
 The most precise definition of a Court of Equity, 
 as understood in England, Ireland, and the United 
 States, is, that it is a Court having jurisdiction in 
 the case of rights recognized and protected by the 
 Positive Law of the country, where a plain, ade- 
 quate, and complete remedy cannot be had in the 
 Courts of Common Law. 
 
 CODEFICATIOK 
 
 Historically, Law thus arises amongst a people. 
 First, the Common Law, like their language, springs 
 from their common consciousness. That primitive 
 customary law is antecedent to all formal legislation. 
 Next, the Statute Law in its origin in every State 
 embraces public law and defines the constitution. 
 In the development of society, law becomes twofold. 
 Its primitive fundamental principles still continue to 
 live in the common consciousness of the people. Its 
 more accurate formation and application to particu- 
 lar cases become the particular vocation of the class 
 of lawyers. Finally, the Statute Law is busied 
 with details. It corrects the errors and supplies the 
 deficiencies of the Common Law in private matters. 
 
 In the last stage of legislation in a State, the 
 principle of Codification appears. It appears to be 
 a natural law that whilst a nation is rapidly pro- 
 
CODIFICATION. 139 
 
 grossing in wealth, knowledge, and civilization, it is 
 impossible to codify the laws. Whilst the neces- 
 sary preparation for a digest is taking place, already 
 has the natural progress outstripped the legislators. 
 When a complete code of laws is possible for a na- 
 tion, its progress must have been arrested ; it must 
 already have reached that maturity in which further 
 development bec&mes difficult if not impossible. 
 Historical examples are the Code Justinian and the 
 Code Napoleon. From the consolidation of the 
 Roman Law under Justinian, the development of 
 the Eoman Law ceased : the development of the 
 Roman civilization had already ceased. France for 
 some time has appeared stationary in wealth and 
 population. 
 
 Codification is attended with many dangers. 
 There is the risk of error in definitions. There is 
 the risk of perpetuity being given to those errors by 
 the legislative enactment, so as to preclude their cor- 
 rection upon discovery, as under the present mode 
 of administering the Common Law in England. 
 Definitions in a statute may be useful, when they 
 contain a command or a prohibition, when their ob- 
 ject is to determine acts which individuals are 
 bound to perform, or to abstain from ; but when 
 they have no other object than to make known the 
 nature of things, they are useless and dangerous, 
 and should be left to science. In Codification, there 
 is also the danger of cramping the development of the 
 
140 CODIFICATION. 
 
 scientific principles of the Common Law, and of re- 
 tarding the adoption of advanced rules of justice 
 more consistent with the public welfare and the 
 progress of society. 
 
 It is impossible to codify the laws of a nation in 
 such a manner as that no change will be necessary. 
 The rights of the different classes of society are 
 continually changing, and the narrowness of human 
 wisdom cannot foresee the cases which time dis- 
 closes. 
 
 Nor does the conversion of Common Law into 
 Statute Law render it absolutely certain. It is still 
 exposed to the risks of ambiguous construction, 
 arising from the natural imperfection of language 
 as the representative of thought, and from the im- 
 perfect use of language. 
 
 But by arrangement and classification the disad- 
 vantages of the accumulations of books and the 
 judgments of the Courts may be diminished. 
 
 The Statute Law may be improved by a more 
 scientific method of enactment and the skillful use 
 of appropriate language. The carelessness of former 
 legislation may be remedied by a strict definition of 
 terms, and by a strict adherence to the judicial 
 phraseology as having a fixed and generally recog- 
 nized if not technical meaning. 
 
 The wants of society are so varied, the communi- 
 cation of men so active, their interest so multiplied, 
 and their relations so extended, that it is impossible 
 
CODIFICATION. 141 
 
 for the legislator to foresee all. In the materials 
 which particularly fix his attention, there is a crowd 
 of details which escape him, or which are too con- 
 tradictory or fleeting to become the object of a legal 
 test. It is impossible to chain the action of time, to 
 oppose the course of events, or prevent the insensi- 
 ble change of manners. It is impossible to calcu- 
 late in advance what experience alone can reveal. 
 A code, however complete it may appear, is no 
 sooner finished than a thousand unexpected ques- 
 tions present themselves to the magistrate. Laws 
 once digested remain as they have been written. 
 Men, on the contrary, never repose they always 
 act ; and this movement which never stops, and the 
 effects of which are differently modified by differ- 
 ent circumstances, produce at each instant some 
 new combination, some new fact, some new result. 
 Many things are then necessarily abandoned to the 
 empire of custom, to the discussion of learned men, 
 and to the arbitrament of the judges. The duty of 
 the law is to fix, with enlarged views, the general 
 maxims of right, to establish principles fertile in 
 their consequences, and not to descend into the de- 
 tail of the questions which may arise upon each 
 matter. It is for the magistrate and the lawyer, 
 penetrated with the spirit of the laws, to direct the 
 application of them. Hence, amongst all polished 
 nations, in addition to the laws made by the legisla- 
 ture, a number of maxims, decisions, and doctrines 
 
142 CODIFICATION. 
 
 is daily promulgated by practice and by judicial 
 duties. The professors of the law are reproached 
 with having multiplied subtleties, compilations, and 
 commentaries. This reproach may be well founded. 
 But what art, what science, does not deserve it? 
 Must a particular class of men be accused of what 
 is only the general tendency of the human mind ? 
 There are times when we are condemned to igno- 
 rance because we have not books ; there are others 
 where instruction is difficult because we have too 
 many. Excess in commentary, discussion, and au- 
 thorship is to be pardoned above all in Jurispru- 
 dence. We cannot hesitate to believe this if we re- 
 flect on the innumerable ties which bind citizens. 
 There is a constant development and a successive 
 progression of the objects with which the magistrate 
 and the jurisconsult are obliged to busy themselves. 
 The course of events modifies in a thousand ways 
 the social relations. He who blames subtleties and 
 commentaries becomes, in an individual cause, the 
 subtle, fastidious commentator. It would be with- 
 out doubt desirable that all matters should be regu- 
 lated by laws. But in default of a precise text on 
 each matter, an ancient usage, constant and well es- 
 tablished, an uninterrupted current of similar de- 
 cisions, an opinion or a received maxim, holds the 
 place of law. When we are directed by nothing 
 that is established or known, when we treat of an 
 
CODIFICATION. 143 
 
 absolutely novel fact, \ve ascend to the principles "of 
 natural justice. 
 
 Bentham enumerates four conditions which ought 
 to belong to a code of laws, and which ought to be 
 regarded in its division. 
 
 The first condition of the code should be the 
 greatest happiness of the greatest number. 
 
 It should have for its end the general interest ; 
 and if this condition has been satisfied in the politi- 
 cal code, that is, in the code which establishes the 
 different powers of the State, it will be easy to fol- 
 low it up in all the other branches of legislation. 
 
 The second condition is integrality ; that is to 
 say, it ought to be complete, or, in other words, 
 embrace all the legal obligations to which a citizen 
 should be subjected.-. 
 
 The third condition is imperfectly expressed by 
 the word method. Bentham means by this, not 
 only precision of language and clearness of style, 
 but such an arrangement as would allow all those 
 interested in it easily to acquire a knowledge of the 
 law. All that is included under this comprehensive 
 head is expressed by the word cognoscibility ; that is 
 to say, the law should have a great aptitude to be 
 known. 
 
 There is no one word which can express the 
 fourth condition to be satisfied by a body of laws. 
 The meaning must be conveyed by a periphrasis. 
 Each law should be accompanied by a commentary 
 
144 CODIFICATION. 
 
 or exposition of the grounds on which the law is 
 founded, showing what relation it bears to general 
 utility. This commentary is, as it were, a justifica- 
 tion of the law ; justifiability of the law would, 
 perhaps, be the proper word to express this charac- 
 teristic of good laws, since those only are good for 
 which we can give good reasons. 
 
 A code of laws is like a vast forest : the more it 
 is divided the better it is known. 
 
 The first principle of division in a code consists 
 in separating laws of universal interest from those 
 of special or individual interest. 
 
 There are some laws with which every man should 
 always be acquainted, and there are others which 
 are only required on certain occasions; in other 
 words, there are laws of a permanent, and others of 
 a temporary and occasional interest. 
 
 The penal code is the first in importance ; all 
 human actions which are the object of law are 
 necessarily included in it. "What is called the civil 
 law is only a collection of explanations, or, in other 
 words, an exposition of what is contained in the 
 penal code. Thus, the penal code prohibits from 
 taking an article of property to which the taker 
 has no right: the civil code explains the differ- 
 ent circumstances which give such right, or make 
 anything property. The penal code forbids adul- 
 tery : the civil treats of all that concerns the mar- 
 
STUDY OF JURISPRUDENCE. 145 
 
 riage state, and the reciprocal obligations of man 
 and wife. 
 
