Transcript
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CAMBRIDGE TEXTS IN THEHISTORY OF POLITICAL THOUGHT

JOHN AUSTINThe province of jurisprudence determined

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CAMBRIDGE TEXTS IN THEHISTORY OF POLITICAL THOUGHT

Series editorsRAYMOND GEUSS

Reader in Philosophy, University of Cambridge

QUENTIN SKINNERRegius Professor of Modern History in the University of Cambridge

Cambridge Texts in the History of Political Thought is now firmlyestablished as the major student textbook series in political theory. It aimsto make available to students all the most important texts in the history ofwestern political thought, from ancient Greece to the early twentiethcentury. All the familiar classic texts will be included, but the series seeksat the same time to enlarge the conventional canon by incorporatingan extensive range of less well-known works, many of them never beforeavailable in a modern English edition. Wherever possible, texts arepublished in complete and unabridged form, and translations are speciallycommissioned for the series. Each volume contains a critical introductiontogether with chronologies, biographical sketches, a guide to further read-ing and any necessary glossaries and textual apparatus. When completedthe series will aim to offer an outline of the entire evolution of westernpolitical thought.

For a list of titles published in the series, please see end of book

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JOHN AUSTIN

The province ofjurisprudence

determinedEDITED BY

WILFRID E. RUMBLEVassar College

CAMBRIDGEUNIVERSITY PRESS

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CAMBRIDGE UNIVERSITY PRESSCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo

Cambridge University PressThe Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.orgInformation on this title: www.cambridge.org/9780521442442

© in the introduction and editorial matterCambridge University Press 1995

This publication is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,no reproduction of any part may take place without the written

permission of Cambridge University Press.

First published 1995Reprinted 2001

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication dataRumble, Wilfrid E.

Austin: the province of jurisprudence determined / edited byWilfrid E. Rumble,

p. cm. - (Cambridge texts in the history of political thought)Includes index.

ISBN 0 521 44244 3 (hdbk.). - ISBN 0 521 44756 9 (pbk.)1. Jurispudence. 2. Austin, John, 1790-1859. I. Series.

K230.A862R858 1995340M-dc20 94-20447 CIP

ISBN 978-0-521-44244-2 hardbackISBN 978-0-521-44756-0 paperback

Transferred to digital printing 2007

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Contents

Acknowledgements page viIntroduction viiNote on the text xxvChronology of John Austin's life xxviiiSelected bibliography xxxBiographical notes xxxv

The Province of Jurisprudence Determined i

Abstract of Lectures 3Analysis of Lectures 10Lecture I. 18Lecture II. 38Lecture III. 58Lecture IV. 77Lecture V. 106Lecture VI. 164

Index 294

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Acknowledgements

Although the preparation of this edition was a labour of love, itwould not have been possible without the support of numerousindividuals. Quentin Skinner responded very supportively andpromptly to my initial enquiry about a new edition of Austin'sbook. His comments, and those of Raymond Geuss, about myintroductory material were very insightful. Virginia Murray couldnot have been more helpful in reacting to my questions aboutSarah Austin and Robert Campbell. Ina Bennett did a first-ratejob of typing the text on to a computer disc. The cost of typing wasdefrayed by a generous grant from the Committee on Research ofVassar College. The money itself was drawn from the LucyMaynard Salmon Fund. Gabrielle Engh, my student assistant,performed a number of important tasks with great skill and goodhumour. Carolyn Priest-Dorman was invaluable in helping me tonavigate the shoals that I encountered with my word processor.Lisa Johnston and Zachary Ives were of great help in proof-readingthe manuscript. My wife Kirk and my daughter Cynthia renderedvaluable moral support during the entire project. My son Wilused his legal know-how to track down information about RobertCampbell.

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Introduction

The Province of Jurisprudence Determined (1832) (cited hereafter asPJD) is a classic of nineteenth-century English jurisprudence. Ithas been read by generations of students and left an indelibleimpression upon some of them. The book itself contains most,though not all, of the core of John Austin's legal philosophy (therest of it may be found in his posthumously published Lectureson Jurisprudence (LJ)). Although his work did not become widelyknown until the 1860s, some of his ideas eventually had a pro-found impact on the study of legal theory in England. Moreover,Austin exerted an influence in many other parts of the world,including the United States. Such leading American jurists asJustice Holmes (1841-1935) and J. C. Gray (1839-1915) knewtheir Austin and adopted some of his ideas. If he has often beenignored or rejected in the twentieth century, the situation changeddramatically in the 1980s (Morison, John Austin; Hamburger,Troubled Lives; Rumble, Thought; Moles, Definition and Rule). Inany event the PJD is not a narrow, legalistic treatise intendedonly for students of jurisprudence. Instead, Austin designed it sothat 'any reflecting reader, of any condition or station, may . . .understand it' {PJD: xx). He reasoned that 'the nature or essenceof law, and . . . morality, are of general importance and interest'(PJD: xix-xx). The same is true of many of the other issuesdiscussed in his book, the only one that he published in hislifetime.

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IAustin was born on 3 March 1790, the eldest of the five sonsand two daughters of Jonathan and Anne Austin. Jonathan Austinwas a Suffolk miller and corn merchant who became wealthyduring the Napoleonic wars. Anne Austin was apparently a deeplyreligious person with a strong 'tinge of melancholy' (Ross, ThreeGenerations of English Women: 88), a trait shared by her eldestson. Knowledge of his childhood is sparse, but he enlisted in thearmy shortly before his seventeenth birthday. He resigned hiscommission in 1812 after serving in both Sicily and Malta.

Legal education in its modern form, or anything close to it,did not exist when Austin began the study of law in 1814. Instead,the student was 'obliged to get his knowledge of law by meansof undirected reading and discussion, and by attendance in cham-bers, in a law office, or in the courts' (Holdsworth, History ofEnglish Law: 77). Although not much is known about how Austinacquired his legal knowledge, he evidently developed as a studentthe intention 'to study and elucidate the principles of Law' (Ross,Fourth Generation: 73). His experience as an apprentice to anequity draftsman may also have affected his literary style. At least,he wrote to his fiancee in 1817 that he would 'hardly venture onsending a letter of much purpose, even to you, unless it belaboured with the accuracy and circumspection which are requisitein a deed of conveyance' (LJf: 4).

Austin was called to the Bar in 1818. The following year hemarried Sarah Taylor, a remarkable person in her own right. Shenot only became her husband's main prop, comforter, and literaryagent (of sorts), but developed a career of her own as a reviewerand translator (Hamburger, Troubled Lives). Since John Austin'sincome for most of their married life was small, Sarah's earningswere important for their support (their daughter Lucie was bornin 1821). The Austins moved to London shortly after their mar-riage and became neighbours of Jeremy Bentham and James Mill.Bentham was the intellectual leader of the utilitarians and no onedid more than Mill to spread the gospel. Austin's friendship withthem thus placed him at the heart of a vital reform movement.His relationship to it helps to explain his large intellectual debtto Bentham. To be sure, Hobbes, Locke, and others also cast a

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shadow over the PJD. Moreover, Austin was no slavish followerof Bentham and criticized many of his ideas. Then, too, politicaldifferences between the two men developed and multiplied in thecourse of time. Nevertheless, Bentham probably had a heavierimpact upon Austin's ethical and legal philosophy than any otherperson.

The prospects for Austin as a barrister appeared to be bright,a judgement evidently shared by a number of his contemporaries.His name appeared on the Law List in 1819 and 1824 as anequity draftsman. Although little is known about his experiencesat the Bar, he evidently held only one brief (Hamburger, TroubledLives: 29). He became so discouraged that in 1825 he quit thepractice of law. One year later he was appointed to the Chair inJurisprudence and the Law of Nations at the newly foundedUniversity of London. Its purposes included creating opportunitiesfor the study of subjects neglected at Oxford or Cambridge, oneof which was law.

Austin devoted much of the next two or three years to thepreparation of his lectures. The task was difficult and to facilitateit he and his wife took up residence in Bonn for part of 1827and 1828. The atmosphere of this German university town wasvery congenial to them and they apparently thrived in it. Althoughthe impact of the 'German connection' is subject to differentinterpretations, it was significant. Austin's disposition became less'militant and polemic', while his 'views of life' underwent a 'veryperceptible change' (Mill, Autobiography: 185). This period culmi-nated in a retreat from much of his earlier political radicalism,the first major stage in the evolution of his political conservatism.Aside from this, he increased his knowledge of Roman law, thestudy of which was undergoing an 'explosion of interest' (Whitman,Legacy of Roman Law: 85). Finally, his exposure to German juris-prudence reinforced his drive for the systematization and classifi-cation of law.

Austin was scheduled to begin his course in November 1828.He was unable to complete the preparation of his lectures, how-ever, and received permission to postpone them for a year. Hejustified the postponement on two grounds, one of which was arecurrence of his periodic bouts of ill-health. He was subjectthroughout his life to severe 'feverish attacks' (LJf: 4), the symp-

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toms of which were very similar to migraine headaches. He alsoquite justifiably complained that he had no model for his innovativeattempts to expound the 'principles of Jurisprudence' (Letter toLeonard Horner 1828). In any case he eventually surmountedthese obstacles and began lecturing in November 1829. Enrolmentin the class was large and impressive (Mill, 'Austin on Jurispru-dence': 175). It included John Stuart Mill, who had been tutoredby Austin in Roman law and took his course more than once.No more than six or seven students enrolled, however, in thesubsequent three offerings of the course. Austin became verydiscouraged by this response and stopped teaching the class in1833. When he taught a course on jurisprudence at the InnerTemple in 1834, it too suffered from low enrolment and wasdiscontinued.

Various factors contributed to the unpopularity of Austin'scourses. They include the small enrolment overall at the Universityof London, the primitive state of legal education, the highlyabstract character of the courses, and his limitations as a teacher.His introductory lecture was off-putting, his subsequent lecturestended to be repetitive, and they were completely written out andread. Whatever the reasons for it, the significance of the 'failure'of his courses is difficult to exaggerate. At the outset, it convincedhim that he had to resign his Chair, which he did in 1835. Hisresignation was the 'real and irremediable calamity of his life -the blow from which he never recovered' (LJf: 9). Moreover, hebecame convinced that he had no future in the classroom andnever taught again. The unpopularity of his courses also contrib-uted to the writer's block on legal philosophy that he developedafter the publication of the PjfD in 1832. Although he subsequentlycontemplated a much more ambitious tome on general jurispru-dence and ethics, it never left the drawing board. He also refusedto permit even the reprinting of the PJD, which he was urgedto do. He was a perfectionist and had evidently detected numerousdefects in it (what he perceived them to be is unknown). In anyevent he regarded them as sufficiently important to require acomplete rewriting of the book (LJ: 15-16).

A number of Austin's other experiences also contributed to hissense of estrangement from his vocation. They include his some-what slanted perception of the reaction to the PjfD, which did

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not receive the attention that he felt it merited. While the twoleading journals of the day took no notice of the book, it receivedseven reviews that would have delighted most authors (Rumble,'Nineteenth-Century Perceptions of John Austin'). Moreover, hisappointment in 1833 to the Criminal Law Commission did notturn out well and he resigned in frustration in 1836.

It is no wonder then that Austin claimed to be born 'out oftime and place', or that he should have been a 'schoolman ofthe twelfth century - or a German Professor' (Ljf: 12). In anycase he accomplished relatively little in the final twenty-four yearsof his life. They were all too frequently marred by illness,depression, social isolation, fits and starts of work, and hugewastes of time. To say this is not to imply that he accomplishednothing during these years. In 1836 he was appointed a RoyalCommissioner to Malta. The other Commissioner was GeorgeCornewall Lewis, a former student and great admirer of Austin.Their reports covered a wide variety of subjects, they were ofunusually high quality, and many of their recommendations wereaccepted. The British government, however, did not give anypublic acknowledgement of Austin's services, which furtherembittered him (Hamburger, Troubled Lives: 118). He also pub-lished two long articles while he and his wife lived in Germanyand France from 1841 to 1848. Moreover, he wrote A Plea forthe Constitution in 1859, eleven years after his return to England.The pamphlet expressed his dissatisfaction with various proposalsfor the reform of Parliament, all of which were 'mischievous'(Austin, Plea for the Constitution: iii). It also contained a defenceof the British aristocracy and constitution that would have shockedeither Bentham or James Mill.

Austin died on 17 December 1859. His wife subsequentlycharacterized his life as one of 'unbroken disappointment andfailure' (Ross, Three Generations of English Women: 373). Althoughthis description is not fully accurate, it contains a large elementof truth. He had very few clients, he was unable to attract manystudents, and he wrote relatively little. Indeed, Sarah Austin was'far more widely known than her husband during her lifetime'(Hamburger, Troubled Lives: ix). The situation began to change,however, shortly after his death. The person most responsible forthe change was his wife. She dedicated the final eight years of

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her life to the arduous task of editing her husband's lectures andpapers on jurisprudence. She published a second edition of thePJD in 1861. In 1863 she edited two additional volumes of hiswork, which are invaluable for students of his legal philosophy.They discuss numerous matters only alluded to briefly in thePJD, or not mentioned at all, such as 'judiciary' law, codification,and the classification of the corpus juris. Mrs Austin also syn-thesized into a single essay the two introductory lectures in herhusband's courses at the University of London and the InnerTemple (LJ: 1071). Although she exercised an unusually largeamount of editorial discretion in constructing the essay, no studentof John Austin's philosophy of law can ignore it.

The reviews of Sarah Austin's editions were widespread and,in general, very favourable. Their publication thus marks the startof a process that would transform Austin from a minor figureinto a dominant force in nineteenth-century British jurisprudence.As such, he would exert a vastly stronger influence from thegrave than he had ever exercised during his life.

IIThe PJD is a compressed version of the first ten lectures inAustin's course. He designated them 'lectures' rather than 'chap-ters' because their 'style . . . assumes that they are read to anaudience'. He claimed that changing their mode of expressionwould have required 'much and profitless labour' (PJD: vi). Thisis debatable, but the book does reflect more the style of a lecturethan an essay. It also cuts a much wider swathe than the sub-sequent lectures in Austin's course. Unlike them, for example,the book contains a substantial amount of ethical and politicaltheory. Many of the judgements expressed in the PJD are alsoanything but 'morally, politically, and evaluatively neutral' (Hart,'Legal Positivism': 419). This consideration is indeed one reasonwhy it is a mistake to interpret the work as simply an essay in'analytical jurisprudence'. Moreover, Austin never used this term.It was very much the invention of subsequent nineteenth-centuryBritish jurists, especially Sir Henry Sumner Maine (Maine,Lectures'. 357, 359).

The term that Austin used to characterize his approach was

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'general' or 'universal' jurisprudence. Although no comprehensiveexplanation of it occurs in the PJD, a number of his other writingsfill part of the gap (LJf: i071 -91; 'Jurisprudence'; Outline of aCourse of Lectures). To begin with, he distinguished sharply betweengeneral and particular jurisprudence. Both focus on positive lawsas they are rather than as they ought to be, but in very differentways. Particular jurisprudence is the exposition of the positivelaws that actually exist, or have existed, in a particular nation ornations. General jurisprudence is the exposition of quite differentkinds of principles, notions, and distinctions. Some may be foundin advanced legal systems, but not elsewhere, while others areuniversal. These propositions are not only common to very differ-ent legal orders, but are also 'essential', 'inevitable', and 'necessary'(Ljf: 32, 58, 1073-4). To this extent, general jurisprudence focusesupon 'law as it necessarily is, rather than with law as it ought tobe; with law as it must be, be it good or bad, rather than with lawas it must be, if it be good' (Ljf: 32). To say this is not to suggestthat what law ought to be is unimportant, which was most definitelynot Austin's position. Rather, it was that this question belongs tothe science of legislation rather than the science of jurisprudence(p. 113). He also emphasized the 'numerous' and 'indissoluble'ties between the two sciences, which is one of the reasons forhis lengthy discussion of ethical theory (p. 14). In any event heclaimed that Hobbes expressed well the distinction between par-ticular and general jurisprudence. He described his intention inthe Leviathan as 'to show, not what is law here or there, but whatis law [Austin's emphasis]: As Plato, Aristotle, Cicero, and diversothers have done, without taking upon them the profession ofthe study of the law' (LJf: 32). (The quotation from Hobbes isslightly inaccurate (see Hobbes, Leviathan: 183).)

Austin's course was about what is law rather than what is lawhere or there. The principal stated purpose of the portion of itincluded in the PJD was to distinguish positive from other laws.Fulfilment of this objective was essential because positive lawsconstitute the raw material, or subject-matter, of jurisprudence.Determining the nature of a positive law is, however, no easytask. There are several different kinds of laws that resemble orare analogous to each other, that share a common name, andthat are often 'blended and confounded' (p. 11). Moreover, the

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very term 'laws' is large, vague, and 'extremely ambiguous'(p. 31). Still further, explication of it and other leading expressionscannot be achieved by 'short and disjointed definitions'. Instead,what is required is a dissertation that is 'long, intricate, andcoherent' (Ljf: 1076).

The PJfD constitutes precisely this kind of treatise. Many,though not by any means all, of the issues that Austin discussesin the book are about the meaning of words. It is unlikely thathe would have devoted so much space to such questions if he hadregarded them as purely semantic. Rather, he evidently accepted apremise that John Stuart Mill articulated very clearly. Mill not onlyprofoundly admired Austin, but wrote highly laudatory reviews ofboth of his books (Mill, 'Austin's Lectures on Jurisprudence': 51;'Austin on Jurisprudence': 165). Mill interpreted the PJfD as frombeginning to end the analysis and explanation of the term 'positivelaw'. He insisted, however, that the discussion of it is as 'farfrom being . . . merely verbal . . . as the inquiry into the meaningof justice' in Plato's Republic. The meaning of a name lies, afterall, in 'the distinctive qualities of the thing named'. They canonly be found by close study 'of the thing itself, and of everyother thing from which it requires to be distinguished' (Mill,'Austin on Jurisprudence': 176).

The PJfD is a 'close study' of two kinds of things for whichthe word 'law' is used as the name. One consists of the 'objects'for which the word is the proper name. The other consists ofthe 'objects' to which the word sometimes refers, but improperly.Whether the use of the term is proper or improper depends,then, on the nature of the objects to which the name refers. Dothey have all, or only some, of the 'qualities composing the essenceof the class' (p. 108)? The first lecture is an analysis of the natureor essence of a law, the 'necessary or essential elements of whichit is composed' (p. 117). Austin argued that all genuine laws aresub-sets of commands, which are the 'key to the sciences ofjurisprudence and morals' (p. 21). A command is the significationor intimation of a desire by one person or persons, to anotherperson or persons. What is signified is that the latter must do,or abstain from, an act or course of action. If it is intimated thata specific act must be performed or forborne, then the commandis particular or occasional. If it is signified that a course of conduct

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or class of actions must be performed or forborne, then thecommand is general. Only general commands are laws. What isdistinctive about a command is not, however, that it is expressedin the imperative mood. Rather, it is the actual power and thepurpose of the commander to impose an evil for disregard of hisor her wishes. If there is no such power or purpose, there is nocommand. Commands thus imply superiority, but only in thesense of might, or 'the power of affecting others with evil orpain, and of forcing them, through fear of that evil, to fashiontheir conduct to one's wishes' (p. 30). This evil is a sanction theliability to which is the essence of legal obligation or duty.

The second, third, and fourth lectures discuss, among otherthings, Austin's ethical theories. The stated basis of them is divinelaw, which constitutes one of the three types of law 'properly socalled'. It is also the ultimate measure or test of the ethical valueof human laws. Their goodness or badness depends upon whetherthey correspond to, or conflict with, the law of God. These ideascontrast sharply with Bentham's ethical theories, in which divinelaw has no place. Its important role in Austin's system is verysimilar, however, to the views of the so-called 'theological utili-tarians'. They included Archdeacon William Paley, a highly influ-ential British theologian of the late eighteenth century. Althoughsome of his ideas were criticized strongly by Austin, he fullyaccepted others.

Austin conceived of the divine law as the express or tacitcommands of God. While some of his general orders may bediscovered by revelation, others are not expressly revealed. Howthese commands may be discovered is the major issue that Austinaddresses in his second lecture. The only indices to them thathe discusses are the moral sense and the principle of generalutility, which he supported. God's tacit commands may be inferredfrom calculations and comparisons of the tendencies of alternativeclasses or types of human actions, their 'probable effects . . . onthe greatest happiness of all' (p. 41). These tendencies wouldthen serve as the basis of rules from which decisions to act couldbe deduced. 'Our rules would be fashioned on utility; our conduct,on our rules' (p. 49). Still, Austin did not advocate an unqualifiedform of rule-utilitarianism. Rather, he took the position thatexceptions to rules may occasionally be justified. In unusual situ-

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ations the effects of departing from a rule might be better thanthe effects of adhering to it. In such cases we must discard therule and decide how to act by applying the principle of generalutility to the situation. He illustrated the point with a briefdiscussion of the rule of obedience to established governments.Although adherence to it is in general desirable, the social benefitsof resistance to a bad government might outweigh the costs.Whether the one is likely to outweigh the other can only bedetermined by calculating specific consequences. (For a very dif-ferent, conscience-based, theory of resistance roughly contempor-aneous with Austin's, see Thoreau, Reform Papers: 63-90.)

Austin's opinion was that in the vast majority of cases ourconduct should be based upon rules. This position raises thequestion of how we are to know the rules which we are boundto observe. This issue is the major focus of the third lecture.Although it could be argued that each person should attempt tolearn the rules on his or her own, this was not Austin's view.He argued that the classes of human action are too numerousfor any single person to comprehend their respective tendencies.Besides this, 'the many' are too preoccupied with earning a livingto become experts in the science of ethics. Unfortunately, in thepresent state of society no trustworthy authority exists to whichthe bulk of mankind can defer. Rather, there are a variety ofauthorities, each of which has its own particular interests. As aresult, there is not that ''concurrence or agreement of numerous andimpartial inquirers, to which the most cautious and erect under-standing readily and wisely defers' (p. 62). Nevertheless, Austinwas optimistic that these barriers would gradually be overcome.The key to further progress is popular education, 'one of theweightiest of the duties, which God has laid upon govern-ments' (p. 68).

The fourth lecture contains Austin's most systematic critiqueof the theory of the moral sense. He took the position that it isthe only alternative to the principle of utility, one or the otherof which is 'certainly true' (p. 81). Although he acknowledgedthe imperfections of the principle of utility as an index to thedivine will, he regarded it as vastly preferable to the moral sense.The latter involves numerous assumptions which are either prob-lematic or false. The principle of utility is also subject to certain

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'gross misconceptions' (p. 93), which Austin tried to dispel. Inparticular, he distinguished sharply between utility as a standardor test of, and as a motive for, actions. Although general utilityis always the standard by which to judge actions, or classes ofactions, it need not be the motive for them. 'It was never con-tended . . . by a sound, orthodox utilitarian/ he claimed, 'that thelover should kiss his mistress with an eye to the common weaP(p. 97). In fact, conduct inspired by the desire to advance thegeneral happiness is often blamable on utilitarian grounds.

The bulk of the fifth lecture is an analysis of moral rules andheir relationship to positive and divine law. No rule of positivemorality is a positive law, or a command of the sovereign. Somemoral dictates are commands, however, while others representmerely the general opinion or sentiments toward conduct of anaggregate of persons. The bylaws of a private club, enacted andenforced by its board of directors, illustrate positive moral rulesthat are genuine imperatives. The mere opinions or beliefs of thebulk of its members exemplify moral rules that are laws'improperly so called'. It was Austin's highly controversial argu-ment that the law of nations or international law fell into thesame category (p. 123). He viewed it as simply the general opinioncurrent among nations concerning the proper conduct of sovereigngovernments toward each other. His contention was that none ofthese precepts has a determinate source that enacts and enforcesit, an essential or necessary element of a command. At the sametime, he emphasized that a rule set or imposed by general opinionis closely analogous to a law properly so-called. There is a rulenon-compliance with which will probably incur a sanction andwhich most people tend to obey. The positive moral rules imposedby general opinion differ sharply in these respects from metaphor-ical or figurative 'laws', such as the law of gravity or Boyle's law.Their analogy to laws properly so-called is therefore 'slender orremote' (p. 152).

The fifth lecture concludes with a 'note' of almost 3,000 words.Its stated purpose is to discuss the 'prevailing tendency' (p. 157)to confuse what law or morality are with what they ought to be.Austin cited Sir William Blackstone's Commentaries on the Lawsof England as the example par excellence. Despite (if not becauseof) the tremendous influence of his book, he was the bete noire

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of both Bentham and Austin. They particularly objected to theclaim that no human laws that conflict with the law of nature are'of any validity . . . and such of them as are valid derive all theirforce, and all their authority, mediately or immediately, from thisoriginal' (Blackstone, Commentaries: i, 27-8). Austin criticized thisnotion on the ground, among others, that a human law whichconflicts with the natural or divine law is still a law. To denythis reality is to talk 'stark nonsense'. In fact, laws that are mostopposed to the law of God 'have been and are continually enforcedas laws by judicial tribunals' (p. 158).

This argument constitutes one of the elements of Austin's legalphilosophy that successfully 'crossed the Atlantic'. In particular,it represents a very important part of his legacy to Justice Holmesand J. C. Gray. Austin's sharp distinction between law and moralityalso expresses a basic tenet of legal positivism. If this term hasa core meaning, it is a denial of any necessary connection betweenthe law that is and the law that ought to be. To say this is not,of course, to deny their 'frequent coincidence' (p. 141), a factthat contributes to the confounding of the one with the other. Inorder to understand Austin's thought, however, it is essential not tofilter it solely through conceptual screens such as 'legal positivism'.Otherwise, what is special and distinctive about his philosophy oflaw will be obscured by stereotyped images of it.

The final lecture constitutes almost half (45 per cent) of theentire PJfD. Although it discusses a wide range of issues in legaland political theory, sovereignty is the focus of the lecture. It is,after all, one of the concepts that Austin characterized as essentialor necessary (LJ: 1073). His contention was that every independentpolitical society not only in fact has, but must have, a sovereign.He defined it as a common and determinate human superior whomay be either a single person, or an aggregate of persons. Thissupreme legal authority is identifiable, according to Austin, onthe basis of two 'marks'. He, she, or it receives habitual obediencefrom the bulk of the population, but does not habitually obey anyother determinate human superior. To be sure, Austin candidlyacknowledged that it may be impossible in practice to identifythe sovereign. The terms 'bulk' and 'habitual' are too vague toprovide an infallible test of borderline cases. Nevertheless, in

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every independent society 'somewhat advanced in civilization'(p. 173) the identity of the sovereign is clear.

The most controversial facet of Austin's analysis is his insistencethat the sovereign's powers are legally unlimited. He did notintend to signify by this that they are subject to no ethical,moral, and practical limitations, a view which he denied. He alsostressed that the delegation of some sovereign powers to politicalsubordinates is 'absolutely necessary' (p. 191). Moreover, heacknowledged that sovereigns have attempted to impose laws uponthemselves or their successors. He insisted, however, that theseattempts have failed and are doomed to failure. A law that maybe abrogated at the pleasure of the person subject to it is merelya guide for conduct rather than a law. 'If we would speak withpropriety', he claimed, 'we cannot speak of a law set by a manto himself (p. 213). In any event the claim that the sovereign'spower is legally illimitable holds 'universally or without exception'(p. 212), is 'indisputable', and is 'involved in the notion of sover-eignty, as the properties of a circle are implied by the definitionof the figure' (Austin, 'Centralization': 222). To argue thatsupreme power may be limited by positive law is a 'flat contradictionin terms' (p. 212).

Although it may appear that no one is sovereign in a compositeor federal state, the appearance is deceptive. In the United States,for example, there is an 'extraordinary and ulterior legislature'(p. 196) which is sovereign. It consists of the states' governments'as forming one aggregate body* (p. 209). Their ratification of theConstitution established its legal validity and the power of three-quarters of them to amend it is illimitable. Austin claimed that theprocess of amendment described in Article 5 of the Constitutionsubstantiated his argument.

The lecture concludes with an important, if widely ignored,qualification of Austin's definition of a positive law. The lecturesassume, he pointed out, that every 'positive law (or every lawsimply and strictly so called) is set, directly or circuitously, by asovereign individual or body, to a member or members of theindependent political society wherein its author is supreme'(p. 285). He admitted, however, that this definition is imperfect.The reason for its incompleteness is the existence of certain

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anomalous cases. The duty imposed by a positive law on a strangeris an example. The existence of this obligation means that apositive law may be set not only to members of the communityin which its author is sovereign, but to outsiders or strangersas well. Nonetheless, Austin denied that these anomalous casesundermined the truth of his definition of a positive law. Moreover,a complete definition is impossible without descending 'from thegenerals to the detail of the science of jurisprudence' (p. 289).To do this would defeat the purpose, however, of the introductorylectures. Their aim is merely to suggest the subject of the scienceof jurisprudence, or its province. A truly adequate exposition ofthem is 'really the ambitious aim of the entire Course of Lectures'(pp. 288-9).

IllThe most conspicuous feature of the reaction to the PJD maywell be its enormous variety. The interpretations of the book inthe nineteenth century illustrate how differently it can be, andhas been, perceived. The reviews of the first edition stronglyemphasized the value of Austin's discussion of utilitarianism. Theypaid relatively little attention to his definition of a law, separationof law from morality, and his conception of sovereignty. By thelast quarter of the century, however, this interpretation of thePJfD had been turned upside-down. What was initially held to bemost valuable in it was dismissed as irrelevant, unimportant, orworse. Accordingly, commentators tended to focus on the first,fifth, and sixth lectures, or certain portions of them. They wereperceived as the heart of the book, which is how they have tendedto be seen throughout the twentieth century.

This consensus has not precluded strong disagreement aboutthe nature of Austin's intentions. Conflicting interpretations ofthem are indeed a major divide in the recent scholarly literatureabout his legal philosophy. The key question that has emergedis this: what is the status of the fundamental 'principles, notions,and distinctions' of general jurisprudence? According to W. L.Morison, the great importance of Austin's work lies in its provisionof a 'model of . . . an empirical theory of law' (Morison, JohnAustin: 192). His propositions are either true, false, or senseless.

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Other scholars, such as Julius Stone, Robert N. Moles, andMichael Lobban, reject this interpretation. Instead, they arguethat Austin's intention was to develop concepts useful Tor analyz-ing and understanding actual systems of law' (Stone, Legal System:88). These constructs are not empirically testable propositionsand no study of the facts of a legal system could confirm orinvalidate them. A tool is not true or false but necessary or usefulfor achieving certain purposes.

The criticisms of the PJD range far and wide from its substanceto its organization and style. No aspect of the substance of thebook is the target of more criticism than Austin's definition of alaw properly so-called. Critics tend to object to it, however, on twoquite different grounds. On the one hand, the definition has beencriticized because it erroneously presupposes that law has a natureor essence. According to Glanville Williams, for example,' "Essence" simply means "important feature", and what isimportant is a subjective or emotional matter' (Williams, TheControversy Concerning the Word "Law"': 138). On the otherhand, Austin has been attacked for reasons which assume thatlaw has a nature or essence, or something close to it, which hemisdescribed. The critique of H. L. A. Hart, perhaps the mostinfluential modern critic of Austin, is a good example. The basicweakness of his definition of a positive law is, for Hart, its failureto 'fit the facts' (Hart, Concept of Law. 78). 'Primary' rules ofobligation are not orders backed by threats, but standards oflegally correct behaviour, or guides for conduct. Moreover, otherlegal rules are not remotely analogous to commands dictatingwhat shall or shall not be done. Rather, these 'secondary' rulesconfer public or private powers that may, or may not, be exercised(Hart, Concept of Law. 26-41).

Austin's conception of sovereignty has also been a prominentand frequent target for his critics. They object to it for variousreasons, one of which is the argument that it is definitely notuniversal, essential, or necessary. In particular, it is said to beculture-bound and inapplicable to undeveloped non-Westernsocieties. The most influential advocate of this particular criticismis Sir Henry Sumner Maine {Lectures: 379-96). He was muchmore interested in the origin and evolution of law than Austin,whose conception of general jurisprudence is ahistorical (Ljf: 614,

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850). Maine's very different approach led him to conclude thatlegal systems may vary tremendously from one epoch, or culture,to another. Very little corresponds to Austin's conception of posi-tive law or legislation, for example, in primitive legal systems.Maine cited the case of village communities in India, which donot know law in Austin's sense of the term. Rather, the lives oftheir members tend to be ruled by immemorial customs andtraditions (Maine, Lectures: 380-1).

Other critics mount a more sweeping attack on Austin's con-ception of sovereignty. Unlike Maine, they argue that it is asinapplicable to many modern states as it is to 'ruder societies'(Bryce, Studies in History and Jurisprudence: 538). The powers ofmany legislatures, for example, are subject to legally bindinglimitations. The attempt to locate the sovereign in the electoratehas also been the object of much criticism. In the United Statesit not only seldom exercises its power to amend the Constitution,but the power itself is limited. Article 5 explicitly prohibits anystate from being deprived of its equal representation in the Senatewithout its own consent. At the same time Austin's critics tendto acknowledge that the powers of Parliament are legallyillimitable. Indeed, his theory of sovereignty may have been ageneralization from English law. Albert Venn Dicey (1835-1922),the author of a classic study of the British constitution, suggestedthat it is not so much a 'deduction from abstract theories ofjurisprudence' as an inference from 'the position of the EnglishParliament, just as Austin's analysis of the term "law" is at bottoman analysis of . . . an English criminal statute' (Dicey, Law of theConstitution: 26-7).

Austin's theory of sovereignty may also be incompatible withthe powerful role of judges in the modern state. Although hisanalysis of their power is in many respects penetrating and realistic,its very realism posed a problem for him. If and when judgesmake law in the process of deciding cases, he characterized thelaw that they make as the itacit commands of the sovereign'(p. 36). For some of his critics, however, this is a 'forcedexpression' (Gray, Nature and Sources of the Law: 85), an 'artificeof speech', a 'mere straining of language' (Maine, Lectures: 364,365). Does the sovereign really command the rules that he permitshis political subordinates to enact?

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IVIt is not feasible to evaluate here these criticisms, which are farfrom exhausting the field. It is imperative, however, to discusscertain questions the answers to which are necessary in order toevaluate them. One such question is whether Austin actually heldthe opinions which have been criticized. Although his acceptanceof some of them is undeniable, his adherence to others is problem-atic. For example, he did not claim that every independent societyhas a sovereign. His position was, instead, that every independentpolitical society has one. In short, he recognized the existence ofsmall, independent communities governed by customary ratherthan positive laws (p. 178).

A second question emerges to the extent that the criticisms ofAustin were of ideas that he actually held. Did he envisage anyof the objections, and, if he did, how did he, or how could he,respond to them? No one can read carefully the PjfD withoutconcluding that Austin was aware of at least some of the possiblecriticisms of his ideas, to which he attempted to respond. Hedefended the relevance to jurisprudence of his lengthy discussionof ethical theories (pp. 13-15, 58, 92-3); he admitted that hisdefinition of a positive law was imperfect and required qualification(p. 285); and he acknowledged the existence of rights, if notpowers, that are not themselves commands (pp. 33-4). Still, heargued that every law conferring a right expressly or tacitly imposesa relative duty without which the right would be 'nominal andillusory' (p. 234).

The adequacy of the dominant interpretations of Austin's legalphilosophy is also questionable. Although his work provides somesupport for them, it does not provide compelling evidence forany of them. Morison's interpretation is a good example. On theone hand, Austin left a place in general jurisprudence for empiricalgeneralizations (Ljf: 1074-5). He also valued highly observationand induction, which he regarded as the basis of the science ofethics (pp. 60, 74-5). He was critical too of the 'high idealphilosophy' of the Germans and juxtaposed it to the 'empiricalphilosophy' of Bacon and Locke (p. 279). On the other hand,the most far-reaching propositions of general jurisprudence arenot empirical generalizations. Rather, they are inherent in the

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very idea, or mere being, of law (p. 58; Austin, 'Jurisprudence'). Itis for this reason that Austin could characterize them as necessary,inevitable, essential, and universal. This consideration helps toexplain the appeal of interpreting his basic concepts as analyticaltools or stipulative definitions. This interpretation also has theeffect of finessing criticisms of his legal philosophy for inaccuratelydescribing the facts. Nevertheless, it attributes to him a pragmaticapproach to concepts and definitions that conflicts with his actualdescriptions of them.

The most influential modern interpretations of Austin's legalphilosophy thus have definite limitations. While they illuminateone or another facet of his jurisprudence, they tend to obscureother dimensions of it. They also raise the question of the internalconsistency of his legal philosophy, which at the very least containsunresolved tensions. The purpose of this introduction is not, inany event, to resolve the complex issues raised by his philosophyof law. Rather, it is to explain some of them and thus to facilitateunderstanding of the PjfD. In the last analysis, however, there isno substitute for a very careful reading of the book itself.

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Note on the text

The PJD underwent five editions from 1832 to 1885. The third(1869), fourth (1873), and fifth (1885) editions, however, werenot published as separate books. Instead, they were incorporatedinto the first of the two volumes of Robert Campbell's editionsof Austin's LJ. The present Cambridge edition of the PJD con-tains the complete and unabridged text of the fifth edition(including Austin's footnotes). The large number of passages thatCampbell inserted into the text, however, have been placed withinsquare brackets. This editorial innovation indicates, for the firsttime, exactly how much material he added to the second edition(see pp. 18, 20, 28, 31, 36, 42, 47, 58, 63, 64, 75, 97-100, 106-8, 110-15, 116, 157-63, 176). I have also followed the precedentset by H. L. A. Hart and deleted the footnotes of the previouseditors (he retained only two of Campbell's notes). The spellingand punctuation are those of the fifth edition, except for mycorrection of a handful of obvious misspellings.

The fifth edition of the LJ has been described as the 'bestedition' (Hart, 'Introduction': xix), which it may well be. Neverthe-less, Campbell exercised much more discretion in editing the textof the PJD than did Mrs Austin in her edition of the book(1861). She regarded fidelity to the text of the first edition as analmost religious imperative. 'I alter nothing\ she wrote, 'but whatI find marked by my husband's own hand. I shall add a few notes,left by him, and marked for insertion - but I will take no libertieswith his text . . . that is sacred in my eyes'. She propheticallyadded that future editors 'may not be restrained by the tender

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reverence wh. it becomes me to feel' (Sarah Austin, letter to JohnMurray, i860).