 The true method of Codification is from time to 
 time to select individual portions of the law, and to 
 digest and arrange such portions in scientific order. 
 
 THE STUDY OF JURISPRUDENCE. 
 
 The development of Jurisprudence has arisen in 
 two ways from the individual labors of learned 
 men, and from the natural progress of society. 
 Thus, one important branch of law has sprung, in 
 modern times, from the necessities of commercial in- 
 tercourse. International Law is entirely the off- 
 spring of modern civilization, and is the latest im- 
 portant discovery in Political Science. Communities 
 which anciently admitted of no political superior 
 upon the earth no law to guide them in their inter- 
 course with foreigners except" the dictates of capri- 
 cious ambition are now willing to regard themselves 
 as subject to certain rules, the observance of which 
 is expedient for the interests of all. In ancient times 
 International Law had no existence. But from the 
 number of civilized States in modern Europe of 
 nearly equal power, of similar political and ecclesi- 
 astical institutions, and united in the friendly ties of 
 commerce a set of rules has been adopted in diplo- 
 matic intercourse and the settlement of international 
 disputes. International Law, however, is only Pos- 
 
 JURISPRUDENCE 10. 
 
146 STUDY OF JURISPRUDENCE. 
 
 itive Law, in so far as it will be supported by an 
 appeal to arms in the last resort. And although the 
 appeal to arms may not be resorted to in every case, 
 yet the fear of incurring general hostility operates 
 upon nations, keeping them within the rules of 
 national comity. The term " law of nations " is used 
 by Vattel to designate the science which teaches the 
 rights subsisting between nations and States, and 
 the obligations correspondent to those rights. The 
 Law of Nations teaches the rule which ought to be 
 observed : International Law is the rule observed. 
 The origin and progress of International Law is in 
 itself a remarkable step in the march of civilization. 
 Nations now begin to acknowledge their subjection 
 to laws in conformity with natural justice and rea- 
 son, as in the very origin of society individuals 
 acknowledge themselves so bound. And the devel- 
 opment of International Law will proceed amongst 
 the civilized nations of the earth until citizens can 
 enjoy, in foreign countries, all the rights which they 
 enjoy in their own. There is no good reason that 
 a malefactor, by changing his domicile, should evade 
 justice. There is no good reason that a debt in- 
 curred in one civilized country should not be re- 
 covered with the same facilities in all others. 
 
 The great desideratum in International Law is a 
 code adopted by the civilized nations of the earth, 
 and to be enforced in their combined strength in the 
 last resort. 
 
STUDY OF JURISPRUDENCE. 147 
 
 The complete development of International Law 
 can only take place from the influence of commerce, 
 which unites the human family by the strongest tie 
 the desire of supplying mutual wants. Com- 
 merce demands an international code for the civil- 
 ized nations of the earth ; so that the laws of part- 
 nership, insurance, bills of exchange, shipping, and 
 bankruptcy may be uniform. Commerce demands 
 that there should be throughout the civilized world 
 a uniform standard of the precious metals, and a 
 uniform system of coinage. Commerce demands a 
 uniform international system of weights and meas- 
 ures. Commerce demands a uniform system of tax- 
 ation. Commerce demands that debts should be 
 recovered with equal facility in every country, irre- 
 spective of the place of contract. Justice demands 
 that over the entire world there should be no asy- 
 lum for the criminal. Literature demands that the 
 property in its works should be secured by interna- 
 tional copyright. Art demands that the property 
 in its inventions should be secured by an interna- 
 tional law of patents. If ever there shall exist a 
 common coinage and uniform taxation for the civil- 
 ized world, with international Courts of Justice 
 whose jurisdiction shall extend over continents, civ- 
 ilization will owe these advantages to the origin and 
 progress of International Law. Then, to use the 
 words of Cicero : There shall not be one law at 
 Rome, another at Athens ; one now, another here- 
 
148 STUDY OF JURISPRUDENCE. 
 
 after ; but one and the same law shall obtain at all 
 places and times. JVbn erit alia lex Romce, alia 
 AtJienis; alia nunc, alia posthac ; sed et apud om- 
 nes gentes, et omnia tempora una eademque lex ob- 
 tinebit. 
 
 The study of Jurisprudence will aid in the most 
 important degree the development of International 
 Law, and will assist the progress of law reform at 
 home. Certainly, if there were ever an age in 
 which it was important for gentlemen to bo ac- 
 quainted with the principles of Jurisprudence, it is 
 the age in which we live. In matters of law and 
 government, stare super antiquas vias is no longer 
 held to be the leading maxim. In England, almost 
 the whole legal world is toiling in the paths of law 
 reform. And the labors of other countries are no 
 longer unknown and despised. The feudal system 
 of real property, and many of its attendant institu- 
 tions, are abolished in some of the seats of the oldest 
 civilizations. Certainly the experiment of agricul- 
 ture in the hands of freemen, in farms of moderate 
 extent belonging to themselves, is now being tried 
 upon the most extensive scale in Continental Eu- 
 rope. And it is at least worthy of our attention to 
 study on scientific principles these great phenomena, 
 with the view of introducing into the English real 
 property reforms the best portions of the new landed 
 system of modern Europe. 
 
 Next to the real property reforms, the new systems 
 
STUDY OF JURISPRUDENCE. 149 
 
 of national education attract our notice. It is from 
 the combination of natural powers that man derives 
 his civilization. Having acquired a certain amount 
 of knowledge, it is partly optional with him whether 
 he will make use of the powers of nature, or obstin- 
 ately struggle against them. And so, availing them- 
 selves of their natural capabilities, some races of 
 superior energy have arrived at a partially developed 
 civilization. But the cultivated energy of human 
 thought shall yet develop greater results. Now, in 
 almost every civilized country, there exists a vast 
 number of paupers, for whom civilization has been 
 in vain, to whom it has scarcely brought any bene- 
 fit. For offenders, the law provides police, judges, 
 the prison, the scourge, and the gallows. Some 
 States, a little further advanced in social knowledge, 
 try also the effects of national education. They 
 act thus upon the soundest principles of Political 
 Science. In moral and physical nature alike, over 
 the earth, we see the results of cultivation. In phys- 
 ical nature, a large extent of country left as a marsh 
 or swampy forest, in its original rudeness, shelters 
 beasts of prey, herds noxious vermin, and from its 
 baleful precincts spreads pestilence over the adja- 
 cent country. Time advances, and with it the steps 
 of civilized man. He fells the trees which kept the 
 sunlight from drying the ground. He drains the 
 marshes, which speedily bear abundant harvests. 
 The wild beasts, deprived of shelter, perish from 
 
150 STUDY OF JURISPRUDENCE. 
 
 the place no longer fit for their habitation ; the dry 
 and cultivated ground no longer breeds fevers and 
 agues. This spectacle, either in its progress or in 
 its fruits, is witnessed over the entire earth. In 
 moral nature we now see the minds of the lowest 
 class in society left stagnant and disfigured by moral 
 pollution and ignorance. As the earth, left to itself, 
 becomes waste and tangled the pestilential abode of 
 reptiles and wild beasts so the mind, uncultivated, 
 produces crime and pollution. But in both cases, if 
 we would perform our duty to ourselves and society, 
 we must cultivate ; we must cultivate the savage 
 earth, we must cultivate the ignorant minds of the 
 poor. If we wish the earth to be wholesome and 
 fruitful, it must be drained and cultivated. So, too, 
 with the wholesome crop of knowledge we must 
 banish the bitter thorns of ignorance. If we wish 
 the poor to take their places as citizens in society, 
 we must educate them, and, by means of laws in 
 conformity with natural justice and reason, place 
 the poor in a condition wherein they may use that 
 education, and earn their bread. The teaching of 
 modern Political Science is, that the true way to pro- 
 vide for the general happiness is to give all citizens 
 an interest in the prosperity of the nation, to leave 
 trade and labor free, and to give the humblest a good 
 education. And the countries which have emanci- 
 pated and given independence and education to the 
 
STUDY OF JURISPRUDENCE. 151 
 
 lower classes, have not only given liberty to them, 
 but security to all. 
 
 Political Science is often abused, as not being 
 practical ; but it will not be denied that such ques- 
 tions as these are practical. 
 
 So also, since the arts of sculpture and painting 
 have been united with manufactures, and aid in 
 their development, it is important to consider on 
 what principle the laws of civilized nations now re- 
 fuse to the inventor the complete property in his 
 works. Schools of design are endowed and en- 
 couraged by patrons of the fine arts. Yet, in the 
 British Islands, the ingenious mechanician, who in- 
 vents new machinery to cheapen production and fa- 
 cilitate labor ; the artist, who with plastic skill de- 
 signs the most exquisite forms for the furniture of 
 our houses ; the painter, who stamps with beauty 
 the plain creations of the loom, and enables Man- 
 chester to find a market in China and India all are 
 by the present laws denied the full property in the 
 works of their hands and brains. 
 