Campbell was a graduate of Cambridge, a member of Lincoln'sInn, a practitioner, and a productive legal scholar. He did notdemonstrate the same 'tender reverence' as Mrs Austin, however,toward the text of the PJD. He described his editorial policiesin these words: 'In revising the six lectures . . . care has beentaken to make no material alteration except in accordance with aclearly expressed intention of the author contained in his memor-anda preserved by the late editor, and published in the notes to theformer edition' (Ljf: v-vi, emphasis added). He added, however, animportant qualification to this policy: 'Where . . . such intentionwas clear upon the face of that text and notes, the present editorhas chosen rather to venture on the attempt to embody it explicitlyin the text, than to leave the task to each reader of collectingthat intention from the scattered passages and fragments' (Ljf: vi).In any case he usually did not identify what he had inserted into,or deleted from, the text.

If the bulk of Campbell's alterations in the text of the secondedition are not 'material', they are numerous and substantial. Tobegin with, he changed the title of the Preface to Analysis ofLectures. He also deleted approximately 1,637 words. Moreover,he inserted approximately 5,089 words, which is about 5 per centof the whole text of 103,100 words (if the long note at theconclusion of the fifth lecture is counted, the figure is evenhigher). To be sure, these deletions and insertions do not signifythat the fifth edition of the PJD is unreliable. In fact, it accuratelyreproduces 93 or 94 per cent of the text of the second edition.There are also good reasons for the insertions, which were notconcocted out of thin air. They were primarily drawn from threesources, one of which was Austin's footnotes to the first edition.A second source consisted of John Stuart Mill's notes of Austin'slectures. Campbell described them as being 'so accurate and fullin the parts where the printed lectures are complete that theymay be confidently relied on for supplying the lacunae which,owing to the state of the author's MS., were in the formerpublication inevitable' (LJ: v). The final source of the insertionswas the notes that Sarah Austin included in her edition of thePJD. Even so, the fifth edition of the PJD is no mere mechanical

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reproduction of the text of the first and second editions. Moreover,some of the passages deleted from the Preface are 'material' forthe purpose of understanding Austin's intentions (PJD: vi, xix,xx).

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Chronology of John Austin's life

1790 3 March, born near Ipswich, Suffolk.1807 Enlists in army; commissioned as an ensign.1812 Resigns commission.1814 Begins the study of law and becomes engaged to

Sarah Taylor.1818 Called to the Bar.1819 Meets Jeremy Bentham; marries Sarah Taylor;

moves to London.1821 Birth of Lucie (Duff Gordon), the Austins' only

child.1824 Article on primogeniture published in the

Westminster Review.1825 Quits the practice of law.1826 Appointed to the Chair in Jurisprudence and the

Law of Nations at the University of London; articleon joint stock companies published.

1827-8 Resides in Bonn, Germany, for part of each year.1828 Returns to England and postpones for one year

the delivery of his lectures.1829 Begins to lecture on jurisprudence.1831 An Outline of a Course of Lectures on General Juris-

prudence or the Philosophy of Positive Law publishedas a pamphlet.

1832 The Province of Jurisprudence Determined published.1833 Delivers the final lecture in his course; appointed

to the Criminal Law Commission.

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1834 Lectures on jurisprudence at the Inner Temple;appointed corresponding member of the Academyof Moral and Political Sciences of the Royal Insti-tute of France.

1835 Resigns his Chair and moves to Boulogne, France.1836 Appointed a Royal Commissioner to Malta; resigns

from the Criminal Law Commission; beginstwenty-month residence in Malta.

1838 Returns to England from Malta.1840 Termination of tenure as a Commissioner.1841 Begins residence in Germany.1842 Publishes lengthy review of Friedrich List's The

National System of Political Economy.1843 Moves to Paris.1847 Article on centralization published.1848 Returns to England and establishes residence at

Weybridge.1859 Death of John Austin; A Plea for the Constitution

published.1861 Publication of the second edition of The Province

of Jurisprudence Determined.1863 Publication of the remaining two volumes of his

Lectures on Jurisprudence.1867 Death of Sarah Austin.1869 Death of Lucie Duff Gordon.

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Selected bibliography

The references cited below represent only a few of the manyworks about Austin. Two recent and much more comprehensivebibliographies may be found in W. L. Morison's John Austin,pp. 211-17 and Wilfrid E. Rumble's The Thought of John Austin,pp. 262-71.

1 Austin's writings'Centralization'. Edinburgh Review 85 (1847), PP- 221-58.(with Lewis, George Cornewall). 'Copies or Extracts of Reports

of the Commissioners appointed to inquire into the Affairsof the Island of Malta and of Correspondence thereupon'.Parliamentary Papers 29 (1837-8), 17 (1839).

'Disposition of Property by Will - Primogeniture'. WestminsterReview 2 (1824), pp. 503-53.

'Joint Stock Companies'. Parliamentary History and Review (1826),pp. 709-27.

'Jurisprudence', in Second Statement by the Council of the Universityof London explanatory of the Plan of Instruction (1828), pp. 7 8 -93-

Lectures on Jurisprudence or the Philosophy of Positive Law (LJ).Fifth edn. Rev. and ed. Robert Campbell. John Murray, 1885.

Letter from John Austin to Leonard Horner, 30 October 1828,University College, London, College Correspondence 583.

'List on the Principles of the German Customs-Union'. EdinburghReview 75 (1842), pp. 515-56.

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Bibliography

An Outline of a Course of Lectures on General Jurisprudence or thePhilosophy of Positive Law. 1831 (revised and reprinted in LJ,pp. 31-76).

A Plea for the Constitution. Second edn. John Murray, 1859.The Province of Jurisprudence Determined (PJD). John Murray, 1832.

2 BiographyAustin, Sarah. Letter to John Murray, 17 October i860. Manu-

script collection of John Murray, Publishers.Preface to LJ, pp. 1-30.

Bellot, H. Hale. University College, London: 1826-^26. Universityof London Press, 1929.

Hamburger, Lotte and Joseph. Troubled Lives: John and SarahAustin. University of Toronto Press, 1985.

Ross, Janet. The Fourth Generation: Reminiscences. Constable, 1912.Three Generations of English Women: Memoirs and Correspondence

of Susannah Taylor, Sarah Austin and Lady Duff Gordon. Rev.edn. T. Fisher Unwin, 1893.

Waterfield, Gordon. Lucie Duff Gordon in England, South Africa,and Egypt. E. P. Dutton, 1937.

3 Intellectual background to Austin's thoughtBentham, Jeremy. A Fragment on Government. Ed. J. H. Burns

and H. L. A. Hart. Cambridge University Press, 1988.An Introduction to the Principles of Morals and Legislation. Ed. J.

H. Burns and H. L. A. Hart. Athlone, 1970.Birks, Peter and McLeod, Grant. Introduction to Justinian's Insti-

tutes. Cornell University Press, 1987.Blackstone, Sir William. Commentaries on the Lams of England.

Four volumes. Nineteenth edn. J. P. Lippincott, 1870.Cocks, Raymond. Foundations of the Modern Bar. Sweet & Maxwell,

1983.Friedman, Richard B. 'An Introduction to Mill's Theory of

Authority'. In Mill: A Collection of Critical Essays. Ed. J. B.Schneewind. Anchor Books, 1968.

Halevy, Elie. The Growth of Philosophic Radicalism. Augustus M.Kelley, 1972.

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Bibliography

Hobbes, Thomas. Leviathan, or the Matter, Forme, and Power of aCommon-Wealth Ecclesiasticall and Civill. Ed. Richard Tuck.Cambridge University Press, 1991.

Holdsworth, William. A History of English Law. Vol. xii. Methuen,1938.

Lieberman, David. The Province of Legislation Determined: LegalTheory in Eighteenth-Century Britain. Cambridge UniversityPress, 1989.

Madison, James, Hamilton, Alexander and Jay, John. The FederalistPapers. Ed. Isaac Kramnick. Penguin Books, 1987.

Mill, James. Political Writings. Ed. Terence Ball. CambridgeUniversity Press, 1992.

Mill, John Stuart. Autobiography and Literary Essays. Ed. John M.Robson and Jack Stillinger. University of Toronto Press,1981.

Nicholas, Barry. An Introduction to Roman Law. Clarendon Press,1975-

Philp, Mark. Godwin's Political Justice. Cornell University Press,1986.

Schneewind, J. B. Sidgwick's Ethics and Victorian Moral Philosophy.Clarendon Press, 1977.

Thoreau, Henry D. Reform Papers. Ed. Wendell Glick. PrincetonUniversity Press, 1973.

Whitman, James Q. The Legacy of Roman Law in the GermanRomantic Era: Historical Vision and Legal Change. PrincetonUniversity Press, 1990.

4 Analyses of Austin's legal philosophyBryce, James. Studies in History and Jurisprudence. Oxford Univer-

sity Press, 1901.Buckland, W. W. Some Reflections on Jurisprudence. Archon Books,

1974-Dicey, Albert Venn. Introduction to the Study of the Law of the

Constitution. Eighth edn. Macmillan, 1915.Gray, John Chipman. The Nature and Sources of the Law. Second

edn. Macmillan, 1921.Hart, H. L. A. The Concept of Law. Clarendon Press, 1961.

'Introduction'. In Austin, The Province of Jurisprudence Deter-mined. Weidenfeld and Nicolson, 1954.

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Bibliography

'Legal Positivism'. In Encyclopedia of Philosophy. Ed. PaulEdwards. Macmillan, 1967. Vol. iv. pp. 418-20.

Holmes, Oliver Wendell. Collected Legal Papers. Peter Smith,1952.

Kelsen, Hans. 'The Pure Theory of Law and Analytical Jurispru-dence'. Harvard Law Review 55 (1941), pp. 44-70.

Maine, Sir Henry Sumner. Lectures on the Early History of Insti-tutions. Seventh edn. Henry Holt, 1914.

Mill, John Stuart. 'Austin on Jurisprudence'. In Collected Worksof John Stuart Mill. Ed. J. M. Robson. Vol. xxi, Essays onEquality, Law, and Education. University of Toronto Press,1984, 167-205.

'Austin's Lectures on Jurisprudence'. In Collected Works of JohnStuart Mill. Ed. J. M. Robson. Vol. xxi, Essays on Equality,Law, and Education. University of Toronto Press, 1984, pp.51-60.

Radbruch, Gustav. 'Anglo-American Jurisprudence through Con-tinental Eyes'. Law Quarterly Review 52 (1936), pp. 530-45.

Schwarz, Andreas B. 'John Austin and the German Jurisprudenceof His Time'. Politica 1 (1934), pp. 178-99.

Stone, Julius. Legal System and Lawyers' Reasonings. Stanford Uni-versity Press, 1964.

Sugarman, David. 'Legal Theory, the Common Law Mind andthe Making of the Textbook Tradition'. In Legal Theoryand Common Law. Ed. William Twining. Basil Blackwell,1986.

Williams, Glanville. 'The Controversy Concerning the Word"Law" '. In Philosophy, Politics and Society. Ed. Peter Laslett.Blackwell, 1963.

5 Recent studies of Austin's legal philosophyCosgrove, Richard. Our Lady the Common Law: An Anglo-American

Legal Community, i8yo-igjo. New York University Press,1987.

The Rule of Law: Albert Venn Dicey, Victorian Jurist. Universityof North Carolina Press, 1980.

Cotterrell, Roger. The Politics of Jurisprudence: A Critical Introductionto Legal Philosophy. University of Pennsylvania Press,1992.

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Bibliography

Kellogg, Frederic Rogers. The Formative Essays of Justice Holmes:The Making of an American Legal Philosophy. Greenwood,1984.

King, Peter J. Utilitarian Jurisprudence in America: The Influence ofBentham and Austin on American Legal Thought in the NineteenthCentury. Garland, 1986.

LaPiana, William P. Logic and Experience: The Origin of ModernAmerican Legal Education. Oxford University Press, 1994.

Lobban, Michael. The Common Law and English Jurisprudence1760-1850. Clarendon Press, 1991.

Lowenhaupt, Wilfried. Politischer Utilitarismus und biirgerlichesRechtsdenken: John Austin und die 'Philosophie des PositivenRechts\ Duncker & Humblot, 1972.

Moles, Robert N. Definition and Rule in Legal Theory: A Reassess-ment of H. L. A. Hart and the Positivist Tradition. Blackwell,1987.

Morison, W. L. John Austin. Stanford University Press, 1982.Pohlman, Harry L. Justice Oliver Wendell Holmes and Utilitarian

Jurisprudence. Harvard University Press, 1984.Ruben, Eira. 'John Austin's Political Pamphlets 1824-1859'. In

Perspectives in Jurisprudence. Ed. Elspeth Attwooll. Universityof Glasgow Press, 1977.

Rumble, Wilfrid, E. 'John Austin and his Nineteenth CenturyCritics: The Case of Sir Henry Sumner Maine'. NorthernIreland Legal Quarterly 39 (Summer, 1988), pp. 119-49.

'Nineteenth-century Perceptions of John Austin: Utilitarianismand the Reviews of The Province of Jurisprudence Determined'.Utilitas 3 (November 1991), pp. 199-216.

The Thought of John Austin. Athlone, 1985.Schofield, Philip. 'Jeremy Bentham and Nineteenth-century

English Jurisprudence'. Journal of Legal History 12 (May,1991), pp. 58-88.

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Biographical notes

BACON, Francis (1561-1626). Statesman, jurist, and philosopherof science. He rejected scholasticism and 'demonstration bysyllogism'. Instead, he argued for 'true induction' based uponobservation, experience and experiments. He also defended theroyal prerogative against the claims of both Parliament and thecommon law as interpreted by Sir Edward Coke.

BENTHAM, Jeremy (1748-1832). Reformer, legal theorist, andpolitical radical (in the last twenty-three years of his life). Thebasis of his system was the 'greatest happiness' or 'greatest felicity'principle. He defined it as 'that principle which states the greatesthappiness of all those whose interest is in question, as being theright and proper, and only right and proper and universallydesirable, end of human action . . . in every situation' (Bentham,Principles of Morals and Legislation: 11 n.a).

BLACKSTONE, Sir William (1723-80). Barrister, professor, judge,and writer. His greatest achievement was his Commentaries on theLaws of England. It was widely read on both sides of the Atlanticand may be the most influential work on law ever written inEnglish. The book itself is a comprehensive, felicitous, and learnedexposition of the basic principles and rules of English law, whichBlackstone extolled as 'fraught with the accumulated wisdom ofages' (Blackstone, Commentaries: ii, 542).

BURKE, Edmund (1729-97). British statesman, parliamentaryorator, and political theorist. His most important writing was his

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Reflections on the Revolution in France (1790), a blistering indictmentof developments in France. The book was immensely popularand became a classic of modern conservatism. Burke was verycritical of abstract rights and a priori reasoning, which ignoredthe crucial significance of 'circumstances'.

BUTLER, Joseph (1692-1752). Theologian, moral philosopher,and a bishop in the Church of England. His major works areFifteen Sermons Preached at the Rolls Chapel (1726) and The Analogyof Religion, Natural and Revealed, to the Constitution and Course ofNature (1736). He placed great weight on a universal moralfaculty that he called 'conscience' or 'reflection'. It approves ordisapproves of certain actions as in themselves right or wrongindependent of their utilitarian tendencies.

GAIUS (AD 110-80). Classical Roman jurist and author of thehighly regarded Institutes (AD 161). Large portions of the bookwere incorporated into Justinian's Institutes.

GODWIN, William (1756-1836). English political philosopher,man of letters, and author of An Inquiry Concerning Political Justice(1793). He was a proponent of anarchism, the perfectibility ofhumankind, and the inviolability of private judgement. Althoughhis moral philosophy has utilitarian dimensions to it, it may infact be a form of perfectionism (Philp, Godwin's Political Justice:81).

GROTIUS, Hugo (1583-1645). Dutch jurist and diplomat. Hismost famous book is On the Law of War and Peace (1625), theprincipal basis of his reputation as the 'father of internationallaw'. He strongly emphasized the importance of natural law, a'dictate of right reason' that even God cannot change.

HARTLEY, David (1705-57). Moral philosopher and physician.His most influential book is his Observations on Man, His Frame,His Duty and His Expectations (1749). His association psychologywas admired by James Mill and the 'philosophic radicals' (Mill,Autobiography. 71, 107).

HOBBES, Thomas (1588-1679). His Leviathan, or the Matter,Forme and Power of a Common-wealth Ecclesiasticall and Civill (1651)ranks among the handful of masterpieces of political philosophy.

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He claimed that the absence of government meant anarchy andcivil war. His remedy for these evils was a sovereign of absolutepower, the lack of which is one of the deadliest 'infirmities' ofcommonwealths. Austin claimed that only Bentham had discoveredas many 'new and important' truths about government and lawas Hobbes (p. 231, note 22).

HOOKER, Richard (1553-1600). Theologian and political philos-opher. His great work is Of the Laws of Ecclesiastical Polity, Onlythe first five of the eight books of this treatise were publishedduring his life. He argued for a scholastic theory of natural lawand defended the Church of England against the attacks of thePuritans.

HUME, David (1711-76). Scottish philosopher, political theorist,and historian. The first and probably the greatest of his bookswas his A Treatise of Human Nature (1739-40). He argued thatknowledge of matters of fact can be derived only from experience,rejected the theory of the social contract, and conceived of justiceas a 'mere' human contrivance for the benefit of society.

JUSTINIAN 1 (AD 482-565). Byzantine emperor. He ordered thepreparation of what became known as the Corpus Juris Chilis(The Body of the Civil Law), the great collection of the literatureof Roman law. It consists of the Digest or Pandects (topicallyorganized excerpts from the works of Roman jurists, almost allof whom wrote in the second and third centuries AD); the Institutes(an introductory textbook for students); and the Novellae and Codex(collections of imperial edicts, decisions, and opinions).

KANT, Immanuel (1724-1804). Professor at the University ofKonigsberg and one of the giants of modern philosophy. Hedeveloped a formalist ethics based on the claim that pure reasonprescribed to us our duties, and that morally valuable action isaction performed for the sake of duty alone without regard toconsequences. This position is incompatible with utilitarianism.

LOCKE, John (1632-1704). The 'greatest and best of philos-ophers' (p. 70). The Locke whom Austin praised was not theauthor of Two Treatises of Government (1690), which containedmany ideas he did not share. Rather, it was the philosopher who

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wrote An Essay Concerning Human Understanding (1689). Lockedenied the existence of any innate ideas and argued that all ofour ideas are derived from experience.MALTHUS, Thomas Robert (1766-1834). Minister, politicaleconomist, and author of An Essay on the Principle of Population(1798). His diagnosis of and prescription for social ills profoundlyinfluenced both the 'philosophic radicals' and Austin.MANSFIELD, William Murray, 1st earl of (1705-93). Britishstatesman and Chief Justice of the King's Bench, 1756-88. Hewas one of the most distinguished lawyers, advocates, and parlia-mentary orators of his time and place. He was also a great judgewhose contributions to the modernization and development of thecommon law were major and numerous.MARTENS, Georg Friedrich von (1756-1821). German jurist anddiplomat. He was the author of Precis du Droit des Gens Modernede VEurope fonde sur les Traites et VUsage (1788), a summary ofthe modern European law of nations.MONTESQUIEU, Baron de (1689-1755). French landowner, manof letters, and political theorist. He wrote several books, but hismasterpiece was his immensely popular and influential The Spiritof the Laws (1748). He greatly admired the English constitutionand argued that separation of powers was essential for politicalliberty. James Madison refers to the 'celebrated' Montesquieu asthe 'oracle' on this subject (Madison et ah, Federalist Papers: 303).PALEY, William (1743-1805). English educator, theologian, andarchdeacon. His Moral and Political Philosophy (1785) played apivotal role in the popularization of utilitarianism. His conservativedefence of the British constitution, however, was anathema to theutilitarians.PUFENDORF, Samuel von (1632-94). German jurist, philosopher,historian, university professor, and author of Of the Law of Natureand Nations (1672). He argued that all civil laws presuppose orembody the 'general principles' of the natural law, which humanreason may discover by close study of human nature.TACITUS, Cornelius (AD 56 or 57 - ?). Great Roman historianand senator. His most important work was The Annals of ImperialRome, & history of Rome from AD 14 to 68.

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THIBAUT, Anton Friedrich Justus (1772-1840). German juristand university professor. He advocated a comprehensive civil codefor Germany which left little room for interpretation. His viewson the subject prompted a famous response by Friedrich Carlvon Savigny (1779-1861), one of the most distinguished ofnineteenth-century German jurists. Thibaut was also a scholar ofRoman law whom Austin placed 'by the side of Von Savigny, atthe head of all living Civilians' (Ljf: 71-2).

ULPIAN (AD 172-223). Influential Roman jurist and imperialofficial. Extracts from his works constitute more than a third ofJustinian's Digest. Ulpian defined natural law as 'that which naturehas taught all animals. For it is not peculiar to the human racebut belongs to all animals. From this law comes the union ofmale and female, which we call marriage, and the begetting andeducation of children . . . all other animals are likewise governedby a knowledge of this law' (Nicholas, Introduction to Roman Law:55-6).

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Abstract of Lectures

Lecture I.The purpose of the following attempt to determine the province ofjurisprudence, stated or suggested. - The manner of the followingattempt to determine the province of jurisprudence. - Law: what, inmost comprehensive literal sense. - Law of God. - Human Laws. -Two classes: ist Laws set by political superiors; 2ndly, Laws set bymen not political superiors. - Objects improperly, but by close analogy,termed laws. - The two last placed in one class under the namepositive morality. - Objects metaphorically termed laws. - Laws orrules, properly so called, are a species of commands. - The meaningof the term command. — The meaning of the term duty. - The termscommand and duty are correlative. - The meaning of the term sanc-tion. - To the existence of a command, a duty, and a sanction, aviolent motive to compliance is not requisite. - Rewards are notsanctions. - The meaning of the term command, briefly re-stated. -The inseparable connection of the three terms, command, duty, andsanction. - The manner of that connection. - Laws or rules dis-tinguished from commands which are occasional or particular. - Thedefinition of a law or rule, properly so called. - The meaning of thecorrelative terms superior and inferior. - Laws (improperly so called)which are not commands. - Laws (properly so called) which may seemnot imperative. - Laws which are not commands, enumerate . . . p. 18

Lecture II.The connection of the second with the first lecture. - The Divinelaws, or the laws of God. - Of the Divine laws, some are revealed,

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and others are unrevealed. - Such of the Divine laws as are revealed. -Such of the Divine laws as are unrevealed. - What is the index tosuch of the Divine laws as are unrevealed? - The hypotheses or theorieswhich regard the nature of that index. - The hypothesis or theoryof a moral sense, or innate practical principles; of a practical reason; ofa common sense, etc. etc. - The theory or hypothesis of utility. A briefsummary of the theory of utility. - The following explanations ofthat summary briefly introduced. - The true tendency of a humanaction, and the true test of that tendency. - According to the theoryof utility, God's commands are mostly rules. - It does not followfrom the theory of utility, that every useful action is the object of aDivine injunction; and every pernicious action, the object of a Divineprohibition. - A current and specious objection to the theory ofutility, introduced and stated. - The two apt answers to the foregoingobjection briefly introduced. - The first answer to the foregoingobjection stated. - The second answer to the foregoing objectionbriefly introduced. - If our conduct were truly adjusted to the principleof general utility, our conduct would conform, for the most part, torules; rules which emanate from the Deity, and to which the tendenciesof human actions are the guide or index. - Theory and practice areinseparable. If our conduct were truly adjusted to the principle ofgeneral utility, our conduct would be guided, for the most part, bysentiments associated with rules; rules which emanate from the Deity,and to which the tendencies of human actions are the guide orindex. - If our conduct were truly adjusted to the principle of generalutility, our conduct would conform, for the most part, to Divine rules,and would also be guided, for the most part, by sentiments associatedwith those rules. But, in anomalous and excepted cases (of compara-tively rare occurrence), our conduct would be fashioned directly onthe principle of general utility, or guided by a conjecture and compari-son of specific or particular consequences. - The second answer to theforegoing objection, briefly resumed . . . p. 38.

Lecture III.Apology for introducing the principle of utility. - The connection ofthe third with the second lecture. - a second objection to the theoryof utility, stated. - An answer to that second objection, introduced. -An objection to the foregoing answer, stated. - The foregoing objec-

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tion to the foregoing answer solved or extenuated. - The secondobjection to the theory of utility, together with the foregoing answerto that second objection briefly re-stated . . . p. 58.

Lecture IV.The connection of the fourth with the third lecture. - The secondobjection to the theory of utility, resumed. - A further answer to thatsecond objection. - The hypothesis of a moral sense\ briefly intro-duced. - 'A moral sense/ 'a common sense,' 'a moral instinct,' 'aprinciple of reflection or conscience,' 'a practical reason,' 'innatepractical principles,' 'connate practical principles,' etc. etc., are variousexpressions for one and the same hypothesis. - The hypothesis inquestion involves two assumptions. - The first of the two assumptionsinvolved by the hypothesis in question stated in general expressions. -The foregoing statement of the first assumption, exemplified andexplained by an imaginary case. - The first of the two assumptionsinvolved by the hypothesis in question, briefly re-stated in generalexpressions. - The second of the two assumptions involved by thehypothesis in question, briefly stated. - As an index to God's com-mands, a moral sense were less fallible than the principle of generalutility. - But is there any evidence to sustain the hypothesis in ques-tion? - The hypothesis in question is disproved by the negative stateof our consciousness. - The two current arguments in favour of thehypothesis in question, briefly stated. - The first argument in favourof the hypothesis in question, examined. - The second argument infavour of the hypothesis in question, examined. - A brief statement ofthe fact whereon the second argument in favour of the hypothesis inquestion is founded. - The fact accords exactly with the hypothesis ortheory of utility. - A brief statement of the intermediate hypothesiswhich is compounded of the hypothesis of utility and the hypothesisof a moral sense. - The division of positive law into law natural andlaw positive, and the division of jus civile into jus gentium and jus civile,suppose or involve the intermediate hypothesis which is compoundedof the hypothesis of utility and the hypothesis of a moral sense. - Theforegoing disquisitions on the index to God's commands, closed withan endeavour to clear the theory of utility from two current thoughgross misconceptions. - The two misconceptions stated. - The first mis-conception examined. - The second misconception examined . . . p. 77.

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Lecture V.Laws proper or properly so called, and laws improper or improperlyso called. - Analogy and metaphor as used in common parlancedefined. - Laws improper are of two kinds: i. Laws closely analogousto laws proper; 2. Laws metaphorical or figurative. - Division of lawsproper, and of such improper laws as are closely analogous to theproper. - Distribution of laws proper, and of such improper laws asare closely analogous to the proper, under three capital classes: 1.The law of God, or the laws of God; 2. Positive law, or positivelaws; 3. Positive morality, rules of positive morality, or positive moralrules. - Digression to explain the expressions positive law and positivemorality. — Explanation of the following expressions, viz. science ofjurisprudence and science of positive morality, science of ethics or deontology,science of legislation and science of morals. - Meaning of the epithetgood or bad as applied to a human law. - Meaning of the epithetgood as applied to the law of God. - The expression law of nature,or natural law, has two disparate meanings. It signifies the law ofGod, or a portion of positive law and positive morality. - Theconnection of the present (the fifth) lecture with the first, second,third, fourth, and sixth. - The essentials of a law properly so called,together with certain consequences which those essentials import. -The laws of God, and positive laws, are laws properly so called. -The generic character of positive moral rules. - Of positive moralrules, some are laws proper, but others are laws improper. Thepositive moral rules, which are laws properly so called, are commands. -Laws set by men, as private persons, in pursuance of legal rights. -The positive moral rules, which are laws improperly so called, arelaws set or imposed by general opinion. - A law set or imposed bygeneral opinion, is merely the opinion or sentiment of an indeterminatebody of persons in regard to a kind of conduct. - A brief statementof the analogy between a law proper and a law set or imposed bygeneral opinion. - Distinction between a determinate and an indeter-minate body of single or individual persons. - Laws set by generalopinion, or opinions or sentiments of indeterminate bodies, are the onlyopinions or sentiments that have gotten the name of laws. But anopinion or sentiment held or felt by an individual, or by all themembers of a certain aggregate, may be as closely analogous to a lawproper as the opinion or sentiment of an indeterminate body. - The

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foregoing distribution of laws proper, and of such improper laws asthe closely analogous to the proper, briefly recapitulated. - Thesanctions, proper and improper, by which those laws are respectivelyenforced; the duties, proper and improper, which those laws respect-ively impose; and the rights, proper and improper, which those lawsrespectively confer. - The law of God, positive law, and positivemorality, sometimes coincide, sometimes do not coincide, and some-times conflict. - The acts and forbearances, which, according to thetheory of utility, are objects of the law of God; and other acts andforbearances, which, according to the same theory, ought to be objectsrespectively of positive morality and law. - The foregoing distributionof laws proper, and of such improper laws as are closely analogousto the proper, tallies, in the main, with a division of laws which isgiven incidentally by Locke in his 'Essay on Human Understanding.' -Laws metaphorical or figurative. - The common and negative natureof laws of the class. - The common and negative nature of lawsmetaphorical or figurative, shewn by examples. - Laws metaphoricalor figurative are often blended and confounded with laws imperativeand proper. - Physical or natural sanctions. - In strictness, declaratorylaw, laws repealing laws, and laws of imperfect obligation (in thesense of the Roman jurists), ought to be classed respectively withlaws, metaphorical or figurative, and rules of positive morality. - Noteon prevailing tendency: ist, to confound positive law with the scienceof legislation, and positive morality with deontology: Examples fromBlackstone, Paley, the writers on international law: 2ndly, to con-found positive law with positive morality, and both with legislationand deontology; Examples from the Roman jurists and Lord Mans-field. . . p. 106.

Lecture VI.The connection of the sixth lecture with the first, second, third,fourth, and fifth. - The distinguishing marks of sovereignty andindependent political society. - The relation of sovereignty and subjec-tion. - Strictly speaking, the sovereign portion of the society, andnot the society itself, is independent, sovereign, or supreme. - Inorder that a given society may form a society political and independent,the two distinguishing marks which are mentioned above must unite. -A society independent but natural. - Society formed by the intercourse

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of independent political societies. - A society political but subordi-nate. - A society not political, but forming a limb or member of asociety political and independent. - The definition of the abstractterm independent political society (including the definition of the correla-tive term sovereignty) cannot be rendered in expressions of perfectlyprecise import, and is therefore a fallible test of specific or particularcases. - In order that an independent society may form a societypolitical, it must not fall short of a number which cannot be fixedwith precision, but which may be called considerable, or not extremelyminute. - Certain of the definitions of the term sovereignty, and ofthe implied or correlative term independent political society, which havebeen given by writers of celebrity. - The ensuing portion of thepresent lecture is concerned with the following topics: - i. Theforms of supreme government; 2. The limits of sovereign power;3. The origin of government, or the origin of political society. - Theforms of supreme government. - Every supreme government is amonarchy (properly so called), or an aristocracy (in the generic meaningof the expression). In other words, it is a government of one, or agovernment of a number. - Of such distinctions between aristocraciesas are founded on differences between the proportions which thenumber of the sovereign body may bear to the number of thecommunity. - Of such distinctions between aristocracies as arefounded on differences between the modes wherein the sovereignnumber may share the sovereign powers. - Of such aristocracies asare styled limited monarchies. - Various meanings of the term: - 1.The term 'sovereign,' or 'the sovereign;' 2. The term 'republic,' or'commonwealth;' 3. The term 'state,' or ''the state;' 4. The term'nation.' - Of the exercise of sovereign powers by a monarch orsovereign body, through political subordinates or delegates rep-resenting their sovereign author. Of the distinction of sovereign, andother political powers into such as are legislative, and such as areexecutive or administrative. The true natures of the communities orgovernments which are styled by writers on positive international lawhalf sovereign states. — The nature of a composite state or a supremefederal government: with the nature of a system of confederated states, ora permanent confederacy of supreme governments. - The limits of sovereignpower. - The essential difference of a positive law. - It follows fromthe essential difference of a positive law, and from the nature ofsovereignty and independent political society, that the power of a

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monarch properly so called, or the power of a sovereign number inits collegiate and sovereign capacity, is incapable of legal limitation. -Attempts of sovereigns to oblige themselves, or to oblige the suc-cessors to their sovereign powers. - The meanings of the epithetunconstitutional, as it is contradistinguished, to the epithet illegal, andas it is applied to conduct of a monarch, or to conduct of a sovereignnumber in its collegiate and sovereign capacity. - The meaning ofHobbes's proposition, that 'no law can be unjust.' - Just or unjust,justice, or injustice, is a term of relative and varying import. - Con-sidered severally, the members of a sovereign body are in a state ofsubjection to the body, and may therefore be legally bound, even asmembers of the body, by laws of which it is the author. - The natureof political or civil liberty, together with the supposed differencebetween free and despotic governments. - Why it has been doubted,that the power of a sovereign is incapable of legal limitation. - Theproposition is asserted expressly by renowned political writers ofopposite parties or sects. - A sovereign government of one, or asovereign government of a number in its collegiate and sovereigncapacity, has no legal rights (in the proper acceptation of the term)against its own subjects. - 'Right is might.' - 'Right' as meaning'faculty,' and 'right' as meaning 'justice.' - 'Right' as meaning 'faculty,'and 'right' as meaning 'law.' - From an appearance of a sovereigngovernment before a tribunal of its own, we cannot infer that thegovernment lies under legal duties, or has legal rights against its ownsubjects. - Though a sovereign government of one, or a sovereigngovernment of a number in its collegiate and sovereign capacity,cannot have legal rights against its own subjects, it may have a legalright against a subject or subjects of another sovereign government. -The origin or causes of political government and society. - Theproper purpose or end of political government and society, or thepurpose or end for which they ought to exist. The position 'thatevery government continues through the people's consent* and theposition 'that every government arises through the people's consent*examined and explained. - The hypothesis of the original covenantor the fundamental civil pact. - The distinction of sovereign govern-ments into governments de jure and governments de facto. - Generalstatement of the province of jurisprudence as defined in the fore-going lecture... p. 164.

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Purpose or scope Laws proper, or properly so called, are commands; laws whichand order of the a r e n o t c o m m a n c i s a r e i a w s improper or improperly so called.topics presented by r r r r J

the six ensuing Laws properly so called, with laws improperly so called, may belectures. a p t | v divided m t o ^ four following kinds.

1. The divine laws, or the laws of God: that is to say, the lawswhich are set by God to his human creatures.

2. Positive laws: that is to say, laws which are simply andstrictly so called, and which form the appropriate matter of generaland particular jurisprudence.

3. Positive morality, rules of positive morality, or positive moralrules.

4. Laws metaphorical or figurative, or merely metaphorical orfigurative.

The divine laws and positive laws are laws properly so called. -Of positive moral rules, some are laws properly so called, butothers are laws improper. The positive moral rules which arelaws improperly so called, may be styled laws or rules set orimposed by opinion: for they are merely opinions or sentimentsheld or felt by men in regard to human conduct. A law set byopinion and a law imperative and proper are allied by analogymerely; although the analogy by which they are allied is strongor close. - Laws metaphorical or figurative, or merely metaphoricalor figurative, are laws improperly so called. A law metaphoricalor figurative and a law imperative and proper are allied by analogymerely; and the analogy by which they are allied is slender orremote.

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Consequently, positive laws (the appropriate matter ofjurisprudence) are related in the way of resemblance, or by closeor remote analogies, to the following objects, i. In the way ofresemblance, they are related to the laws of God. 2. In the wayof resemblance, they are related to those rules of positive moralitywhich are laws properly so called: And by a close or stronganalogy, they are related to those rules of positive morality whichare laws set by opinion. 3. By a remote or slender analogy, theyare related to laws metaphorical, or laws merely metaphorical.

The principal purpose or scope of the six ensuing lectures, isto distinguish positive laws (the appropriate matter ofjurisprudence) from the objects now enumerated: objects withwhich they are connected by ties of resemblance and analogy;with which they are further connected by the common name of'laws;' and with which, therefore, they often are blended andconfounded. And, since such is the principal purpose of the sixensuing lectures, I style them, considered as a whole, 'the provinceof jurisprudence determined.' For, since such is their principalpurpose, they affect to describe the boundary which severs theprovince of jurisprudence from the regions lying on its confines.

The way which I take in order to the accomplishment of thatpurpose, may be stated shortly thus.

I. I determine the essence or nature which is common to alllaws that are laws properly so called: In other words, I determinethe essence or nature of a law imperative and proper.

II. I determine the respective characters of the four severalkinds into which laws may be aptly divided: Or (changing thephrase) I determine the appropriate marks by which laws of eachkind are distinguished from laws of the others.

And here I remark, by the by, that, examining the respectivecharacters of those four several kinds, I found the following theorder wherein I could explain them best: First, the characters ordistinguishing marks of the laws of God; secondly, the charactersor distinguishing marks of positive moral rules; thirdly, the charac-ters or distinguishing marks of laws metaphorical or figurative;fourthly and lastly, the characters or distinguishing marks ofpositive laws, or laws simply and strictly so called.

By determining the essence or nature of a law imperative andproper, and by determining the respective characters of those four

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several kinds, I determine positively and negatively the appropriatematter of jurisprudence. I determine positively what that matteris; and I distinguish it from various objects which are variouslyrelated to it, and with which it not unfrequently is blended andconfounded. I show moreover its affinities with those variousrelated objects: affinities that ought to be conceived as preciselyand clearly as may be, inasmuch as there are numerous portionsof the rationale of positive law to which they are the only orprincipal key.

Having suggested the principal purpose of the following treatise,I now will indicate the topics with which it is chiefly concerned,and also the order wherein it presents them to the reader.

I. In the first of the six lectures which immediately follow, Istate the essentials of a law or rule (taken with the largestsignification that can be given to the term properly). In otherwords, I determine the essence or nature which is common toall laws that are laws properly so called.

Determining the essence or nature of a law imperative andproper, I determine implicitly the essence or nature of a command;and I distinguish such commands as are laws or rules from suchcommands as are merely occasional or particular. Determiningthe nature of a command, I fix the meanings of the terms whichthe term 'command' implies: namely, 'sanction' or 'enforcementof obedience;' 'duty' or 'obligation;' 'superior and inferior.'

II.(a) In the beginning of the second lecture, I briefly determinethe characters or marks by which the laws of God are distinguishedfrom other laws.

In the beginning of the same lecture, I briefly divide the laws,and the other commands of the Deity, into two kinds: the revealedor express, and the unrevealed or tacit.

Having briefly distinguished his revealed from his unrevealedcommands, I pass to the nature of the signs or index throughwhich the latter are manifested to Man. Now, concerning thenature of the index to the tacit commands of the Deity, thereare three theories or three hypotheses: First, the pure hypothesisor theory of general utility; secondly, the pure hypothesis ortheory of a moral sense; thirdly, a hypothesis or theory mixed or

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compounded of the others. And with a statement and explanationof the three hypotheses or theories, the greater portion of thesecond lecture, and the whole of the third and fourth lectures, areexclusively or chiefly occupied.

That exposition of the three hypotheses or theories, may seemsomewhat impertinent to the subject and scope of my Course.But in a chain of systematical lectures concerned with the rationaleof jurisprudence, such an exposition is a necessary link.