 The English law, with its excellent characteris- 
 tics trial by jury, viva voce evidence, and publicity 
 in every stage of the proceedings has spread over 
 a vast portion of the earth. In North America, the 
 English law has crossed the Alleghanies and the 
 Rocky Mountains with the emigrants ; and on the 
 shores of the Pacific the representative government, 
 the municipal systems, and the Common Law of 
 
152 STUDY OF JURISPRUDENCE. 
 
 England give strength and liberty to nations. So, 
 if we turn to India or Australia, the English law- 
 yers may say : 
 
 " Quse regio in terris nostri non plena laboris 
 Est!" 
 
 The study of Jurisprudence is not merely con- 
 cerned with the permanent progress of the human 
 race and the amelioration of society. Many believe 
 such ideas to be visionary. But there can be noth- 
 ing more strictly practical than the consideration of 
 such questions as the legal burdens which press 
 upon the owners and occupiers of land, and pre- 
 vent its free transfer ; the reasons for the education 
 of the poor, and the best method to accomplish it ; 
 the questions of international copyright, international 
 law of patents, and international commercial code ; 
 and the reform of legal procedure. These things 
 concern the prosperity of the entire community, and 
 it is expedient to consider them upon scientific prin- 
 ciples. 
 
 Great men in all ages have cultivated Jurispru- 
 dence. Most of our modern legal civilization is the 
 result of the labors of those who, from the original 
 rudeness of savage life, have-developed the principles 
 of Civil and Political Right. A true social idea 
 never disappears. Once that it has germinated in 
 certain right hearts, sound and logical minds, it bears 
 within itself something vital, divine, immortal, which 
 
STUDY OF JURISPRUDENCE. 153 
 
 never more perishes in its entirety. Passions, inter- 
 ests, ignorances, prejudices, may crush it under foot, 
 may mutilate it under the saber or hatchet ; its 
 fruits are retarded for ages : but the hand of Provi- 
 dence is full of ages at the destined time, the liv- 
 ing idea, of which the seed has been spread and 
 multiplied even by the storms, bursts forth at once 
 in the minds of all. The brute matter of human 
 existence is wrought into society only by length of 
 time. A great and free State is the work of many 
 ages, of stupendous characters, of watchful senates, 
 of sages and heroes. To form, support, and bring 
 such to maturity, the invention of nature must be 
 stretched for thousands of years. We reap the 
 fruits of all the political experiments which have 
 cost so much time, care, and misery. 
 
CHAPTER V. 
 
 HISTORICAL EEVTEW. 
 
 That art is long and time is short, has been said 
 and sung in many languages. 1 The old saying ap- 
 plies to the study of Jurisprudence more than to 
 any other subject. The general ideas of a science 
 have been reduced to four heads : to determine the 
 particular subjects of the science ; to distinguish 
 the sciences which border on it, and to indicate the 
 relations which it has to them ; to divide and subdi- 
 vide the science thus precisely defined ; to give an 
 historical sketch of the development of the science. 
 Some of these objects have been attempted in the 
 previous pages. 
 
 Socrates, the first citizen of the world, com- 
 menced the Political and Ethical Philosophy of 
 Europe. Plato preserved in writing the opinions 
 of Socrates. Aristotle analyzed the divisions of 
 
 "0 fiidt fipdxvS rj 8k rexrr? nauprj. Hippocrates. 
 "The lyfe so short, the craft so long to learn." Chaucer. 
 Stctj ett ! bic Shtnft ift tang, 
 llnb furj ift unj'er Sefccn. Goethe. 
 " Art is long and Time is fleeting, 
 
 And our hearts, though stout and brave, 
 Still, like muffled drums, are beating 
 Funeral marches to the grave." Longfellow. 
 
 154 
 
HISTORICAL REVIEW. 155 
 
 Justice. But despotism and slavery corrupted the 
 Grecian politics. 
 
 The ancient Roman Law is displayed to us as 
 a blending of the popular and technical elements 
 which exist in all laws. Cicero combined the char- 
 acters of the statesman and the lawyer, and his 
 philosophy was used in Christian Ethics by St. 
 Augustine and other fathers of the church. The Civil 
 Law of the Romans is to this day a portion of the 
 legal life of every free citizen in Europe and Amer- 
 ica. But the consolidation of the law under Jus- 
 tinian shows that the development of the Eoman 
 State and people had then ceased forever. 
 
 The last conspicuous form of ancient philosophy 
 was that which it assumed at Alexandria. The city 
 chosen by the pupil of Aristotle to bear his name, 
 and to rise to scientific, commercial, and political 
 importance over others, as its founder overcame em- 
 pires, became the scene of great thinkers and mighty 
 schools. Plotinus resuscitated Plato ; Proclus gave 
 the world another Aristotle. The closing of the 
 Athenian schools by Justinian, and the death of 
 Boethius, may be considered the last events in 
 ancient philosophy. Nothing can be more un- 
 founded than to suppose because Boethius is usually 
 styled the last of ancient philosophers, and Des- 
 cartes the first of modern, that therefore, from the 
 sixth to the seventeenth centuries, there had been no 
 philosophical activity. We have too much disre- 
 
156 HISTORICAL REVIEW. 
 
 garded the philosophy of the so-called Dark Ages. 
 It is usually the least explored, but by no means 
 the least instructive period of European history, as 
 it has been traced in the disquisitions of Montes- 
 quieu, Ranke, Hurter, Voight, and Hallam. The 
 feudal and legal systems of Europe arose inde- 
 pendently of mere abstract investigations on mind, 
 and of the principles of doctrinal theology. All the 
 most important laws and institutions of European 
 society were dug out of the mine of that ponder- 
 ous and inexhaustible mass of human speculation. 
 There, even more than among the ancients, may be 
 found the well-springs of our modern speculative 
 doctrines and controversies. In fact, no age in the 
 world's history was more productive of great men. 
 It was the age of William the Norman, of the well- 
 taught Lanfranc, of Abelard, and Bernard of 
 Clairvaux, of the learned Mussulmans of Spain, of 
 Roger Bacon, of Albertus Magnus, of St. Thomas 
 Aquinas, of Duns Scotus, of Alexander Hales, of 
 Occam and of Bradwardinus, of Thomas the Rhymer 
 and of Marco Polo, of Sir William Wallace and 
 Edward the First. It was the age of rising cities, 
 of consolidated feudalism, of literature beginning to 
 breathe, of liberty struggling to be born. It is a 
 universal law of nature that a new organization shall 
 always be preceded by the entire dissolution of what 
 has gone before. The mineral will crystallize anew 
 only after it has been completely dissolved. The 
 
HISTORICAL REVIEW. 157 
 
 vegetable and the animal must be decomposed be- 
 fore their elements can recombine into other forms 
 of life. So, too, a new society can arise only when 
 the old one has been wholly dissolved, its atoms freed 
 from each other, and its old arrangements broken 
 up, that every particle may be at liberty to become 
 part of the new living frame, according to some 
 other law than that which governed the formation 
 of the old social unit. The Eoman world had to be 
 ground down and dissolved by barbarian and Chris- 
 tian influences before the formation of modern soci- 
 ety became possible. Then the church set about 
 the task of reorganizing a body of knowledge, of 
 pouring her vivifying and purifying light through 
 all the powers and capacities of thought which 
 were slumbering in the minds of men, so as to 
 arouse them to exercise themselves in the various 
 pursuits of arts and sciences. Philosophy meditated 
 on the deep truths of religion, and endeavored to ar- 
 range them in logical order and sequence. An 
 acute and penetrating logic, like the flaming sword 
 of Paradise, turned every way to guard the sanctu- 
 ary of religious truth. 
 
 Upon the fall of the Roman Empire, the study of 
 the Civil Law was abandoned an age of legal dark- 
 ness for a time covered Europe. Upon the revival 
 of learning in Europe, the term Jurisprudence was 
 not used to designate that department of mental sci- 
 ence which treats of the rules of universal justice. 
 
158 HISTORICAL REVIEW. 
 
 In its primary sense, the word Jurisprudence was 
 used to denote the knowledge of the Roman Law. 
 The science of law in Europe dates from the twelfth 
 century. It was then associated with theology and 
 scholasticism. Irnerius was the contemporary of 
 Abelard. During four centuries from the year 1100, 
 the Civil Law was zealously cultivated in Italy; 
 and simultaneously the Feudal and Canon Laws ac- 
 quired a systematic form. 
 
 Six centuries after the complete codification of 
 the Eoman Law, it began again to be cultivated in 
 Italy. Irnerius, Accursius, and Bartolus represent 
 the schools. 
 
 In the sixteenth century, Alciatus and Cujacius 
 established the French school of Civil Law. 
 
 Machiavelli, in Political Jurisprudence, accom- 
 plished a grander reputation, and founded a school, 
 which, during the sixteenth and part of the seven- 
 teenth centuries, had for its dogma the right to use 
 fraud in politics. 
 
 Sir Thomas More introduced into politics the 
 spirit of Christianity, which he attested by his mar- 
 trydom. 
 
 The learned ecclesiastical jurists of the Spanish 
 universities, Vasquez, Victoria, Soto, Suarez, in 
 their laborious treatises on justice, collected the 
 principles of Natural Law and of Politics as 
 enounced by the fathers and schoolmen of the 
 Middle Ages. 
 
HISTOEICAL REVIEW. 159 
 
 Bodin, late in the sixteenth century, appears as 
 the first great antagonist of Machiavelli, and in his 
 " Eepublic " discusses the divisions of politics and 
 laws. 
 
 With the commencement of the seventeenth cen- 
 tury, Bacon extends the inductive method from 
 physical to mental and political science. As such, 
 he is the original discoverer of the principles lead- 
 ing to individual liberty. 
 
 Grotius treated of the topics of Civil Right in re- 
 lation to those federal and international relations 
 which yet are imperfectly developed, but which in 
 time will harmonize the powers of the individual 
 governments now exercising authority over the na- 
 tions of the human race. 
 
 But whilst Grotius developed his lofty theories 
 for citizens of the world, Hobbes scientifically an- 
 alyzed the lowest laws of nature. Through cow- 
 ardice and fear, the inferior types of man always do 
 their best to injure strangers. In managing the 
 lowest developments of society, the only possible 
 government is a despotism. 
 
 In England, during the seventeenth century, Cul- 
 verwell, Zouch, Selden, Harrington, Sidney, Cum- 
 berland, and Locke wrote on the Law of Nature 
 and Nations, or investigated other branches of Civil 
 or Political Eight. 
 
 Late in the seventeenth century, the German 
 School of Jurisprudence originates with Puffendorf , 
 
160 HISTORICAL REVIEW. 
 
 is illustrated by Leibnitz, and has lasted in an un- 
 broken chain of professors at the universities down 
 to our own times. 
 
 In the eighteenth century, Yico, Beccaria, and 
 Filangieri represent the Italian school, and illustrate 
 the progress of nations, punishment, and legislation. 
 The spirit of laws is discussed by Montesquieu and 
 the encyclopedists. And the series of the French 
 jurists ends with those who framed the Code Napo- 
 leon. 
 
 The Metaphysics of Law are reviewed by Kant. 
 Some of his definitions are the best in the Science 
 of Jurisprudence. 
 
 Bentham and Savigny are amongst the last and 
 greatest writers on Jurisprudence. 
 
 Sir Samuel Eomilly, Sir James Mackintosh, Sir 
 Robert Peel, and Lord Brougham, in the present 
 century, transferred to English legislation many of 
 the scientific theories of Bentham. 
 
 Lord Brougham, by his individual labors, gave a 
 new impulse to the cultivation of the Social Sci- 
 ences. 
 
 Lord Selborne has associated his name with the 
 reconstruction of the judicial system of England. 
 Sir John Duke Coleridge has introduced the most 
 important legal reforms. The leaders of the bar 
 are amongst the most earnest reformers of the law. 
 
HISTOEICAL REVIEW. 161 
 
 The world is coming under the reign of law. 
 The nineteenth century is the era of great nations. 
 The gigantic States of modern times are proofs of 
 increased power of organization, and of more willing 
 obedience to law by the multitudes. The United 
 Kingdom of Great Britain and Ireland, the Empire 
 of Eussia, the United States of America, govern 
 larger portions of the world, possess greater wealth, 
 can set more legions in the field or squadrons on 
 the ocean, than the old Eoman Empire of the 
 CaBsars in their mightiest days. Eussia is now the 
 most conservative State in the world. America is 
 the most democratic State in the world. In human 
 affairs one lesson from history is, thai mighty and 
 rapid changes, conducted by violence, produce wars 
 between nations, intestine seditions, and ruin in 
 States. The objects of all governments ought to 
 be, in the first instance, peace, order, and religion, 
 without which peace and order are most difficult to 
 maintain. Enlightened despotism recognizes the 
 rights of man. The Emperor Alexander II has 
 given land and liberty to fifty millions of Eussian 
 and Polish peasants. In the history of the world 
 very few men have had the happiness to do so much 
 good to mankind. On a gigantic scale, the Empe- 
 ror Alexander has done for Eussia what Stein and 
 Hardenberg less generously did for the Prussian 
 
 JURISPRUDENCE 11. 
 
162 HISTORICAL REVIEW. 
 
 peasantry, what Mr. Gladstone, through all the dif- 
 ficulties of representative government, has endeav- 
 ored to accomplish for Ireland. Just laws, regulat- 
 ing the tenure and distribution of landed property, 
 are the triumph of statesmanship. Great national 
 systems of education under centralized govern- 
 ments are abolishing local dialects, and are aiding 
 the union of mighty nations by the diffusion of the 
 most advanced and noble languages. 
 
 The true origin of the rapid greatness and devel- 
 opment of Prussia is to be found in the national 
 education of the people and in the emancipation of 
 the land, commenced by Stein in 1807, and by Hard- 
 enburg in 1820. 
 
 A great portion of Western Europe is now going 
 through a period of anarchy and disorder. After 
 ages of historical ruin, there appear fair prospects of 
 peace and progress in the East. In every respect 
 Eastern Europe is in a rapid state of transition. A 
 vast change is coming over Asia. The railways 
 alone bring a modified civilization. A railway 
 bridge is to cross the Hellespont. Railways into 
 the heart of Asia will rapidly open to the industry 
 and cultivation of Europe districts in Southern Si- 
 beria, with soil and climate equal to those of France 
 and Italy, the communication with which is now 
 interrupted by the steppes and deserts where roam 
 the nomad tribes of Turkistan. One of the con- 
 templated lines to India is to run by Tiflis, the Cas- 
 
HISTORICAL REVIEW. 163 
 
 plan Gates, Teheran, Meshed, Herat, Cabul, and 
 the Khyber Pass, to Peshawur the route by which 
 Alexander the Great led the Macedonian veterans 
 to the Indus. A line is run from the Caspian Sea 
 to the Persian Gulf. The contemplated Russo-Per- 
 sian lines will run through districts once the most 
 flourishing on the earth, and whence the " Great 
 King," the terror of Greece, drew his legions. But 
 these fair regions are now without peace, order, or 
 law ; and the great populations and noble cities once 
 existing in Persia and Turkistan have vanished. 
 But Samarcand may soon be a railway station, and 
 the famous city of Timour may be brought under 
 the reign of law. 
 
 China and Japan may speedily assume European 
 civilization. The government of Japan has signed 
 concessions for hundreds of miles of railway ; and 
 the government foundries in Japan are building 
 locomotives and ironclads. The sons of the nobility 
 and gentry of Japan are coming in numbers to 
 the cities of Europe and America, to learn the 
 languages, the laws, the trades, and manufactures 
 of the most advanced nations. The national col- 
 leges of Japan are stated to be adopting the English 
 language. These mighty events, contributing to the 
 harmony of nations, the union of mankind, and the 
 peace of the world, are possible only under the reign 
 of law, resting on the tremendous power of great 
 
164 HISTORICAL REVIEW. 
 
 States, giving peace to men, and security for life, 
 liberty, and property. 
 
 In 1872, by the invitation of the Emperor Alex- 
 ander II, some of the ablest men in Europe dis- 
 cussed in St. Petersburg many of the intricate 
 questions of international law : an international sys- 
 tem of the registration of births, marriages, and 
 deaths ; the statistics of international industry and 
 commerce ; international sanitary and medical reg- 
 istration ; an international system of judicial statis- 
 tics; an international nomenclature of crimes; an 
 international system of weights and measures for all 
 the nations of the world ; an international system of 
 decimal coinage for all the nations of the world. And 
 surely these things, when accomplished, will be 
 amongst the most wonderful works of man. In St. 
 Petersburg the representatives of the United King- 
 dom and of America met the representatives of 
 every other State in the world at the International 
 Congress of 1872. There, Egypt and Japan aspired 
 to be reckoned amongst the progressive, peaceful, 
 and industrious nations of the world, and Russia 
 gave to all the noblest hospitality. 
 