Of the principles and distinctions involved by the rationale ofjurisprudence, or of the principles and distinctions occurring inthe writings of jurists, there are many which could not beexpounded correctly and clearly, if the three hypotheses or theorieshad not been expounded previously. For example: Positive lawand morality are distinguished by modern jurists into law naturaland law positive: that is to say, into positive law and moralityfashioned on the law of God, and positive law and morality ofpurely human origin. And this distinction of law and moralityinto law natural and law positive, nearly tallies with a distinctionwhich runs through the Pandects and Institutes, and which wastaken by the compilers from the jurists who are styled 'classical.'By the jurists who are styled 'classical5 (and of excerpts fromwhose writings the Pandects are mainly composed), jus civile isdistinguished from jus gentium, or jus omnium gentium. For (saythey) a portion of the positive law which obtains in a particularnation, is peculiar to that community: And, being peculiar to thatcommunity it may be styled jus civile, or jus proprium ipsius civitatis.But, besides such portions of positive law as are respectivelypeculiar to particular nations or states, there are rules of positivelaw which obtain in all nations, and rules of positive moralitywhich all mankind observe: and since these legal rules obtain inall nations, and since these moral rules are observed by allmankind, they may be styled the jus omnium gentium, or thecommune omnium hominum jus. Now these universal rules, beinguniversal rules, cannot be purely or simply of human inventionand position. They rather are made by men on laws coming fromGod, or from the intelligent and rational Nature which is thesoul and the guide of the universe. They are not so properlylaws of human device and institution, as divine or natural lawsclothed with human sanctions. But the legal and moral rules

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which are peculiar to particular nations, are purely or simply ofhuman invention and position. Inasmuch as they are partial andtransient, and not universal and enduring, they hardly arefashioned by their human authors on divine or natural models. -Now, without a previous knowledge of the three hypotheses inquestion, the worth of the two distinctions to which I have brieflyalluded, cannot be known correctly, and cannot be estimated truly.Assuming the pure hypothesis of a moral sense, or assuming thepure hypothesis of general utility, those distinctions are absurd,or are purposeless and idle subtilties. But, assuming the hypothesiscompounded of the others, those distinctions are significant, andare also of considerable moment.

Besides, the divine law is the measure or test of positive lawand morality: or (changing the phrase) law and morality, in sofar as they are what they ought to be, conform, or are notrepugnant, to the law of God. Consequently, an all-importantobject of the science of ethics (or, borrowing the language ofBentham, 'the science of deontology') is to determine the natureof the index to the tacit commands of the Deity, or the natureof the signs or proofs through which those commands may beknown. - I mean by 'the science of ethics' (or by 'the scienceof deontology'), the science of law and morality as they respectivelyought to be: or (changing the phrase), the science of law andmorality as they respectively must be if they conform to their measureor test. That department of the science of ethics, which is con-cerned especially with positive law as it ought to be, is styled thescience of legislation: that department of the science of ethics,which is concerned especially with positive morality as it oughtto be, has hardly gotten a name perfectly appropriate and distinc-tive. - Now, though the science of legislation (or of positive lawas it ought to be) is not the science of jurisprudence (or of positivelaw as it is), still the sciences are connected by numerous andindissoluble ties. Since, then, the nature of the index to the tacitcommand of the Deity is an all-important object of the scienceof legislation, it is a fit and important object of the kindredscience of jurisprudence.

There are certain current and important misconceptions of thetheory of general utility: There are certain objections resting onthose misconceptions, which frequently are urged against it: There

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are also considerable difficulties with which it really is embar-rassed. Labouring to rectify those misconceptions, to answer thoseobjections, and to solve or extenuate those difficulties, I probablydwell upon the theory somewhat longer than I ought. Deeplyconvinced of its truth and importance, and therefore earnestlyintent on commending it to the minds of others, I probablywander into ethical disquisitions which are not precisely in keepingwith the subject and scope of my Course. If I am guilty of thisdeparture from the subject and scope of my Course, the absorbinginterest of the purpose which leads me from my proper path, willexcuse, to indulgent readers, my offence against rigorous logic.

II.(b) At the beginning of the fifth lecture, I distribute laws orrules under two classes: First, laws properly so called, with suchimproper laws as are closely analogous to the proper; secondly,those improper laws which are remotely analogous to the proper,and which I style, therefore, laws metaphorical or figurative. - Ialso distribute laws proper, with such improper laws as are closelyanalogous to the proper, under three classes: namely, the lawsproperly so called which I style the laws of God; the laws properlyso called which I style positive laws; and the laws properly socalled, with the laws improperly so called, which I style positivemorality or positive moral rules. - I assign moreover my reasonsfor marking those several classes with those respective names.

Having determined, in preceding lectures, the characters ordistinguishing marks of the divine laws, I determine, in the fifthlecture, the characters or distinguishing marks of positive moralrules: that is to say, such of the laws or rules set by men to menas are not armed with legal sanctions; or such of those laws orrules as are not positive laws, or are not appropriate matter forgeneral or particular jurisprudence. - Having determined thedistinguishing marks of positive moral rules, I determine therespective characters of their two dissimilar kinds: namely, thepositive moral rules which are laws imperative and proper, andthe positive moral rules which are laws set by opinion.

The divine law, positive law, and positive morality, are mutuallyrelated in various ways. To illustrate their mutual relations, Iadvert, in the fifth lecture, to the cases wherein they agree, whereinthey disagree without conflicting, and wherein they disagree andconflict.

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I show, in the same lecture, that my distribution of lawsproper, and of such improper laws as are closely analogous tothe proper, tallies, in the main, with a division of laws which isgiven incidentally by Locke in his Essay on HumanUnderstanding.

II.(c) At the end of the same lecture, I determine the charactersor distinguishing marks of laws metaphorical or figurative. And Ishow that laws which are merely laws through metaphors, areblended and confounded, by writers of celebrity, with laws impera-tive and proper.

II.(d) In the sixth and last lecture, I determine the charactersof laws positive: that is to say, laws which are simply and strictlyso called, and which form the appropriate matter of general andparticular jurisprudence.

Determining the characters of positive laws, I determineimplicitly the notion of sovereignty, with the implied or correlativenotion of independent political society. For the essential differ-ence of a positive law (or the difference that severs it from alaw which is not a positive law) may be stated generally in thefollowing manner. Every positive law or every law simply andstrictly so called, is set by a sovereign person, or a sovereignbody of persons, to a member or members of the independentpolitical society wherein that person or body is sovereign orsupreme. Or (changing the phrase) it is set by a monarch, orsovereign number, to a person or persons in a state of subjectionto its author.

To elucidate the nature of sovereignty, and of the independentpolitical society that sovereignty implies, I examine various topicswhich I arrange under the following heads. First, the possibleforms or shapes of supreme political government; secondly, thelimits, real or imaginary, of supreme political power; thirdly, theorigin or causes of political government and society. Examiningthose various topics, I complete my description of the limit orboundary by which positive law is severed from positive morality.For I distinguish them at certain points whereat they seeminglyblend, or whereat the line which divides them is not easilyperceptible.

The essential difference of a positive law (or the differencethat severs it from a law which is not a positive law) may be

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Analysis of Lectures

stated generally as I have stated it above. But the foregoinggeneral statement of that essential difference is open to certaincorrectives. And with a brief allusion to those correctives, I closethe sixth and last lecture.

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Lecture I.

We purpose ofthe followingattempt todetermine the

jurisprudence,stated or

Law: what, inmostcomprehensiveliteral sense.

THE matter of jurisprudence is positive law: law, simply and strictlyso called: or law set by political superiors to political inferiors.But positive law (or law, simply and strictly so called) is oftenconfounded with objects to which it is related by resemblance, andwith objects to which it is related in the way of analogy: withobjects which are also signified, properly and improperly, by thelarge and vague expression law. To obviate the difficulties spring-ing from that confusion, I begin my projected Course withdetermining the province of jurisprudence, or with distinguishingthe matter of jurisprudence from those various related objects:trying to define the subject of which I intend to treat, before Iendeavour to analyse its numerous and complicated parts.

[A law, in the most general and comprehensive acceptation inwhich the term, in its literal meaning, is employed, may be saidto be a rule laid down for the guidance of an intelligent beingby an intelligent being having power over him. Under this defi-nition are included, and without impropriety, several species. Itis necessary to define accurately the line of demarcation whichseparates these species from one another, as much mistiness andintricacy has been infused into the science of jurisprudence bytheir being confounded or not clearly distinguished. In the com-prehensive sense above indicated, or in the largest meaning whichit has, without extension by metaphor or analogy,] the term lawembraces the following objects: - Laws set by God to his humancreatures, and laws set by men to men.

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Lecture I.

The whole or a portion of the laws set by God to men is Law of God.frequently styled the law of nature, or natural law: being, in truth,the only natural law of which it is possible to speak without ametaphor, or without a blending of objects which ought to bedistinguished broadly. But, rejecting the appellation Law of Natureas ambiguous and misleading, I name those laws or rules, asconsidered collectively or in a mass, the Divine law, or the lawof God.

Laws set by men to men are of two leading or principal classes: Human laws.classes which are often blended, although they differ extremely; Tm classes'and which, for that reason, should be severed precisely, andopposed distinctly and conspicuously.

Of the laws or rules set by men to men, some are established ist class.by political superiors, sovereign and subject: by persons exercising

i i i * i i • Laws set by

supreme and subordinate government, in independent nations, or pouticaiindependent political societies. The aggregate of the rules thus superiors,established, or some aggregate forming a portion of that aggregate,is the appropriate matter of jurisprudence, general or particular.To the aggregate of the rules thus established, or to some aggre-gate forming a portion of that aggregate, the term law, as usedsimply and strictly, is exclusively applied. But, as contradistin-guished to natural law, or to the law of nature (meaning, by thoseexpressions, the law of God), the aggregate of the rules, estab-lished by political superiors, is frequently styled positive law, orlaw existing by position. As contradistinguished to the rules whichI style positive morality, and on which I shall touch immediately,the aggregate of the rules, established by political superiors, mayalso be marked commodiously with the name of positive law. Forthe sake, then, of getting a name brief and distinctive at once,and agreeably to frequent usage, I style that aggregate of rules,or any portion of that aggregate, positive law. though rules, whichare not established by political superiors, are also positive, or existby position, if they be rules or laws, in the proper signification ofthe term.

Though some of the laws or rules, which are set by men to men, 2nd class. Lawsare established by political superiors, others are not established by set

ol^ca^u n£ors

political superiors, or are not established by political superiors, inthat capacity or character.

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[Closely analogous to human laws of this second class, are a setrdoselnaio °f °bie c t s frequently but improperly termed lams, being rules set andtermed laws. enforced by mere opinion, that is, by the opinions or sentiments held

or felt by an indeterminate body of men in regard to human con-duct. Instances of such a use of the term lam are the expressions -'The law of honour;' 'The law set by fashion;' and rules of this spec-ies constitute much of what is usually termed 'International law.'

The two last The aggregate of human laws properly so called belonging toplaced in one class ^ s e c o n c [ of ^ c i a s s e s above mentioned, with the aggregate ofunder trie name *-"-' v

positive morality, objects improperly but by close analogy termed laws, I place togetherin a common class, and denote them by the term] positive morality.The name morality severs them from positive lam, while the epithetpositive disjoins them from the lam of God. And to the end ofobviating confusion, it is necessary or expedient that they shouldbe disjoined from the latter by that distinguishing epithet. Forthe name morality (or morals), when standing unqualified or alone,denotes indifferently either of the following objects: namely, posi-tive morality as it is, or without regard to its merits; and positivemorality as it mould be, if it conformed to the law of God, andwere, therefore, deserving of approbation.

Objects [Besides the various sorts of rules which are included in themetaphorically literal acceptation of the term law, and those which are by a closetermed laws. , ., . , t . i 1 1 ,

and striking analogy, though improperly, termed laws, there arenumerous applications of the term law, which] rest upon a slenderanalogy and are merely metaphorical or figurative. Such is thecase when we talk of lams observed by the lower animals; of lamsregulating the growth or decay of vegetables; of lams determiningthe movements of inanimate bodies or masses. For where intelli-gence is not, or where it is too bounded to take the name ofreason, and, therefore, is too bounded to conceive the purpose ofa law, there is not the mill which law can work on, or whichduty can incite or restrain. Yet through these misapplications ofa name, flagrant as the metaphor is, has the field of jurisprudenceand morals been deluged with muddy speculation.

[Having] suggested the purpose of my attempt to determine theprovince of jurisprudence: to distinguish positive law, the appropri-ate matter of jurisprudence, from the various objects to which itis related by resemblance, and to which it is related, nearly orremotely, by a strong or slender analogy: I shall [now] state the

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Lecture I.

essentials of a law or rule (taken with the largest significationwhich can be given to the term properly).

Every law or rule (taken with the largest signification which can Lam or rulesbe given to the term properly) is a command. Or, rather, laws or ^J r lJ r /^rules, properly so called, are a species of commands. species of

Now, since the term command comprises the term law, the first commands-is the simpler as well as the larger of the two. But, simple as itis, it admits of explanation. And, since it is the key to the sciencesof jurisprudence and morals, its meaning should be analysed withprecision.

Accordingly, I shall endeavour, in the first instance, to analyzethe meaning of 'command:' an analysis which, I fear, will task thepatience of my hearers, but which they will bear with cheerfulness,or, at least, with resignation, if they consider the difficulty ofperforming it. The elements of a science are precisely the partsof it which are explained least easily. Terms that are the largest,and, therefore, the simplest of a series, are without equivalentexpressions into which we can resolve them concisely. And whenwe endeavour to define them, or to translate them into termswhich we suppose are better understood, we are forced uponawkward and tedious circumlocutions.

If you express or intimate a wish that I shall do or forbear The meaning offrom some act, and if you will visit me with an evil in case I the term _,

# J command

comply not with your wish, the expression or intimation of yourwish is a command. A command is distinguished from othersignifications of desire, not by the style in which the desire issignified, but by the power and the purpose of the party command-ing to inflict an evil or pain in case the desire be disregarded.If you cannot or will not harm me, in case I comply not withyour wish, the expression of your wish is not a command, althoughyou utter your wish in imperative phrase. If you are able andwilling to harm me in case I comply not with your wish, theexpression of your wish amounts to a command, although youare prompted by a spirit of courtesy to utter it in the shape ofa request. 'Preces erant, sed quibus contradici non posset.' Such isthe language of Tacitus, when speaking of a petition by thesoldiery to a son and lieutenant of Vespasian.

A command, then, is a signification of desire. But a commandis distinguished from other significations of desire by this peculiar-

2 1

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The meaning ofthe term duty.

The termscommand andduty arecorrelative.

The meaning ofthe term sanction.

To the existence ofa command, aduty, and asanction, aviolent motive tocompliance is notrequisite.

ity: that the party to whom it is directed is liable to evil fromthe other, in case he comply not with the desire.

Being liable to evil from you if I comply not with a wish whichyou signify, I am bound or obliged by your command, or I lieunder a duty to obey it. If, in spite of that evil in prospect, Icomply not with the wish which you signify, I am said to disobeyyour command, or to violate the duty which it imposes.

Command and duty are, therefore, correlative terms: the mean-ing denoted by each being implied or supposed by the other. Or(changing the expression) wherever a duty lies, a command hasbeen signified; and whenever a command is signified, a duty isimposed.

Concisely expressed, the meaning of the correlative expressionsis this. He who will inflict an evil in case his desire be disregarded,utters a command by expressing or intimating his desire: He whois liable to the evil in case he disregard the desire, is bound orobliged by the command.

The evil which will probably be incurred in case a commandbe disobeyed or (to use an equivalent expression) in case a dutybe broken, is frequently called a sanction, or an enforcement ofobedience. Or (varying the phrase) the command or the duty issaid to be sanctioned or enforced by the chance of incurring theevil.

Considered as thus abstracted from the command and the dutywhich it enforces, the evil to be incurred by disobedience isfrequently styled a punishment. But, as punishments, strictly socalled, are only a class of sanctions, the term is too narrow toexpress the meaning adequately.

I observe that Dr. Paley, in his analysis of the term obligation,lays much stress upon the violence of the motive to compliance.In so far as I can gather a meaning from his loose and inconsistentstatement, his meaning appears to be this: that unless the motiveto compliance be violent or intense, the expression or intimationof a wish is not a command, nor does the party to whom it isdirected lie under a duty to regard it.

If he means, by a violent motive, a motive operating withcertainty, his proposition is manifestly false. The greater the evilto be incurred in case the wish be disregarded, and the greaterthe chance of incurring it on that same event, the greater, no

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Lecture I.

doubt, is the chance that the wish will not be disregarded. But noconceivable motive will certainly determine to compliance, or noconceivable motive will render obedience inevitable. If Paley'sproposition be true, in the sense which I have now ascribed toit, commands and duties are simply impossible. Or, reducing hisproposition to absurdity by a consequence as manifestly false,commands and duties are possible, but are never disobeyed orbroken.

If he means by a violent motive, an evil which inspires fear,his meaning is simply this: that the party bound by a commandis bound by the prospect of an evil. For that which is not fearedis not apprehended as an evil; or (changing the shape of theexpression) is not an evil in prospect.

The truth is, that the magnitude of the eventual evil, and themagnitude of the chance of incurring it, are foreign to the matterin question. The greater the eventual evil, and the greater thechance of incurring it, the greater is the efficacy of the command,and the greater is the strength of the obligation: Or (substitutingexpressions exactly equivalent), the greater is the chance that thecommand will be obeyed, and that the duty will not be broken.But where there is the smallest chance of incurring the smallestevil, the expression of a wish amounts to a command, and,therefore, imposes a duty. The sanction, if you will, is feeble orinsufficient; but still there is a sanction, and, therefore, a dutyand a command.

By some celebrated writers (by Locke, Bentham, and, I think, Rewards are notPaley), the term sanction, or enforcement of obedience, is applied to sanctlons-conditional good as well as to conditional evil: to reward as wellas to punishment. But, with all my habitual veneration for thenames of Locke and Bentham, I think that this extension of theterm is pregnant with confusion and perplexity.

Rewards are, indisputably, motives to comply with the wishesof others. But to talk of commands and duties as sanctioned orenforced by rewards, or to talk of rewards as obliging or constrainingto obedience, is surely a wide departure from the establishedmeaning of the terms.

If you expressed a desire that / should render a service, andif you proffered a reward as the motive or inducement to renderit, you would scarcely be said to command the service, nor should

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The meaning ofthe termcommand, brieflyre-stated.

The inseparableconnexion of thethree terms,command, dutyand sanction.

/, in ordinary language, be obliged to render it. In ordinarylanguage, you would promise me a reward, on condition of myrendering the service, whilst / might be incited or persuaded torender it by the hope of obtaining the reward.

Again: If a law hold out a reward, as an inducement to dosome act, an eventual right is conferred, and not an obligationimposed, upon those who shall act accordingly: The imperativepart of the law being addressed or directed to the party whomit requires to render the reward.

In short, I am determined or inclined to comply with the wishof another, by the fear of disadvantage or evil. I am also deter-mined or inclined to comply with the wish of another, by thehope of advantage or good. But it is only by the chance ofincurring evil, that I am bound or obliged to compliance. It is onlyby conditional evil, that duties are sanctioned or enforced. It is thepower and the purpose of inflicting eventual evil, and not thepower and the purpose of imparting eventual good, which givesto the expression of a wish the name of a command.

If we put reward into the import of the term sanction, we mustengage in a toilsome struggle with the current of ordinary speech;and shall often slide unconsciously, notwithstanding our effortsto the contrary, into the narrower and customary meaning.

It appears, then, from what has been premised, that the ideasor notions comprehended by the term command are the following,i. A wish or desire conceived by a rational being, that anotherrational being shall do or forbear. 2. An evil to proceed from theformer, and to be incurred by the latter, in case the latter complynot with the wish. 3. An expression or intimation of the wish bywords or other signs.

It also appears from what has been premised, that command,duty, and sanction are inseparably connected terms: that eachembraces the same ideas as the others, though each denotes thoseideas in a peculiar order or series.

'A wish conceived by one, and expressed or intimated toanother, with an evil to be inflicted and incurred in case the wishbe disregarded,' are signified directly and indirectly by each ofthe three expressions. Each is the name of the same complexnotion.

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Lecture I.

But when I am talking directly of the expression or intimation The manner ofof the wish, I employ the term command: The expression or that connexion-intimation of the wish being presented prominently to my hearer;whilst the evil to be incurred, with the chance of incurring it,are kept (if I may so express myself) in the background of mypicture.

When I am talking directly of the chance of incurring the evil,or (changing the expression) of the liability or obnoxiousness tothe evil, I employ the term duty, or the term obligation: Theliability or obnoxiousness to the evil being put foremost, and therest of the complex notion being signified implicitly.

When I am talking immediately of the evil itself, I employ theterm sanction, or a term of the like import: The evil to be incurredbeing signified directly; whilst the obnoxiousness to that evil, withthe expression or intimation of the wish, are indicated indirectlyor obliquely.

To those who are familiar with the language of logicians(language unrivalled for brevity, distinctness, and precision), I canexpress my meaning accurately in a breath. - Each of the threeterms signifies the same notion; but each denotes a different partof that notion, and connotes the residue.

Commands are of two species. Some are laws or rules. The Laws or rulesothers have not acquired an appropriate name, nor does language ^Im^n^thichafford an expression which will mark them briefly and precisely, are occasional orI must, therefore, note them as well as I can by the ambiguous Partlcular-and inexpressive name of Occasional or particular commands.'

The term laws or rules being not unfrequently applied tooccasional or particular commands, it is hardly possible to describea line of separation which shall consist in every respect withestablished forms of speech. But the distinction between laws andparticular commands may, I think, be stated in the followingmanner.

By every command, the party to whom it is directed is obligedto do or to forbear.

Now where it obliges generally to acts or forbearances of a class,a command is a law or rule. But where it obliges to a specific actor forbearance, or to acts or forbearances which it determinesspecifically or individually, a command is occasional or particular.

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In other words, a class or description of acts is determined by alaw or rule, and acts of that class or description are enjoined orforbidden generally. But where a command is occasional or par-ticular, the act or acts, which the command enjoins or forbids,are assigned or determined by their specific or individual naturesas well as by the class or description to which they belong.

The statement which I have given in abstract expressions I willnow endeavour to illustrate by apt examples.

If you command your servant to go on a given errand, or not toleave your house on a given evening, or to rise at such an hour onsuch a morning, or to rise at that hour during the next week ormonth, the command is occasional or particular. For the act or actsenjoined or forbidden are specially determined or assigned.

But if you command him simply to rise at that hour, or to riseat that hour always, or to rise at that hour till further orders, itmay be said, with propriety, that you lay down a rule for theguidance of your servant's conduct. For no specific act is assignedby the command, but the command obliges him generally to actsof a determined class.

If a regiment be ordered to attack or defend a post, or to quella riot, or to march from their present quarters, the command isoccasional or particular. But an order to exercise daily till furtherorders shall be given would be called a general order, and mightbe called a rule.

If Parliament prohibited simply the exportation of corn, eitherfor a given period or indefinitely, it would establish a law or rule:a kind or sort of acts being determined by the command, andacts of that kind or sort being generally forbidden. But an orderissued by Parliament to meet an impending scarcity, and stoppingthe exportation of corn then shipped and in port, would not be alaw or rule, though issued by the sovereign legislature. The orderregarding exclusively a specified quantity of corn, the negative actsor forbearances, enjoined by the command, would be determinedspecifically or individually by the determinate nature of theirsubject.

As issued by a sovereign legislature, and as wearing the formof a law, the order which I have now imagined would probablybe called a law. And hence the difficulty of drawing a distinctboundary between laws and occasional commands.

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Lecture I.

Again: An act which is not an offence, according to the existinglaw, moves the sovereign to displeasure: and, though the authorsof the act are legally innocent or unoffending, the sovereigncommands that they shall be punished. As enjoining a specificpunishment in that specific case, and as not enjoining generallyacts or forbearances of a class, the order uttered by the sovereignis not a law or rule.

Whether such an order would be called a law, seems to dependupon circumstances which are purely immaterial: immaterial, thatis, with reference to the present purpose, though material withreference to others. If made by a sovereign assembly deliberately,and with the forms of legislation, it would probably be called alaw. If uttered by an absolute monarch, without deliberation orceremony, it would scarcely be confounded with acts of legislation,and would be styled an arbitrary command. Yet, on either ofthese suppositions, its nature would be the same. It would notbe a law or rule, but an occasional or particular command of thesovereign One or Number.

To conclude with an example which best illustrates the distinc-tion, and which shows the importance of the distinction mostconspicuously, judicial commands are commonly occasional or par-ticular, although the commands which they are calculated toenforce are commonly laws or rules.

For instance, the lawgiver commands that thieves shall behanged. A specific theft and a specified thief being given, thejudge commands that the thief shall be hanged, agreeably to thecommand of the lawgiver.

Now the lawgiver determines a class or description of acts;prohibits acts of the class generally and indefinitely; and com-mands, with the like generality, that punishment shall followtransgression. The command of the lawgiver is, therefore, a lawor rule. But the command of the judge is occasional or particular.For he orders a specific punishment, as the consequence of aspecific offence.

According to the line of separation which I have now attemptedto describe, a law and a particular command are distinguishedthus. - Acts or forbearances of a class are enjoined generally bythe former. Acts determined specifically, are enjoined or forbiddenby the latter.

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A different line of separation has been drawn by Blackstoneand others. According to Blackstone and others, a law and aparticular command are distinguished in the following manner. -A law obliges generally the members of the given community, ora law obliges generally persons of a given class. A particularcommand obliges a single person, or persons whom it determinesindividually.

That laws and particular commands are not to be distinguishedthus, will appear on a moment's reflection.

For, first, commands which oblige generally the members ofthe given community, or commands which oblige generally personsof given classes, are not always laws or rules.

[Thus, in the case already supposed; that in which the sovereigncommands that all corn actually shipped for exportation be stoppedand detained; the command is obligatory upon the whole com-munity, but as it obliges them only to a set of acts individuallyassigned, it is not a law. Again, suppose the sovereign to issuean order, enforced by penalties, for a general mourning,] onoccasion of a public calamity. Now, though it is addressed to thecommunity at large, the order is scarcely a rule, in the usualacceptation of the term. For, though it obliges generally themembers of the entire community, it obliges to acts which itassigns specifically, instead of obliging generally to acts or for-bearances of a class. If the sovereign commanded that black shouldbe the dress of his subjects, his command would amount to alaw. But if he commanded them to wear it on a specified occasion,his command would be merely particular.

And, secondly, & command which obliges exclusively personsindividually determined, may amount, notwithstanding, to a lawor rule.

For example, A father may set a rule to his child or children:a guardian, to his ward: a master, to his slave or servant. Andcertain of God's lams were as binding on the first man, as theyare binding at this hour on the millions who have sprung fromhis loins.

Most, indeed, of the laws which are established by politicalsuperiors, or most of the laws which are simply and strictly socalled, oblige generally the members of the political community,or oblige generally persons of a class. To frame a system of dutiesfor every individual of the community, were simply impossible: and

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Lecture I.

if it were possible, it were utterly useless. Most of the lawsestablished by political superiors are, therefore, general in a twofoldmanner: as enjoining or forbidding generally acts of kinds orsorts; and as binding the whole community, or, at least, wholeclasses of its members.

But if we suppose that Parliament creates and grants an office,and that Parliament binds the grantee to services of a givendescription, we suppose a law established by political superiors,and yet exclusively binding a specified or determinate person.

Laws established by political superiors, and exclusively bindingspecified or determinate persons, are styled, in the language ofthe Roman jurists, privilegia. Though that, indeed, is a namewhich will hardly denote them distinctly: for, like most of theleading terms in actual systems of law, it is not the name of adefinite class of objects, but of a heap of heterogeneous objects.1

It appears, from what has been premised, that a law, properly The definition ofso called, may be defined in the following manner. a law °r mle>

7 J a properly so

A law is a command which obliges a person or persons. called.But, as contradistinguished or opposed to an occasional or

particular command, a law is a command which obliges a personor persons, and obliges generally to acts or forbearances of a class.

In language more popular but less distinct and precise, a lawis a command which obliges a person or persons to a course ofconduct.

Laws and other commands are said to proceed from superiors. The meaning ofand to bind or oblige inferiors. I will, therefore, analyze the JJ^Tiferiormeaning of those correlative expressions; and will try to strip and inferior,them of a certain mystery, by which that simple meaning appearsto be obscured.

Superiority is often synonymous with precedence or excellence. Wetalk of superiors in rank; of superiors in wealth; of superiors invirtue: comparing certain persons with certain other persons; and1 Where a privilegium merely imposes a duty, it exclusively obliges a determinate

person or persons. But where a privilegium confers a right, and the right conferredavails against the world at large, the law is privilegium as viewed from a certainaspect, but is also a general law as viewed from another aspect. In respect of theright conferred, the law exclusively regards a determinate person, and, therefore,is privilegium. In respect of the duty imposed, and corresponding to the rightconferred, the law regards generally the members of the entire community.

This I shall explain particularly at a subsequent point of my Course, when Iconsider the peculiar nature of so-called privilegia, or of so-called private laws.

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meaning that the former precede or excel the latter in rank, inwealth, or in virtue.

But, taken with the meaning wherein I here understand it, theterm superiority signifies might: the power of affecting others withevil or pain, and of forcing them, through fear of that evil, tofashion their conduct to one's wishes.

For example, God is emphatically the superior of Man. For hispower of affecting us with pain, and of forcing us to comply withhis will, is unbounded and resistless.

To a limited extent, the sovereign One or Number is thesuperior of the subject or citizen: the master, of the slave orservant: the father, of the child.

In short, whoever can oblige another to comply with his wishes,is the superior of that other, so far as the ability reaches: Theparty who is obnoxious to the impending evil, being, to that sameextent, the inferior.

The might or superiority of God, is simple or absolute. Butin all or most cases of human superiority, the relation of superiorand inferior, and the relation of inferior and superior, are recipro-cal. Or (changing the expression) the party who is the superioras viewed from one aspect, is the inferior as viewed from another.

For example, To an indefinite, though limited extent, the mon-arch is the superior of the governed: his power being commonlysufficient to enforce compliance with his will. But the governed,collectively or in mass, are also the superior of the monarch: whois checked in the abuse of his might by his fear of exciting theiranger; and of rousing to active resistance the might which slumbersin the multitude.

A member of a sovereign assembly is the superior of the judge:the judge being bound by the law which proceeds from thatsovereign body. But, in his character of citizen or subject, he isthe inferior of the judge: the judge being the minister of the law,and armed with the power of enforcing it.

It appears, then, that the term superiority (like the terms dutyand sanction) is implied by the term command. For superiority isthe power of enforcing compliance with a wish: and the expressionor intimation of a wish, with the power and the purpose ofenforcing it, are the constituent elements of a command.

'That laws emanate from superiors' is, therefore, an identical

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Lecture I.

proposition. For the meaning which it affects to impart is con-tained in its subject.

If I mark the peculiar source of a given law, or if I mark thepeculiar source of laws of a given class, it is possible that I amsaying something which may instruct the hearer. But to affirm oflaws universally 'that they flow from superiors? or to affirm oflaws universally 'that inferiors are bound to obey them,' is themerest tautology and trifling.

Like most of the leading terms in the science of jurisprudence Laws (improperlyand morals, the term laws is extremely ambiguous. Taken with s°re

ca"of which

the largest signification which can be given to the term properly, commands.laws are a species of commands. But the term is improperly appliedto various objects which have nothing of the imperative character:to objects which are not commands; and which, therefore, are notlaws, properly so called.

Accordingly, the proposition 'that laws are commands' must betaken with limitations. Or, rather, we must distinguish the variousmeanings of the term laws; and must restrict the proposition tothat class of objects which is embraced by the largest significationthat can be given to the term properly.

[I have already indicated, and shall hereafter more fully describe,the objects improperly termed laws, which are not within theprovince of jurisprudence (being either rules enforced by opinionand closely analogous to laws properly so called, or being lawsso called by a metaphorical application of the term merely). Thereare other objects improperly termed laws (not being commands)which yet may properly be included within the province of juris-prudence. These I shall endeavour to particularise: -]

i. Acts on the part of legislatures to explain positive law, canscarcely be called laws, in the proper signification of the term.Working no change in the actual duties of the governed, butsimply declaring what those duties are, they properly are acts ofinterpretation by legislative authority. Or, to borrow an expressionfrom the writers on the Roman Law, they are acts of authenticinterpretation.

But, this notwithstanding, they are frequently styled laws;declaratory laws, or declaratory statutes. They must, therefore, benoted as forming an exception to the proposition 'that laws area species of commands.'

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It often, indeed, happens (as I shall show in the proper place),that laws declaratory in name are imperative in effect: Legislative,like judicial interpretation, being frequently deceptive; and estab-lishing new law, under guise of expounding the old.

2. Laws to repeal laws, and to release from existing duties,must also be excepted from the proposition 'that laws are a speciesof commands.5 In so far as they release from duties imposed byexisting laws, they are not commands, but revocations of com-mands. They authorize or permit the parties, to whom the repealextends, to do or to forbear from acts which they were commandedto forbear from or to do. And, considered with regard to this,their immediate or direct purpose, they are often named permissivelaws, or, more briefly and more properly, permissions.

Remotely and indirectly, indeed, permissive laws are often oralways imperative. For the parties released from duties are restoredto liberties or rights: and duties answering those rights are, there-fore, created or revived.

But this is a matter which I shall examine with exactness, whenI analyze the expressions 'legal right,5 'permission by the sovereignor state,5 and 'civil or political liberty.5

3. Imperfect laws, or laws of imperfect obligation, must alsobe excepted from the proposition 'that laws are a species ofcommands.5

An imperfect law (with the sense wherein the term is used bythe Roman jurists) is a law which wants a sanction, and which,therefore, is not binding. A law declaring that certain acts arecrimes, but annexing no punishment to the commission of actsof the class, is the simplest and most obvious example.

Though the author of an imperfect law signifies a desire, hemanifests no purpose of enforcing compliance with the desire.But where there is not a purpose of enforcing compliance withthe desire, the expression of a desire is not a command. Conse-quently, an imperfect law is not so properly a law, as counsel,or exhortation, addressed by a superior to inferiors.

Examples of imperfect laws are cited by the Roman jurists. Butwith us in England, laws professedly imperative are always (Ibelieve) perfect or obligatory. Where the English legislature affectsto command, the English tribunals not unreasonably presume thatthe legislature exacts obedience. And, if no specific sanction be

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Lecture I.

annexed to a given law, a sanction is supplied by the courts ofjustice, agreeably to a general maxim which obtains in cases ofthe kind.

The imperfect laws, of which I am now speaking, are lawswhich are imperfect, in the sense of the Roman jurists: that is tosay, laws which speak the desires of political superiors, but whichtheir authors (by oversight or design) have not provided withsanctions. Many of the writers on morals, and on the so calledlaw of nature, have annexed a different meaning to the termimperfect. Speaking of imperfect obligations, they commonly meanduties which are not legal: duties imposed by commands of God,or duties imposed by positive morality, as contradistinguished toduties imposed by positive law. An imperfect obligation, in thesense of the Roman jurists, is exactly equivalent to no obligationat all. For the term imperfect denotes simply, that the law wantsthe sanction appropriate to laws of the kind. An imperfect obli-gation, in the other meaning of the expression, is a religious ora moral obligation. The term imperfect does not denote that thelaw imposing the duty wants the appropriate sanction. It denotesthat the law imposing the duty is not a law established by apolitical superior: that it wants that perfect, or that surer or morecogent sanction, which is imparted by the sovereign or state.

I believe that I have now reviewed all the classes of objects, Lam (properly soto which the term laws is improperly applied. The laws (improperly ™^^ t

ich may

so called) which I have here lastly enumerated, are (I think) the imperative.only laws which are not commands, and which yet may be properlyincluded within the province of jurisprudence. But though these,with the so called laws set by opinion and the objects metaphor-ically termed laws, are the only laws which really are not com-mands, there are certain laws (properly so called) which may seemnot imperative. Accordingly, I will subjoin a few remarks uponlaws of this dubious character.

i. There are laws, it may be said, which merely create rights:And, seeing that every command imposes a duty, laws of thisnature are not imperative.

But, as I have intimated already, and shall show completelyhereafter, there are no laws merely creating rights. There are laws,it is true, which merely create duties: duties not correlating withcorrelating rights, and which, therefore may be styled absolute.

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But every law, really conferring a right, imposes expressly ortacitly a relative duty, or a duty correlating with the right. If itspecify the remedy to be given, in case the right shall be infringed,it imposes the relative duty expressly. If the remedy to be givenbe not specified, it refers tacitly to pre-existing law, and clothesthe right which it purports to create with a remedy provided bythat law. Every law, really conferring a right, is, therefore, impera-tive: as imperative, as if its only purpose were the creation of aduty, or as if the relative duty, which it inevitably imposes, weremerely absolute.

The meanings of the term right, are various and perplexed;taken with its proper meaning, it comprises ideas which arenumerous and complicated; and the searching and extensive analy-sis, which the term, therefore, requires, would occupy more roomthan could be given to it in the present lecture. It is not, however,necessary, that the analysis should be performed here. I propose,in my earlier lectures, to determine the province of jurisprudence;or to distinguish the laws established by political superiors, fromthe various laws, proper and improper, with which they are fre-quently confounded. And this I may accomplish exactly enough,without a nice inquiry into the import of the term right.

2. According to an opinion which I must notice incidentallyhere, though the subject to which it relates will be treated directlyhereafter, customary laws must be excepted from the proposition'that laws are a species of commands.'

By many of the admirers of customary laws (and, especially, of theirGerman admirers), they are thought to oblige legally (independentlyof the sovereign or state), because the citizens or subjects haveobserved or kept them. Agreeably to this opinion, they are not thecreatures of the sovereign or state, although the sovereign or state mayabolish them at pleasure. Agreeably to this opinion, they are positivelaw (or law, strictly so called), inasmuch as they are enforced by thecourts of justice: But, that notwithstanding, they exist as positive lawby the spontaneous adoption of the governed, and not by position orestablishment on the part of political superiors. Consequently, cus-tomary laws, considered as positive law, are not commands. And,consequently, customary laws, considered as positive law, are not lawsor rules properly so called.

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Lecture I.

An opinion less mysterious, but somewhat allied to this, is notuncommonly held by the adverse party: by the party which isstrongly opposed to customary law; and to all law made judicially,or in the way of judicial legislation. According to the latter opinion,all judge-made law, or all judge-made law established by subjectjudges, is purely the creature of the judges by whom it is estab-lished immediately. To impute it to the sovereign legislature, orto suppose that it speaks the will of the sovereign legislature, isone of the foolish or knavish fictions with which lawyers, in everyage and nation, have perplexed and darkened the simplest andclearest truths.