 The gigantic power of Russia can be compared 
 only with the increasing strength of America, or 
 the matured energy of England. In Russia, an en- 
 lightened despotism directs the fortunes of eighty 
 millions a mighty nation under an aristocracy 
 magnificent in lineage, wealth, diplomacy, arts, and 
 
HISTORICAL REVIEW. 165 
 
 arms. In America, democracy allows absolute free- 
 dom to the individual, and government there is 
 conducted without a landed aristocracy, or a per- 
 manent standing army. Under both systems of 
 government, the trade, commerce, manufactures, 
 and agriculture of the people flourish. In the 
 United Kingdom of Great Britain and Ireland, both 
 systems of government are united. As Tacitus says, 
 " Res olim dissociabiles principatum etc libertatem 
 miscuerunt." We have united monarchy with lib- 
 erty, things once incapable of being united. Let 
 us hope that the three great nations of the world, 
 the United Kingdom of Great Britain and Ireland, 
 the United States of America, and the Empire of 
 Russia, governing, under most different systems of 
 political administration, gigantic masses of mankind, 
 may continue to enjoy their present mutual good- 
 will and peace the greatest happiness with which 
 the Almighty can bless the human race. 
 
 Several political questions of importance during 
 the present century have prominently agitated the 
 societies in which they have been raised. 
 
 Such are the questions of union amongst the 
 races having the same national origin and speaking 
 the same language on the Continent of Europe 
 the questions of a United Italy, a Germanic Empire, 
 a Pansclavonic Confederation or Empire. 
 
 The question of international arbitration has ex- 
 cited vast political interest. 
 
1G6 HISTORICAL REVIEW. 
 
 The two greatest social events of the latter por- 
 tion of the nineteenth century are the emancipation 
 of the serfs by the Emperor Alexander II, and the 
 abolition of slavery in the United States of America. 
 
 All these questions, decided either by internal or 
 international legislation, accomplish social results. 
 A social result is one that manifests itself in the 
 collective life of societies, or which affects entire 
 categories of individuals. 
 
 Other purely legal questions are those which con- 
 cern the machinery of law. Such are 
 
 Codification. 
 
 Reform of the judicial system. 
 
 Abolition of taxes on legal procedure. 
 
 The reduction of the expenses of justice. 
 
 The reduction of the expenses attendant on the 
 transfer of property. 
 
 These topics may serve as illustrations of discus- 
 sion in the elevated regions of political thought. 
 
 Largior hie campos aether et lumine vestit 
 Purpureo. 
 
 THE END. 
 
INDEX 
 
INDEX, 
 
 A. 
 
 Abelard-156, 158. 
 Accursius 158. 
 Action defined, 84. 
 
 what includes, 84. 
 JEs chines 15. 
 ^Eschylus plays of, 14. 
 Africa tribes of, their mutual wars, 61. 
 
 Berbers of, hostile only to Christians, G2. 
 Albertus Magnus 156. 
 Alciatus 158. 
 Alexander II of Russia, emancipates the serfs, 161. 
 
 calls an International Congress, 164. 
 Alexander the Great his power of organization, 98. 
 
 his route of conquest, 163. 
 Alexandria its mighty schools, 155. 
 Alva, Duke of 65. 
 Amazon 42. 
 
 Arabians mutual wars of, 61. 
 Aristotle condemns geometrical accuracy in moral reasoning, 2 
 
 analyzes divisions of justice, 154. 
 Arkwright, Sir Richard 125. 
 Asia despotisms of, 96. 
 Athens the first literary State, 14. 
 
 her wealth in the time of Pericles, 35. 
 
 condition of Western Europe at that tune, contrasted, 42. 
 
 Courts of, in political trials, 92. 
 
 Parthenon of, 128. 
 
 169 
 
170 INDEX. 
 
 B. 
 
 Babylon 41. 
 
 Bacon, Lord on reduction of law to axiom, 2. 
 
 on the law of laws, 70. 
 
 his inductive method applicable to psychology, 22. 
 
 original discoverer of principles of liberty, 59. 
 Bacon, Roger 156. 
 B art olus 158. 
 Beccaria, Caesar 160. 
 Benevolence instances of, 56, 57. 
 Bentham, Jeremy the analyst of jurisprudence, 8, 160. 
 
 defines the limits between Ethics and Jurisprudence, 51. 
 
 divides property into four things, 90. 
 
 views of, on taxation, 121. 
 
 invents term "international," 129. 
 
 on codification, four conditions of, 143. 
 Bernard of Clairvaux 156. 
 Blackstone, Sir "William defines Positive Law, 79. 
 
 divisions of law by, 81, 82. 
 
 as a lecturer, 126. 
 
 Bodin, John opposes Machiavelli, 159. 
 Boethius death of, close of ancient philosophy, 155. 
 Bolingbroke, Lord views of on law, 2. 
 Bradwardinus 156. 
 
 Brahmins of India, their strictness as to caste, 34. 
 British Isles See ENGLA:NT>. 
 Brougham, Lord views of on the moral faculty, 29. 
 
 views of regarding juries, 117. 
 
 his labor for the Social Sciences, 160. 
 Brucker, Johann Jacob 25. 
 Burke, Edmund remarks of on Howard the philanthropist, 56. 
 
 reflections of on life, 72. 
 
 views of regarding Jurisprudence, 54, 72. 
 Burns, Robert 125. 
 Butler, Joseph views of on moral reasoning, 27, 28. 
 
INDEX. 171 
 
 0. 
 
 Caesar, Julius power of, 99. 
 
 Carthage 16, 41. 
 
 Central America magnificent ruins of, 41. 
 
 Charles V 32. 
 
 Chaucer, Geoffrey extract from, 154. 
 
 China may assume European civilization, 163. 
 
 Cicero, Marcus Tullius views of on the moral faculty, 28. 
 
 his contempt for commerce, 36. 
 
 on uniformity of laws, 147. 
 
 combination of statesman and lawyer, 155. 
 Cincinnatus, Lucius 31. 
 Civilization defined, 83. 
 
 modern, views of Guizot on, 128. 
 
 as yet in infancy, 129. 
 Civil Law a branch of Positive Law, 86. 
 
 its chief end, 87. 
 
 Clans Scottish, right of private war, 61. 
 Clarke, Dr. 27. 
 
 Code Justinian a consolidation of the Roman law, 139. 
 Code Napoleon an historical example, 139. 
 Codification the last stage of legislation, 138. 
 
 indicates cessation of progress, 139. 
 
 dangers attending, 139-142. 
 
 complete, impossibility of, 140. 
 
 four conditions of, Bentham's, 143. 
 
 civil and penal codes, their purview, 144, 145. 
 
 true method of, 145. 
 Coke, Sir Edward an empirical lawyer, 50. 
 
 prosecutes Sir Walter Kaleigh, 69. 
 
 on the knowledge of law, 70. 
 
 Coleridge, Sir John Duke his important legal reforms, 160. 
 Commerce contempt with which was regarded in classic 
 times, 36. 
 
 contemned also by the feudal lords, 38. 
 
 falls into the hands of the Jews and Lombards, 38. 
 
172 INDEX. 
 
 Commerce Continued. 
 
 influence of upon International Law, 147. 
 
 uniform systems demanded by, 147. 
 Common Law fatal duel, treated as murder by, 53. 
 
 definition of, 130. 
 
 called "unwritten law," why, 132. 
 
 growi;k of, the offspring of necessity, 132, 133. 
 
 never stationary, always growing, 133. 
 
 administration of in England, 134. 
 
 distinction of from equity, 134, 135. 
 
 rigor of Courts of, how relieved, 138. 
 
 errors in, correction precluded, 139. 
 Communism 18. 
 
 dangers apprehended from, 122. 
 Constitution defined, 96. 
 Counsel when prisoners were not allowed, 70. 
 Court of King's Bench, 70. 
 
 House of Commons, as a, 93. 
 
 of Chancery, 58, 137. 
 
 Athenian, in political trials, 92. 
 
 of Common Law, contrasted with Chancery, 137. 
 Crime defined, 87. 
 Cujacius 158. 
 Culverwell 159. 
 Cumberland, Richard 159. 
 
 D. 
 
 Daco-Romans of Transylvania, descendants of -the Romans, 
 
 66,67. 
 
 D'Aguesseau, Henri distinction of terms by, 129. 
 Dark Ages wrongly so called, 156. 
 
 See MIDDLE AGES. 
 Definitions Jurisprudence, 1, 82. 
 
 law in its widest sense, 3. 
 
 in Jurisprudence proper, 72. 
 
 Natural Law, 3, 74, 75, 77. 
 
 science, 4, 154. 
 
INDEX. 173 
 
 Definitions Continued. 
 
 philosophy, 4. 
 
 mental philosophy, 4. 
 
 statistics, 11. 
 
 Ethics, 19. 
 