I think it will appear, on a moment's reflection, that each ofthese opinions is groundless: that customary law is imperative', inthe proper signification of the term; and that all judge-made lawis the creature of the sovereign or state.

At its origin, a custom is a rule of conduct which the governedobserve spontaneously, or not in pursuance of a law set by apolitical superior. The custom is transmuted into positive law,when it is adopted as such by the courts of justice, and whenthe judicial decisions fashioned upon it are enforced by the powerof the state. But before it is adopted by the courts, and clothedwith the legal sanction, it is merely a rule of positive morality: arule generally observed by the citizens or subjects; but derivingthe only force, which it can be said to possess, from the generaldisapprobation falling on those who transgress it.

Now when judges transmute a custom into a legal rule (ormake a legal rule not suggested by a custom), the legal rulewhich they establish is established by the sovereign legislature. Asubordinate or subject judge is merely a minister. The portionof the sovereign power which lies at his disposition is merelydelegated. The rules which he makes derive their legal force fromauthority given by the state: an authority which the state mayconfer expressly, but which it commonly imparts in the way ofacquiescence. For, since the state may reverse the rules whichhe makes, and yet permits him to enforce them by the power ofthe political community, its sovereign will 'that his rules shallobtain as law5 is clearly evinced by its conduct, though not by itsexpress declaration.

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The admirers of customary law love to trick out their idol withmysterious and imposing attributes. But to those who can see thedifference between positive law and morality, there is nothing ofmystery about it. Considered as rules of positive morality, custom-ary laws arise from the consent of the governed, and not fromthe position or establishment of political superiors. But, consideredas moral rules turned into positive laws, customary laws areestablished by the state: established by the state directly, whenthe customs are promulged in its statutes; established by the statecircuitously, when the customs are adopted by its tribunals.

The opinion of the party which abhors judge-made laws, springsfrom their inadequate conception of the nature of commands.

Like other significations of desire, a command is express ortacit. If the desire be signified by words (written or spoken), thecommand is express. If the desire be signified by conduct (or byany signs of desire which are not words), the command is tacit.

Now when customs are turned into legal rules by decisions ofsubject judges, the legal rules which emerge from the customsare tacit commands of the sovereign legislature. The state, whichis able to abolish, permits its ministers to enforce them: and it,therefore, signifies its pleasure, by that its voluntary acquiescence,'that they shall serve as a law to the governed.'

My present purpose is merely this: to prove that the positivelaw styled customary (and all positive law made judicially) is estab-lished by the state directly or circuitously, and, therefore, isimperative. I am far from disputing, that law made judicially (orin the way of improper legislation) and law made by statute (orin the properly legislative manner) are distinguished by weightydifferences. I shall inquire, in future lectures, what those differ-ences are; and why subject judges, who are properly ministers ofthe law, have commonly shared with the sovereign in the businessof making it.

Lams which are I assume, then, that the only laws which are not imperative,^ tanc* w ^ c n belong to the subject-matter of jurisprudence,] are

the following - i. Declaratory laws, or laws explaining the importof existing positive law. 2. Laws abrogating or repealing existingpositive law. 3. Imperfect laws, or laws of imperfect obligation(with the sense wherein the expression is used by the Romanjurists).

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Lecture L

But the space occupied in the science by these improper lawsis comparatively narrow and insignificant. Accordingly, althoughI shall take them into account so often as I refer to them directly,I shall throw them out of account on other occasions. Or (changingthe expression) I shall limit the term law to laws which areimperative, unless I extend it expressly to laws which are not.

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Lecture II.

The connection ofthe second withthe first lecture.

The Divine lamsor the laws ofGod.

Of the Divinelaws, some arerevealed, andothers areunrevealed.

IN my first lecture, I stated or suggested the purpose and themanner of my attempt to determine the province of jurisprudence:to distinguish positive law, the appropriate matter of jurisprudence,from the various objects to which it is related by resemblance,and to which it is related, nearly or remotely, by a strong orslender analogy.

In pursuance of that purpose, and agreeably to that manner, Istated the essentials of a law or rule (taken with the largestsignification which can be given to the term properly).

In pursuance of that purpose, and agreeably to that manner, Iproceed to distinguish laws set by men to men from those Divinelaws which are the ultimate test of human.

The Divine laws, or the laws of God, are laws set by God tohis human creatures. As I have intimated already, and shall showmore fully hereafter, they are laws or rules, properly so called.

As distinguished from duties imposed by human laws, dutiesimposed by the Divine laws may be called religious duties.

As distinguished from violations of duties imposed by humanlaws, violations of religious duties are styled sins.

As distinguished from sanctions annexed to human laws, thesanctions annexed to the Divine laws may be called religioussanctions. They consist of the evils, or pains, which we may sufferhere or hereafter, by the immediate appointment of God, and asconsequences of breaking his commandments.

Of the Divine laws, or the laws of God, some are revealed orpromulged, and others are unrevealed. Such of the laws of Godas are unrevealed are not unfrequently denoted by the following

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names or phrases: 'the law of nature;' 'natural law;' 'the lawmanifested to man by the light of nature or reason;' 'the laws,precepts, or dictates of natural religion.'

The revealed law of God, and the portion of the law of Godwhich is unrevealed, are manifested to men in different ways, orby different sets of signs.

With regard to the laws which God is pleased to reveal, the Such of theway wherein they are manifested is easily conceived. They are fexpress commands: portions of the word of God: commands signi-fied to men through the medium of human language; and utteredby God directly, or by servants whom he sends to announcethem.

Such of the Divine laws as are unrevealed are laws set by God Such of theto his human creatures, but not through the medium of human Dmne lam as

7 a are unrevealed.

language, or not expressly.These are the only laws which he has set to that portion of

mankind who are excluded from the light of Revelation.These laws are binding upon us (who have access to the truths

of Revelation), in so far as the revealed law has left our dutiesundetermined. For, though his express declarations are the clearestevidence of his will, we must look for many of the duties, whichGod has imposed upon us, to the marks or signs of his pleasurewhich are styled the light of nature. Paley and other divines haveproved beyond a doubt, that it was not the purpose of Revelationto disclose the whole of those duties.

Some we could not know, without the help of Revelation; andthese the revealed law has stated distinctly and precisely. Therest we may know, if we will, by the light of nature or reason;and these the revealed law supposes or assumes. It passes themover in silence, or with a brief and incidental notice. what is the

But if God has given us laws which he has not revealed or '^^fjfpromulged, how shall we know them? What are those signs of as arehis pleasure, which we style the light of nature; and oppose, by ™^that figurative phrase, to express declarations of his will? regard the nature

of that index. Thehypothesis or

The hypotheses or theories which attempt to resolve this ques- theory of a moraltion, may be reduced, I think, to two. ^Jinnate

principles; of aAccording to one of them, there are human actions which all P™ ctical reason'

Oj d commonmankind approve, human actions which all men disapprove; and sense, &i &i

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these universal sentiments arise at the thought of those actions,spontaneously, instantly, and inevitably. Being common to allmankind, and inseparable from the thoughts of those actions,these sentiments are marks or signs of the Divine pleasure. Theyare proofs that the actions which excite them are enjoined orforbidden by the Deity.

The rectitude or pravity of human conduct, or its agreementor disagreement with the laws of God, is instantly inferred fromthese sentiments, without the possibility of mistake. He hasresolved that our happiness shall depend on our keeping hiscommandments: and it manifestly consists with his manifestwisdom and goodness, that we should know them promptly andcertainly. Accordingly, he has not committed us to the guidanceof our slow and fallible reason. He has wisely endowed us withfeelings, which warn us at every step; and pursue us, with theirimportunate reproaches, when we wander from the path of ourduties.

These simple or inscrutable feelings have been compared tothose which we derive from the outward senses, and have beenreferred to a peculiar faculty called the moral sense: though, admit-ting that the feelings exist, and are proofs of the Divine pleasure,I am unable to discover the analogy which suggested the compari-son and the name. The objects or appearances which properlyare perceived through the senses, are perceived immediately, orwithout an inference of the understanding. According to thehypothesis which I have briefly stated or suggested, there is alwaysan inference of the understanding, though the inference is shortand inevitable. From feelings which arise within us when we thinkof certain actions, we infer that those actions are enjoined orforbidden by the Deity.

The hypothesis, however, of a moral sense, is expressed in otherways.

The laws of God, to which these feelings are the index, arenot unfrequently named innate practical principles, or postulates ofpractical reason: or they are said to be written on our hearts, bythe finger of their great Author, in broad and indelible characters.

Common sense (the most yielding and accommodating of phrases)has been moulded and fitted to the purpose of expressing thehypothesis in question. In all their decisions on the rectitude orpravity of conduct (its agreement or disagreement with the unre-

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vealed law), mankind are said to be determined by common sense:this same common sense meaning, in this instance, the simple orinscrutable sentiments which I have endeavoured to describe.

Considered as affecting the soul, when the man thinks especiallyof his own conduct, these sentiments, feelings, or emotions, arefrequently styled his conscience.

According to the other of the adverse theories or hypotheses, The theory orthe laws of God, which are not revealed or promulged, must be h^hem °fgathered by man from the goodness of God, and from the tend-encies of human actions. In other words, the benevolence of God,with the principle of general utility, is our only index or guideto his unrevealed law.

God designs the happiness of all his sentient creatures. Some A brief summaryhuman actions forward that benevolent purpose, or their tendenc- °^e theory of

ies are beneficent or useful. Other human actions are adverse tothat purpose, or their tendencies are mischievous or pernicious.The former, as promoting his purpose, God has enjoined. Thelatter, as opposed to his purpose, God has forbidden. He hasgiven us the faculty of observing; of remembering; of reasoning:and, by duly applying those faculties, we may collect the tendenciesof our actions. Knowing the tendencies of our actions, and know-ing his benevolent purpose, we know his tacit commands.

Such is a brief summary of this celebrated theory. I shouldwander to a measureless distance from the main purpose of my The followinglectures, if I stated all the explanations with which that summary efUmatiMS °f

r J that summary

must be received. But, to obviate the principal misconceptions to briefly introduced.which the theory is obnoxious, I will subjoin as many of thoseexplanations as my purpose and limits will admit.

The theory is this. - Inasmuch as the goodness of God isboundless and impartial, he designs the greatest happiness of allhis sentient creatures: he wills that the aggregate of their enjoy-ments shall find no nearer limit than that which is inevitably setto it by their finite and imperfect nature. From the probableeffects of our actions on the greatest happiness of all, or fromthe tendencies of human actions to increase or diminish thataggregate, we may infer the laws which he has given, but hasnot expressed or revealed. ne tme

Now the tendency of a human action (as its tendency is thus tendency of aunderstood) is the whole of its tendency: the sum of its probable *"JX^7testconsequences, in so far as they are important or material: the sum of that tendency.

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of its remote and collateral, as well as of its direct consequences, inso far as any of its consequences may influence the generalhappiness.

Trying to collect its tendency (as its tendency is thusunderstood), we must not consider the action as if it were singleand insulated, but must look at the class of actions to which itbelongs. The probable specific consequences of doing that singleact, of forbearing from that single act, or of omitting that singleact, are not the objects of the inquiry. The question to be solvedis this: - If acts of the class were generally done, or generallyforborne or omitted, what would be the probable effect on thegeneral happiness or good?

Considered by itself, a mischievous act may seem to be usefulor harmless. Considered by itself, a useful act may seem to bepernicious.

For example, if a poor man steal a handful from the heap ofhis rich neighbour, the act, considered by itself, is harmless orpositively good. One man's property is assuaged with thesuperfluous wealth of another.

But suppose that thefts were general (or that the useful right ofproperty were open to frequent invasions), and mark theresult.

Without security for property, there were no inducement to save.Without habitual saving on the part of proprietors, there were noaccumulation of capital. Without accumulation of capital, there wereno fund for the payment of wages, no division of labour, no elabor-ate and costly machines: there were none of those helps to labourwhich augment its productive power, and, therefore, multiply theenjoyments of every individual in the community. Frequentinvasions of property would bring the rich to poverty; and, whatwere a greater evil, would aggravate the poverty of the poor.

If a single and insulated theft seem to be harmless or good, thefallacious appearance merely arises from this: that the vast majorityof those who are tempted to steal abstain from invasions of property;[and the detriment to security, which is the end produced by a singletheft, is overbalanced and concealed by the mass of wealth, theaccumulation of which is produced by general security.]

Again: If I evade the payment of a tax imposed by a goodgovernment, the specific effects of the mischievous forbearance are

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indisputably useful. For the money which I unduly withhold isconvenient to myself; and, compared with the bulk of the publicrevenue, is a quantity too small to be missed. But the regularpayment of taxes is necessary to the existence of the government.And I, and the rest of the community, enjoy the security whichit gives, because the payment of taxes is rarely evaded.

In the cases now supposed, the act or omission is good, con-sidered as single or insulated; but, considered with the rest ofits class, is evil. In other cases, an act or omission is evil,considered as single or insulated; but, considered with the restof its class, is good.

For example, A punishment, as a solitary fact, is an evil: thepain inflicted on the criminal being added to the mischief of thecrime. But, considered as part of a system, a punishment usefulor beneficient by a dozen or score of punishments, thousands ofcrimes are prevented. With the sufferings of the guilty few, thesecurity of the many is purchased. By the lopping of a peccantmember, the body is saved from decay.

It, therefore, is true generally (for the proposition admits ofexceptions), that, to determine the true tendency of an act, for-bearance, or omission, we must resolve the following question. -What would be the probable effect on the general happiness orgood, if similar acts, forbearances, or omissions were general orfrequent?

Such is the test to which we must usually resort, if we wouldtry the true tendency of an act, forbearance, or omission: Meaning,by the true tendency of an act, forbearance, or omission, the sumof its probable effects on the general happiness or good, or itsagreement or disagreement with the principle of general utility.

But, if this be the ordinary test for trying the tendencies of According to theactions, and if the tendencies of actions be the index to the will f?% °futili1y>

Gods commands

of God, it follows that most of his commands are general or are mostly rules,universal. The useful acts which he enjoins, and the perniciousacts which he prohibits, he enjoins or prohibits, for the mostpart, not singly, but by classes: not by commands which areparticular, or directed to insulated cases; but by laws or ruleswhich are general, and commonly inflexible.

For example, Certain acts are pernicious, considered as a class:or (in other words) the frequent repetition of the act were adverse

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to the general happiness, though, in this or that instance, the actmight be useful or harmless. Further: Such are the motives orinducements to the commission of acts of the class, that, unlesswe were determined to forbearance by the fear of punishment,they would be frequently committed. Now, if we combine thesedata with the wisdom and goodness of God, we must infer thathe forbids such acts, and forbids them without exception. In thetenth, or the hundredth case, the act might be useful: in thenine, or the ninety and nine, the act would be pernicious. If theact were permitted or tolerated in the rare and anomalous case,the motives to forbear in the others would be weakened ordestroyed. In the hurry and tumult of action, it is hard to dis-tinguish justly. To grasp at present enjoyment, and to turn frompresent uneasiness, is the habitual inclination of us all. And thus,through the weakness of our judgments, and the more dangerousinfirmity of our wills, we should frequently stretch the exceptionto cases embraced by the rule.

Consequently, where acts, considered as a class, are useful orpernicious, we must conclude that he enjoins or forbids them,and by a rule which probably is inflexible.

it does not fallow Such, I say, is the conclusion at which we must arrive,^itykethat°we°f suPPosing that the ^ear °f punishment be necessary to incite oruseful action is restrain.

n- F o r * e tendency of an act is one thing: the utility of enjoiningor forbidding it is another thing. There are classes of useful acts,w n i c n it were useless to enjoin; classes of mischievous acts, whichit were useless to prohibit. Sanctions were superfluous. We aresufficiently prone to the useful, and sufficiently averse from themischievous acts, without the motives which are presented to thewill by a lawgiver. Motives natural or spontaneous (or motivesother than those which are created by injunctions and prohibitions)impel us to action in the one case, and hold us to forbearancein the other. In the language of Mr. Locke, 'The mischievousomission or action would bring down evils upon us, which areits natural products or consequences; and which, as natural incon-veniences, operate without a law.'

Now, if the measure or test which I have endeavoured toexP*am De the ordinary measure or test for trying the tendencies

utility, introduced of our actions, the most current and specious of the objections,and stated.

and every

t of a"'Divineprohibition.

A current and

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which are made to the theory of utility, is founded in grossmistake, and is open to triumphant refutation.

The theory, be it always remembered, is this:Our motives to obey the laws which God has given us, are

paramount to all others. For the transient pleasures which wemay snatch, or the transient pains which we may shun, by violatingthe duties which they impose, are nothing in comparison withthe pains by which those duties are sanctioned.

The greatest possible happiness of all his sentient creatures, isthe purpose and effect of those laws. For the benevolence bywhich they were prompted, and the wisdom with which they wereplanned, equal the might which enforces them.

But, seeing that such is their purpose, they embrace the wholeof our conduct: so far, that is, as our conduct may promote orobstruct that purpose; and so far as injunctions and prohibitionsare necessary to correct our desires.

In so far as the laws of God are clearly and indisputablyrevealed, we are bound to guide our conduct by the plain meaningof their terms. In so far as they are not revealed, we must resortto another guide: namely, the probable effect of our conduct onthat general happiness or good which is the object of the DivineLawgiver in all his laws and commandments.

In each of these cases the source of our duties is the same;though the proofs by which we know them are different. Theprinciple of general utility is the index to many of these duties;but the principle of general utility is not their fountain or source.For duties or obligations arise from commands and sanctions.And commands, it is manifest, proceed not from abstractions, butfrom living and rational beings.

Admit these premises, and the following conclusion is inevitable. -The whole of our conduct should be guided by the principle of utility,in so far as the conduct to be pursued has not been determined byRevelation. For, to conform to the principle or maxim with which alaw coincides, is equivalent to obeying that law.

Such is the theory: which I have repeated in various forms,and, I fear, at tedious length, in order that my younger hearersmight conceive it with due distinctness.

The current and specious objections to which I have adverted,may be stated thus:

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'Pleasure and pain (or good and evil) are inseparably connected.Every positive act, and every forbearance or omission, is followedby both: immediately or remotely, directly or collaterally, to our-selves or to our fellow-creatures.

'Consequently, if we shape our conduct justly to the principleof general utility, every election which we make between doingor forbearing from an act will be preceded by the followingprocess. First We shall conjecture the consequences of the act,and also the consequences of the forbearance. For these are thecompeting elements of that calculation, which, according to ourguiding principle, we are bound to make. Secondly: We shallcompare the consequences of the act with the consequences ofthe forbearance, and determine the set of consequences whichgives the balance of advantage: which yields the larger residue ofprobable good, or (adopting a different, though exactly equivalentexpression) which leaves the smaller residue of probable evil.

'Now let us suppose that we actually tried this process, beforewe arrived at our resolves. And then let us mark the absurd andmischievous effects which would inevitably follow our attempts.

'Generally speaking, the period allowed for deliberation is brief:and to lengthen deliberation beyond that limited period, is equival-ent to forbearance or omission. Consequently, if we performedthis elaborate process completely and correctly, we should oftendefeat its purpose. We should abstain from action altogether,though utility required us to act; or the occasion for acting usefullywould slip through our fingers, whilst we weighed, with anxiousscrupulosity, the merits of the act and the forbearance.

'But feeling the necessity of resolving promptly, we should notperform the process completely and correctly. We should guessor conjecture hastily the effects of the act and the forbearance,and compare their respective effects with equal precipitancy. Ourpremises would be false or imperfect; our conclusions, badlydeduced. Labouring to adjust our conduct to the principle ofgeneral utility, we should work inevitable mischief.

'And such were the consequences of following the principle ofutility, though we sought the true and the useful with simplicityand in earnest. But, as we commonly prefer our own to theinterests of our fellow-creatures, and our own immediate to our

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own remote interests, it is clear that we should warp the principleto selfish and sinister ends.

The final cause or purpose of the Divine laws is the generalhappiness or good. But to trace the effect of our conduct on thegeneral happiness or good is not the way to know them. Byconsulting and obeying the laws of God we promote our ownhappiness and the happiness of our fellow-creatures. But weshould not consult his laws, we should not obey his laws, and, sofar as in us lay, we should thwart their benevolent design, if wemade the general happiness our object or end. In a breath, weshould widely deviate in effect from the principle of general utilityby taking it as the guide of our conduct.'

Such, I believe, is the meaning of those - if they have a mean- The two apting - who object to the principle of utility 'that it were a dangerous f ^ t/vLwprinciple Of Conduct.' briefly introduced.

As the objectors are [generally persons little accustomed to]clear and determinate thinking, I am not quite certain that I haveconceived the objection exactly. But I have endeavoured [withperfectly good faith] to understand [their meaning, and as forciblyas I can to state it, or to state the most rational meaning whichtheir words can be supposed to import.]

It has been said, in answer to this objection, that it involves acontradiction in terms. Danger is another name for probable mischief.And, surely, we best avert the probable mischiefs of our conduct,by conjecturing and estimating its probable consequences. To say'that the principle of utility were a dangerous principle of conduct,'is to say 'that it were contrary to utility to consult utility.'

Now, though this is so brief and pithy that I heartily wish it wereconclusive, I must needs admit that it scarcely touches the objec-tion, and falls far short of a crushing reduction to absurdity. Forthe objection [obviously assumes] that we cannot foresee and esti-mate the probable effects of our conduct: that if we attempted tocalculate its good and its evil consequences, our presumptuousattempt at calculation would lead us to error and sin. [What is con-tended is, that by the attempt to act according to utility, an attemptwhich would not be successful, we should deviate from utility. Aproposition involving when fairly stated nothing like acontradiction.!

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The first answerto the foregoingobjection stated.

The secondanswer to the

briefly introduced.

But, though this is not the refutation, there is a refutation.And first, If utility be our only index to the tacit commands

of the Deity, it is idle to object its imperfections. We must evenmake the most of it.

If we were endowed with a moral sense, or with a common sense,or with a practical reason, we scarcely should construe his com-mands by the principle of general utility. If our souls were fur-nished out with innate practical principles, we scarcely should readhis commands in the tendencies of human actions. For, by thesupposition, man would be gifted with a peculiar organ for acquir-ing a knowledge of his duties. The duties imposed by the Deitywould be subjects of immediate consciousness, and completelyexempted from the jurisdiction of observation and induction. Anattempt to displace that invincible consciousness, and to thrustthe principle of utility into the vacant seat, would be simplyimpossible and manifestly absurd. An attempt to taste or smellby force of syllogism, were not less hopeful or judicious.

But, if we are not gifted with that peculiar organ, we musttake to the principle of utility, let it be never so defective. Wemust gather our duties, as we can, from the tendencies of humanactions; or remain, at our own peril, in ignorance of our duties.We must pick our scabrous way with the help of a glimmeringlight, or wander in profound darkness.

Whether there be any ground for the hypothesis of a moralsense, is a question which I shall duly examine in a future lecture,but which I shall not pursue in the present place. For the presentis a convenient place for the introduction of another topic: namely,that they who advance the objection in question misunderstandthe theory which they presume to impugn.

Their objection is founded on the following assumption. -That, if we adjusted our conduct to the principle of generalutility, every election which we made between doing and forbearingfrom an act would be preceded by a calculation: by an attempt toconjecture and compare the respective probable consequences ofaction and forbearance.

Or (changing the expression) their assumption is this. - That,if we adjusted our conduct to the principle of general utility, ourconduct would always be determined by an immediate or directresort to it.

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And, granting their assumption, I grant their inference. I grantthat the principle of utility were a halting and purblind guide.

But their assumption is groundless. They are battering (andmost effectually) a misconception of their own, whilst they fancythey are hard at work demolishing the theory which they hate.

For, according to that theory, our conduct would conform to rulesinferred from the tendencies of actions, but would not be deter-mined by a direct resort to the principle of general utility. Utilitywould be the test of our conduct, ultimately, but not immediately:the immediate test of the rules to which our conduct would con-form, but not the immediate test of specific or individual actions.Our rules would be fashioned on utility; our conduct, on our rules.

Recall the true test for trying the tendency of an action, and,by a short and easy deduction, you will see that their assumptionis groundless.

If we would try the tendency of a specific or individual act, we if our conductmust not contemplate the act as if it were single and insulated, but "*? tmjy .

r ° ' adjusted to themust look at the class of acts to which it belongs. We must suppose principle ofthat acts of the class were generally done or omitted, and consider general uttltty> our

& J ' conduct would

the probable effect upon the general happiness or good. conform, far theWe must guess the consequences which would follow, if acts most Part>t0

r . . 1 1 1 1 rules: rules whichof the class were general; and also the consequences which would emanate from thefollow, if they were generally omitted. We must then compare the Df?> a"d t0

. . , . , , , . which the

consequences on the positive and negative sides, and determine on tendencies ofwhich of the two the balance of advantage lies. human actions are

If it lie on the positive side, the tendency of the act is good: index.or (adopting a wider, yet exactly equivalent expression) the generalhappiness requires that acts of the class shall be done. If it lie onthe negative side, the tendency of the act is bad: or (again adoptinga wider, yet exactly equivalent expression) the general happinessrequires that acts of the class shall be forborne.

In a breath, if we truly try the tendency of a specific or individualact, we try the tendency of the class to which that act belongs. Theparticular conclusion which we draw, with regard to the single act,implies a general conclusion embracing all similar acts.

But, concluding that acts of the class are useful or pernicious,we are forced upon a further inference. Adverting to the knownwisdom and the known benevolence of the Deity, we infer thathe enjoins or forbids them by a general and inflexible rule.49

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Such is the inference at which we inevitably arrive, supposingthat the acts be such as to call for the intervention of a law-giver.

T o rules thus inferred, and lodged in the memory, our conductwould conform immediately if it were truly adjusted to utility. Toconsider the specific consequences of single or individual acts,would seldom consist with that ultimate principle. And our conductwould, therefore, be guided by general conclusions, or (to speakmore accurately) by rules inferred from those conclusions.

But, this being admitted, the necessity of pausing and calculat-ing, which the objection in question supposes, is an imaginarynecessity. T o preface each act or forbearance by a conjectureand comparison of consequences, were clearly superfluous andmischievous. It were clearly superfluous, inasmuch as the resultof that process would be embodied in a known rule. It were clearlymischievous, inasmuch as the true result would be expressed bythat rule, whilst the process would probably be faulty, if it weredone on the spur of the occasion.

Theory and Speaking generally, human conduct, including the human con-practice are c | u c t w h i c } 1 j s subject to the Divine commands, is inevitably guidedinseparable. ' ' J &

by rules, or by principles or maxims.If our experience and observation of particulars were not gen-

eralized, our experience and observation of particulars wouldseldom avail us in practice. To review on the spur of the occasiona host of particulars, and to obtain from those particulars aconclusion applicable to the case, were a process too slow anduncertain to meet the exigencies of our lives. The inferencessuggested to our minds by repeated experience and observationare, therefore, drawn into principles, or compressed into maxims.These we carry about us ready for use, and apply to individualcases promptly or without hesitation: without reverting to theprocess by which they were obtained; or without recalling, andarraying before our minds, the numerous and intricate consider-ations of which they are handy abridgments.

This is the main, though not the only use of theory: whichignorant and weak people are in a habit of opposing to practice, butwhich is essential to practice guided by experience and observation.

°Tis true in theory; but, then, 'tis false in practice? Such is acommon talk. This says Noodle; propounding it with a look ofthe most ludicrous profundity.

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But, with due and discreet deference to this worshipful andweighty personage, that which is true in theory is also true inpractice.

Seeing that a true theory is a compendium of particular truths,it is necessarily true as applied to particular cases. The terms ofthe theory are general and abstract, or the particular truths whichthe theory implies would not be abbreviated or condensed. But,unless it be true of particulars, and, therefore, true in practice,it has no truth at all. Truth is always particular, though languageis commonly general. Unless the terms of a theory can be resolvedinto particular truths, the theory is mere jargon: a coil of thosesenseless abstractions which often ensnare the instructed', and inwhich the wits of the ignorant are certainly caught and entangled,when they stir from the track of authority, and venture to thinkfor themselves.

They who talk of theory as if it were the antagonist of practice,or of a thing being true in theory but not true in practice, mean(if they have a meaning) that the theory in question is false: thatthe particular truths which it concerns are treated imperfectly orincorrectly; and that, if it were applied in practice, it might,therefore, mislead. They say that truth in theory is not truth inpractice. They mean that a false theory is not a true one, andmight lead us to practical errors.

Speaking, then, generally, human conduct is inevitably guided if our conductby rules, or by principles or maxims. Zjulal the

The human conduct which is subject to the Divine commands, principle ofis not only guided by rules, but also by moral sentiments associated 2 ^ "mould 17with those rules. guided, for the

If I believe (no matter why) that acts of a class or description mostmPan* to

v J/ * sentimentsare enjoined or forbidden by the Deity, a moral sentiment or associated withfeeling (or a sentiment or feeling of approbation or disapprobation) r^J^2J^1^is inseparably connected in my mind with the thought or concep- Deity, and totion of such acts. And by this I am urged to do, or restrained whtf the .

J . tendencies of

from doing such acts, although I advert not to the reason in human actions arewhich my belief originated, nor recall the Divine rule which Ihave inferred from that reason.

Now, if the reason in which my belief originated be the usefulor pernicious tendency of acts of the class, my conduct is trulyadjusted to the principle of general utility, but my conduct is notdetermined by a direct resort to it. It is directly determined by

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a, sentiment associated with acts of the class, and with the rulewhich I have inferred from their tendency.

If my conduct be truly adjusted to the principle of general utility,my conduct is guided remotely by calculation. But, immediately, orat the moment of action, my conduct is determined by sentiment.I am swayed by sentiment as imperiously as I should be swayedby it, supposing I were utterly unable to produce a reason formy conduct, and were ruled by the capricious feelings which arestyled the moral sense.

For example, Reasons which are quite satisfactory, but some-what numerous and intricate, convince me that the institution ofproperty is necessary to the general good. Convinced of this, Iam convinced that thefts are pernicious. Convinced that theftsare pernicious, I infer that the Deity forbids them by a generaland inflexible rule.

Now the train of induction and reasoning by which I arrive atthis rule, is somewhat long and elaborate. But I am not compelledto repeat the process, before I can know with certainty that Ishould forbear from taking your purse. Through my previoushabits of thought and by my education, a sentiment of aversion hasbecome associated in my mind with the thought or conception ofa theft: And, without adverting to the reasons which have convincedme that thefts are pernicious, or without adverting to the rulewhich I have inferred from their pernicious tendency, I am deter-mined by that ready emotion to keep my fingers from your purse.

To think that the theory of utility would substitute calculationfor sentiment, is a gross and flagrant error: the error of a shallow,precipitate understanding. He who opposes calculation and senti-ment, opposes the rudder to the sail, or to the breeze whichswells the sail. Calculation is the guide, and not the antagonistof sentiment. Sentiment without calculation were blind andcapricious; but calculation without sentiment were inert.

To crush the moral sentiments, is not the scope or purposeof the true theory of utility. It seeks to impress those sentimentswith a just or beneficent direction: to free us of groundless likings,and from the tyranny of senseless antipathies; to fix our loveupon the useful, our hate upon the pernicious.

if our conduct If, then, the principle of utility were the presiding principle off/»the o u r conduct, our conduct would be determined immediately by

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Divine rules, or rather by moral sentiments associated with those principle ofrules. And, consequently, the application of the principle of utility g^a

u ^ our

to particular or individual cases, would neither be attended by conform, for thethe errors, nor followed by the mischiefs, which the current r^[Part't0

J Divine rules, and

objection in question supposes. would also beBut these conclusions (like most conclusions) must be taken gutdedt for !he

v ' most part, byWith limitations. sentiments

There certainly are cases (of comparatively rare occurrence) ^ZTmis^utwherein the specific considerations balance or outweigh the gen- in anomalous anderal: cases which (in the language of Bacon) are 'immersed in excePted case* (°f

v o o / comparatively rarematter:' cases perplexed with peculiarities from which it were occurrences) ourdangerous to abstract them; and to which our attention would be ™ nfuct w™ u h*

a fashioned directly

directed, if we were true to our presiding principle. It were on the principle ofmischievous to depart from a rule which regarded any of these senerai utility, or

r ° J guided by acases; since every departure from a rule tends to weaken its conjecture andauthority. But so important were the specific consequences which ™ m^*c™r^would follow our resolves, that the evil of observing the rule particularmight surpass the evil of breaking it. Looking at the reasons from come<iuences-which we had inferred the rule, it were absurd to think it inflexible.We should, therefore, dismiss the rule; resort directly to theprinciple upon which our rules were fashioned; and calculate specificconsequences to the best of our knowledge and ability.

For example, If we take the principle of utility as our index tothe Divine commands, we must infer that obedience to establishedgovernment is enjoined generally by the Deity. For, without obedi-ence to 'the powers which be,' there were little security and littleenjoyment. The ground, however, of the inference, is the utilityof government: And if the protection which it yields be too costly,or if it vex us with needless restraints and load us with needlessexactions, the principle which points at submission as our generalduty may counsel and justify resistance. Disobedience to anestablished government, let it be never so bad, is an evil: Forthe mischiefs inflicted by a bad government are less than themischiefs of anarchy. So momentous, however, is the differencebetween a bad and a good government, that, if it mould lead to agood one, resistance to a bad one would be useful. The anarchyattending the transition were an extensive, but a passing evil: Thegood which would follow the transition were extensive and lasting.The peculiar good would outweigh the generic evil: The good53

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which would crown the change in the insulated and eccentriccase, would more than compensate the evil which is inseparablefrom rebellion.

Whether resistance to government be useful or pernicious, beconsistent or inconsistent with the Divine pleasure, is, therefore,an anomalous question. We must try it by a direct resort to theultimate or presiding principle, and not by the Divine rule whichthe principle clearly indicates. To consult the rule, were absurd.For, the rule being general and applicable to ordinary cases, itordains obedience to government, and excludes the question.

The members of a political society who revolve this momentousquestion must, therefore, dismiss the rule, and calculate specificconsequences. They must measure the mischief wrought by theactual government; the chance of getting a better, by resorting toresistance; the evil which must attend resistance, whether it pros-per or fail; and the good which may follow resistance, in case itbe crowned with success. And, then, by comparing these, theelements of their moral calculation, they must solve the questionbefore them to the best of their knowledge and ability.

And in this eccentric or anomalous case, the application of theprinciple of utility would probably be beset with the difficultieswhich the current objection in question imputes to it generally.To measure and compare the evils of submission and dis-obedience, and to determine which of the two would give thebalance of advantage, would probably be a difficult and uncertainprocess. The numerous and competing considerations by whichthe question must be solved, might well perplex and divide thewise, and the good, and the brave. A Milton or a Hampdenmight animate their countrymen to resistance, but a Hobbes ora Falkland would counsel obedience and peace.

But, though the principle of utility would afford no certainsolution, the community would be fortunate, if their opinions andsentiments were formed upon it. The pretensions of the oppositeparties being tried by an intelligible test, a peaceable compromiseof their difference would, at least, be possible. The adherents ofthe established government, might think it the most expedient: but,as their liking would depend upon reasons, and not upon namesand phrases, they might possibly prefer innovations, of which theywould otherwise disapprove, to the mischiefs of a violent contest.

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They might chance to see the absurdity of upholding the existingorder, with a stiffness which must end in anarchy. The partyaffecting reform, being also intent upon utility, would probablyaccept concessions short of their notions and wishes, rather thanpersist in the chase of a greater possible good through the evilsand the hazards of a war. In short, if the object of each partywere measured by the standard of utility, each might comparethe worth of its object with the cost of a violent pursuit.

But, if the parties were led by their ears, and not by theprinciple of utility; if they appealed to unmeaning abstractions,or to senseless fictions; if they mouthed of 'the rights of man,'or 'the sacred rights of sovereigns/ of 'unalienable liberties,' or'eternal and immutable justice;5 of an 'original contract or coven-ant,' or 'the principles of an inviolable constitution;' neither couldcompare its object with the cost of a violent pursuit, nor wouldthe difference between them admit of a peaceable compromise.A sacred or unalienable right is truly and indeed invaluable: For,seeing that it means nothing, there is nothing with which it canbe measured. Parties who rest their pretensions on the jargon towhich I have adverted, must inevitably push to their objectsthrough thick and thin, though their objects be straws or feathersas weighed in the balance of utility. Having bandied their fustianphrases, and 'bawled till their lungs be spent,' they must eventake to their weapons, and fight their difference out.

It really is important (though I feel the audacity of the paradox),that men should think distinctly, and speak with a meaning.

In most of the domestic broils which have agitated civilizedcommunities, the result has been determined or seriously affected,by the nature of the prevalent talk: by the nature of the topicsor phrases which have figured in the war of words. These topicsor phrases have been more than pretexts: more than varnish: morethan distinguishing cockades mounted by the opposite parties.

For example, If the bulk of the people of England had thoughtand reasoned with Mr. Burke, had been imbued with the spiritand had seized the scope of his arguments, her needless anddisastrous war with her American colonies would have been stifledat the birth. The stupid and infuriate majority who rushed intothat odious war, could perceive and discourse of nothing but the

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sovereignty of the mother country, and her so called right to taxher colonial subjects.

But, granting that the mother country was properly the sovereignof the colonies, granting that the fact of her sovereignty wasproved by invariable practice, and granting her so called right totax her colonial subjects, this was hardly a topic to move anenlightened people.

Is it the interest of England to insist upon her sovereignty? Isit her interest to exercise her right without the approbation ofthe colonists? For the chance of a slight revenue to be wrungfrom her American subjects, and of a trifling relief from thetaxation which now oppresses herself, shall she drive those reluc-tant subjects to assert their alleged independence, visit her ownchildren with the evil of war, squander her treasures and soldiersin trying to keep them down, and desolate the very region fromwhich the revenue must be drawn? - These and the like consider-ations would have determined the people of England, if theirdominant opinions and sentiments had been fashioned on theprinciple of utility.

And, if these and the like considerations had determined thepublic mind, the public would have damned the project of taxingand coercing the colonies, and the government would have aban-doned the project. For, it is only in the ignorance of the people,and in their consequent mental imbecility, that governments ordemagogues can find the means of mischief.

If these and the like considerations had determined the publicmind, the expenses and miseries of the war would have beenavoided; the connection of England with America would not havebeen torn asunder; and, in case their common interests had ledthem to dissolve it quietly, the relation of sovereign and subject,or of parent and child, would have been followed by an equal,but intimate and lasting alliance. For the interests of the twonations perfectly coincide; and the open, and the covert hostilities,with which they plague one another, are the offspring of a bestialantipathy begotten by their original quarrel.

But arguments drawn from utility were not to the dull taste ofthe stupid and infuriate majority. The rabble, great and small,would hear of nothing but their right. 'They'd a right to tax thecolonists, and tax 'em they would: Ay, that they would.' Just as if

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a right were worth a rush of itself, or a something to be cherishedand asserted independently of the good that it may bring.

Mr. Burke would have taught them better: would have purgedtheir muddled brains, and 'laid the fever in their souls,' with thehealing principle of utility. He asked them what they would get,if the project of coercion should succeed; and implored them tocompare the advantage with the hazard and the cost. But thesound practical men still insisted on the right; and sagaciouslyshook their heads at him, as a refiner and a theorist.

If a serious difference shall arise between ourselves and Canada,or if a serious difference shall arise between ourselves and Ireland,an attempt will probably be made to cram us with the same stuff.But, such are the mighty strides which reason has taken in theinterval, that I hope we shall not swallow it with the relish ofour good ancestors. It will probably occur to us to ask, whethershe be worth keeping, and whether she be worth keeping at thecost of a war? - I think there is nothing romantic in the hopewhich I now express; since an admirable speech of Mr. Baring,advising the relinquishment of Canada, was seemingly received,a few years ago, with general assent and approbation.

There are, then, cases, which are anomalous or eccentric; and The secondto which the man, whose conduct was fashioned on utility, would 1^swer. t0 f6 .

7 J 7 foregoing objection

apply that ultimate principle immediately or directly. And, in these briefly resumed.anomalous or eccentric cases, the application of the principlewould probably be beset with the difficulties which the currentobjection in question imputes to it generally.

But, even in these cases, the principle would afford an intelli-gible test, and a likelihood of a just solution: a probability ofdiscovering the conduct required by the general good, and, there-fore, required by the commands of a wise and benevolent Deity.

And the anomalies, after all, are comparatively few. In the greatmajority of cases, the general happiness requires that rules shallbe observed, and that sentiments associated with rules shall bepromptly obeyed. If our conduct were truly adjusted to the prin-ciple of general utility, our conduct would seldom be determinedby an immediate or direct resort to it.

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Apology for

The connection of

[ALTHOUGH it is not the object of this course of lectures to treato f t h e s c i e n c e °f legislation, but to evolve and expound theprinciples and distinctions involved in the idea of law, it was nota deviation from my subject to introduce the principle of utility.For I shall often have occasion to refer to that principle in mycourse, as that which not only ought to guide, but has commonlyin fact guided the legislator. The principle of utility, well or illunderstood, has usually been the principle consulted in makinglaws; and I therefore should often be unable to explain distinctlyand precisely the scope and purport of a law, without havingbrought the principle of utility directly before you. I have thereforedone so, not pretending to expound the principle in its variousapplications, which would be a subject of sufficient extent formany courses of lectures; but attempting to give you a generalnotion of the principle, and to obviate the most specious of theobjections which are commonly made to it.]

In my second lecture, I examined a current and speciouso b i e c t i o n t o ^ ^orY o f general utility.

The drift of the objection, you undoubtedly remember; andyou probably remember the arguments by which I attempted torefute it.

Accordingly, I merely resume that general conclusion which Iendeavoured to establish by the second of my two answers.

The conclusion may be stated briefly, in the following manner. -If our conduct were truly adjusted to the principle of generalutility, our conduct would conform, for the most part, to laws or

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rules: laws or rules which are set by the Deity, and to which thetendencies of classes of actions are the guide or index.

But here arises a difficulty which certainly is most perplexing, A second objectionand which scarcely admits of a solution that will perfectly satisfy ^ ^ of

the mind.If the Divine laws must be gathered from the tendencies of

action, how can they, who are bound to keep them, know themfully and correctly?

So numerous are the classes of actions to which those lawsrelate, that no single mind can mark the whole of those classes,and examine completely their respective tendencies. If every singleman must learn their respective tendencies, and thence infer therules which God has set to mankind, every man's scheme ofethics will embrace but a part of those rules, and, on many ormost of the occasions which require him to act or forbear, hewill be forced on the dangerous process of calculating specificconsequences.

Besides, ethical, like other wisdom, 'cometh by opportunity ofleisure:' And, since they are busied with earning the means ofliving, the many are unable to explore the field of ethics, and tolearn their numerous duties by learning the tendencies of actions.

If the Divine laws must be gathered from the tendencies ofactions, the inevitable conclusion is absurd and monstrous. - Godhas given us laws which no man can know completely, and towhich the great bulk of mankind has scarcely the slightest access.

The considerations suggested by this and the next discourse, An answer to thatmay solve or extenuate the perplexing difficulty to which I have f^now adverted.

In so far as law and morality are what they ought to be (or inso far as law and morality accord with their ultimate test, or inso far as law and morality accord with the Divine commands),legal and moral rules have been fashioned on the principle ofutility, or obtained by observation and induction from the tenden-cies of human actions. But, though they have been fashioned onthe principle of utility, or obtained by observation and inductionfrom the tendencies of human actions, it is not necessary that allwhom they bind should know or advert to the process throughwhich they have been gotten. If all whom they bind keep or

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observe them, the ends to which they exist are sufficientlyaccomplished. The ends to which they exist are sufficientlyaccomplished, though most of those who observe them be unableto perceive their ends, and be ignorant of the reasons on whichthey were founded, or of the proofs from which they were inferred.

According to the theory of utility, the science of Ethics orDeontology (or the science of Law and Morality, as they shouldbe, or ought to be) is one of the sciences which rest uponobservation and induction. The science has been formed, througha long succession of ages, by many and separate contributionsfrom many and separate discoverers. No single mind could explorethe whole of the field, though each of its numerous departmentshas been explored by numerous inquirers.

If positive law and morality were exactly what they ought to be(or if positive law and morality were exactly fashioned to utility),sufficient reasons might be given for each of their constituentrules, and each of their constituent rules would in fact have beenfounded on those reasons. But no single mind could have foundthe whole of those rules, nor could any single mind compass thewhole of their proofs. Though all the evidence would be known,the several parts of the evidence would be known by differentmen. Every single man might master a portion of the evidence: aportion commensurate with the attention which he gave to thescience of ethics, and with the mental perspicacity and vigourwhich he brought to the study. But no single man could mastermore than a portion: And many of the rules of conduct, whichwere actually observed or admitted, would be taken, by the mostinstructed, on authority, testimony, or trust.

In short, if a system of law and morality were exactly fashionedto utility, all its constituent rules might be known by all or most.But all the numerous reasons, upon which the system would rest,could scarcely be compassed by any: while most must limit theirinquiries to a few of those numerous reasons; or, without anattempt to examine the reasons, must receive the whole of therules from the teaching and example of others.

But this inconvenience is not peculiar to law and morality. Itextends to all the sciences, and to all the arts.

Many mathematical truths are probably taken upon trust bydeep and searching mathematicians: And of the thousands who

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apply arithmetic to daily and hourly use, not one in a hundredknows or surmises the reasons upon which its rules are founded.Of the millions who till the earth and ply the various handicrafts,few are acquainted with the grounds of their homely but importantarts, though these arts are generally practised with passable expert-ness and success.

The powers of single individuals are feeble and poor, thoughthe powers of conspiring numbers are gigantic and admirable.Little of any man's knowledge is gotten by original research. Itmostly consists of results gotten by the researches of others, andtaken by himself upon testimony.

And in many departments of science we may safely rely upontestimony: though the knowledge which we thus obtain is lesssatisfactory and useful than that which we win for ourselves bydirect examination of the proofs.

In the mathematical and physical sciences, and in the artswhich are founded upon them, we may commonly trust theconclusions which we take upon authority. For the adepts in thesesciences and arts mostly agree in their results, and lie under notemptation to cheat the ignorant with error. I firmly believe (forexample) that the earth moves round the sun; though I know nota tittle of the evidence from which the conclusion is inferred.And my belief is perfectly rational, though it rests upon mereauthority. For there is nothing in the alleged fact, contrary to myexperience of nature: whilst all who have scrutinized the evidenceconcur in affirming the fact; and have no conceivable motive toassert and diffuse the conclusion, but the liberal and beneficentdesire of maintaining and propagating truth.

But the case is unhappily different with the important science An objection toof ethics, and also with the various sciences - such as legislation, **$"*&<"&

° answer, stated.

politics, and political economy - which are nearly related to ethics.Those who have inquired, or affected to inquire into ethics, haverarely been impartial, and, therefore, have differed in their results.Sinister interests, or prejudices begotten by such interests, havemostly determined them to embrace the opinions which they havelaboured to impress upon others. Most of them have been advo-cates rather than inquirers. Instead of examining the evidenceand honestly pursuing its consequences, most of them have huntedfor arguments in favour of given conclusions, and have neglected

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or purposely suppressed the unbending and incommodious con-siderations which pointed at opposite inferences.

Now how can the bulk of mankind, who have little opportunityfor research, compare the respective merits of these varying andhostile opinions, and hit upon those of the throng which accordwith utility and truth? Here, testimony is not to be trusted. Thereis not that concurrence or agreement of numerous and impartialinquirers, to which the most cautious and erect understandingreadily and wisely defers. With regard to the science of ethics,and to all the various sciences which are nearly related to ethics,invincible doubt, or blind and prostrate belief, would seem to bethe doom of the multitude. Anxiously busied with the means ofearning a precarious livelihood, they are debarred from everyopportunity of carefully surveying the evidence: whilst every auth-ority, whereon they may hang their faith, wants that mark oftrustworthiness which justifies reliance on authority.

Accordingly, the science of ethics, with all the various scienceswhich are nearly related to ethics, lag behind the others. So feware the sincere inquirers who turn their attention to these sciences,and so difficult is it for the multitude to perceive the worth oftheir labours, that the advancement of the sciences themselves iscomparatively slow; whilst the most perspicuous of the truths,with which they are occasionally enriched, are either rejected bythe many as worthless or pernicious paradoxes, or win theirlaborious way to general assent through a long and dubiousstruggle with established and obstinate errors.

Many of the legal and moral rules which obtain in the mostcivilized communities, rest upon brute custom, and not uponmanly reason. They have been taken from preceding generationswithout examination, and are deeply tinctured with barbarity. Theyarose in early ages, and in the infancy of the human mind, partlyfrom caprices of the fancy (which are nearly omnipotent withbarbarians), and partly from the imperfect apprehension of generalutility which is the consequence of narrow experience. And sogreat and numerous are the obstacles to the diffusion of ethicaltruth, that these monstrous or crude productions of childish andimbecile intellect have been cherished and perpetuated, throughages of advancing knowledge, to the comparatively enlightenedperiod in which it is our happiness to live.

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It were idle to deny the difficulty. The diffusion and the advance- The foregoingment of ethical truth are certainly prevented or obstructed by °^ection t0 the

J r J foregoing answer,

great and peculiar obstacles. solved orBut these obstacles, I am firmly convinced, will gradually disap- extenuated-

pear. In two causes of slow but sure operation, we may clearlyperceive a cure, or, at least, a palliative of the evil. - In everycivilized community of the Old and New World, the leadingprinciples of the science of ethics, and also of the various scienceswhich are nearly related to ethics, are gradually finding their way,in company with other knowledge, amongst the great mass of thepeople: whilst those who accurately study, and who labour toadvance these sciences, are proportionally increasing in number,and waxing in zeal and activity. [From the combination of thesetwo causes we may hope for a more rapid progress both in thediscovery and in the diffusion of moral truth.]

Profound knowledge of these, as of the other sciences, willalways be confined to the comparatively few who study them longand assiduously. But the multitude are fully competent to conceivethe leading principles, and to apply those leading principles toparticular cases. And, if they were imbued with those principles,and were practised in the art of applying them, they would bedocile to the voice of reason, and armed against sophistry anderror. There is a wide and important difference between ignoranceof principles and ignorance of particulars or details. The manwho is ignorant of principles, and unpractised in right reasoning,is imbecile as well as ignorant. The man who is simply ignorantof particulars or details, can reason correctly from premises whichare suggested to his understanding, and can justly estimate theconsequences which are drawn from those premises by others. Ifthe minds of the many were informed and invigorated, so far astheir position will permit, they could distinguish the statementsand reasonings of their instructed and judicious friends, from thelies and fallacies of those who would use them to sinister purposes,and from the equally pernicious nonsense of their weak andignorant well-wishers. Possessed of directing principles, able toreason rightly, helped to the requisite premises by accurate andcomprehensive inquirers, they could examine and fathom thequestions which it most behoves them to understand: Though

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the leisure which they can snatch from their callings is necessarilyso limited, that their opinions upon numerous questions of subor-dinate importance would continue to be taken from the mereauthority of others.

The shortest and clearest illustrations of this most cheeringtruth, are furnished by the inestimable science of political econ-omy, [which is so interwoven with every consideration belongingto morals, politics, and legislation, that it is impossible to treatany one of these sciences without a continual reference to it.]

The broad or leading principles of the science of politicaleconomy, may be mastered, with moderate attention, in a shortperiod. With these simple, but commanding principles, a numberof important questions are easily resolved. And if the multitude(as they can and will) shall ever understand these principles, manypernicious prejudices will be extirpated from the popular mind,and truths of ineffable moment planted in their stead.

For example, In many or all countries (the least uncivilized notexcepted), the prevalent opinions and sentiments of the workingpeople are certainly not consistent with the complete security ofproperty. To the ignorant poor, the inequality which inevitablyfollows the beneficent institution of property is necessarily invidi-ous. That they who toil and produce should fare scantily, whilstothers, who 'delve not nor spin,' batten on the fruits of labour,seems, to the jaundiced eyes of the poor and the ignorant, amonstrous state of things: an arrangement upheld by the few atthe cost of the many, and flatly inconsistent with the benevolentpurposes of Providence.

A statement of the numerous evils which flow from this singleprejudice, would occupy a volume. But they cast so clear a lighton the mischiefs of popular ignorance, and show so distinctly theadvantages of popular instruction, that I will briefly touch upona few of them, though at the risk of tiring your patience.

In the first place, this prejudice blinds the people to the causeof their sufferings, and to the only remedy or palliative whichthe case will admit.

Want and labour spring from the niggardliness of nature, andnot from the inequality which is consequent on the institution ofproperty. These evils are inseparable from the condition of manupon earth; and are lightened, not aggravated, by this useful,

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though invidious institution. Without capital, and the arts whichdepend upon capital, the reward of labour would be far scantierthan it is; and capital, with the arts which depend upon it, arecreatures of the institution of property. The institution is goodfor the many, as well as for the few. The poor are not strippedby it of the produce of their labour; but it gives them a part inthe enjoyment of wealth which it calls into being. In effect, thoughnot in law, the labourers are co-proprietors with the capitalistswho hire their labour. The reward which they get for their labouris principally drawn from capital; and they are not less interestedthan the legal owners in protecting the fund from invasion.

It is certainly to be wished, that their reward were greater; andthat they were relieved from the incessant drudgery to which theyare now condemned. But the condition of the working people(whether their wages shall be high or low; their labour, moderateor extreme) depends upon their own will, and not upon the willof the rich. In the true principle of population, detected by thesagacity of Mr. Malthus, they must look for the cause and theremedy of their penury and excessive toil. There they may findthe means which would give them comparative affluence; whichwould give them the degree of leisure necessary to knowledgeand refinement; which would raise them to personal dignity andpolitical influence, from grovelling and sordid subjection to thearbitrary rule of a few.

And these momentous truths are deducible from plain prin-ciples, by short and obvious inferences. Here, there is no needof large and careful research, or of subtle and sustained thinking.If the people understood distinctly a few indisputable propositions,and were capable of going correctly through an easy process ofreasoning, their minds would be purged of the prejudice whichbinds them to the cause of their sufferings, and they would seeand apply the remedy which is suggested by the principle ofpopulation. Their repinings at the affluence of the rich, wouldbe appeased. Their murmurs at the injustice of the rich, wouldbe silenced. They would scarcely break machinery, or fire barnsand corn-ricks, to the end of raising wages, or the rate of parishrelief. They would see that violations of property are mischievousto themselves: that such violations weaken the motives to accumu-lation, and, therefore, diminish the fund which yields the labourer

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his subsistence. They would see that they are deeply interestedin the security of property: that, if they adjusted their numbers tothe demand for their labour, they would share abundantly, withtheir employers, in the blessings of that useful institution.

Another of the numerous evils which flow from the prejudicein question, is the frequency of crimes.

Nineteen offences out of twenty, are offences against property.And most offences against property may be imputed to the preju-dice in question.

The authors of such offences are commonly of the poorer sort.For the most part, poverty is the incentive. And this prejudiceperpetuates poverty amongst the great body of the people, byblinding them to the cause and the remedy.

And whilst it perpetuates the ordinary incentive to crime, itweakens the restraints.

As a check or deterring motive, as an inducement to abstainfrom crime, the fear of public disapprobation, with its countlesstrain of evils, is scarcely less effectual than the fear of legalpunishment. To the purpose of forming the moral character, ofrooting in the soul a prompt aversion from crime, it is infinitelymore effectual.

The help of the hangman and the gaoler would seldom becalled for, if the opinion of the great body of the people werecleared of the prejudice in question, and, therefore, fell heavilyupon all offenders against property. If the general opinion werethoroughly cleared of that prejudice, it would greatly weaken thetemptations to crime, by its salutary influence on the moral charac-ter of the multitude: The motives which it would oppose to thosetemptations, would be scarcely less effectual than the motiveswhich are presented by the law: And it would heighten the terrors,and strengthen the restraints of the law, by engaging a countlesshost of eager and active volunteers in the service of criminaljustice. If the people saw distinctly the tendencies of offencesagainst property; if the people saw distinctly the tendencies andthe grounds of the punishments; and if they were, therefore, bentupon pursuing the criminals to justice; the laws which prohibitthese offences would seldom be broken with impunity, and, byconsequence, would seldom be broken. An enlightened peoplewere a better auxiliary to the judge than an army of policemen.

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But, in consequence of the prejudice in question, the fear ofpublic disapprobation scarcely operates upon the poor to the endof restraining them from offences against the property of thewealthier classes. For every man's public is formed of his ownclass: of those with whom he associates: of those whose favourableor unfavourable opinion sweetens or embitters his life. The poorman's public is formed of the poor. And the crimes, which affectmerely the property of the wealthier classes, are certainly regardedwith little, or rather with no abhorrence, by the indigent andignorant portion of the working people. Not perceiving that suchcrimes are pernicious to all classes, but considering property tobe a benefit in which they have no share, and which is enjoyedby others at their expense, the indigent and ignorant portion ofthe working people are prone to consider such crimes as reprisalsmade upon usurpers and enemies. They regard the criminal withsympathy rather than with indignation. They rather incline tofavour, or, at least, to wink at his escape, than to lend theirhearty aid towards bringing him to justice.

Those who have inquired into the causes of crimes, and intothe means of lessening their number, have commonly expectedmagnificent results from an improved system of punishments. AndI admit that something might be done by a judicious mitigationof punishments, and by removing that frequent inclination to abetthe escape of a criminal which springs from their repulsive severity.Something might also be accomplished by improvements in prison-discipline, and by providing a refuge for criminals who havesuffered their punishments. For the stigma of legal punishment iscommonly indelible; and, by debarring the unhappy criminal fromthe means of living honestly, forces him on further crimes.

But nothing but the diffusion of knowledge through the great massof the people will go to the root of the evil. Nothing but this willcure or alleviate the poverty which is the ordinary incentive tocrime. Nothing but this will extirpate their prejudices, and correcttheir moral sentiments: will lay them under the restraints whichare imposed by enlightened opinion, and which operate so potentlyon the higher and more cultivated classes.

The evils which I have now mentioned, with many which Ipass in silence, flow from one of the prejudices which enslave thepopular mind. The advantages at which I have pointed, with many

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which I leave unnoticed, would follow the emancipation of themultitude from that single error.

And this, with other prejudices, might be expelled from theirunderstandings and affections, if they had mastered the broadprinciples of the science of political economy, and could makethe easiest applications of those simple, though commandingtruths.

The functions of paper-money, the incidence of taxes, withother of the nicer points which are presented by this science, themultitude, it is probable, will never understand distinctly: andtheir opinions on such points (if ever they shall think of them atall) will, it is most likely, be always taken from authority. But theimportance of those nicer points dwindles to nothing, when theyare compared with the true reasons which call for the institutionof property, and with the effect of the principle of population onthe price of labour. For if these (which are not difficult) wereclearly apprehended by the many, they would be raised frompenury to comfort: from the necessity of toiling like cattle, to theenjoyment of sufficient leisure: from ignorance and brutishness,to knowledge and refinement: from abject subjection, to the inde-pendence which commands respect.

If my limits would permit me to dwell upon the topic at length,I could show, by many additional and pregnant examples, thatthe multitude might clearly apprehend the leading principles ofethics, and also of the various sciences which are nearly relatedto ethics: and that, if they had seized these principles, and couldreason distinctly and justly, all the more momentous of the deriva-tive practical truths would find access to their understandings andexpel the antagonist errors.

And the multitude (in civilized communities) would soon appre-hend these principles, and would soon acquire the talent ofreasoning distinctly and justly, if one of the weightiest of theduties, which God has laid upon governments, were performedwith fidelity and zeal. For, if we must construe those duties bythe principles of general utility, it is not less incumbent ongovernments to forward the diffusion of knowledge, than to protecttheir subjects from one another by a due administration of justice,or to defend them by a military force from the attacks of externalenemies. A small fraction of the sums which are squandered in

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needless war, would provide complete instruction for the workingpeople: would give this important class that portion in the knowl-edge of the age, which consists with the nature of their callings,and with the necessity of toiling for a livelihood.

It appears, then, that the ignorance of the multitude is notaltogether invincible, though the principle of general utility bethe index to God's commands, and, therefore, the proximate testof positive law and morality.

If ethical science must be gotten by consulting the principle ofutility, if it rest upon observation and induction applied to thetendencies of actions, if it be matter of acquired knowledge andnot of immediate consciousness, much of it (I admit) will everbe hidden from the multitude, or will ever be taken by themultitude on authority, testimony, or trust. For an inquiry intothe tendencies of actions embraces so spacious a field, that nonebut the comparatively few, who study the science assiduously, canapply the principle extensively to received or positive rules, anddetermine how far they accord with its genuine suggestions ordictates.

But the multitude might clearly understand the elements orgroundwork of the science, together with the more momentousof the derivative practical truths. To that extent, they might befreed from the dominion of authority: from the necessity of blindlypersisting in hereditary opinions and practices; or of turning andveering, for want of directing principles, with every wind ofdoctrine.

Nor is this the only advantage which would follow the spreadof those elements amongst the great body of the people.

If the elements of ethical science were widely diffused, thescience would advance with proportionate rapidity.

If the minds of the many were informed and invigorated, theircoarse and sordid pleasures, and their stupid indifference aboutknowledge, would be supplanted by refined amusements, and byliberal curiosity. A numerous body of recruits from the lower ofthe middle classes, and even from the higher classes of theworking people, would thicken the slender ranks of the readingand reflecting public: the public which occupies its leisure with

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letters, science, and philosophy; whose opinion determines thesuccess or failure of books; and whose notice and favour arenaturally courted by the writers.

And until that public shall be much extended, shall embracea considerable portion of the middle and working people, thescience of ethics, with all the various sciences which are nearlyrelated to ethics, will advance slowly.

It was the opinion of Mr. Locke, and I fully concur in the opi-nion, that there is no peculiar uncertainty in the subject or matter ofthese sciences: that the great and extraordinary difficulties, bywhich their advancement is impeded, are extrinsick; are opposed bysinister interests, or by prejudices which are the offspring of suchinterests: that, if they who seek, or affect to seek the truth, wouldpursue it with obstinate application and with due Hndifferency? theymight frequently hit upon the object which they profess to look for.

Now few of them will pursue it with this requisite 'indifferency'or impartiality, so long as the bulk of the public, which determinesthe fate of their labours, shall continue to be formed from theclasses which are elevated by rank or opulence, and from thepeculiar professions or callings which are distinguished by thename of 'liberal.'

In the science of ethics, and in all the various sciences whichare nearly related to ethics, your only sure guide is general utility.If thinkers and writers would stick to it honestly and closely, theywould frequently enrich these sciences with additional truths, orwould do them good service by weeding them of nonsense anderror. But, since the peculiar interests of particular and narrowclasses are always somewhat adverse to the interests of the greatmajority, it is hardly to be expected of writers, whose reputationdepends upon such classes, that they should fearlessly tread thepath which is indicated by the general well-being. The indifferencyin the pursuit of truth which is so earnestly inculcated by Mr.Locke, is hardly to be expected of writers who occupy so base aposition. Knowing that a fraction of the community can make ormar their reputation, they unconsciously or purposely accommo-date their conclusions to the prejudices of that narrower public.Or, to borrow the expressive language of this greatest and bestof philosophers, 'they begin with espousing the well-endowed

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opinions in fashion; and, then, seek arguments to show theirbeauty, or to varnish and disguise their deformity.'

The treatise by Dr. Paley on Moral and Political Philosophyexemplifies the natural tendency of narrow and domineering inter-ests to pervert the course of inquiry from its legitimate purpose.

As men go, this celebrated and influential writer was a wiseand a virtuous man. By the qualities of his head and heart, bythe cast of his talents and affections, he was fitted, in a highdegree, to seek for ethical truth, and to expound it successfullyto others. He had a clear and just understanding; a hearty con-tempt of paradox, and of ingenious, but useless refinements; nofastidious disdain of the working people, but a warm sympathywith their homely enjoyments and sufferings. He knew that theyare more numerous than all the rest of the community, and hefelt that they are more important than all the rest of the communityto the eye of unclouded reason and impartial benevolence.

But the sinister influence of the position which he unluckilyoccupied, cramped his generous affections, and warped the recti-tude of his understanding.

A steady pursuit of the consequences indicated by general utility,was not the most obvious way to professional advancement, noreven the short cut to extensive reputation. For there was noimpartial public, formed from the community at large, to rewardand encourage, with its approbation, an inflexible adherence totruth.

If the bulk of the community had been instructed, so far astheir position will permit, he might have looked for a host ofreaders from the middle classes. He might have looked for a hostof readers from those classes of the working people, whose wagesare commonly high, whose leisure is not inconsiderable, andwhose mental powers are called into frequent exercise by thenatures of their occupations or callings. To readers of the middleclasses, and of all the higher classes of the working people, awell made and honest treatise on Moral and Political Philosophy,in his clear, vivid, downright, English style, would have been themost easy and attractive, as well as instructive and useful, ofabstract or scientific books.

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But those numerous classes of the community were commonlytoo coarse and ignorant to care for books of the sort. The greatmajority of the readers who were likely to look into his book,belonged to the classes which are elevated by rank or opulence,and to the peculiar professions or callings which are distinguishedby the name of 'liberal.' And the character of the book whichhe wrote betrays the position of the writer. In almost everychapter, and in almost every page, his fear of offending theprejudices, commonly entertained by such readers, palpably sup-presses the suggestions of his clear and vigorous reason, andmasters the better affections which inclined him to the generalgood.

He was one of the greatest and best of the great and excellentwriters, who, by the strength of their philosophical genius, or bytheir large and tolerant spirit, have given imperishable lustre tothe Church of England, and extinguished or softened the hostilityof many who reject her creed. He may rank with the Berkeleysand Butlers, with the Burnets, Tillotsons and Hoadlys.

But, in spite of the esteem with which I regard his memory,truth compels me to add that the book is unworthy of the man.For there is much ignoble truckling to the dominant and influentialfew. There is a deal of shabby sophistry in defence or extenuationof abuses which the few are interested in upholding.

If there were a reading public numerous, discerning, and impar-tial, the science of ethics, and all the various sciences which arenearly related to ethics, would advance with unexampled rapidity.

By the hope of obtaining the approbation which it would bestowupon genuine merit, writers would be incited to the patientresearch and reflection, which are not less requisite to theimprovement of ethical, than to the advancement of mathematicalscience.

Slight and incoherent thinking would be received with generalcontempt, though it were cased in polished periods studded withbrilliant metaphors. Ethics would be considered by readers, and,therefore, treated by writers, as the matter or subject of a science:as a subject for persevering and accurate investigation, and notas a theme for childish and babbling rhetoric.

This general demand for truth (though it were clothed inhomely guise), and this general contempt of falsehood and non-

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sense (though they were decked with rhetorical graces), wouldimprove the method and the style of inquiries into ethics, andinto the various sciences which are nearly related to ethics. Thewriters would attend to the suggestions of Hobbes and of Locke,and would imitate the method so successfully pursued bygeometers: Though such is the variety of the premises whichsome of their inquiries involve, and such are the complexity andambiguity of some of the terms, that they would often fall shortof the perfect exactness and coherency, which the fewness of hispremises, and the simplicity and definiteness of his expressions,enable the geometer to reach. But, though they would often fallshort of geometrical exactness and coherency, they might alwaysapproach, and would often attain to them. They would acquirethe art and the habit of defining their leading terms; of steadilyadhering to the meanings announced by the definitions; of care-fully examining and distinctly stating their premises; and of deduc-ing the consequences of their premises with logical rigour. Withoutrejecting embellishments which might happen to fall in their way,the only excellencies of style for which they would seek, areprecision, clearness, and conciseness: the first being absolutelyrequisite to the successful prosecution of inquiry; whilst the othersenable the reader to seize the meaning with certainty, and sparehim unnecessary fatigue.

And, what is equally important, the protection afforded bythis public to diligent and honest writers, would inspire intowriters upon ethics, and upon the nearly related sciences, thespirit of dispassionate inquiry: the 'indifferency' or impartialityin the pursuit of truth, which is just as requisite to the detectionof truth as continued and close attention, or sincerity and sim-plicity of purpose. Relying on the discernment and the justiceof a numerous and powerful public, shielded by its countenancefrom the shafts of the hypocrite and the bigot, indifferent tothe idle whistling of that harmless storm, they would scrutinizeestablished institutions, and current or received opinions, fear-lessly, but coolly; with the freedom which is imperiouslydemanded by general utility, but without the antipathy which isbegotten by the dread of persecution, and which is scarcely lessadverse than 'the love of things ancient' to the rapid advancementof science.

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The secondobjection to thetheory of utility,together with theforegoing answerto that secondobjection, brieflyre-stated.

This patience in investigation, this distinctness and accuracyof method, this freedom and 'indifferency' in the pursuit of theuseful and the true, would thoroughly dispel the obscurity bywhich the science is clouded, and would clear it from most ofits uncertainties. The wish, the hope, the prediction of Mr.Locke would, in time, be accomplished: and 'ethics would rankwith the sciences which are capable of demonstration' The adeptsin ethical, as well as in mathematical science, would commonlyagree in their results: And, as the jar of their conclusionsgradually subsided, a body of doctrine and authority to whichthe multitude might trust would emerge from the existing chaos.The direct examination of the multitude would only extend tothe elements, and to the easier, though more momentous, ofthe derivative practical truths. But none of their opinions wouldbe adopted blindly, nor would any of their opinions be obnoxiousto groundless and capricious change. Though most or many oftheir opinions would still be taken from authority, the authorityto which they would trust might satisfy the most scrupulousreason. In the unanimous or general consent of numerous and impar-tial inquirers, they would find that mark of trustworthiness whichjustifies reliance on authority, whenever we are debarred fromthe opportunity of examining the evidence for ourselves.

With regard, then, to the perplexing difficulty which I amtrying to solve or extenuate, the case stands thus:

If utility be the proximate test of positive law and morality,it is simply impossible that positive law and morality should befree from defects and errors. Or (adopting a different, thoughexactly equivalent expression) if the principle of general utilitybe our guide to the Divine commands, it is impossible that therules of conduct actually obtaining amongst mankind should accordcompletely and correctly with the laws established by the Deity.The index to his will is imperfect and uncertain. His laws aresignified obscurely to those upon whom they are binding, andare subject to inevitable and involuntary misconstruction.

For, first, positive law and morality, fashioned on the principleof utility, are gotten by observation and induction from thetendencies of human actions: from what can be known orconjectured, by means of observation and induction, of their

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Lecture HI.

uniform or customary effects on the general happiness or good.Consequently, till these actions shall be marked and classedwith perfect completeness, and their effects observed and ascer-tained with similar completeness, positive law and morality,fashioned on the principle of utility, must be more or lessdefective, and more or less erroneous. And these actions beinginfinitely various, and their effects being infinitely diversified,the work of classing them completely, and of collecting theireffects completely, transcends the limited faculties of createdand finite beings. As the experience of mankind enlarges, asthey observe more extensively and accurately and reason moreclosely and precisely, they may gradually mend the defects oftheir legal and moral rules, and may gradually clear their rulesfrom the errors and nonsense of their predecessors. But, thoughthey may constantly approach, they certainly will never attain toa faultless system of ethics: to a system perfectly in unison withthe dictates of general utility, and, therefore, perfectly in unisonwith the benevolent wishes of the Deity.

And, secondly, if utility be the proximate test of positive lawand morality, the defects and errors of popular or vulgar ethicswill scarcely admit of a remedy. For, if ethical truth be matterof science, and not of immediate consciousness, most of theethical maxims, which govern the sentiments of the multitude,must be taken, without examination, from human authority. Andwhere is the human authority upon which they can safely rely?Where is the human authority bearing such marks of trustworthi-ness, that the ignorant may hang their faith upon it with reason-able assurance? Reviewing the various ages and the variousnations of the world, reviewing the various sects which havedivided the opinions of mankind, we find conflicting maximstaught with equal confidence, and received with equal docility.We find the guides of the multitude moved by sinister interests,or by prejudices which are the offspring of such interests. Wefind them stifling inquiry, according to the measure of theirmeans: upholding with fire and sword, or with sophistry, decla-mation and calumny, the theological and ethical dogmas whichthey impose upon their prostrate disciples.

Such is the difficulty. - [The only solution of which thisdifficulty seems to admit,] is suggested by the remarks which I

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have already submitted to your attention, and which I will nowrepeat in an inverted and compendious form.

In the first place, the diffusion of ethical science amongst thegreat bulk of mankind will gradually remove the obstacles whichprevent or retard its advancement. The field of human conductbeing infinite or immense, it is impossible that human under-standing should embrace and explore it completely. But, by thegeneral diffusion of knowledge amongst the great bulk of man-kind, by the impulse and the direction which the diffusion willgive to inquiry, many of the defects and errors in existing lawand morality will in time be supplied and corrected.

Secondly: Though the many must trust to authority for anumber of subordinate truths, they are competent to examinethe elements which are the groundwork of the science of ethics,and to infer the more momentous of the derivative practicalconsequences.

And, thirdly, as the science of ethics advances, and is clearedof obscurity and uncertainties, they who are debarred fromopportunities of examining the science extensively, will find anauthority, whereon they may rationally rely, in the unanimousor general agreement of searching and impartial inquirers.

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Lecture IV.

IN my last lecture, I endeavoured to answer an objection which The connection ofmay be urged against the theory of utility. And to the purpose f / ^ ^of linking my present with my last lecture, I will now restate, ina somewhat abridged shape, that summary of the objection andthe answer with which I concluded my discourse.

The objection may be put briefly, in the following manner.If utility be the proximate test of positive law and morality, it

is impossible that the rules of conduct actually obtaining amongstmankind should accord completely and correctly with the lawsestablished by the Deity. The index to his will is imperfect anduncertain. His laws are signified obscurely to those upon whomthey are binding, and are subject to inevitable and involuntarymisconstruction.

For, first, positive law and morality, fashioned on the principle ofutility, are gotten by observation and induction from the tendenciesof human actions. Consequently, till these actions shall be markedand classed with perfect completeness, and their effects observedand ascertained with similar completeness, positive law and moral-ity, fashioned on the principle of utility, must be more or less defec-tive, and more or less erroneous. And, these actions being infinitelyvarious, and their effects being infinitely diversified, the work ofclassing them completely and of collecting their effects completely,transcends the limited faculties of created and finite beings.

And, secondly, if utility be the proximate test of positive lawand morality, the defects and errors of popular or vulgar ethicswill scarcely admit of a remedy. For if ethical truth be matter of

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The secondobjection to thetheory of utility,resumed.

science, and not of immediate consciousness, most of the ethicalmaxims, which govern the sentiments of the multitude, must betaken without examination, from human authority.

Such is the objection. - The only answer of which the objectionwill admit, is suggested by the remarks which I offered in mylast lecture, and which I repeated at its close, and here repeatin an inverted and compendious form.

In the first place, the diffusion of ethical science amongst thegreat bulk of mankind will gradually remove the obstacles whichprevent or retard its advancement. The field of human conductbeing infinite or immense, it is impossible that human understand-ing should embrace and explore it completely. But, by the generaldiffusion of knowledge amongst the great bulk of mankind, bythe impulse and the direction which the diffusion will give toinquiry, many of the defects and errors in existing law and moralitywill in time be supplied and corrected.

Secondly: Though the many must trust to authority for a numberof subordinate truths, they are competent to examine the elementswhich are the groundwork of the science of ethics, and to inferthe more momentous of the derivative practical consequences.

And, thirdly, as the science of ethics advances, and is clearedof obscurity and uncertainties, they, who are debarred from oppor-tunities of examining the science extensively, will find an authoritywhereon they may rationally rely, in the unanimous or generalagreement of searching and impartial inquirers.

But this answer, it must be admitted, merely extenuates theobjection. It shows that law and morality fashioned on the principleof utility might approach continually and indefinitely to absoluteperfection. But it grants that law and morality fashioned on theprinciple of utility is inevitably defective and erroneous: that, ifthe laws established by the Deity must be construed by theprinciple of utility, the most perfect system of ethics which thewit of man could conceive, were a partial and inaccurate copy ofthe Divine original or pattern.

And this (it may be urged) disproves the theory which makesthe principle of utility the index to the Divine pleasure. For itconsists not with the known wisdom and the known benevolenceof the Deity, that he should signify his commands defectively andobscurely to those upon whom they are binding.

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But admitting the imperfection of utility as the index to the A further answerDivine pleasure, it is impossible to argue, from this its admitted ^imperfection, 'that utility is not the index.'

Owing to causes which are hidden from human understanding,all the works of the Deity which are open to human observationare alloyed with imperfection or evil. That the Deity should signifyhis commands defectively and obscurely, is strictly in keeping orunison with the rest of his inscrutable ways. The objection nowin question proves too much, and, therefore, is untenable. If youargue 'that the principle of utility is not the index to his laws,because the principle of utility were an imperfect index to his laws/you argue 'that all his works are in fact exempt from evil, becauseimperfection or evil is inconsistent with his wisdom and goodness.'The former of these arguments implies the latter, or is merely anapplication of the sweeping position to one of innumerable cases.

Accordingly, if the objection now in question will lie to thetheory of utility, a similar objection will lie to every theory ofethics which supposes that any of our duties are set or imposedby the Deity.