 Political Economy, 30. 
 
 science, art, 49. 
 
 morality, 152. 
 
 positive law, 78, 83. 
 
 civilization, 83. 
 
 legal relations, 84. 
 
 actions, 84. 
 
 rights, 84. 
 
 crimes, 87. 
 
 liberty, 89. 
 
 slavery, 84. 
 
 property, 84. 
 
 police, 94. 
 
 procedure, 95. 
 
 constitution, 96. 
 
 tax, taxation, 103, 104. 
 
 Equity, 134. 
 
 International Law, 129. 
 
 Common Law, 131. 
 
 Statute Law, 132. 
 
 when and when not useful, 139. 
 Demosthenes 15, 16. 
 Descartes, Rene discoveries of, 28. 
 
 styled the first of modern philosophers, 155. 
 Despotisms political disadvantages of, 98. 
 
 when successful, 98. 
 
 of Asia, 96. 
 
 of Napoleon and Caesar, 99. 
 Divine Law denned by Plato, 73. 
 
 promulgated by God, 74. 
 
 is the province of the theologian, 75. 
 Domat, J. divisions of law by, 76, 
 
 Dueling when fatal, treated as murder by common law, 53. 
 Duns Scotus 156. 
 
174 INDEX. 
 
 E. 
 
 Education duties of government as to, 121-120, 149, 150. 
 
 of the poor, under certain limitations, 121, 122. 
 
 in England, national endowments for, 123. 
 
 higher, should community provide, 123-127. 
 
 views of Adam Smith on, 123, 124. 
 
 national, possibilities of, 125, 126. 
 Egypt lost civilization of, 14. 
 
 foreign aggression of, 16. 
 
 former wealth of, 33. 
 
 Pyramids of, 33. 
 
 system of caste formerly enforced in, 34. 
 Emigration of European poor to America, 64. 
 
 to Australia and America, beneficial effects of, 64. 
 Endowments of English universities, national, 123. 
 
 for higher education, Adam Smith on, 123, 124. 
 England contrasted with ancient Tyre, 32. 
 
 the carrier of the world, 36. 
 
 common law of, when treats dueling as murder, 53. 
 its administration, 134. 
 its spread, 151. 
 
 former diversities of race and language, 62, 100. 
 
 an asylum for the oppressed, 65, 66. 
 
 crown lands of, 57. 
 
 law of real property in, reform of, 70, 148. 
 
 House of Commons of, as a political court, 93. 
 
 career in, open to talent, 100. 
 
 political organization of, gradual development, 100. 
 
 poor of, their lack of amusement, 122. 
 
 universities of, their national endowments, 123. 
 
 Courts of, their jurisdiction, 137. 
 
 superiority of, over ancient governments, 161. 
 
 government of, a union of monarchy with liberty, 165. 
 Equity definition of , i:;i. 
 
 by Sdilcgol, (h-otius, and Puffciidorf, 135. 
 
 distinct from common and statute law, 135. 
 
INDEX. 175 
 
 Eq uity Continued. 
 
 views of Charles Butler on, 13G. 
 
 paramount in ancient Roman law, 137. 
 
 technical meaning of, in England and United States, 137, 
 
 138. 
 Ethics a division of Social Science, 5. 
 
 definition of, 19. 
 
 history a valuable adjunct to, 27. 
 
 contrasted with practical morality, 51. 
 
 with jurisprudence, 52. 
 Etruria 65. 
 Europe 16, 18, 31, 90, 145, 161-164. 
 
 modern, superiority of governments of to ancient, 161. 
 
 Western, in anarchy and disorder, 162. 
 
 Eastern, in a state of transition, 162. 
 
 International Congress of, 164. 
 
 F 1 . 
 
 " False Delicacy "comedy of, 88. 
 Family first nucleus of society, 61. 
 
 no instance of an isolated one, 61. 
 
 development of into the tribe, (51. 
 Faubourgs St. Antoine and Marceau, battle of, 56. 
 Feiielon, Francois 29. 
 Feudal system effect of invention of gunpowder upon, 20. 
 
 domination of the lords over their serfs, 38. 
 
 with its decline, modern society arose, 40. 
 
 influence of, on taxation, 117. 
 Filaiigieri, Gaetano 160. 
 France 18, 95. 
 
 union of its provinces, 62. 
 
 artisans of, 65. 
 
 stationary in wealth and population, 139. 
 Freedom of press, of discussion, of action, 13. 
 
 an essential ingredient of civilization, 13. 
 
 of constitutions, a security for peace, 17. 
 
 or liberty, denned, 89. 
 
176 INDEX. 
 
 Gabelle of France, 103. 
 
 Germany national unity of, 63, 165. 
 Gladstone, 'Win. E. his Land Act, 102, 162. 
 Governments how developed, 87. 
 
 relations of toward people, 88. 
 
 business of, 88, 89. 
 
 rights of to coerce and punish, 89. 
 
 natural rights intrusted to, 91. 
 
 as deciders of disputes, why, 92. 
 
 the three functions of, 98. 
 
 constitutional, political power under, 94. 
 
 interposition of, when required, 96. 
 
 power of central, diminished, 97. 
 
 mere machines of police and order, 97. 
 
 different forms of, 97. 
 
 two systems of, now contending, 98. 
 
 duties of as to education, 121-129. 
 
 modern, subject to certain rules, 145. 
 
 modern, superiority of over ancient, 161. 
 
 objects of, 161. 
 
 See INTERNATIONAL LAW. 
 Great Britain See ENGLAND. 
 Grenville Act- 93. 
 Greece lost civilization of, 14. 
 
 destroyed by Rome, 16. 
 
 her greatest prosperity, 32. 
 
 ancient, piracy not considered dishonorable in, 62. 
 
 foreigners considered barbarians in, 62. 
 
 politics of, corrupted by despotism, 155. 
 Grotius, Hugo deiinition of Natural Law by, 74. 
 
 definition of Equity by, 1:55. 
 
 on the theory of civil rights, 159. 
 Guizot, Francois Pierre as a lecturer, 126. 
 
 views of, on modern civilization, 128. 
 
IXDEX. 177 
 
 H. 
 
 Hales, Alexander 156. 
 
 Hallam, Henry doctrine of as to universal law, 5. 
 
 disquisitions of, on the Dark Ages, 150. 
 
 Hardenberg, Prince Von his efforts for the Prussian peas- 
 antry, 1G2. 
 
 Harrington, J. 159. 
 
 Hellespont a railway bridge to cross, 162. 
 Herodotus history of, read at Olympic games, 14. 
 Hippocrates extract from, 154. 
 
 Hobbes, Thomas theory of on mutual enmity, 60, 150. 
 Holland 113. 
 Homer public recitations by, 14. 
 
 his views on piracy, 35. 
 Hooker definition of law by, 3. 
 House of Commons as a political court, 93. 
 Howard, John benevolence of, 56. 
 Hume, David views of on moral reasoning, 20. 
 
 on government, objects of, 117. 
 Hurter 156. 
 
 I. 
 
 India contemplated route to, 162, 163. 
 Indians Xorth American, mutual wars of, 61. 
 Inductive method of investigation, 22-24. 
 
 the only means of constructing a scientific ethics, 27. 
 Inheritance principles on which depends, 90. 
 
 of State, when persons die intestate, 91. 
 
 proposed limitation of testator, 91. 
 Institutes of Justinian, law defined in, 3. 
 
 division of subjects of natural law in, 81. 
 
 definition of Jurisprudence in, 46. 
 International arbitration interest excited by, 165. 
 International Law recent invention of term, 129. 
 
 definition of, 129. 
 
 JURISPRUDENCE 12. 
 
178 IXDEX. 
 
 International Law Continued. 
 
 still in a defective condition, 130. 
 
 a code of, should be adopted, 130, 146, 147. 
 
 its two divisions, 131. 
 
 the offspring of modern civilization, 145. 
 
 supported by appeal to arms, 14(3. 
 
 distinction between it and "law of nations," 14G. 
 
 complete development of, how may be obtained, 14T. 
 aided by study of Jurisprudence, 148. 
 
 influence of commerce upon, 147. 
 
 of patents, copyrights, etc., need of, 151, 152. 
 Intoxication powerlessness of law against, 58. 
 
 how may be prevented, 58. 
 
 addiction of English and Irish poor to, 122. 
 Ireland- Land Act of, 102, 1G2. 
 
 poor of, their lack of amusements, 122. 
 Iruerius the contemporary of Abelard, 158. 
 Italian republics 95. 
 Italy under one government, 63, 165. 
 
 J. 
 