The objection is founded on the alleged inconsistency of evilwith his perfect wisdom and goodness. But the notion or idea ofevil or imperfection is involved in the connected notions of law,duty, and sanction. For, seeing that every law imposes a restraint,every law is an evil of itself: and, unless it be the work ofmalignity, or proceed from consummate folly, it also supposes anevil which is designed to prevent or remedy. Law, like medicine,is a preventive or remedy of evil: and, if the world were freefrom evil, the notion and the name would be unknown.

'That his laws are signified obscurely, if utility be the index tohis laws,' is rather a presumption in favour of the theory whichmakes utility our guide. Analogy might lead us to expect thatthey would be signified obscurely. For laws or commands supposethe existence of evils which they are designed to remedy: let thembe signified as they may, they remedy those evils imperfectly: andthe imperfection which they are designed to remedy, and of whichthe remedy partakes, might naturally be expected to show itselfin the mode by which they are manifested.

My answer to the objection is the very argument which theexcellent Butler, in his admirable 'Analogy,' has wielded in defence

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of Christianity with the vigour and the skill of a master.Considered as a system of rules for the guidance of human

conduct, the Christian religion is defective. There are also circum-stances, regarding the manner of its promulgation, which humanreason vainly labours to reconcile with the wisdom and goodnessof God. Still it were absurd to argue 'that the religion is not ofGod, because the religion is defective, and is imperfectly revealedto mankind.' For the objection is founded on the alleged inconsist-ency of evil with his perfect wisdom and goodness. And, sinceevil pervades the universe, in so far as it is open to our inspection,a similar objection will lie to every system of religion which ascribesthe existence of the universe to a wise and benevolent Author.Whoever believes that the universe is the work of benevolenceand wisdom, is concluded, or estopped, by his own religious creed,from taking an objection of the kind to the creed or system ofanother.

Analogy (as Butler has shown) would lead us to expect theimperfection upon which the objection is founded. Something ofthe imperfection which runs through the frame of the universe,would probably be found in a revelation emanating from theAuthor of the universe.

And here my solution of the difficulty necessarily stops. Acomplete solution is manifestly impossible. To reconcile the exist-ence of evil with the wisdom and goodness of God is a taskwhich surpasses the powers of our narrow and feeble understand-ings. This is a deep which our reason is too short to fathom.From the decided predominance of good which is observable inthe order of the world, and from the manifold marks of wisdomwhich the order of the world exhibits, we may draw the cheeringinference 'that its Author is good and wise.' Why the world whichhe has made is not altogether perfect, or why a benevolent Deitytolerates the existence of evil, or what (if I may so express myself)are the obstacles in the way of his benevolence, are clearlyquestions which it were impossible to solve, and which it wereidle to agitate although they admitted a solution. It is enough forus to know, that the Deity is perfectly good; and that, since heis perfectly good, he wills the happiness of his creatures. This isa truth of the greatest practical moment. For the cast of theaffections, which we attribute to the Deity, determines, for themost part, the cast of our moral sentiments.

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Lecture IV.

I admit, then, that God's commands are imperfectly signified The hypothesis ofto man, supposing we must gather his commands from the tend- ^encies of human actions. But I deny that this imperfection is aconclusive objection to the theory which makes the principle ofutility our guide or index to his will. Whoever would disprovethe theory which makes utility our guide, must produce anotherprinciple that were a surer and a better guide.

Now, if we reject utility as the index to God's commands, wemust assent to the theory or hypothesis which supposes a moralsense. One of the adverse theories, which regard the nature ofthat index, is certainly true. He has left us to presume his com-mands from the tendencies of human actions, or he has given usa peculiar sense of which his commands are the objects.

All the hypotheses, regarding the nature of that index, which 'A moral sense:discard the principle of utility, are built upon the supposition of ^m^l

s^nct'a peculiar or appropriate sense. The language of each of these 'a principle ofhypotheses differs from the language of the others, but the import r^emon or

y \J * <~> <-> / x conscience, a

of each resembles the import of the rest. practical reason,'By la moral sense,' with which my understanding is furnished, tr^Z^tcal

I discern the human actions which the Deity enjoins and forbids: 'connate practicalAnd, since you and the rest of the species are provided with a pnnciples> etc-like organ, it is clear that this sense of mine is 'the common sense expressions far oneof mankind.' By 'a moral instinct' with which the Deity has ^%endowed me, I am urged to some of these actions, and am warnedto forbear from others. 'A principle of reflection or conscience,' whichButler assures me I possess, informs me of their rectitude orpravity. Or 'the innate practical principles] which Locke has pre-sumed to question, define the duties, which God has imposedupon me, with infallible clearness and certainty.

These and other phrases are various but equivalent expressionsfor one and the same hypothesis. The only observable differencebetween these various expressions consists in this: that somedenote sentiments which are excited by human actions, whilstothers denote the commands to which those sentiments are theindex.

The hypothesis of a moral sense, or the hypothesis which is The hypothesis invariously signified by these various but equivalent expressions, ^ ^ ^ " ^involves tWO assumptions. The first of the

The first of the two assumptions involved by the hypothesis in ^^eTb^hequestion, may be stated, in general expressions, thus: hypothesis in

question, stated ingeneral

8 1 expressions.

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The foregoingstatement of thefirst assumption,exemplified andexplained by animaginary case.

Certain sentiments or feelings of approbation or disapprobationaccompany our conceptions of certain human actions. They areneither effects of reflection upon the tendencies of the actionswhich excite them, nor are they effects of education. A conceptionof any of these actions would be accompanied by certain of thesesentiments, although we had not adverted to its good or eviltendency, nor knew the opinions of others with regard to actionsof the class.

In a word, that portion of the hypothesis in question which Iam now stating is purely negative. We are gifted with moralsentiments which are ultimate or inscrutable facts: which are notthe consequences of reflection upon the tendencies of humanactions, which are not the consequences of the education that wereceive from our fellow-men, which are not the consequences oreffects of any antecedents or causes placed within the reach of ourinspection. Our conceptions of certain actions are accompanied bycertain sentiments, and there is an end of our knowledge.

For the sake of brevity, we may say that these sentiments are'instinctive,' or we may call them 'moral instincts.'

For the terms 'instinctive,' and 'instinct,' are merely negativeexpressions. They merely denote our own ignorance. They meanthat the phenomena of which we happen to be talking are not pre-ceded by causes which man is able to perceive. For example, Thebird, it is commonly said, builds her nest by 'instinct:' or the skillwhich the bird evinces in the building of her nest, is commonlystyled 'instinctive.' That is to say, It is not the product of experi-ments made by the bird herself; it has not been imparted to the birdby the teaching or example of others; nor is it the consequence oreffect of any antecedent or cause open to our observation.

The remark which I have now made upon the terms 'instinctive'and 'instinct,' is not interposed needlessly. For, though their trueimport is extremely simple and trivial, they are apt to dazzle andconfound us (unless we advert to it steadily) with the false andcheating appearance of a mysterious and magnificent meaning.

In order that we may clearly apprehend the nature of these'moral instincts,' I will descend from general expressions to animaginary case.

I will not imagine the case which is fancied by Dr. Paley: forI think it ill fitted to bring out the meaning sharply. I will merely

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take the liberty of borrowing his solitary savage: a child abandonedin the wilderness immediately after its birth, and growing to theage of manhood in estrangement from human society.

Having gotten my subject, I proceed to deal with him after myown fashion.

I imagine that the savage, as he wanders in search of prey,meets, for the first time in his life, with a man. This man isa hunter, and is carrying a deer which he has killed. Thesavage pounces upon it. The hunter holds it fast. And, in orderthat he may remove this obstacle to the satisfaction of hisgnawing hunger, the savage seizes a stone, and knocks thehunter on the head. - Now, according to the hypothesis inquestion, the savage is affected with remorse at the thought ofthe deed which he has done. He is affected with more thanthe compassion which is excited by the sufferings of another, andwhich, considered by itself, amounts not to a moral sentiment. Heis affected with the more complex emotion of self-condemnationor remorse: with a consciousness of guilt: with the feeling thathaunts and tortures civilized or cultivated men, whenever theyviolate rules which accord with their notions of utility, or whichthey have learned from others to regard with habitual veneration.He feels as you would feel, in case you had committed amurder: in case you had killed another, in an attempt to robhim of his goods: or in case you had killed another under anycombination of circumstances, which, agreeably to your notionsof utility, would make the act a pernicious one, or, agreeablyto the moral impressions which you have passively received fromothers, would give to the act of killing the quality and the nameof an injury.

Again: Shortly after the incident which I have now imagined,he meets with a second hunter whom he also knocks on thehead. But, in this instance, he is not the aggressor. He is attacked,beaten, wounded, without the shadow of a provocation: and toprevent a deadly blow which is aimed at his own head, he killsthe wanton assailant. - Now here, according to the hypothesis,he is not affected with remorse. The sufferings of the dying manmove him, perhaps, to compassion: but his conscience (as the phrasegoes) is tranquil. He feels as you would feel, after a justifiablehomicide: after you had shot a highwayman in defence of your

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goods and your life: or after you had killed another under anycombination of circumstances, which, agreeably to your notionsof utility, would render killing innocuous, or, agreeably to thecurrent morality of your age and country, would render the killingof another a just or lawful action.

That you should feel remorse if you kill in an attempt to rob,and should not be affected with remorse if you kill a murderousrobber, is a difference which I readily account for without thesupposition of an instinct. The law of your country distinguishesthe cases: and the current morality of your country accords withthe law.

Supposing that you have never adverted to the reasons of thatdistinction, the difference between your feelings is easily explainedby imputing it to education: Meaning, by the term education, theinfluence of authority and example on opinions, sentiments, andhabits.

Supposing that you have ever adverted to the reasons of thatdistinction, you, of course, have been struck with its obviousutility. - Generally speaking, the intentional killing of another isan act of pernicious tendency. If the act were frequent, it wouldannihilate that general security, and that general feeling of security,which are, or should be, the principal ends of political societyand law. But to this there are exceptions: and the intentionalkilling of a robber who aims at your property and life, is amongstthose exceptions. Instead of being adverse to the principal endsof law, it rather promotes those ends. It answers the purpose ofthe punishment which the law inflicts upon murderers: and italso accomplishes a purpose which punishment is too tardy toreach. The death inflicted on the aggressor tends, as his punish-ment would tend, to deter from the crime of murder: and it alsoprevents, what his punishment would not prevent, the completionof the murderous design in the specific or particular instance. -Supposing that you have ever adverted to these and similarreasons, the difference between your feelings is easily explainedby imputing it to a perception of utility. You see that the tendenciesof the act vary with the circumstances of the act, and yoursentiments in regard to the act vary with those varying tendencies.

But the difference, supposed by the hypothesis, between thefeelings of the savage, cannot be imputed to education. For thesavage has lived in estrangement from human society.

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Lecture IK

Nor can the supposed difference be imputed to a perception ofutility. - He knocks a man on the head, that he may satisfy hisgnawing hunger. He knocks another on the head, that he mayescape from wounds and death. So far, then, as these differentactions exclusively regard himself, they are equally good: and sofar as these different actions regard the men whom he kills, theyare equally bad. As tried by the test of utility, and with the lightswhich the savage possesses, the moral qualities of the two actionsare precisely the same. If we suppose it possible that he advertsto considerations of utility, and that his sentiments in respect tothese actions are determined by considerations of utility, we mustinfer that he remembers both of them with similar feelings: withsimilar feelings of complacency, as the actions regard himself;with similar feelings of regret, as they regard the sufferings ofthe slain.

To the social man the difference between these actions, astried by the test of utility, were immense. - The general happinessor good demands the institution of property: that the exclusiveenjoyment conferred by the law upon the owner shall not bedisturbed by private and unauthorised persons: that no man shalltake from another the product of his labour or saving, withoutthe permission of the owner previously signified, or without theauthority of the sovereign acting for the common weal. Werewant, however intense, an excuse for violations of property; couldevery man who hungers take from another with impunity, andslay the owner with impunity if the owner stood on his possession;that beneficent institution would become nugatory, and the endsof government and law would be defeated. - And, on the otherhand, the very principle of utility which demands the institutionof property requires that an attack upon the body shall be repelledat the instant: that, if the impending evil cannot be avertedotherwise, the aggressor shall be slain on the spot by the partywhose life is in jeopardy.

But these are considerations which would not present them-selves to the solitary savage. They involve a number of notionswith which his mind would be unfurnished. They involve thenotions of political society; of supreme government; of positivelaw; of legal right; of legal duty; of legal injury. The good andthe evil of the two actions, in so far as the two actions wouldaffect the immediate parties, is all that the savage could perceive.

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The first of thetwo assumptionsinvolved by thehypothesis inquestion, brieflyrestated in generalexpressions.

The second of thetwo assumptionsinvolved by thehypothesis inquestion, brieflystated.

The difference, supposed by the hypothesis, between the feel-ings of the savage, must, therefore, be ascribed to a moral sense,or to innate practical principles. Or (speaking in homelier butplainer language) he would regard the two actions with differentsentiments, we know not why.

The first of the two assumptions involved by the hypothesis inquestion is, therefore, this. - Certain inscrutable sentiments ofapprobation or disapprobation accompany our conceptions of cer-tain human actions. They are not begotten by reflection upon thetendencies of the actions which excite them, nor are they instilledinto our minds by our intercourse with our fellow-men. They aresimple elements of our nature. They are ultimate facts. They arenot the effects of causes, or are not the consequents of ante-cedents, which are open to human observations.

And, thus far, the hypothesis in question has been embracedby sceptics as well as by religionists. For example, it is supposedby David Hume, in his Essay on the Principles of Morals, thatsome of our moral sentiments spring from a perception of utility.but he also appears to imagine that others are not to be analyzed,or belong exclusively to the province of taste. Such, I say, appearsto be his meaning. For, in this essay, as in all his writings, he israther acute and ingenious than coherent and profound: handlingdetached topics with signal dexterity, but evincing an utter inabilityto grasp his subject as a whole. When he speaks of moral sentimentsbelonging to the province of taste, he may, perhaps, be advertingto the origin of benevolence, or to the origin of our sympathy withthe pleasures and pains of others: a feeling that differs as broadlyas the appetite of hunger or thirst from the sentiments of appro-bation or disapprobation which accompany our judgements uponactions.

That these inscrutable sentiments are signs of the Divine will,or the proofs that the actions which excite them are enjoined orforbidden by God, is the second of the two assumptions involvedby the hypothesis in question.

In the language of the admirable Butler (who is the ablestadvocate of the hypothesis), the human actions by which thesefeelings are excited are their direct and appropriate objects: justas things visible are the direct and appropriate objects of thesense of seeing.

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In homelier but plainer language, I may put his meaning thus. -As God has given us eyes, in order that we may see therewith;so has he gifted or endowed us with the feelings or sentimentsin question, in order that we may distinguish directly, by meansof these feelings or sentiments, the actions which he enjoins orpermits, from the actions which he prohibits.

Or, if you like it better, I may put the meaning thus. - Thatthese inscrutable sentiments are signs of the Divine will, is aninference which we necessarily deduce from our consideration offinal causes. Like the rest of our appetites or aversions, thesesentiments were designed by the Author of our being to answeran appropriate end. And the only pertinent end which we canpossibly ascribe to them, is the end or final cause at which Ihave now pointed.

Now, supposing that the Deity has endowed us with a moral As an index tosense or instinct, we are free of the difficulty to which we are God's 1fman^

7 J a moral sense

subject, if we must construe his laws by the principle of general were less fallibleutility. According to the hypothesis in question, the inscrutable ^j^feelings which are styled the moral sense arise directly and inevi-tably with the thoughts of their appropriate objects. We cannotmistake the laws which God has prescribed to mankind, althoughwe may often be seduced by the blandishments of present advan-tage from the plain path of our duties. The understanding isnever at a fault, although the will may be frail.

But here arises a small question. - Is there any evidence that But is there anywe are gifted with feelings of the sort? evidence *>

& & sustain the

That this question is possible, or is seriously asked and agitated, hypothesis inwould seem of itself a sufficient proof that we are not endowed luestt°n[ The

r hypothesis in

with such feelings. - According to the hypothesis of a moral question «sense, we are conscious of the feelings which indicate God's dtsPraved tothe

, • r i_ !_• T i negative state of

commands, as we are conscious of hunger or thirst. In other our consciousness.words, the feelings which indicate God's commands are ultimatefacts. But, since they are ultimate facts, these feelings or senti-ments must be indisputable, and must also differ obviously fromthe other elements of our nature. If I were really gifted withfeelings or sentiments of the sort, I could no more seriouslyquestion whether I had them or not, and could no more blendand confound them with my other feelings or sentiments, than Ican seriously question the existence of hunger or thirst, or can

8?

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mistake the feeling which affects me when I am hungry for thedifferent feeling which affects me when I am thirsty. All the partsof our nature which are ultimate, or incapable of analysis, arecertain and distinct as well as inscrutable. We know and discernthem with unhesitating and invincible assurance.

The two current The two current arguments in favour of the hypothesis inquestion are raised on the following assertions, i. The judgmentswhich we pass internally upon the rectitude or pravity of actionsa r e im m e ( t i a t e a nd involuntary. In other words, our moral senti-ments or feelings arise directly and inevitably with our conceptionsof the actions which excite them. 2. The moral sentiments of allmen are precisely alike.

The first argument Now the first of these venturous assertions is not universallyI otheslfn 6 t rue* *n n u m D e r l e s s cases, the judgments which we pass internallyquestion, upon the rectitude or pravity of actions are hesitating and slow.examined. ^n ( j ^ n o t unfrequently happens that we cannot arrive at a

conclusion, or are utterly at a loss to determine whether we shallpraise or blame.

And, granting that our moral sentiments are always instan-taneous and inevitable, this will not demonstrate that our moralsentiments are instinctive. Sentiments which are factitious, orbegotten in the way of association, are not less prompt andinvoluntary than feelings which are instinctive or inscrutable. Forexample, We begin by loving money for the sake of the enjoymentwhich it purchases: and, that enjoyment apart, we care not astraw for money. But, in time, our love of enjoyment is extendedto money itself, or our love of enjoyment becomes inseparablyassociated with the thought of the money which procures it. Theconception of money suggests a wish for money, although wethink not of the uses to which we should apply it. Again: Webegin by loving knowledge as a mean to ends. But, in time, thelove of the ends becomes inseparably associated with the thoughtor conception of the instrument. Curiosity is instantly roused byevery unusual appearance, although there is no purpose whichthe solution of the appearance would answer, or although weadvert not to the purpose which the solution of the appearancemight subserve.

The promptitude and decision with which we judge of actionsare impertinent to the matter in question: for our moral sentiments

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would be prompt and inevitable, although they arose from aperception of utility, or although they were impressed upon ourminds by the authority of our fellow-men. Supposing that a moralsentiment sprang from a perception of utility, or supposing thata moral sentiment were impressed upon our minds by authority, itwould hardly recur spontaneously until it had recurred frequently.Unless we recalled the reasons which had led us to our opinions,or unless we adverted to the authority which had determined ouropinion, the sentiment, at the outset, would hardly be excited bythe thought of the corresponding action. But, in time, the senti-ment would adhere inseparably to the thought of the correspond-ing action. Although we recalled not the ground of our moralapprobation or aversion, the sentiment would recur directly andinevitably with the conception of its appropriate object.

But, to prove that moral sentiments are instinctive or inscrutable, The secondit is bodily asserted, by the advocates of the hypothesis in question, 3 ^ ^ 2,that the moral sentiments of all men are precisely alike. hypothesis in

The argument, in favour of the hypothesis, which is raised onthis hardy assertion, may be stated briefly in the followingmanner. - No opinion or sentiment which is a result of observationand induction is held or felt by all mankind. Observation andinduction, as applied to the same subject, lead different men todifferent conclusions. But the judgments which are passed intern-ally upon the rectitude or pravity of actions, or the moral senti-ments or feelings which actions excite, are precisely alike with allmen. Consequently, our moral sentiments or feelings were notgotten by our inductions from the tendencies of the actions whichexcite them: nor were these sentiments or feelings gotten byinductions of others, and then impressed upon our minds byhuman authority and example. Consequently, our moral sentimentsare instinctive or are ultimate or inscrutable facts.

Now, though the assertion were granted, the argument raisedon the assertion would hardly endure examination. Though themoral sentiments of all men were precisely alike, it would hardlyfollow that moral sentiments are instinctive.

But an attempt to confute the argument were superfluouslabour: for the assertion whereon it is raised is groundless. Therespective moral sentiments of different ages and nations, and ofdifferent men in the same age and nation, have differed to infinity.

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A brief statementof the factwhereon thesecond argumentin favour of thehypothesis inquestion is

The fact accordsexactly with thehypothesis ortheory of utility.

This proposition is so notoriously true, and to every instructedmind the facts upon which it rests are so familiar, that I shouldhardly treat my hearers with due respect if I attempt to establishit by proof. I therefore assume it without an attempt at proof;and I oppose it to the assertion which I am now considering,and to the argument which is raised on that assertion.

But, before I dismiss the assertion which I am now considering,I will briefly advert to a difficulty attending the hypothesis inquestion which that unfounded assertion naturally suggests. -Assuming that moral sentiments are instinctive or inscrutable,they are either different with different men, or they are alike withall men. To affirm 'that they are alike with all men,' is merelyto hazard a bold assertion contradicted by notorious facts. If theyare different with different men, it follows that God has not setto men a common rule. If they are different with different men,there is no common test of human conduct: there is no test bywhich one man may try the conduct of another. It were folly andpresumption in me to sit in judgment upon you. That which werepravity in me may, for aught I can know, be rectitude in you.The moral sense which you allege, may be just as good andgenuine as that of which / am conscious. Though my instinctpoints one way, yours may point another. There is no broad sundestined to illumine the world, but every single man must walkby his own candle.

Now what is the fact whereon the second argument in favourof the hypothesis in question is founded? The plain and glaringfact is this. - With regard to actions of a few classes, the moralsentiments of most, though not of all men, have been alike. But,with regard to actions of other classes, their moral sentimentshave differed, through every shade or degree, from slight diversityto direct opposition.

And this is what might be expected, supposing that the principleof general utility is our only guide or index to the tacit commandsof the Deity. The fact accords exactly with that hypothesis ortheory. For, first, the positions wherein men are, in different agesand nations, are, in many respects, widely different: whence itinevitably follows, that much which was useful there and thenwere useless or pernicious here and now. And, secondly, sincehuman tastes are various, and since human reason is fallible,

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men's moral sentiments must often widely differ even in respectof the circumstances wherein their positions are alike. But, withregard to actions of a few classes, the dictates of utility are thesame at all times and places, and are also so obvious that theyhardly admit of mistake or doubt. And hence would naturallyensue what observation shows us is the fact: namely, a generalresemblance, with infinite variety, in the systems of law andmorality which have actually obtained in the world.

According to the hypothesis which I have now stated and A brief statementexamined, the moral sense is our only index to the tacit commands °[t}t

i\merm*dtfe

' J hypothesis which

of the Deity. According to an intermediate hypothesis, com- is compounded ofpounded of the hypothesis of utility and the hypothesis of a moral %i^°^%e°f

sense, the moral sense is our index to some of his tacit commands, hypothesis of abut the principle of general utility is our index to others. moral sense'

In so far as I can gather his opinion from his admirable sermons,it would seem that the compound hypothesis was embraced byBishop Butler. But of this I am not certain: for, from manypassages in those sermons, we may perhaps infer that he thoughtthe moral sense our only index or guide.

The compound hypothesis now in question naturally arose fromthe fact to which I have already adverted. - With regard to actionsof a few classes, the moral sentiments of most, though not of allmen, have been alike. With regard to actions of other classes,their moral sentiments have differed, through every shade ordegree, from slight diversity to direct opposition. - In respect tothe classes of actions, with regard to which their moral sentimentshave agreed, there was some show of reason for the suppositionof a moral sense. In respect to the classes of actions, with regardto which their moral sentiments have differed, the supposition ofa moral sense seemed to be excluded.

But the modified or mixed hypothesis now in question is notless halting than the pure hypothesis of a moral sense or instinct. -With regard to actions of a few classes, the moral sentiments ofmost men have concurred or agreed. But it were hardly possibleto indicate a single class of actions, with regard to which all menhave thought and felt alike. And it is clear that every objectionto the simple or pure hypothesis may be urged, with slight adap-tations, against the modified or mixed.

By modern writers on jurisprudence, positive law (or law, simply

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The division ofpositive law intolaw natural andlaw positive, andthe division 0^ juscivile into jusgentium and juscivile, suppose orinvolve theintermediatehypothesis which

the hypothesis ofutility and thehypothesis of amoral sense.

and strictly so called) is divided into law natural and law positive.By the classical Roman jurists, borrowing from the Greek philos-ophers, jus civile (or positive law) is divided into jus gentium andjus civile. Which two divisions of positive law are exactly equivalent.

By modern writers on jurisprudence, and by the classical Romanjurists, positive morality is also divided into natural and positive.For, through the frequent confusion (to which I shall adverthereafter) of positive law and positive morality, a portion of positivemorality, as well as of positive law, is embraced by the law naturalof modern writers on jurisprudence, and by the equivalent jusgentium of the classical Roman jurists.

By reason of the division of positive law into law natural andlaw positive, crimes are divided, by modern writers on jurispru-dence, into crimes which are 'mala in se* and crimes which are'mala quia prohibita? By reason of the division of positive law intojus gentium and jus civile, crimes are divided, by the classicalRoman jurists, into such as are crimes juris gentium and such asare crimes jure dvili. Which divisions of crimes, like the divisionsof law wherefrom they are respectively derived, are exactlyequivalent.

Now without a clear apprehension of the hypothesis of utility,of the pure hypothesis of a moral sense, and of the modified ormixed hypothesis which is compounded of the others, the distinc-tion of positive law into natural and positive, with the variousderivative distinctions which rest upon that main one, are utterlyunintelligible. Assuming the hypothesis of utility, or assuming thepure hypothesis of a moral sense, the distinction of positive lawinto natural and positive is senseless. But, assuming the intermedi-ate hypothesis which is compounded of the others, positive law,and also positive morality, is inevitably distinguished into naturaland positive. In other words, if the modified or mixed hypothesisbe founded in truth, positive human rules fall into two parcels: —i. Positive human rules which obtain with all mankind; and theconformity of which to Divine commands is, therefore, indicatedby the moral sense: 2. Positive human rules which do not obtainuniversally; and the conformity of which to Divine commands is,therefore, not indicated by that infallible guide.

When I treat of positive law as considered with reference toits sources, I shall show completely that the modified or mixed

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hypothesis is involved by the distinction of positive law into lawnatural and law positive. I touch upon the topic, at the presentpoint of my Course, to the following purpose: namely, to showthat my disquisitions on the hypothesis of utility, on the hypothesisof a moral sense, and on that intermediate hypothesis which iscompounded of the others, are necessary steps in a series ofdiscourses occupied with the rationale of jurisprudence. It will,indeed, appear, as I advance in my projected Course, that manyof the distinctions, which the science of jurisprudence presents,cannot be expounded, in a complete and satisfactory manner,without a previous exposition of those seemingly irrelative hypoth-eses. But the topic upon which I have touched at the presentpoint of my Course shows most succinctly the pertinence of thedisquisitions in question.

Having stated the hypothesis of utility, the hypothesis of a The foregoingmoral sense, and the modified or mixed hypothesis which is dts« mstttons ™

J Jr the index to God's

compounded of the others, I will close my disquisitions on the commands closedindex to God's commands with an endeavour to clear the hypoth- "**.an ™ ie« vour

J r to clear the theoryesis of utility from two current though gross misconceptions. of utility from tm

current thoughgross

Of the writers who maintain and impugn the theory of utility, misconceptions.three out of four fall into one or the other of the following Thetwo .

° mtsconceptwns

errors. - i . Some of them confound the motives which ought to stated.determine our conduct with the proximate measure or test to whichour conduct should conform and by which our conduct shouldbe tried. - 2. Others confound the theory of general utility withthat theory or hypothesis concerning the origin of benevolence which isbranded by its ignorant or disingenuous adversaries with themisleading and invidious name of the selfish system.

Now these errors are so palpable, that, perhaps, I ought toconclude with the bare statement, and leave my hearers to supplythe corrective. But, let them be never so palpable, they haveimposed upon persons of unquestionable penetration, and there-fore may impose upon all who will not pause to examine them.Accordingly, I will clear the theory of utility from these gross butcurrent misconceptions as completely as my limits will permit.

I will first examine the error of confounding motives to conductwith the proximate measure or test to which our conduct should

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conform and by which our conduct should be tried. I will thenexamine the error of confounding the theory of utility with thattheory or hypothesis concerning the origin of benevolence which is styledthe selfish system.

The first According to the theory of utility, the measure or test of humaneTaZnti™ conduct is the law set by God to his human creatures. Now some

of his commands are revealed, whilst others are unrevealed. Or(changing the phrase) some of his commands are express, whilstothers are tacit. The commands which God has revealed, wemust gather from the terms wherein they are promulged. Thecommands which he has not revealed, we must construe by theprinciple of utility: by the probable effects of our conduct on thatgeneral happiness or good which is the final cause or purpose ofthe good and wise lawgiver in all his laws and commandments.

Strictly speaking, therefore, utility is not the measure to whichour conduct should conform, nor is utility the test by which ourconduct should be tried. It is not in itself the source or springof our highest or paramount obligations, but it guides us to thesource whence these obligations flow. It is merely the index tothe measure, the index to the test. But, since we conform to themeasure by following the suggestions of the index, I may say withsufficient, though not with strict propriety, that utility is themeasure or test proximately or immediately. Accordingly, I style theDivine commands the ultimate measure or test: but I style theprinciple of utility, or the general happiness or good, the proximatemeasure to which our conduct should conform, or the proximatetest by which our conduct should be tried.

Now, though the general good is that proximate measure, orthough the general good is that proximate test, it is not in all, oreven in most cases, the motive or inducement which ought todetermine our conduct. If our conduct were always determinedby it considered as a motive or inducement, our conduct wouldoften disagree with it considered as the standard or measure. Ifour conduct were always determined by it considered as a motiveor inducement, our conduct would often be blameable, rather thandeserving of praise, when tried by it as the test.

Though these propositions may sound like paradoxes, they areperfectly just. I should occupy more time than I can give to thedisquisition, if I went through the whole of the proofs which

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would establish them beyond contradiction. But the few hintswhich I shall now throw out will sufficiently suggest the evidenceto those of my hearers who may not have reflected on the subject.

When I speak of the public good, or of the general good, Imean the aggregate enjoyments of the single or individual personswho compose that public or general to which my attention isdirected. The good of mankind, is the aggregate of the pleasureswhich are respectively enjoyed by the individuals who constitutethe human race. The good of England, is the aggregate of thepleasures which fall to the lot of Englishmen considered individu-ally or singly. The good of the public in the town to which Ibelong, is the aggregate of the pleasures which the inhabitantsseverally enjoy.

'Mankind,' 'country,' 'public,' are concise expressions for anumber of individual persons considered collectively or as a whole.In case the good of those persons considered singly or individuallywere sacrificed to the good of those persons considered collectivelyor as a whole, the general good would be destroyed by thesacrifice. The sum of the particular enjoyments which constitutesthe general good, would be sacrificed to the mere name by whichthat good is denoted.

When it is stated strictly and nakedly, this truth is so plainand palpable that the statement is almost laughable. But experiencesufficiently evinces, that plain and palpable truths are prone toslip from the memory: that the neglect of plain and palpabletruths is the source of most of the errors with which the worldis infested. For example, That notion of the public good whichwas current in the ancient republics supposes a neglect of thetruism to which I have called your attention. Agreeably to thatnotion of the public good, the happiness of the individual citizensis sacrificed without scruple in order that the common weal maywax and prosper. The only substantial interests are the victimsof a barren abstraction, of a sounding but empty phrase.

Now (speaking generally) every individual person is the bestpossible judge of his own interests: of what will affect himselfwith the greatest pleasures and pains. Compared with his intimateconsciousness of his own peculiar interests, his knowledge of theinterests of others is vague conjecture.

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Consequently, the principle of general utility imperiouslydemands that he commonly shall attend to his own rather thanto the interests of others: that he shall not habitually neglect thatwhich he knows accurately in order that he may habitually pursuethat which he knows imperfectly.

This is the arrangement which the principle of general utilitymanifestly requires. It is also the arrangement which the Authorof man's nature manifestly intended. For our self-regarding affec-tions are steadier and stronger than our social: the motives bywhich we are urged to pursue our peculiar good operate with moreconstancy, and commonly with more energy, than the motives bywhich we are solicited to pursue the good of our fellows.

If every individual neglected his own to the end of pursuingand promoting the interests of others, every individual wouldneglect the objects with which he is intimately acquainted to theend of forwarding objects of which he is comparatively ignorant.Consequently, the interests of every individual would be managedunskilfully. And, since the general good is an aggregate of individ-ual enjoyments, the good of the general or public would diminishwith the good of the individuals of whom that general or publicis constituted or composed.

The principle of general utility does not demand of us, thatwe shall always or habitually intend the general good: though theprinciple of general utility does demand of us, that we shall neverpursue our own peculiar good by means which are inconsistentwith that paramount object.

For example: The man who delves or spins, delves or spinsto put money in his purse, and not with the purpose or thoughtof promoting the general well-being. But by delving or spinning,he adds to the sum of commodities: and he therefore promotesthat general well-being, which is not, and ought not to be, hispractical end. General utility is not his motive to action. But hisaction conforms to utility considered as the standard of conduct:and when tried by utility considered as the test of conduct, hisaction deserves approbation.

Again: Of all pleasures bodily or mental, the pleasures of mutuallove, cemented by mutual esteem, are the most enduring andvaried. They therefore contribute largely to swell the sum ofwell-being, or they form an important item in the account of

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human happiness. And, for that reason, the well-wisher of thegeneral good, or the adherent of the principle of utility, must, inthat character, consider them with much complacency. But, thoughhe approves of love because it accords with his principle, he isfar from maintaining that the general good ought to be the motiveof the lover. It was never contended or conceited by a sound,orthodox utilitarian, that the lover should kiss his mistress withan eye to the common weal.

And by this last example, I am naturally conducted to thisfurther consideration.

Even where utility requires that benevolence shall be our motive,it commonly requires that we shall be determined by partial,rather than by general benevolence: by the love of the narrowercircle which is formed of family or relations, rather than bysympathy with the wider circle which is formed of friends oracquaintance: by sympathy with friends or acquaintance, ratherthan by patriotism: by patriotism, or love of country, rather thanby the larger humanity which embraces mankind.

In short, the principle of utility requires that we shall act withthe utmost effect, or that we shall so act as to produce the utmostgood. And (speaking generally) we act with the utmost effect, orwe so act as to produce the utmost good, when our motive orinducement to conduct is the most urgent and steady, when thesphere wherein we act is the most restricted and the most familiarto us, and when the purpose which we directly pursue is themost determinate or precise.

The foregoing general statement must, indeed, be received withnumerous limitations. The principle of utility not unfrequentlyrequires that the order at which I have pointed shall be invertedor reversed: that the self-regarding affections shall yield to thelove of family, or to sympathy with friends or acquaintance: thatthe love of family, or sympathy with friends or acquaintance, shallyield to the love of country: that the love of country shall yieldto the love of mankind: that the general happiness or good, whichis always the test of our conduct, shall also be the motive determin-ing our conduct, or shall also be the practical end to which ourconduct is directed.

[In order further to dissipate the confusion of ideas giving rise Goodness andto the misconception last examined, I shall here pause to analyze b^™ ^

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the expression 'good and bad motives,' and to show in what senseit represents a sound distinction.

We often say of a man on any given occasion that his motivewas good or bad, and in a certain sense we may truly say thatsome motives are better than others; inasmuch as some motivesare more likely than others to lead to beneficial conduct.

But in another and more extended sense, no motive is goodor bad: since there is no motive which may not by possibility,and which does not occasionally in fact, lead both to beneficialand to mischievous conduct.

Thus in the case which I have already used as an illustration,that of the man who digs or weaves for his own subsistence; themotive is self-regarding, but the action is beneficial. The samemotive, the desire of subsistence, may lead to pernicious acts,such as stealing. Love of reputation, though a self-regardingmotive, is a motive generally productive of beneficial acts; andthere are persons with whom it is one of the most powerfulincentives to acts for the public good. That form of love ofreputation called vanity, on the other hand, implying, as it does,that the aim of its possessor is set upon worthless objects, com-monly leads to evil, since it leads to a waste of energy, whichmight otherwise have been turned to useful ends. Yet if, as amotive, it be subordinate in the individual to other springs ofaction, and exist merely as a latent feeling of self-complacencyarising out of considerations however foolish or unsubstantial, itmay be harmless, or even useful as tending to promote energy.Benevolence, on the other hand, and even religion, though cer-tainly unselfish, and generally esteemed good motives, may, whennarrowed in their aims, or directed by a perverted understanding,lead to actions most pernicious. For instance, the affection forchildren, and the consequent desire of pushing or advancing themin the world (a species of narrow benevolence), is with manypersons more apt to lead to acts contrary to the public good thanany purely selfish motive; and the palliation, which the supposedgoodness of the motive constitutes in the eyes of the public forthe pernicious act, encourages men to do for the sake of theirchildren, actions which they would be ashamed to do for their owndirect interest. Even that enlarged benevolence which embraceshumanity, may lead to actions extremely mischievous, unless

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guided by a perfectly sound judgment. Few will doubt, forexample, that Sand and those other enthusiasts in Germany, whohave at different times thought it right to assassinate those personswhom they believed to be tyrants, have acted in a manner highlypernicious as regards the general good. Of the purity (as it iscommonly termed) of their motives, I have not the least doubt;that is to say, I am convinced that they acted under the impulseof a most enlarged benevolence; but I have as little doubtthat, by this benevolence, they were led to the commission ofacts utterly inconsistent with that general good at which theyaimed.

But, although every motive may lead to good or bad, some arepre-eminently likely to lead to good; e.g. benevolence, love ofreputation, religion.

Others are pre-eminently likely to lead to bad, and little likelyto lead to good; e.g. the anti-social; - antipathy - particular orgeneral. Others, again, are as likely to lead to good as to bad;e.g. the self-regarding. They are the origin of most of the steadyindustry, but also of most of the offences of men.

In this qualified sense, therefore, motives may be divided intosuch as are good, such as are bad, and such as are neither goodnor bad.

If an action is good; that is, conforming to general utility; themotive makes it more laudable. If not, not. But it is only second-arily that the nature of the motive affects the quality of the action.

That the nature of the motive does affect the quality of theaction is evident from this consideration. Acts are never insulated.And as their moral complexion is ultimately tested by their con-formity to the law having utility for its index, so is that moralcomplexion immediately tested by the nature and tendency of thecourse of conduct of which the acts are samples. Now, the conductof an individual is (speaking generally) determined partly by themotives which are his springs of action, and partly by the intention,or the state of his understanding at the instant of action, regardingthe effects or tendency of his acts; both being antecedent to thevolition by which these immediately emerge into act. Humanconduct is, in short, determined by the motives which urge, aswell as by the intentions which direct. The intention is the aimof the act, of which the motive is the spring.

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It is, therefore, wrong to maintain that the complexion of theaction mainly depends on the complexion of the motive. It isequally wrong to maintain that the nature of the motive does not,to a certain degree, determine its complexion.

In this limited sense, therefore, the moral complexion of theaction is determined by the motive. If the intention be good,the action is the better for being prompted by a social motive.If the action be bad, it is less bad if prompted by a socialone.

It is important that good dispositions should be recognized andapproved. But the goodness of the action depends upon its con-formity to utility; and even if judged from the narrow point ofview commanded by the individual whose acts are in question,depends upon the state of his understanding as to the effects ofthe action; that is, upon the intention, no less than upon themotive.]

But to adjust the respective claims of the selfish and socialmotives, of partial sympathy and general benevolence, is a taskwhich belongs to the detail, rather than to the principles of ethics:a task which I could hardly accomplish in a clear and satisfactorymanner, unless I visited my hearers with a complete dissertationupon ethics, and wandered at unconscionable length from theappropriate purpose of my Course. What I have suggested willsuffice to conduct the reflecting to the following conclusions,i. General utility considered as the measure or test, differs fromgeneral utility considered as a motive or inducement. 2. If ourconduct were truly adjusted to the principle of utility, our conductwould conform to rules fashioned on the principle of utility, orour conduct would be guided by sentiments associated with suchrules. But, this notwithstanding, general utility, or the generalhappiness or good, would not be in all, or even in most cases,our motive to action or forbearance.

The second Having touched generally and briefly on the first of the twomisconception misconceptions, I will now advert to the second with the like

generality and brevity.They who fall into this misconception are guilty of two errors.

1. They mistake and distort the hypothesis concerning the originof benevolence which is styled the selfish system, 2. They imagine

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that that hypothesis, as thus mistaken and distorted, is an essentialor necessary ingredient in the theory of utility.2

I will examine the two errors into which the misconceptionmay be resolved, in the order wherein I have stated them.

i. According to an hypothesis of Hartley and of various otherwriters, benevolence or sympathy is not an ultimate fact, or isnot unsusceptible of analysis or resolution, or is not a simple orinscrutable element of man's being or nature. According to theirhypothesis, it emanates from self-love, or from the self-regardingaffections, through that familiar process styled 'the association ofideas,' to which I have briefly adverted in a preceding portion ofmy discourse.

Now it follows palpably from the foregoing concise statement,that these writers dispute not the existence of disinterested benevol-ence or sympathy: that, assuming the existence of disinterestedbenevolence or sympathy, they endeavour to trace the feeling,through its supposed generation, to the simpler and ulterior feelingof which they believe it the offspring.

But, palpable as this consequence is, it is fancied by manyopponents of the theory of utility, and (what is more remarkable)by some of its adherents also, that these writers dispute theexistence of disinterested benevolence or sympathy.

According to the hypothesis in question, as thus mistaken anddistorted, we have no sympathy, properly so called, with the pleas-ures and pains of others. That which is styled sympathy, or thatwhich is styled benevolence, is provident regard to self. Everygood office done by man to man springs from a calculation ofwhich self is the object. We perceive that we depend on othersfor much of our own happiness: and, perceiving that we depend

The first of these mistakes is made by Godwin. The second by Paley.'From Epicurus and Lucretius down to Paley and Godwin, Mr. Bentham is

the only writer who has explained this subject with clearness and accuracy. Heis not, indeed, the inventor of the theory of utility (for that is as old as thehuman race), but he is the first of all philosophers who has viewed it from everyaspect, and has fitted it for practice.'

'Many of the writers who appear to reject utility do, in fact, embrace it; (e.g.Cicero, Senecca, Johnson, etc.) (Eudaemonismus). The honestum is the generallyuseful. The utile is the generally pernicious; but which would answer some selfishand sinister purpose.' - MS. fragment.

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on others for much of our own happiness, we do good untoothers that others may do it unto us. The seemingly disinterestedservices that are rendered by men to men, are the offspring ofthe very motives, and are governed by the very principles, whichengender and regulate trade?

3 The selfish system, in this its literal import, is flatly inconsistent with obviousfacts, and therefore is hardly deserving of serious refutation. We are daily andhourly conscious of disinterested benevolence or sympathy, or of wishing the goodof others without regard to our own. In the present wretched condition of humansociety, so unfavourable are the outward circumstances wherein most men areplaced, and so bad is the education or training received by most men in theiryouth, that the benevolence of most men wants the intensity and endurancewhich are requisite to their own happiness and to the happiness of their fellow-creatures. With most men, benevolence or sympathy is rather a barren emotionthan a strong and steady incentive to vigorous and efficient action. Although thefeeling or sentiment affects them often enough, it is commonly stifled at thebirth by antagonist feelings or sentiments. But to deny, with Rochefoucauld orMandeville, the existence of benevolence or sympathy, is rather a wild paradox,hazarded in the wantonness of satire, than the deliberate position of a philosopherexamining the springs of conduct.

And here I may briefly remark, that the expression selfish, as applied to motives,has a large and a narrower meaning. - Taking the expression selfish with itslarger meaning, all motives are selfish. For every motive is a wish: and every wishis a pain which affects a man's self, and which urges him to seek relief, byattaining the object wished. - Taking the expression selfish with its narrowermeaning, motives which are selfish must be distinguished from motives which arebenevolent: our wishes for our own good, from our wishes for the good of ourneighbour: the desires which impel us to pursue our own advantage or benefit,from the desires which solicit us to pursue the advantage or benefit of others.

To obviate this ambiguity, with the wretched quibbling which it begets, Mr.Bentham has judiciously discarded the dubious expression selfish. The motiveswhich solicit us to pursue the advantage or good of others, he styles social.The motives which impel us to pursue our own advantage or good, he stylesself-regarding.

But, besides the social and self-regarding motives, there are disinterestedmotives, or disinterested wishes, by which we are impelled or solicited to visitothers with evil. These disinterested but malevolent motives, he styles anti-social. —When I style a motive of the sort a disinterested motive, I apply the epithet withthe meaning wherein I apply it to a benevolent motive. Speaking with absoluteprecision, the motive is not disinterested in either case: for, in each of the twocases, the man desires relief from a wish importuning himself. But, exceptingthe desire of relief which the wish necessarily implies, the wish, in each of thecases, is purely disinterested. The end or object to which it urges the man isthe good or evil of another, and not his own advantage. - By imputing to humannature disinterested malevolence, Mr. Bentham has drawn upon himself thereproaches of certain critics. But in imputing disinterested malevolence to humannature, he is far from being singular. The fact is admitted or assumed by Aristotleand Butler, and by all who have closely examined the springs or motives ofconduct. And the fact is easily explained by the all-pervading principle which is

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2. Having thus mistaken and distorted the so-called selfishsystem, many opponents of the theory of utility, together with someadherents of the same theory, imagine that the former, as thusmistaken and distorted, is a necessary portion of the latter. Andhence it naturally follows, that the adherents of the theory ofutility are styled by many of its opponents 'selfish, sordid, andcold-blooded calculators.'

Now the theory of ethics which I style the theory of utility hasno necessary connection with any theory of motives. It has nonecessary connection with any theory or hypothesis which concernsthe nature or origin of benevolence or sympathy. The theory ofutility will hold good, whether benevolence or sympathy be trulya portion of our nature, or be nothing but a mere name forprovident regard to self. The theory of utility will hold good,whether benevolence or sympathy be a simple or ultimate fact, orbe engendered by the principle of association on the self-regardingaffections.

According to the theory of utility, the principle of generalutility is the index to God's commands, and is therefore theproximate measure of all human conduct. We are bound bythe awful sanctions with which his commands are armed, toadjust our conduct to rules formed on that proximate measure.Though benevolence be nothing but a name for provident regardto self, we are moved by regard to self, when we think ofthose awful sanctions, to pursue the generally useful, and toforbear from the generally pernicious. Accordingly, that is theversion of the theory of utility which is rendered by Dr. Paley.He supposes that general utility is the proximate test of conduct:but he supposes that all the motives by which our conduct isdetermined are purely self-regarding. And his version of the theoryof utility is, nevertheless, coherent: though I think that his theoryof motives is miserably partial and shallow, and that mere regardto self, although it were never so provident, would hardlyperform the office of genuine benevolence or sympathy. For ifgenuine benevolence or sympathy be not a portion of our nature,we have only one inducement to consult the general good:

styled 'the association of ideas.' Disinterested malevolence or antipathy, likedisinterested benevolence or sympathy, is begotten by that principle on theself-regarding affections.

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namely, a provident regard to our own welfare or happiness.But if genuine benevolence or sympathy be a portion of ournature, we have two distinct inducements to consult the generalgood: namely, the same provident regard to our own welfareor happiness, and also a disinterested regard to the welfare orhappiness of others. If genuine benevolence or sympathy werenot a portion of our nature, our motives to consult the generalgood would be more defective than they are.4

Again: Assuming that benevolence or sympathy is truly a portionof our nature, the theory of utility has no connection whateverwith any hypothesis or theory which concerns the origin of themotive. Whether benevolence or sympathy be a simple or ultimatefact, or be engendered by the principle of association on theself-regarding affections, it is one of the motives by which our

4 Confusion of Sympathy with Moral Sense. Sympathy is the pleasure or pain whichwe feel when another enjoys or suffers. In common language it is fellow-feeling.This is totally different from moral approbation or disapprobation, and insteadof always coinciding with moral sentiments (let their origin be what it may), oftenruns counter to them. As (e.g.) that large sympathy with every sentient being,or at least with every human being, which is called humanity or benevolence,inclines us to sympathize with the sufferings of the culprit whose punishmentwe approve. Like the pains and pleasures which purely regard ourselves, thepains and pleasures of sympathy are not moral sentiments, but feelings or motiveswhich, according to the justness of our moral sentiments, may lead us wrong orright.

This sympathy may be an original instinct, like our appetites, or begotten byassociation, like diseased curiosity, love of money, etc. (Bishop Butler).

But on neither of these hypotheses is the theory which derives our moralsentiments from utility at all affected.

The theory of utility assumes sympathy, but maintains that our judgments ofactions ought to be, and in a great measure are, derived from our perception ofthe general consequences of actions; i.e. not their immediate, but their remoteconsequences, supposing them unregulated by Morals and Law; and not onlytheir consequences upon ourselves, but also upon our relations, our friends, ourcountry, our fellow-men; with whom, according to the theory, as I understandit, we are held by bonds of sympathy; which, though not so strong nor soconstant as our mere regard to ourselves, is just as necessary to our ownwell-being. Sympathy, as well as pure self-love, is not a moral sentiment, but aprinciple or motive to action: either being liable to disturb our moral judgment.Indeed a narrow sympathy is, in some minds, as tyrannous as the self-love ofthe most narrow and contracted being that crawls the earth. Maternal love, thepassion between the sexes when exalted into Love, the spirit of sect and party,a narrow patriotism - all these are as likely to mislead the judgment or themoral sense as the purely self-regarding affections; which, on the other hand,though often misleading, are, to a great extent, the causes of good, promptingmen to all long and obscure effort. - MS. fragment.

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conduct is determined. And, on either of the conflicting suppo-sitions, the principle of utility, and not benevolence or sympathy,is the measure or test of conduct: For as conduct may be generallyuseful, though the motive is self-regarding; so may conduct begenerally pernicious, though the motive is purely benevolent.Accordingly, in all his expositions of the theory of utility, Mr.Bentham assumes or supposes the existence of disinterested sym-pathy, and scarcely adverts to the hypotheses which regard theorigin of the feeling.5

But here I would briefly remark, that, though the hypothesis of Hartley is nonecessary ingredient in the theory of general utility, it is a necessary ingredient(if it be not unfounded) in every sound system of education or training. For thesake of our own happiness, and the happiness of our fellow-creatures, theaffection of benevolence or sympathy should be strong and steady as possible:for though, like other motives, it may lead us to pernicious conduct, it is lesslikely than most of the others to seduce us from the right road. Now if benevolenceor sympathy be engendered by the principle of association, the affection may beplanted and nurtured by education or training. The truth or falsehood of thehypothesis, together with the process by which the affection is generated, aretherefore objects of great practical moment, and well deserving of close andminute examination.

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Laws proper or

or improperly socalled.

Analogy andmetaphor as usedin commonparlance, defined.

THE term law, or the term laws, is applied to the following°bJects: ~ t 0 ^aws proper or properly so called, and to lawsimproper or improperly so called: to objects which have all theessentials of an imperative law or rule, and to objects which arewanting in some of those essentials, but to which the term isunduly extended either by reason of analogy or in the way ofmetaphor.

Strictly speaking, all improper laws are analogous to laws proper:and the term lam, as applied to any of them, is a metaphorical orfigurative expression.

For every metaphor springs from an analogy: and every analogi-cal extension given to a term is a metaphor or figure of speech.The term is extended from the objects which it properly signifiesto objects of another nature; to objects not of the class whereinthe former are contained, although they are allied to the formerby that more distant resemblance which is usually styled analogy.But, taking the expressions with the meanings which custom orusage has established, [there is a difference between an employ-ment of a term analogically and a metaphor.

Analogy is a species of resemblance. The word resemblance ishere taken in that large sense, in which all subjects which haveany property in common, are said to resemble. But besides thismore extended acceptation according to which resemblance is agenus, and analogy one of the species included therein, there isanother and a narrower sense, in which resemblance is opposedto analogy. Two resembling subjects are said to resemble in the

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narrower meaning of the term, when they both belong to somedeterminate genus or species expressly or tacitly referred to; whenthey both have every property, which belongs to all the subjectsincluded in the class. Two resembling subjects are said on thecontrary to be analogous, when one of them belongs to some classexpressly or tacitly referred to, and the other does not: when onepossesses all the properties common to the class and the otheronly some of them. I choose, for instance, on account of aparticular convenience, to range together in one class all animalshaving feet. When I am speaking with reference to this class, thefoot of a lion and the foot of a man would be said to resemblein the narrower as well as in the wider sense of the word. Butthe foot of a table, though it resembles the foot of a lion and ofa man in the more enlarged sense, does not resemble these inthe narrower sense, but is only analogous to them. For thesepossess the whole of the qualities belonging universally to theclass, while it possesses only a part of the same qualities. If Iwere not tacitly referring to a genus, I might say that all thethree objects resemble, but if the genus be referred to, the footof the lion and the foot of the man resemble, the foot of thetable is only analogous to them.

Resemblance is hence an ambiguous term. When two thingsresemble in the narrow sense, that is, when they both possess allthe properties which belong universally to the class, the commonname (such as foot in the instance above given), is applied toboth of them strictly and properly. When they are analogous, thatis when the one possesses all, the other only some of the propertieswhich belong universally to the class, the name denotes the oneproperly, the other improperly or analogically.

It is extremely important to fix our conception with respect tothis ambiguity, as the words analogy and analogous often recurin the science of jurisprudence, and by the laxity with which theyare employed involve it in a scarcely penetrable mist. The natureof unwritten law, and the principles of interpretation or construc-tion, are among the most obscure of all the questions which arisein jurisprudence. This obscurity springs, as is usually the case,from nonsense or jargon; which jargon, on these questions, arisesfrom hence, that men talk profusely of analogy and things anal-ogous, without ascertaining the precise meaning of those terms,

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Laws improperare of twokinds. - i. Lawsclosely analogousto laws proper. 2.Laws metaphoricalor figurative.

or taking pains to employ them with any precise meaning. Pro-fessor Thibaut of Berlin, in his treatise on the interpretation ofthe Roman Law, is, as far as I know, the only writer who hasseen this perplexity; and notwithstanding my warm respect forthat learned and discerning jurist, it seems to me that even hehas scarcely solved the difficulty, though he has pointed out thepath by which we may arrive at a solution.

A metaphor is the transference of a term from its primitivesignification to subjects to which it is applied not in that, but ina secondary sense. An analogy real or supposed, is always theground of the transference; hence every metaphor is an analogicalapplication of a term, and every analogical application of a termis a metaphor. But a metaphorical or figurative application isscarcely, in common parlance, synonymous with an analogicalapplication. By a metaphorical or figurative application, we usuallymean one in which the analogy is faint, the alliance between theprimitive and the derivative signification remote. When the analogyis clear, strong, and close; when the subjects to which the termis deflected lie on the confines of the class properly denoted byit, and have many of the properties common to the class, wehardly say that the name is employed figuratively or metaphorically.

In the language of logic, objects which have all the qualitiescomposing the essence of the class, and all the qualities whichare the necessary consequences of those composing the essence,resemble. When an object does not possess all the essence of theclass, but possesses many of the qualities which compose theessence, or many of those which necessarily result from theessence, the application of the name to that object will be saidto be analogical and not a metaphor. The difference betweenmetaphor and analogy is hence a difference of degree, and notto be settled precisely by drawing a strict line between them.]

Now a broad distinction obtains between laws improperly socalled. Some are closely, others are remotely analogous to lawsproper. The term law is extended to some by a decision of thereason or understanding. The term law is extended to others bya turn or caprice of the fancy.

In order that I may mark this distinction briefly and commodi-ously, I avail myself of the difference, established by custom orusage, between the meanings of the expressions analogical and

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figurative. - I style laws of the first kind laws closely analogous tolaws proper. I say that they are called laws by an analogical extensionof the term. - I style laws of the second kind laws metaphoricalor figurative. I say that they are called laws by a metaphor or figureof speech.

Now laws proper, with such improper laws as are closely Division of lawsanalogous to the proper, are divisible thus. flTLT*^

Of laws properly so called, some are set by God to his human laws as are closelycreatures, others are set by men to men. analogous to the

' J proper.

Of the laws properly so called which are set by men to men,some are set by men as political superiors, or by men, as privatepersons, in pursuance of legal rights. Others may be describedin the following negative manner: They are not set by men aspolitical superiors, nor are they set by men, as private persons,in pursuance of legal rights.

The laws improperly so called which are closely analogous tothe proper, are merely opinions or sentiments held or felt by menin regard to human conduct. As I shall show hereafter, theseopinions and sentiments are styled laws, because they are analogousto laws properly so called: because they resemble laws properlyso called in some of their properties or some of their effects orconsequences.

Accordingly, I distribute laws proper, with such improper laws Distribution ofas are closely analogous to the proper, under three capital classes. [T^^'/^

The first comprises the laws (properly so called) which are set laws as are closelyby God to his human creatures. analogous t0

A the

J proper, under

The second comprises the laws (properly so called) which are three capitalset by men as political superiors, or by men, as private persons, c^es

of~Go\ ™ e

in pursuance of legal rights. the laws of God.The third comprises laws of the two following species: i. The ^P™£*%2

laws (properly so called) which are set by men to men, but not 3. Positiveby men as political superiors, nor by men, as private persons, in m

0°^f u of

pursuance of legal rights: 2. The laws which are closely analogous or positive moralto laws proper, but are merely opinions or sentiments held or rules-felt by men in regard to human conduct. - I put laws of thesespecies into a common class, and I mark them with the commonname to which I shall advert immediately, for the following reason.No law of either species is a direct or circuitous command of amonarch or sovereign number in the character of political superior.

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Digression toexplain theexpressionspositive law andpositive morality.

In other words, no law of either species is a direct or circuitouscommand of a monarch or sovereign number to a person orpersons in a state of subjection to its author. Consequently, lawsof both species may be aptly opposed to laws of the second capitalclass. For every law of that second capital class is a direct orcircuitous command of a monarch or sovereign number in thecharacter of political superior: that is to say, a direct or circuitouscommand of a monarch or sovereign number to a person orpersons in a state of subjection to its author.

Laws comprised by these three capital classes I mark with thefollowing names.

I name laws of the first class the law or laws of God, or theDivine law or laws.

For various reasons which I shall produce immediately, I namelaws of the second class positive law, or positive laws.

For the same reasons, I name laws of the third class positivemorality, rules of positive morality, or positive moral rules.

[My reasons for using the two expressions 'positive law' and'positive morality,' are the following.

There are two capital classes of human laws. The first comprisesthe laws (properly so called) which are set by men as politicalsuperiors, or by men, as private persons, in pursuance of legal rights.The second comprises the laws (proper and improper) which belongto the two species mentioned on the preceding page.

As merely distinguished from the second, the first of thosecapital classes might be named simply law. As merely distinguishedfrom the first, the second of those capital classes might be namedsimply morality. But both must be distinguished from the law ofGod: and, for the purpose of distinguishing both from the lawof God, we must qualify the names law and morality. Accordingly,I style the first of those capital classes 'positive law:' and I stylethe second of those capital classes 'positive morality.' By thecommon epithet positive, I denote that both classes flow fromhuman sources. By the distinctive names law and morality, Idenote the difference between the human sources from whichthe two classes respectively emanate.

Strictly speaking, every law properly so called is a positive law.For it is put or set by its individual or collective author, or it

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exists by the position or institution of its individual or collectiveauthor.

But, as opposed to the law of nature (meaning the law of God),human law of the first of those capital classes is styled by writerson jurisprudence 'positive law.' This application of the expression'positive law' was manifestly made for the purpose of obviatingconfusion; confusion of human law of the first of those capitalclasses with that Divine law which is the measure or test ofhuman.

And, in order to obviate similar confusion, I apply the expression'positive morality' to human law of the second capital class. Forthe name morality, when standing unqualified or alone, may signifythe law set by God, or human law of that second capital class.If you say that an act or omission violates morality, you speakambiguously. You may mean that it violates the law which I style'positive morality,' or that it violates the Divine law which is themeasure or test of the former.

Again: The human laws or rules which I style 'positive morality,'I mark with that expression for the following additional reason.

I have said that the name morality, when standing unqualifiedor alone, may signify positive morality, or may signify the law ofGod. But the name morality, when standing unqualified or alone,is perplexed with a further ambiguity. It may import indifferentlyeither of the two following senses. - i. The name morality, whenstanding unqualified or alone, may signify positive morality whichis good or worthy of approbation, or positive morality as it wouldbe if it were good or worthy of approbation. In other words, thename morality, when standing unqualified or alone, may signifypositive morality which agrees with its measure or test, or positivemorality as it would be if it agreed with its measure or test. 2.The name morality, when standing unqualified or alone, maysignify the human laws, which I style positive morality, as con-sidered without regard to their goodness or badness. For example,Such laws of the class as are peculiar to a given age, or suchlaws of the class as are peculiar to a given nation, we style themorality of that given age or nation, whether we think them goodor deem them bad. Or, in case we mean to intimate that weapprove or disapprove of them, we name them the morality of

i n

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Explanation of the

expressions: viz.science ofjurisprudenceand science ofpositive morality;science of ethicsor deontology,science oflegislation, andscience ofmorals.

that given age or nation, and we qualify that name with theepithet good or bad.

Now, by the name 'positive morality/ I mean the human lawswhich I mark with that expression, as considered without regardto their goodness or badness. Whether human laws be worthy ofpraise or blame, or whether they accord or not with their measureor test, they are 'rules of positive morality,' in the sense which Igive to the expression, if they belong to either of the two specieslastly mentioned on p. 109. But, in consequence of that ambiguitywhich I have now attempted to explain, I could hardly expressmy meaning with passable distinctness by the unqualified namemorality.

From the expression positive law and the expression positivemorality, I pass to certain expressions with which they are closelyconnected.

The science of jurisprudence (or, simply and briefly, jurisprudence)is concerned with positive laws, or with laws strictly so called, asconsidered without regard to their goodness or badness.

Positive morality, as considered without regard to its goodnessor badness, might be the subject of a science closely analogousto jurisprudence. I say 'might be:' since it is only in one of itsbranches (namely, the law of nations or international law), thatpositive morality, as considered without regard to its goodness orbadness, has been treated by writers in a scientific or systematicmanner. - For the science of positive morality, as consideredwithout regard to its goodness or badness, current or establishedlanguage will hardly afford us a name. The name morals, or scienceof morals, would denote it ambiguously: the name morals, or scienceof morals, being commonly applied (as I shall show immediately)to a department of ethics or deontology. But, since the scienceof jurisprudence is not unfrequently styled 'the science of positivelaw,' the science in question might be styled analogically 'thescience of positive morality.' The department of the science inquestion which relates to international law, has actually beenstyled by Von Martens, a recent writer of celebrity, 'positives oderpractisches Volkerrecht:' that is to say, 'positive international law,'or 'practical international law.' Had he named that department ofthe science 'positive international morality,' the name would havehit its import with perfect precision.

1 1 2

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The science of ethics (or, in the language of Mr. Bentham, thescience of deontology) may be defined in the following manner. -It affects to determine the test of positive law and morality, orit affects to determine the principles whereon they must befashioned in order that they may merit approbation. In otherwords, it affects to expound them as they should be; or it affectsto expound them as they ought to be; or it affects to expoundthem as they would be if they were good or worthy of praise; orit affects to expound them as they would be if they conformedto an assumed measure.

The science of ethics (or, simply and briefly, ethics) consistsof two departments: one relating specially to positive law, theother relating specially to positive morality. The department whichrelates specially to positive law, is commonly styled the science oflegislation, or, simply and briefly, legislation. The department whichrelates specially to positive morality, is commonly styled the scienceof morals, or, simply and briefly, morals.

The foregoing attempt to define the science of ethics naturally Meaning of theleads me to offer the following explanatory remark. epithet ^ood or

a r J bad as applied toWhen we say that a human law is good or bad, or is worthy a human law.

of praise or blame, or is what it should be or what it should notbe, or is what it ought to be or what it ought not to be, we mean(unless we intimate our mere liking or aversion) this: namely, thatthe law agrees with or differs from a something to which wetacitly refer it as to a measure or test.

For example, According to either of the hypotheses which Istated in preceding lectures, a human law is good or bad as itagrees or does not agree with the law of God: that is to say,with the law of God as indicated by the principle of utility, orwith the law of God as indicated by the moral sense. To theadherent of the theory of utility, a human law is good if it begenerally useful, and a human law is bad if it be generallypernicious. For, in his opinion, it is consonant or not with thelaw of God, inasmuch as it is consonant or not with the principleof general utility. To the adherent of the hypothesis of a moralsense, a human law is good if he likes it he knows not why, anda human law is bad if he hates it he knows not wherefore. For,in his opinion, that his inexplicable feeling of liking or aversionshows that the human law pleases or offends the Deity.

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To the atheist, a human law is good if it be generally useful,and a human law is bad if it be generally pernicious. For theprinciple of general utility would serve as a measure or test,although it were not an index to an ulterior measure or test. Butif he call the law a good one without believing it useful, or if hecall the law a bad one without believing it pernicious, the atheistsimply intimates his mere liking or aversion. For, unless it bethought an index to the law set by the Deity, an inexplicablefeeling of approbation or disapprobation can hardly be considereda measure or test. And, in the opinion of the atheist, there is nolaw of God which his inexplicable feeling can point at.

To the believer in a supposed revelation, a human law is goodor bad as it agrees with or differs from the terms wherein therevelation is expressed.

In short, the goodness or badness of a human law is a phraseof relative and varying import. A law which is good to one manis bad to another, in case they tacitly refer it to different andadverse tests.

Meaning of the The Divine laws may be styled good, in the sense with whichepithet good as fae atheist may apply the epithet to human. We may style themapplied to the law 1 r . . , , . i .,.of God. good, or worthy of praise, inasmuch as they agree with utility

considered as an ultimate test. And this is the only meaning withwhich we can apply the epithet to the laws of God. Unless werefer them to utility considered as an ultimate test, we have notest by which we can try them. To say that they are good becausethey are set by the Deity, is to say that they are good as measuredor tried by themselves. But to say this is to talk absurdly: forevery object which is measured, or every object which is broughtto a test, is compared with a given object other than itself. - Ifthe laws set by the Deity were not generally useful, or if theydid not promote the general happiness of his creatures, or if theirgreat Author were not wise and benevolent, they would notbe good, or worthy of praise, but were devilish and worthy ofexecration.

Before I conclude the present digression, I must submit thisfurther remark to the attention of the reader.

The expression I have intimated in the course of this digression, that the phraselaw of nature, or j r nature o r fae phrase natural law. often signifies the lawnatural law, has J ' v > omo disparate of God.

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Natural law as thus understood, and the natural law which I meanings, itmentioned in my fourth lecture, are disparate expressions. The STQH th^natural law which I there mentioned, is a portion of positive law portion of positiveand positive morality. It consists of the human rules, legal andmoral, which have obtained at all times and obtained at all places.

According to the compound hypothesis which I mentioned inmy fourth lecture, these human rules, legal and moral, have beenfashioned on the law of God as indicated by the moral sense. Or,adopting the language of the classical Roman jurists, these humanrules, legal and moral, have been fashioned on the Divine lawas known by natural reason.

But, besides the human rules which have obtained with allmankind, there are human rules, legal and moral, which havebeen limited to peculiar times, or limited to peculiar places.

Now, according to the compound hypothesis which I mentionedin my fourth lecture, these last have not been fashioned on thelaw of God, or have been fashioned on the law of God asconjectured by the light of utility.

Being fashioned on the law of God as known by an infallibleguide, human rules of the first class are styled the law of nature:For they are not of human position purely or simply, but arelaws of God or Nature clothed with human sanctions. As obtainingat all times and obtaining at all places, they are styled by theclassical jurists jus gentium, or jus omnium gentium.

But human rules of the second class are styled positive. For,not being fashioned on the law of God, or being fashioned onthe law of God as merely conjectured by utility, they, certainlyor probably, are of purely human position. They are not laws ofGod or Nature clothed with human sanctions.

As I stated in my fourth lecture, and shall show completelyhereafter, the distinction of human rules into natural and positiveinvolves the compound hypothesis which I mentioned in thatdiscourse.]

Positive laws, the appropriate matter of jurisprudence, are The connection ofrelated in the way of resemblance, or by a close or remote analogy, %^^1^ithto the following objects. - i. In the way of resemblance, they the first, second,are related to the laws of God. 2. In the way of resemblance, ^fourtK and

they are related to those rules of positive morality which are lawsproperly so called. 3. By a close or strong analogy, they are related

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to those rules of positive morality which are merely opinions orsentiments held or felt by men in regard to human conduct. 4.By a remote or slender analogy, they are related to laws merelymetaphorical, or laws merely figurative.

To distinguish positive laws from the objects now enumerated,is the purpose of the present attempt to determine the provinceof jurisprudence.

In pursuance of the purpose to which I have now adverted, Istated, in my first lecture, the essentials of a law or rule (takenwith the largest signification which can be given to the termproperly).

In my second, third, and fourth lectures, I stated the marksor characters by which the laws of God are distinguished fromother laws. And, stating those marks or characters, I explainedthe nature of the index to his unrevealed laws, or I explainedand examined the hypotheses which regard the nature of thatindex. [I made this explanation at a length which may seemdisproportionate, but which I have deemed necessary becausethese laws, and the index by which they are known, are thestandard or measure to which all other laws should conform, andthe standard measure or test by which they should be tried.]

But before I can complete the purpose to which I have advertedabove, I must examine or discuss especially the following principaltopics (and must touch upon other topics of secondary or subordi-nate importance). - 1. I must examine the marks or charactersby which positive laws are distinguished from other laws. 2. Imust examine the distinguishing marks of those positive moralrules which are laws properly so called. 3. I must examine thedistinguishing marks of those positive moral rules which are styledlaws or rules by an analogical extension of the term. 4. I mustexamine the distinguishing marks of laws merely metaphorical, orlaws merely figurative.

In order to an explanation of the marks which distinguishpositive laws, I must analyze the expression sovereignty, the correla-tive expression subjection, and the inseparably connected expressionindependent political society. For the essential difference of a positivelaw (or the difference that severs it from a law which is not apositive law) may be stated thus. Every positive law, or every lawsimply and strictly so called, is set by a sovereign person, or a

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sovereign body of persons, to a member or members of theindependent political society wherein that person or body is sover-eign or supreme. Or (changing the expression) it is set by amonarch, or sovereign number, to a person or persons in a stateof subjection to its author.

But my analysis of those expressions occupies so large a space,that, in case I placed it in the lecture which I am now delivering,the lecture which I am now delivering would run to insufferablelength.

The purpose mentioned above will, therefore, be completed inthe following order.

Excluding from my present discourse my analysis of thoseexpressions, I shall complete, in my present discourse, the purposementioned above, so far as I can complete it consistently withthat exclusion. In my present discourse, I shall examine or discussespecially the following principal topics: namely, the distinguishingmarks of those positive moral rules which are laws properly socalled: the distinguishing marks of those positive moral ruleswhich are styled laws or rules by an analogical extension of theterm: the distinguishing marks of the laws which are styled lawsby a metaphor.

I shall complete, in my sixth lecture, the purpose mentionedabove, by explaining the marks or characters which distinguishpositive laws, or laws strictly so called: an explanation involvingan analysis of the capital expression sovereignty, the correlativeexpression subjection, and the inseparably connected expressionindependent political society.

Having shown the connection of my present discourse withforegoing and following lectures, I proceed to examine or discussits appropriate topics or subjects.

In my first lecture, I endeavoured to resolve a law (taken with The essentials of athe largest signification which can be given to the term properly) k" Properly sointo the necessary or essential elements of which it is composed, with certain

Now those essentials of a law proper, together with certain °°^e(iuence\ "hkhv v ' & those essentials

consequences which those essentials import, may be stated briefly import.in the following manner. - i. Laws properly so called are aspecies of commands. But, being a command, every law properlyso called flows from a determinate source, or emanates from adeterminate author. In other words, the author from whom it

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The laws of God,and positive laws,are laws properlyso called.

The genericcharacter ofpositive moralrules.

proceeds is a determinate rational being, or a determinate body oraggregate of rational beings. For whenever a command is expressedor intimated, one party signifies a wish that another shall do orforbear: and the latter is obnoxious to an evil which the formerintends to inflict in case the wish be disregarded. But everysignification of a wish made by a single individual, or made by abody of individuals as a body or collective whole, supposes that theindividual or body is certain or determinate. And every intention orpurpose held by a single individual, or held by a body of individualsas a body or collective whole, involves the same supposition. 2. Everysanction properly so called is an eventual evil annexed to a command.Any eventual evil may operate as a motive to conduct: but, unlessthe conduct be commanded and the evil be annexed to thecommand purposely to enforce obedience, the evil is not a sanctionin the proper acceptation of the term. 3. Every duty properly socalled supposes a command by which it is created. For everysanction properly so called is an eventual evil annexed to a command.And duty properly so called is obnoxiousness to evils of the kind.

Now it follows from these premises, that the laws of God, andpositive laws, are laws proper, or laws properly so called.

The laws of God are laws proper, inasmuch as they are com-mands express or tacit, and therefore emanate from a certainsource.

Positive laws, or laws strictly so called, are established directlyor immediately by authors of three kinds: - by monarchs, orsovereign bodies, as supreme political superiors: by men in a stateof subjection, as subordinate political superiors: by subjects, asprivate persons, in pursuance of legal rights. But every positivelaw, or every law strictly so called, is a direct or circuitouscommand of a monarch or sovereign number in the character ofpolitical superior: that is to say, a direct or circuitous commandof a monarch or sovereign number to a person or persons in astate of subjection to its author. And being a command (andtherefore flowing from a determinate source), every positive law isa law proper, or a law properly so called.

Besides the human laws which I style positive law, there arehuman laws which I style positive morality, rules of positivemorality, or positive moral rules.

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The generic character of laws of the class may be stated brieflyin the following negative manner. - No law belonging to the classis a direct or circuitous command of a monarch or sovereignnumber in the character of political superior. In other words, nolaw belonging to the class is a direct or circuitous command ofa monarch or sovereign number to a person or persons in a stateof subjection to its author.

But of positive moral rules, some are laws proper, or laws Of positive moralproperly so called: others are laws improper, or laws improperly ™ » 5^T ^so called. Some have all the essentials of an imperative law or others are Lmrule: others are deficient in some of those essentials, and are mPro*>er-styled laws or rules by an analogical extension of the term.

The positive moral rules which are laws properly so called, are The positive moraldistinguished from other laws by the union of two marks. - i . 2m rtHThey are imperative laws or rules set by men to men. 2. They called, areare not set by men as political superiors, nor are they set by men commands-as private persons, in pursuance of legal rights.

Inasmuch as they bear the latter of these two marks, they arenot commands of sovereigns in the character of political superiors.Consequently, they are not positive laws: they are not clothedwith legal sanctions, nor do they oblige legally the persons towhom they are set. But being commands (and therefore beingestablished by determinate individuals or bodies), they are lawsproperly so called: they are armed with sanctions, and imposeduties, in the proper acceptation of the terms.

It will appear from the following distinctions, that positive moralrules which are laws properly so called may be reduced to threekinds.

Of positive moral rules which are laws properly so called, someare established by men who are not subjects, or are not in astate of subjection: Meaning by 'subjects,' or by 'men in a stateof subjection/ men in a state of subjection to a monarch orsovereign number. - Of positive moral rules which are lawsproperly so called, and are not established by men in a state ofsubjection, some are established by men living in the negativestate which is styled a state of nature or a state of anarchy: thatis to say, by men who are not in the state which is styled a stateof government, or are not members, sovereign or subject, of any

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political society. - Of positive moral rules which are laws properlyso called, and are not established by men in a state of subjection,others are established by sovereign individuals or bodies, but arenot established by sovereigns in the character of political superiors.Or a positive moral rule of this kind may be described in thefollowing manner: It is set by a monarch or sovereign number,but not to a person or persons in a state of subjection to itsauthor.

Of laws properly so called which are set by subjects, some areset by subjects as subordinate political superiors. But of lawsproperly so called which are set by subjects, others are set bysubjects as private persons: Meaning by 'private persons,' subjectsnot in the class of subordinate political superiors, or subordinatepolitical superiors not considered as such. - Laws set by subjectsas subordinate political superiors, are positive laws: they areclothed with legal sanctions, and impose legal duties. They areset by sovereigns or states in the character of political superiors,although they are set by sovereigns circuitously or remotely.Although they are made directly by subject or subordinate authors,they are made through legal rights granted by sovereigns or states,and held by those subject authors as mere trustees for the gran-ters. - Of laws set by subjects as private persons, some are notestablished by sovereign or supreme authority. And these arerules of positive morality: they are not clothed with legal sanctions,nor do they oblige legally the parties to whom they are set. -But of laws set by subjects as private persons, others are set orestablished in pursuance of legal rights residing in the subjectauthors. And these are positive laws or laws strictly so called.Although they are made directly by subject authors, they are madein pursuance of rights granted or conferred by sovereigns in thecharacter of political superiors: they legally oblige the parties towhom they are set, or are clothed with legal sanctions. They arecommands of sovereigns as political superiors, although they areset by sovereigns circuitously or remotely.6

Laws set by men, 6 A law set by a subject as a private person, but in pursuance of a legal rightas private persons, residing in the subject author, is either a positive law purely or simply, or isin pursuance of compounded of a positive law and a rule of positive morality. Or (changing thelegal rights. expression) it is either a positive law purely or simply, or it is a positive law as

viewed from one aspect, and a rule of positive morality as viewed from another.