 Japan assuming European civilization, .163. 
 
 colleges of, adopting English language, 163. 
 Jeffrey, Chief Justice his bloody western assize, 70. 
 Jones, Sir William views of, on Jurisprudence, 71. 
 Jurisprudence definition of, 1, 48. 
 
 first principles of. 2. 
 
 a division of Social Science, 5. 
 
 intimate connection of, with Sociology and Political Econ 
 omy, 11. 
 
 object of, 11. 
 
 various meanings of the term, 46. 
 
 development of law, 46, 69. 
 
 classification of laws required by, 48. 
 
 as an art and a science, distinction between, 49, 51. 
 
 contrasted with Ethics, 51, 52. 
 
 gradual progress of, 54. 
 
 limits of, 54. 
 
INDEX. 179 
 
 Jurisprudence Continued. 
 
 true objects of, 55. 
 
 principles of, the base of government, 55. 
 
 definitions in, historically considered, G8. 
 
 considered under various heads, G8. 
 
 recent origin of, 09. 
 
 taught in universities of Great Britain, 69: 
 
 views of Sir William Jones on, 71. 
 
 description of, by Edmund Burke, 34, 72. 
 
 includes entire domain of rights and duties, 75. 
 
 classification of its departments, 82, 130. 
 
 scientific definitions in, 82-91. 
 
 end of, is the happiness of mankind, 83. 
 
 political, questions of, 91. 
 
 embraces a wide range, 95. 
 
 study of, its beneficial results, 102. 
 
 its four divisions, 130, 131. 
 
 development of, whence arises, 145. 
 
 study of, aids development of International Law, 148. 
 
 practical questions considered by, 152. 
 
 historical review of, 154-166. 
 
 formerly meant knowledge of the Roman Law, 158. 
 
 German school of, originated with Puffendorf, 159. 
 Jurists, modern erroneous methods of investigation by, 7. 
 
 failure of, to distinguish between moral and compulsory 
 law, 7. 
 
 duties of, 53. 
 Jury trial unsuited to certain nations, 7. 
 
 under this system justice becomes technical, 47. 
 
 views of Lord Brougham regarding, 117. 
 Justinian Institutes of, 3, 77, 81. 
 
 consolidation of Roman Law by, 139. 
 
 Athenian schools closed by, 155. 
 
 K. 
 
 Kant, Immanuel his project of perpetual peace, 17. 
 
 views of, on morals and legislation, 24, 29. 
 
 comments of, on the Republic of Plato, 25. 
 
 reviews metaphysics of law, 160. 
 Kent, Chancellor as a lecturer, 126. 
 
180 INDEX. 
 
 Labor territorial division of, 65. 
 
 intensity of increases with progress of society, 107, 103. 
 Lanfranc 150. 
 
 Las Casas, E art olomeo devotion of, 56. 
 Latium 65. 
 Law society based upon, 1. 
 
 definition of, in its widest sense, 3. 
 limited meaning of in Jurisprudence, 4. 
 how conformed to natural justice, 52. 
 a medium between moral standards, 53. 
 what it cannot enforce, 57, 80. 
 powerless against intoxication, 58. 
 theory of Vico as to, 72. 
 definition of, 72. 
 defined by St. Thomas Aquinas, 73. 
 
 by Suarez, 73. 
 four great divisions of, 73. 
 distinctions in, by Modestinus, 75. 
 divisions of, by Dornat, 76. 
 by Justinian, 81. 
 by Blackstone, 81. 
 ignorance of does not excuse, 80. 
 
 unscientifically divided into persons, things, and actions, 81. 
 comments of Leibnitz upon, 81. 
 must be rendered certain, 93. 
 taxation upon, 116, 121. 
 
 science of, in Europe, dates from the twelfth century, 158. 
 metaphysics of, reviewed by Kant, 160. 
 world coming under the reign of, 161. 
 
 See CIVIL LAW, COMMON LAW, DIVINE LAW, INTEJ; NA- 
 TIONAL LAW, JURISPRUDENCE, MUNICIPAL LAW, NAT- 
 URAL LAW, POLITICAL LAW, POSITIVE LAW, STATUTE 
 LAAV. 
 
 Legal relations defined, 84. 
 
 Legislation rules of morality independent of, 52, 56. 
 rules of probity should be defined by, 52. 
 
INDEX. 181 
 
 Legislation Continued. 
 
 a compromise between history and philosophy, 53, 83. 
 
 futile in regard to individual sentiments, 59. 
 
 transferred from sovereign to national assemblies, 93, 94. 
 Leibnitz, Gottfried Wilhelm 28. 
 
 comments of upon Roman division of law, 81. 
 
 German school illustrated by, 160. 
 Leonidas and the Spartans, 32. 
 
 reflections on death of, 55. 
 Livy on the foundation of Home, 65. 
 Locke, John 159. 
 
 London inhabitants of, industry required, 108. 
 Longfellow, H. W. extract from, 154. 
 Louis XIV 65. 
 
 M. 
 
 Machiavelli, Nicolo dogma of his school, 158. 
 Mackintosh, Sir James views of on Jurisprudence, 53, 160. 
 Magyars Asiastic origin of, 66. 
 
 from same stock as Laplanders, 66. 
 Mahomet union of Arabians by, 61. 
 Mahometans destruction of Byzantine civilization by, 16. 
 
 of Spain, 156. 
 
 Mansfield, Lord of the King's Bench, 70. 
 Marco Polo 156. 
 Marriage civilized life rests upon, 90. 
 
 belongs to civil branch of law, 144, 145. 
 Mathew, Rev. Theobald mode of organization, 58. 
 Mental philosophy definition of, 4. 
 
 two branches of, 4. 
 Middle Ages doctors of, 73, 78, 158. 
 Mill, John Stuart on Jurisprudence, 68. 
 Modestinus distinctions in laws by, 75. 
 
 Montesquieu, Baron de disquisitions of on the Dark Ages, 
 156. 
 
 spirit of laws discussed by, 160. 
 Morality should be independent of legislation, 51. 
 
 definition of, 52. 
 
182 INDEX. 
 
 Moral Sciences 19, 21, 22. 
 
 More, Sir Thomas introduces Christianity into politics, 158. 
 
 Municipal Law 79. See POSITIVE LAW. 
 
 Napoleon I his use of power, 99. 
 
 his code of laws, 99, 139. 
 Natural Law denned by Justinian, 3, 77. 
 by Cicero, 77. 
 by Grotius, 74. 
 by St. Chrysostom, 75. 
 by the author, 75. 
 by Suarez, 78. 
 
 its limited sphere in Jurisprudence, 74. 
 includes all principles of right, 78. 
 Nestor 35. 
 
 Netherlands most prosperous in times of Charles V, 32. 
 formerly carriers of the world, 3G. 
 artisans of the, 65. 
 
 Newton, Sir Isaac discoveries of, 28. 
 Nightingale, Florence labors of, 57. 
 Nineveh 41. 
 
 Paris, Archbishop of his death, 56. 
 Paupers provided for in advanced nations, 60 
 
 three classes of, 64. 
 
 support of, no absolute right to, 105. 
 
 should not be left to voluntary contribution, 106. 
 
 children of, should be educated, 106. 
 
 why number of does not decrease, 107. 
 
 should not be educated above position, 108. 
 Peel, Sir Robert 160. 
 Persian Gulf contemplated route to, 163. 
 Philosophy- definition of, 4. 
 
INDEX. 183 
 
 Physical Sciences contrasted with Social, 9. 
 Pindar odes of, sung at Delphi, 15. 
 Plato 24, 25, 26, 73. 
 
 high price of books in time of, 14. 
 
 Republic of, tradesmen excluded from, 25, 35. 
 
 opposition of to the Sophists, 71. 
 " Plato, British "See LORD BACON. 
 Plotiiius resuscitates Plato, 155. 
 Police defined, 94. 
 
 power of, local, not central, 94, 95. 
 "Politics "Aristotle's, 2. 
 Political Economy a division of Social Science, 5. 
 
 universal opposition to first principles of, 9. 
 
 object of, 11. 
 
 definitions of, 30, 58. 
 
 its relations to capital and labor, 31. 
 
 recent origin of, 33, 40, 69. 
 
 great principles of, 68, 69. 
 
 taught in universities of Great Britain, 69. 
 Political Law defined, 95. 
 
 Political Science See SOCIAL SCIENCE, POLITICAL ECONOMY. 
 Pope, Alexander translation of Plato, 71. 
 Positive Law Jurisprudence defined as science of, 1 
 
 distinction between it and Ethics, 52. 
 
 powerless against intoxication, 58. 
 
 cruelty to animals punished by, 75. 
 
 defined, 78, 79. 
 
 by Blackstone, 79. 
 
 formerly termed Municipal Law, 79. 
 
 in two branches, civil and criminal, 80, 86. 
 
 divided into common and statute, 131, 132. 
 Printing invention of, effect on popular education, 15, 40. 
 
 contrast between the early newspapers and the present, 15. 
 Probity rules of, should be denned by legislation, 51. 
 Procedure defined, 95. 
 Proclus 155. 
 Property definition of, 89. 
 
 what founded upon, 89. 
 
 Bentham includes four things in, 90. 
 
 original and secondary titles to, 90. 
 
184 INDEX. 
 
 Property Continued. 
 
 sense of, our earliest idea, 96. 
 
 insecure, without government, 96. 
 
 desire for, incentive to advancement, 101. 
 Prussia origin of its rapid greatness, 162. 
 
 emancipation of the land in, 162. 
 Fuffendorf, Samuel definition of Equity by, 135. 
 
 German school originated with, 159. 
 Punishment when should and when should not be applied, 51. 
 
 revenge the origin of, 86. 
 
 as an example and as a preventive, 86. 
 
 power of, confided to local administration, 94 
 
 Races fusion of, advantageous to mankind, 64, 65- 
 
 pure, decay of, 65. 
 
 modern English, a compound, 66, 100. 
 
 use of term, 66. 
 
 development and retrogression of, 66, 67. 
 Raleigh, Sir Walter prosecuted by Coke, 69. 
 Ranke, Leopold 156. 
 
 Religious persecution misery caused by, 59. 
 Republics the fiercest aggressors in history, 17. 
 Rhapsodists the, public recitations by, 14. 
 Rights- denned, 84. 
 
 divided into four classes, 85. 
 
 intrusted to government, 91. 
 
 of every man to self-defense, 92. 
 
 of rulers to inflict punishment, 92. 
 Rome civilization of, 14. 
 
 superiority of modern over, 14. 
 
 past greatness of, 14. 
 
 lack of a popular literature in, 15. 
 
 conquerors of, their ignorance, 15. 
 
 sumptuary laws of, 02. 
 
 her conquests followed by degeneracy, 32. 
 
 wealth of, under the emperors, :;."). 
 
 commerce prohibited to persons of rank, 36. 
 
INDEX. 185 
 
 Rome Continued. 
 
 plunder her source of wealth, 36, 37. 
 
 derivation of the word tributum, 37. 
 
 seven citizens required to witness a will, 47. 
 
 citizens of, their disregard of foreigners' rights, 02. 
 
 mythical foundation of, 65. 
 
 code of, unscientific division of law in, 82. 
 adopted by Blackstone, 82. 
 
 proconsuls of, their legalized plunder of provinces, 101. 
 
 Colosseum, St. Peters, 128. 
 
 ancient law of, equity paramount, 137. 
 
 civil law of, still in use, 155. 
 
 Empire of, its fall, 157. 
 
 inferior to modern governments, 161. 
 Romilly, Sir Samuel 160. 
 Romulus city of, 65. 
 Russia Sclavonic races of, 02. 
 
 constitutional history of, 95. 
 
 superiority of, over ancient governments, 161. 
 
 the most conservative State in the world, 161. 
 
 emancipation of serfs by, 161. 
 
 International Congress of, 161. 
 
 gigantic power of, 164. 
 
 compared with Great Britain and America, 165. 
 
 S. 
 
 Savages "strangers" and "enemies" synonymous with, 60. 
 Savigny, F. C. Von the historian -of jurisprudence, 8, 160. 
 
 as a lecturer, 126. 
 
 Scnlegel definition of Equity by, 135. 
 Schleiermacher, Friedrich 27. 
 Science defined, 4, 154. 
 Sclavonic races coalescence of, 62. 
 Scutari ,"7. 
 Security of modern society, whence obtained, 100, 101. 
 
 when does not exist, 101. 
 
 what included under term, 108. 
 
186 INDEX. 
 
 Sedgwick, Prof. Theodore views of on political principles, G. 
 
 Selborne, Lord reconstruction of judicial system by, KJO. 
 
 Selden, John 15!). 
 
 Seneca, Lucius Annaeus views of on the moral faculty, 29. 
 
 Sidney 159. 
 
 Sisters of Charity 57. 
 
 Slavery delinition of, 89. 
 
 suited to some ancient systems, 0, 76. 
 
 in early ages, slaves had no rights, 75. 
 
 emancipation of IJussian serfs from, 161. 
 
 of American negroes from, 166. 
 Smith, Adam influence of on Political Economy, 8. 
 
 views of on Jurisprudence, 08. 
 
 maxims of on taxation, 113-116. 
 
 as a lecturer, 12G. 
 
 views of on higher education, 123, 124. 
 Socialists See COMMUNISM. 
 Social Science subjects of, 5. 
 
 divisions of, 5. 
 
 its position at present far from an advanced one, 8. 
 
 importance of on human progress, 9. 
 
 study of, influence for good, 10. 
 
 influence of on civilization, 13. 
 
 study of should form a part of general education, 43. 
 
 universality of, 44. 
 Sociology See SOCIAL SCIENCE. 
 Socrates 6. 
 
 the first citizen of the world, 154. 
 
 his writings preserved by Plato, 154 
 Sophists, Athenian exploded doctrines of, 5. 
 
 views as to right and wrong, 71. 
 
 confusion of as to morality, 22. 
 Sophocles plays of, 14. 
 Soto, Domingo 158. 
 Spain union of its kindoms, 62. 
 States See GOVI:KNMI;M-. 
 Statistics science of, defined, 12. 
 
 intimately allied to the Social Sciences, 12. 
 
 objects of. 12. 
 
 Statute Low definition of, I:;L. 
 
 how may be improved, 140. 
 
INDEX. 187 
 
 Stein, Baron Von Ids efforts for the Prussian peasantry, 162. 
 Stewart, Dugald influence of morality on belief, 21. 
 Story, Justice Joseph a scientific jurist,. 50. 
 
 as a lecturer, 12G. 
 
 St. Augustine Ciceronian philosophy used by, 155. 
 St. Chrysostom definition of Natural Law by, 75. 
 St. Thomas Aquinas 15(j. 
 
 definition of law by, 73. 
 St. Paul GO. 
 Suarez, Francisco definition of law by, 73. 
 
 and his contemporaries, 158. 
 Sympathy gradual development of, GO. 
 
 theory of Hobbes as to, GO. 
 
 original meaning of, 62. 
 
 based upon recognition of equal rights, 63. 
 
 perfection of, G7. 
 
 T. 
 
 Tacitus extract from, 165. 
 Taille of France, 103. 
 Tax definition and derivation of, 104. 
 Taxation how may be excessive, 102. 
 
 influence of on history, 103. 
 
 recent inquiries concerning, 103. 
 
 definition of, 104. 
 
 to what objects devoted, 104. 
 
 funds obtained by, how misapplied, 109, 110. 
 
 general, should not defray local expenses, 110, 111. 
 
 maxims of Adam Smith regarding, 113-116. 
 
 of justice, indefensible, why, 116-121. 
 
 of. suitors, should be discontinued, 119. 
 
 views of Benthani regarding, 121. 
 
 of community, for higher education, 127. 
 Telemach us 33. 
 Temple of Theseus 128. 
 Thermopylae Pass of, 55. 
 Thomas the Rhymer 156. 
 Trial by battle G9. 
 Turkey pachas of, their legalized plunder, 101. 
 
188 INDEX. 
 
 IJ. 
 
 United Kingdom See ENGLAND. 
 
 United States Courts of, technical meaning of Equity in, 138. 
 
 superiority of, over ancient governments, 161. 
 
 the most democratic State in the world, 161. 
 
 compared with Russia, 164, 165. 
 with Great Britain, 165. 
 
 abolition of slavery in, 166. 
 Universities functions of, 126. 
 
 of England, their national endowments, 123. 
 Jurisprudence taught in, 69. 
 
 national, greatness of, 125. 
 
 V. 
 
 Vasquez, G. 158. 
 
 Vattel, Emmerich his use of term "law of nations," 146. 
 Venice 113. 
 
 " Verulam, Athenian "See PLATO. 
 Vico, Giovanni views of on law, 72. 
 represents the Italian school, 160. 
 Victoria 158. 
 
 Vincent de Paul devotion of, 56. 
 Voight 156. 
 
 w. 
 
 Wallace, Sir William 156. 
 War the greatest foe of progress, 16. 
 
 ruin of Egypt and Carthage by, 16. 
 
 standing armies as an incitement to, 17. 
 
 often caused by rapid changes, 161. 
 
INDEX. 
 
 War Continued. 
 
 in f f ndal times, the great business of nations, 39. 
 
 local aggression, community pays for, 120. 
 William IV 70. 
 William the Norman 15G. 
 Wollaston, William 27. 
 
 z. 
 
 Zouch, Richard distinction of terms by, 129. 
 on the law of nature, 159. 
 
 189 
 
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