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It appears from the foregoing distinctions, that positive moralrules which are laws properly so called are of three kinds. - i.Those which are set by men living in a state of nature. 2. Thosewhich are set by sovereigns, but not by sovereigns as politicalsuperiors. 3. Those which are set by subjects as private persons,and are not set by the subject authors in pursuance of legalrights.

The person who makes the law in pursuance of the legal right, is either legallybound to make the law, or he is not. In the first case, the law is a positive lawpurely or simply. In the second case, the law is compounded of a positive lawand a positive moral rule.

For example, A guardian may have a right over his pupil or ward, which heis legally bound to exercise, for the benefit of the pupil or ward, in a given orspecified manner. In other words, a guardian may be clothed with a right, overhis pupil or ward, in trust to exercise the same, for the benefit of the pupil orward, in a given or specified manner. Now if, in pursuance of his right, andagreeably to his duty or trust, he sets a law or rule to the pupil or ward, thelaw is a positive law purely or simply. It is properly a law which the state setsto the ward through its minister or instrument the guardian. It is not made bythe guardian of his own spontaneous movement, or is made in pursuance of aduty which the state has imposed upon him. The position of the guardian isclosely analogous to the position of subordinate political superiors; who holdtheir delegated powers of direct or judicial legislation as mere trustees for thesovereign granters.

Again: the master has legal rights, over or against his slave, which are conferredby the state upon the master for his own benefit. And, since they are conferredupon him for his own benefit, he is not legally bound to exercise or use them.Now if, in pursuance of these rights, he sets a law to his slave, the law iscompounded of a positive law and a positive moral rule. Being made by sovereignauthority, and clothed by the sovereign with sanctions, the law made by themaster is properly a positive law. But, since it is made by the master of his ownspontaneous movement, or is not made by the master in pursuance of a legalduty, it is properly a rule of positive morality, as well as a positive law. Thoughthe law set by the master is set circuitously by the sovereign, it is set or establishedby the sovereign at the pleasure of the subject author. The master is not theinstrument of the sovereign or state, but the sovereign or state is rather theinstrument of the master.

Before I dismiss the subject of the present note, I must make two remarks.1. Of laws made by men as private persons, some are frequently styled 'laws

autonomies Or it is frequently said of some of those laws, that they are madethrough an atrcovouxa residing in the subject authors. Now laws autonomies orautonomical, are laws made by subjects, as private persons, in pursuance of legalrights: that is to say, in pursuance of legal rights which they are free to exerciseor not, or in pursuance of legal rights which are not saddled with trusts. A lawof the kind is styled autonomies because it is made by its author of his ownspontaneous disposition, or not in pursuance of a duty imposed upon him bythe state.

It is clear, however, that the term autonomic is not exclusively applicable to

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To cite an example of rules of the first kind were superfluouslabour. A man living in a state of nature may impose an imperativelaw: though, since the man is in a state of nature, he cannotimpose the law in the character of sovereign, and cannot imposethe law in pursuance of a legal right. And the law being imperative(and therefore proceeding from a determinate source) is a lawproperly so called: though, for want of a sovereign author proxi-mate or remote, it is not a positive law but a rule of positivemorality.

An imperative law set by a sovereign to a sovereign, or by onesupreme government to another supreme government, is anexample of rules of the second kind. Since no supreme govern-ment is in a state of subjection to another, an imperative law setby a sovereign to a sovereign is not set by its author in thecharacter of political superior. Nor is it set by its author inpursuance of a legal right: for every legal right is conferred bya supreme government, and is conferred on a person or personsin a state of subjection to the granter. Consequently, an imperativelaw set by a sovereign to a sovereign is not a positive law or alaw strictly so called. But being imperative (and therefore proceed-ing from a determinate source), it amounts to a law in the propersignification of the term, although it is purely or simply a ruleof positive morality.

If they be set by subjects as private persons, and be not setby their authors in pursuance of legal rights, the laws followingare examples of rules of the third kind: namely, imperative lawsset by parents to children; imperative laws set by masters toservants; imperative laws set by lenders to borrowers; imperativelaws set by patrons to parasites. Being imperative (and thereforeproceeding from determinate sources); the laws foregoing are lawsproperly so called: though, if they be set by subjects as private

laws of the kind in question. The term will apply to every law which is notmade by its author in pursuance of a legal duty. It will apply, for instance, toevery law which is made immediately or directly by a monarch or sovereignnumber: independence of legal duty being of the essence of sovereignty.

2. Laws which are positive law as viewed from one aspect, but which arepositive morality as viewed from another, I place simply or absolutely in the firstof those capital classes. If, affecting exquisite precision, I placed them in eachof those classes, I could hardly indicate the boundary by which those classes aresevered without resorting to expressions of repulsive complexity and length.

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persons, and be not set by their authors in pursuance of legalrights, they are not positive laws but rules of positive morality.

Again: A club or society of men, signifying its collective pleasureby a vote of its assembled members, passes or makes a law tobe kept by its members severally under pain of exclusion fromits meetings. Now if it be made by subjects as private persons,and be not made by its authors in pursuance of a legal right, thelaw voted and passed by the assembled members of the club isa further example of rules of the third kind. If it be made bysubjects as private persons, and be not made by its authors inpursuance of a legal right, it is not a positive law or a law strictlyso called. But being an imperative law (and the body by which itis set being therefore determinate)y it may be styled a law or rulewith absolute precision or propriety, although it is purely or simplya rule of positive morality.

The positive moral rules which are laws improperly so called, The positive moralare laws set or imposed by general opinion: that is to say, by the ^ ^rtperi sogeneral opinion of any class or any society of persons. For example, called, are lawsSome are set or imposed by the general opinion of persons who *et d

are members of a profession or calling: others, by that of personswho inhabit a town or province: others, by that of a nation orindependent political society: others, by that of a larger societyformed of various nations.

A few species of the laws which are set by general opinionhave gotten appropriate names. - For example, There are lawsor rules imposed upon gentlemen by opinions current amongstgentlemen. And these are usually styled the rules of honour, or thelaws or law of honour. - There are laws or rules imposed uponpeople of fashion by opinions current in the fashionable world.And these are usually styled the law set by fashion. - There arelaws which regard the conduct of independent political societiesin their various relations to one another: Or, rather, there are lawswhich regard the conduct of sovereigns or supreme governments intheir various relations to one another. And laws or rules of thisspecies, which are imposed upon nations or sovereigns by opinionscurrent amongst nations, are usually styled the law of nations orinternational law.

Now a law set or imposed by general opinion is a law improperly A law set orso called. It is styled a law or rule by an analogical extension of v**osed b? generf

* ^ t/ opinion, is merely

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the opinion or the term. When we speak of a law set by general opinion, wesentiment of an denote, by ^ ^ expression, the following fact. - Some intermediateindeterminate J r v

body of persons in body or uncertain aggregate of persons regards a kind of conduct'TtLdJt hnd ^ ^ a s e n t m l e n t of aversion or liking: or (changing the expression)

that indeterminate body opines unfavourably or favourably of agiven kind of conduct. In consequence of that sentiment, or inconsequence of that opinion, it is likely that they or some of themwill be displeased with a party who shall pursue or not pursueconduct of that kind. And, in consequence of that displeasure, itis likely that some party (what party being undetermined) will visitthe party provoking it with some evil or another.

The body by whose opinion the law is said to be set, does notcommand, expressly or tacitly, that conduct of the given kind shallbe forborne or pursued. For, since it is not a body preciselydetermined or certain, it cannot, as a body, express or intimate awish. As a body, it cannot signify a wish by oral or written words,or by positive or negative deportment. The so called law or rulewhich its opinion is said to impose, is merely the sentiment whichit feels, or is merely the opinion which it holds, in regard to akind of conduct.

A determinate member of the body, who opines or feels withthe body, may doubtless be moved or impelled, by that veryopinion or sentiment, to command that conduct of the kind shallbe forborne or pursued. But the command expressed or intimatedby that determinate party is not a law or rule imposed by generalopinion. It is a law properly so called, set by a determinateauthor. - For example, The so called law of nations consists ofopinions or sentiments current among nations generally. It there-fore is not law properly so called. But one supreme governmentmay doubtless command another to forbear from a kind of conductwhich the law of nations condemns. And, though it is fashionedon law which is law improperly so called, this command is a lawin the proper signification of the term. Speaking precisely, thecommand is a rule of positive morality set by a determinateauthor. For, as no supreme government is in a state of subjectionto another, the government commanding does not command inits character of political superior. If the government receiving thecommand were in a state of subjection to the other, the command,

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though fashioned on the law of nations, would amount to apositive law.

The foregoing description of a law set by general opinionimports the following consequences: - that the party who willenforce it against any future transgressor is never determinateand assignable. The party who actually enforces it against anactual transgressor is, of necessity, certain. In other words, if anactual transgressor be harmed in consequence of the breach ofthe law, and in consequence of that displeasure which the breachof the law has provoked, he receives the harm from a party, who,of necessity, is certain. But that certain party is not the executorof a command proceeding from the uncertain body. He has notbeen authorised by that uncertain body to enforce that so calledlaw which its opinion is said to establish. He is not in the positionof a minister of justice appointed by the sovereign or state toexecute commands which it issues. He harms the actual offenderagainst the so called law or (to speak in analogical language) heapplies the sanction annexed to it, of his own spontaneous move-ment. Consequently, though a party who actually enforces it is,of necessity, certain, the party who will enforce it against anyfuture offender is never determinate and assignable.

It follows from the foregoing reasons, that a so called law set A brief statementby general opinion is not a law in the proper signification of the ^ ^ * Sterm. It also follows from the same reasons, that it is not armed proper and a lawwith a sanction, and does not impose a duty, in the properacceptation of the expressions. For a sanction properly so calledis an evil annexed to a command. And duty properly so calledis an obnoxiousness to evils of the kind.

But a so called law set by general opinion is closely analogous toa law in the proper signification of the term. And, by consequence,the so called sanction with which the former is armed, and the socalled duty which the former imposes, are closely analogous to asanction and a duty in the proper acceptation of the expressions.

The analogy between a law in the proper signification of theterm and a so called law set by general opinion, may be statedbriefly in the following manner. - i. In the case of a law properlyso called, the determinate individual or body by whom the lawis established wishes that conduct of a kind shall be forborne or

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Distinctionbetween adeterminate, andan indeterminate

individual persons.

pursued. In the case of a law imposed by general opinion, a wishthat conduct of a kind shall be forborne or pursued is felt bythe uncertain body whose general opinion imposes it. 2. If a partyobliged by the law proper shall not comply with the wish of thedeterminate individual or body, he probably will suffer, in conse-quence of his not complying, the evil or inconvenience annexedto the law as a sanction. If a party obnoxious to their displeasureshall not comply with the wish of the uncertain body of persons,he probably will suffer, in consequence of his not complying,some evil or inconvenience from some party or another. 3. Bythe sanction annexed to the law proper, the parties obliged areinclined to act or forbear agreeably to its injunctions or prohi-bitions. By the evil which probably will follow the displeasure ofthe uncertain body, the parties obnoxious are inclined to act orforbear agreeably to the sentiment or opinion which is styledanalogically a law. 4. In consequence of the law properly so called,the conduct of the parties obliged has a steadiness, constancy, oruniformity, which, without the existence of the law, their conductwould probably want. In consequence of the sentiment or opinionwhich is styled analogically a law, the conduct of the partiesobnoxious has a steadiness, constancy, or uniformity, which, with-out the existence of that sentiment in the uncertain body ofpersons, their conduct would hardly present. For they who areobnoxious to the sanction which arms the law proper, commonlydo or forbear from the acts which the law enjoins or forbids;whilst they who are obnoxious to the evil which will probablyfollow the displeasure of the uncertain body of persons, commonlydo or forbear from the acts which the body approves or dislikes. -Many of the applications of the term law which are merelymetaphorical or figurative, were probably suggested (as I shallshow hereafter) by that uniformity of conduct which is consequenton a law proper.

In the foregoing analysis of a law set by general opinion, themeaning of the expression 'indeterminate body of persons' is indi-cated rather than explained. To complete my analysis of a lawset by general opinion (and to abridge that analysis of sovereigntywhich I shall place in my sixth lecture), I will here insert aconcise exposition of the following pregnant distinction: namely,the distinction between a determinate, and an indeterminate body

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of single or individual persons. - If my exposition of the distinctionshall appear obscure and crabbed, my hearers (I hope) will recol-lect that the distinction could hardly be expounded in lucid andflowing expressions.

I will first describe the distinction in general or abstract terms,and will then exemplify and illustrate the general or abstractdescription.

If a body of persons be determinate, all the persons whocompose it are determined and assignable, or every person whobelongs to it is determined and may be indicated.

But determinate bodies are of two kinds.A determinate body of one of those kinds is distinguished by

the following marks. - i. The body is composed of personsdetermined specifically or individually, or determined by charactersor descriptions respectively appropriate to themselves. 2. Thoughevery individual member must of necessity answer to many genericdescriptions, every individual member is a member of thedeterminate body, not by reason of his answering to any genericdescription, but by reason of his bearing his specific or appropriatecharacter.

A determinate body of the other of those kinds is distinguishedby the following marks. - 1. It comprises all the persons whobelong to a given class, or who belong respectively to two ormore of such classes. In other words, every person who answersto a given generic description, or to any of two or more givengeneric descriptions, is also a member of the determinate body.2. Though every individual member is of necessity determinedby a specific or appropriate character, every individual memberis a member of the determinate body, not by reason of hisbearing his specific or appropriate character, but by reason of hisanswering to the given generic description.

If a body be indeterminate, all the persons who compose it arenot determined and assignable. Or (changing the expression) everyperson who belongs to it is not determined, and, therefore, cannotbe indicated. - For an indeterminate body consists of some of thepersons who belong to another and larger aggregate. But howmany of those persons are members of the indeterminate body, orwhich of those persons in particular are members of the indeterminatebody, is not and cannot be known completely and exactly.

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For example, The trading firm or partnership of A B and Cis a determinate body of the kind first described above. Everymember of the firm is determined specifically, or by a characteror description peculiar or appropriate to himself. And everymember of the firm belongs to the determinate body, not byreason of his answering to any generic description, but by reasonof his bearing his specific or appropriate character. It is as beingthat very individual person that A B or C is a limb of thepartnership.

The British Parliament for the time being, is a determinatebody of the kind lastly described above. It comprises the onlyperson who answers for the time being to the generic descriptionof king. It comprises every person belonging to the class of peerswho are entitled for the time being to vote in the upper house.It comprises every person belonging to the class of commonerswho for the time being represent the commons in parliament.And, though every member of the British Parliament is of necessitydetermined by a specific or appropriate character, he is not amember of the parliament by reason of his bearing that character,but by reason of his answering to the given generic description.It is not as being the individual George, but as being the individualwho answers to the generic description of king, that George isking of Britain and Ireland, and a limb of the determinate bodywhich is sovereign or supreme therein. It is not as being theindividual Grey, or as being the individual Peel, that Grey is amember of the upper house, or Peel a member of the lower.Grey is a member of the upper house, as belonging to the classof peers entitled to vote therein. Peel is a member of the lowerhouse, as answering the generic description 'representative of thecommons in parliament.' - The generic characters of the personswho compose the British Parliament, are here described generally,and, therefore, inaccurately. To describe those generic charactersminutely and accurately, were to render a complete descriptionof the intricate and perplexed system which is styled the BritishConstitution. - A maxim of that Constitution may illustrate thesubject of the present paragraph. The meaning of the maxim,'the king never dies/ may, I believe, be rendered in the followingmanner. Though an actual occupant of the kingly office is human,mortal, and transient, the duration of the office itself has no

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possible limit which the British Constitution can contemplate.And on the death of an actual occupant, the office instantlydevolves to that individual person who bears the generic characterwhich entitles to take the crown: to that individual person whois then heir to the crown, according to the generic descriptioncontained in the Act of Settlement.

To exemplify the foregoing description of an indeterminatebody, I will revert to the nature of a law set by general opinion.Where a so called law is set by general opinion, most of thepersons who belong to a determinate body or class opine or feelalike in regard to a kind of conduct. But the number of thatmajority, or the several individuals who compose it, cannot befixed or assigned with perfect fulness or accuracy. For example,A law set or imposed by the general opinion of a nation, by thegeneral opinion of a legislative assembly, by the general opinion ofa profession, or by the general opinion of a club, is an opinionor sentiment, relating to conduct of a kind, which is held or feltby most of those who belong to that certain body. But how manyof that body, or which of that body in particular, hold or feelthat given opinion or sentiment, is not and cannot be knowncompletely and correctly. Consequently, that majority of the certainbody forms a body uncertain. Or (changing the expression) thebody which is formed by that majority is an indeterminate portionof a determinate body or aggregate. - Generally speaking, there-fore, an indeterminate body is an indeterminate portion of a bodydeterminate or certain. But a body or class of persons may alsobe indeterminate, because it consists of persons of a vague genericcharacter. For example, The body or class of gentlemen consistsof individual persons whose generic character of gentleman cannotbe described precisely. Whether a given man were a genuinegentleman or not, is a question which different men might answerin different ways. - An indeterminate body may therefore beindeterminate after a twofold manner. It may consist of an uncer-tain portion of an uncertain body or class. For example, a lawset or imposed by the general opinion of gentlemen is an opinionor sentiment of most of those who are commonly deemed gentle-manly. But what proportion of the class holds the opinion inquestion, or what proportion of the class feels the sentiment inquestion, is not less indeterminate than the generic character of

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gentlemen. The body by whose opinion the so called law is set,is, therefore, an uncertain portion of an uncertain body or aggre-gate. - And here I may briefly remark, that a certain portion ofa certain body is itself a body determinate. For example, Thepersons who answer the generic description 'representative of thecommons in parliament,' are a certain portion of the persons whoanswer the generic description 'commoner of the United King-dom.' A select committee of the representative body, or anyportion of the body happening to form a house, is a certainor determined portion of the representative of the commons inparliament. And, in any of these or similar cases, the certainportion of the certain body is itself a body determinate.

A determinate body of persons is capable of corporate conduct,or is capable, as a body, of positive or negative deportment.Whether it consist of persons determined by specific characters,or of persons determined or defined by a character or charactersgeneric, every person who belongs to it is determined and maybe Indicated. In the first case, every person who belongs to itmay be indicated by his specific character. In the second case,every person who belongs to it is also knowable: For every personwho answers to the given generic description, or who answers toany of the given generic descriptions, is therefore a member ofthe body. Consequently, the entire body, or any proportion of itsmembers, is capable, as a body, of positive or negative deportment:As, for example, of meeting at determinate times and places; ofissuing expressly or tacitly a law or other command; of choosingand deputing representatives to perform its intentions or wishes;of receiving obedience from others, or from any of its ownmembers.

But an indeterminate body is incapable of corporate conduct, oris incapable, as a body, of positive or negative deportment. Anindeterminate body is incapable of corporate conduct, inasmuchas the several persons of whom it consists cannot be known andindicated completely and correctly. In case a portion of its mem-bers act or forbear in concert, that given portion of its membersis, by that very concert, a determinate or certain body. Forexample, A law set or imposed by the general opinion of barristerscondemns the sordid practice of hugging or caressing attorneys.And as those whose opinion or sentiment sets the so called law

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are an indeterminate part of the determinate body of barristers,they form a body uncertain and incapable of corporate conduct.But in case a number or portion of that uncertain body assembledand passed a resolution to check the practice of hugging, thatnumber or portion of that uncertain body would be, by the veryact, a certain body or aggregate. It would form a determinatebody consisting of the determined individuals who assembled andpassed the resolution. - A law imposed by general opinion maybe the cause of a law in the proper acceptation of the term. Butthe law properly so called, which is the consequent or effect,utterly differs from the so called law which is the antecedent orcause. The one is an opinion or sentiment of an uncertain bodyof persons; of a body essentially incapable of joint or corporateconduct. The other is set or established by the positive or negativedeportment of a certain individual or aggregate.

For the purpose of rendering my exposition as little intricateas possible, I have supposed that a body of persons, forming abody determinate, either consists of persons determined by specificcharacters, or of persons determined or defined by a genericdescription or descriptions. - But a body of persons, forming abody determinate, may consist of persons determined by specificor appropriate characters, and also of persons determined by acharacter or characters generic. Let us suppose, for example, thatthe individual Oliver Cromwell was sovereign or supreme inEngland: or that the individual Cromwell, and the individualsIreton and Fleetwood, formed a triumvirate which was sovereignin that country. Let us suppose, moreover, that Cromwell, or thetriumvirs, convened a house of commons elected in the ancientmanner: and that Cromwell, or the triumvirs, yielded a part inthe sovereignty to this representative body. Now the sovereign orsupreme body formed by Cromwell and the house, or the sover-eign and supreme body formed by the triumvirs and the house,would have consisted of a person or persons determined or definedspecifically, and of persons determined or defined by a genericcharacter or description. The members of the house of commonswould have been members of the sovereign body, as answeringthe generic description 'representatives of the commons in parlia-ment.' But it is as being the very individual Cromwell, or asbeing the very individuals Cromwell, Ireton, and Fleetwood, that

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he or they would have formed a limb of the sovereign or supremebody. It is not as answering to a given generic description, or asacquiring a part in the sovereignty by a given generic mode, thathe or they would have shared the sovereignty with the bodyrepresenting the people. - A body of persons, forming a bodydeterminate, may also consist of persons determined or definedspecifically, and determined or defined moreover by a characteror characters generic. A select committee of a body representinga people or nation, consists of individual persons named orappointed specifically to sit on that given committee. But thosespecific individuals could not be members of the committee, unlessthey answered the generic description 'representative of the peopleor nation.'

It follows from the exposition immediately preceding that theone or the number which is sovereign in an independent politicalsociety is a determinate individual person or a determinate body ofpersons. If the sovereign one or number were not determinateor certain, it could not command expressly or tacitly, and couldnot be an object of obedience to the subject members of thecommunity. - Inasmuch as this principle is amply explained bythe exposition immediately preceding, I shall refer to it in mysixth lecture, as to a principle sufficiently known. The intricateand difficult analysis which I shall place in that discourse, willthus be somewhat facilitated, and not inconsiderably abridged.

As closely connected with the matter of the exposition immedi-ately preceding, the following remark concerning supreme govern-ment may be put commodiously in the present place. - In orderthat a supreme government may possess much stability, and thatthe society wherein it is supreme may enjoy much tranquillity,the persons who take the sovereignty in the way of succession,must take or acquire by a given generic mode, or by given genericmodes. Or (changing the expression) they must take by reasonof their answering to a given generic description, or by reasonof their respectively answering to given generic descriptions. -For example, the Roman Emperors or Princes (who were virtuallymonarchs or autocrators) did not succeed to the sovereignty ofthe Roman Empire or World by a given generic title: by a modeof acquisition given or preordained, and susceptible of genericdescription. It was neither as lineal descendant of Julius Caesar

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or Augustus, nor by the testament or other disposition of the lastpossessor of the throne, nor by the appointment or nominationof the Roman people or senate, nor by the election of a determi-nate body formed of the military class, nor by any mode ofacquisition generic and preordained, that every successiveEmperor, or every successive Prince, acquired the virtual sover-eignty of the Roman Empire or World. Every successive Emperoracquired by a mode of acquisition which was purely anomalousor accidental: which had not been predetermined by any law orcustom, or by any positive law or rule of positive morality. Everyactual occupant of the Imperial office or dignity (whatever mayhave been the manner wherein he had gotten possession) wasobeyed, for the time, by the bulk of the military class; wasacknowledged, of course, by the impotent and trembling senate;and received submission, of course, from the inert and helplessmass which inhabited the city and provinces. By reason of thisirregularity in the succession to the virtual sovereignty, the demiseof an Emperor was not uncommonly followed by a shorter orlonger dissolution of the general supreme government. Since noone could claim to succeed by a given generic title, or as answeringfor the time being to a given generic description, a contest forthe prostrate sovereignty almost inevitably arose between the moreinfluential of the actual military chiefs. And till one of the militarycandidates had vanquished and crushed his rivals, and had forcedwith an armed hand his way to the vacant throne, the generalityor bulk of the inhabitants in the Roman Empire or World couldhardly render obedience to one and the same superior. By reason,also, of this irregularity in the succession to the Imperial office,the general and habitual obedience to an actual occupant of theoffice was always extremely precarious. For, since he was notoccupant by a given generic title, or by reason of his havinganswered to a given generic description, the title of any rebel,who might anyhow eject him, would not have been less legitimateor less constitutional than his own. Or (speaking with greaterprecision) there was no mode of acquiring the office, which couldbe styled legitimate, or which could be styled constitutional: whichwas susceptible of generic description, and which has been prede-termined by positive law or morality. There was not, in the RomanWorld, any determinate person, whom positive law or morality

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Laws set bygeneral opinion,or opinions orsentiments ofindeterminatebodies, are theonly opinions orsentiments thathave gotten thename o/laws.But an opinion orsentiment held orfelt by anindividual, or byall the members ofa certainaggregate, maybe as closely

law proper as theopinion orsentiment of anindeterminatebody.

had pointed out to its inhabitants as the exclusively appropriateobject of general and habitual obedience. - The reasoning whichapplies in the case of a monarchy, will also apply, with fewvariations, in the case of a government by a number. Unless themembers of the supreme body hold their respective stations bytitles generic and fixed, the given supreme government must beextremely unstable, and the given society wherein it is suprememust often be torn by contests for the possession of shares inthe sovereignty.

Before I close my analysis of those laws improperly so calledwhich are closely analogous to laws in the proper acceptation ofthe term, I must advert to a seeming caprice of current orestablished language.

A law set or imposed by general opinion, is an opinion orsentiment, regarding conduct of a kind, which is held or felt byan indeterminate body, that is to say, an indeterminate portion ofa certain or uncertain aggregate.

Now a like opinion or sentiment held or felt by an individual,or held or felt universally by the members of a body determinate,may be as closely analogous to a law proper as a so called lawset by general opinion. It may bear an analogy to a law in theproper acceptation of the term, exactly or nearly resembling theanalogy to a law proper which is borne by an opinion or sentimentof an indeterminate body. An opinion, for example, of a patron, inregard to conduct of a kind, may be a law or rule to his owndependant or dependants, just as a like opinion of an indetermi-nate body is a law or rule to all who might suffer by provokingits displeasure. And whether a like opinion be held by an uncertainaggregate, or be held by every member of a precisely determinedbody, its analogy to a law proper is exactly or nearly the same.

But when we speak of a law set or imposed by opinion, wealways or commonly mean (I rather incline to believe) a law setor imposed by general opinion: that is to say, an opinion orsentiment, regarding conduct of a kind, which is held or felt byan uncertain body or class. The term law, or law set by opinion,is never or rarely applied to a like opinion or sentiment of aprecisely determined party: that is to say, a like opinion or senti-ment held or felt by an individual, or held or felt universally bythe members of a certain aggregate.

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This seeming caprice of current or established language prob-ably arose from the following causes.

An opinion, regarding conduct, which is held by an individualperson, or which is held universally by a small determinate body,is commonly followed by consequences of comparatively triflingimportance. The circle of the persons to whom its influencereaches, or whose desires or conduct it affects or determines, israrely extensive. The analogy which such opinions bear to lawsproper, has, therefore, attracted little attention, and has, therefore,not gotten them the name of laws. - An opinion held universallyby a large determinate body, is not less largely influential, or ismore largely influential, than an opinion of an uncertain portionof the same certain aggregate. But since the determinate body islarge or numerous, an opinion held by all its members can hardlybe distinguished from an opinion held by most of its members.An opinion held universally by the members of the body determi-nate, is, therefore, equivalent in practice to a general opinion ofthe body, and is, therefore, classed with the laws which generalopinion imposes.

Deferring to this seeming caprice of current or establishedlanguage, I have forborne from ranking sentiments of preciselydetermined parties with the laws improperly so called which areclosely analogous to the proper. I have restricted that descriptionto sentiments, regarding conduct, of uncertain bodies or classes.My foregoing analysis or exposition of laws of that description,is, therefore, an analysis of laws set by general opinion.

If the description ought to embrace (as, I think, it certainlyought) opinions, regarding conduct, of precisely determined par-ties, my foregoing analysis or exposition will still be correct sub-stantially. With a few slight and obvious changes, my foregoinganalysis of a law set by general opinion will serve as an analysisof a law set by any opinion: of a law set by the opinion of anindeterminate body, and of a law set by the opinion of a preciselydetermined party.

For the character or essential difference of a law imposed byopinion, is this: that the law is not a command, issued expresslyor tacitly, but is merely an opinion or sentiment, relating to conductof a kind, which is held or felt by an uncertain body, or by adeterminate party. A wish that conduct of the kind shall be

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The foregoingdistribution oflaws proper andof such improperlaws as are closelyanalogous to theproper, briefly

The sanctions,proper andimproper, bywhich those lawsare respectivelyenforced; theduties, proper andimproper, whichthose lawsrespectivelyimpose; and therights, proper andimproper, whichthose lawsrespectively confer.

pursued or forborne, is not signified, expressly or tacitly, by thatuncertain body, or that determinate party: nor does that body orparty intend to inflict an evil upon any whose conduct may deviatefrom the given opinion or sentiment. The opinion or sentimentis merely an opinion or sentiment, although it subjects a trans-gressor to the chance of a consequent evil, and may even leadto a command regarding conduct of the kind.

Between the opinion or sentiment of the indeterminate body,and the opinion or sentiment of the precisely determined party,there is merely the following difference. - The precisely deter-mined party is capable of issuing a command in pursuance of theopinion or sentiment. But the uncertain body is not. For, beingessentially incapable of joint or corporate conduct, it cannot, asa body, signify a wish or desire, and cannot, as a body, hold anintention or purpose.

It appears from the expositions in the preceding portion of mydiscourse, that laws properly so called, with such improper laws asare closely analogous to the proper, are of three capital classes. -i. The law of God, or the laws of God. 2. Positive law, orpositive laws. 3. Positive morality, rules of positive morality, orpositive moral rules.

It also appears from the same expositions, that positive moralrules are of two species. - 1. Those positive moral rules whichare express or tacit commands, and which are therefore laws inthe proper acceptation of the term. 2. Those laws improperly socalled (but closely analogous to laws in the proper acceptation ofthe term) which are set by general opinion, or are set by opinion:which are set by opinions of uncertain bodies; or by opinions ofuncertain bodies, and opinions of determinate parties.

The sanctions annexed to the laws of God, may be styledreligious. - The sanctions annexed to positive laws, may be styled,emphatically, legal: for the laws to which they are annexed, arestyled, simply and emphatically, lam or law. Or, as every positivelaw supposes a JtoXig or civitas, or supposes a society political andindependent, the epithet political may be applied to the sanctions bywhich such laws are enforced. - Of the sanctions which enforcecompliance with positive moral rules, some are sanctions properlyso called, and others are styled sanctions by an analogical extensionof the term: that is to say, some are annexed to rules which are

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laws imperative and proper, and others enforce the rule whichare laws set by opinion. Since rules of either species may bestyled positive morality, the sanctions which enforce compliancewith rules of either species may be styled moral sanctions. Or(changing the expression) we may say of rules of either species,that they are sanctioned or enforced morally.7

The duties imposed by the laws of God may be styled religious. -The duties imposed by positive laws, may be styled, emphatically,legal: or, like the laws by which they are imposed, they may besaid to be sanctioned legally. - Of the duties imposed by positivemoral rules, some are duties properly so called, and others arestyled duties by an analogical extension of the term: that is to say,some are creatures of rules which are laws imperative and proper,and others are creatures of the rules which are laws set byopinion. Like the sanctions proper and improper by which theyare respectively enforced, these duties proper and improper maybe styled moral. Or we may say of the duties, as of the rules bywhich they are imposed, that they are sanctioned or enforcedmorally.

Every right supposes a duty incumbent on a party or partiesother than the party entitled. Through the imposition of thatcorresponding duty, the right was conferred. Through the continu-ance of that corresponding duty, the right continues to exist. Ifthat corresponding duty be the creature of a law imperative, theright is a right properly so called. If that corresponding duty bethe creature of a law improper, the right is styled a right by ananalogical extension of the term. - Consequently, a right existingthrough a duty imposed by the law of God, or a right existingthrough a duty imposed by positive law, is a right properly so

7 The term morality, moral, or morally, is often opposed tacitly to immorality,immoral, or immorally, and imports that the object to which it is applied orreferred is approved of by the speaker or writer. But by the term morality, Imerely denote the human rules which I style 'positive morality.' And by theterms 'moral sanctions/ 'rules sanctioned morally] 'moral duties or rights,' and'duties or rights sanctioned morally] I merely mean that the rules to which thesanctions are annexed, or by which the duties or rights are imposed or conferred,are positive moral rules: rules bearing the generic character which I have statedand explained above. If I mean to praise or blame a positive human rule, or aduty or right which the rule imposes or confers, I style it consonant to the lawof God, or contrary to the law of God. Or (what, in effect, is the same thing)I style it generally useful, or generally pernicious.

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The law of God,positive law, andpositive morality,sometimescoincide,sometimes do notcoincide, andsometimesconflict

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called. Where the duty is the creature of a positive moral rule, thenature of the corresponding right depends upon the nature of the rule.If the rule imposing the duty be a law imperative and proper, the rightis a right properly so called. If the rule imposing the duty be a law setby opinion, the right is styled a right through an analogical extensionof the term. - Rights conferred by the law of God, or rights existingthrough duties imposed by the law of God, may be styled Divine. -Rights conferred by positive law, or rights existing through dutiesimposed by positive law, may be styled, emphatically, legal. Or it maybe said of rights conferred by positive law, that they are sanctioned orprotected legally. - The rights proper and improper which are con-ferred by positive morality, may be styled moral. Or it may be saidof rights conferred by positive morality, that they are sanctioned orprotected morally.9'

The body or aggregate of laws which may be styled the lawof God, the body or aggregate of laws which may be styledpositive law, and the body or aggregate of laws which may bestyled positive morality, sometimes coincide, sometimes do notcoincide, and sometimes conflict.

One of these bodies of laws coincides with another, when acts,which are enjoined or forbidden by the former, are also enjoined,or are also forbidden by the latter. - For example, The killingwhich is styled murder is forbidden by the positive law of everypolitical society: it is also forbidden by a so called law which the8 Here I may briefly observe, that, in order to a complete determination of the

appropriate province of jurisprudence, it is necessary to explain the import ofthe term right. For, as I have stated already, numerous positive laws proceeddirectly from subjects through rights conferred upon the authors by supremepolitical superiors. And, for various other reasons which will appear in my sixthlecture, the appropriate province of jurisprudence cannot be defined completely,unless an explanation of the term right constitute a part of the definition. But,in order to an explanation of right in abstract (or in order to an explanation ofthe nature which is common to all rights), I must previously explain the differencesof the principal kinds of rights, with the meanings of various terms which theterm right implies. And as that previous explanation cannot be given with effect,till positive law is distinguished from the objects to which it is related, it followsthat an explanation of the expression right cannot enter into the attempt todetermine the province of jurisprudence.

At every step which he takes on his long and scabrous road, a difficulty similarto that which I have now endeavoured to suggest encounters the expositor ofthe science. As every department of the science is implicated with every other,any detached exposition of a single and separate department is inevitably afragment more or less imperfect.

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general opinion of the society has set or imposed: it is alsoforbidden by the law of God as known through the principle ofutility. The murderer commits a crime, or he violates a positivelaw: he commits a conventional immorality, or he violates a socalled law which general opinion has established: he commits asin, or he violates the law of God. He is obnoxious to punishment,or other evil, to be inflicted by sovereign authority: he is obnoxiousto the hate and the spontaneous ill-offices of the generality orbulk of the society: he is obnoxious to evil or pain to be sufferedhere or hereafter by the immediate appointment of the Deity.

One of these bodies of laws does not coincide with another,when acts, which are enjoined or forbidden by the former, arenot enjoined, or are not forbidden by the latter. - For example,Though smuggling is forbidden by positive law, and (speakinggenerally) is not less pernicious than theft, it is not forbidden bythe opinions or sentiments of the ignorant or unreflecting. Wherethe impost or tax is itself a pernicious tendency, smuggling ishardly forbidden by the opinions or sentiments of any: And it istherefore practised by many without the slightest shame, or withoutthe slightest fear of incurring general censure. Such, for instance,is the case where the impost or tax is laid upon the foreigncommodity, not for the useful purpose of raising a public revenue,but for the absurd and mischievous purpose of protecting adomestic manufacture. - Offences against the game laws are alsoin point: for they are not offences against positive morality,although they are forbidden by positive law. A gentleman is notdishonoured, or generally shunned by gentlemen, though he shootswithout a qualification. A peasant who wires hares escapes thecensure of peasants, though the squires, as doing justiceship, sendhim to the prison and the tread-mill.

One of these bodies of laws conflicts with another, when acts,which are enjoined or forbidden by the former, are forbidden orenjoined by the latter. - For example, In most of the nations ofmodern Europe, the practice of duelling is forbidden by positivelaw. It is also at variance with the law which is received in mostof those nations as having been set by the Deity in the way ofexpress revelation. But in spite of positive law, and in spite ofhis religious convictions, a man of the class of gentlemen maybe forced by the law of honour to give or to take a challenge.

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If he forebore from giving, or if he declined a challenge, hemight incur the general contempt of gentlemen or men of honour,and might meet with slights and insults sufficient to embitter hisexistence. The negative legal duty which certainly is incumbentupon him, and the negative religious duty to which he believeshimself subject, are therefore mastered and controlled by thatpositive moral duty which arises from the so-called law set by theopinion of his class.

The simple and obvious considerations to which I have nowadverted, are often overlooked by legislators. If they fancy a prac-tice pernicious, or hate it they know not why, they proceed, withoutfurther thought, to forbid it by positive law. They forget that posi-tive law may be superfluous or impotent, and therefore may leadto nothing but purely gratuitous vexation. They forget that themoral or the religious sentiments of the community may alreadysuppress the practice as completely as it can be suppressed: or that,if the practice is favoured by those moral or religious sentiments,the strongest possible fear which legal pains can inspire may bemastered by a stronger fear of other and conflicting sanctions.9

The acts andforbearances,which, accordingto the theory ofutility, are objectsof the law ofGod: and the actsand forbearances,which, accordingto the sametheory, ought tobe objectsrespectively ofpositive morality

9 There are classes of useful acts which it were useless to enjoin, and classes ofmischievous acts which it were useless to forbid: for we are sufficiently proneto the useful, and sufficiently averse from the mischievous acts, without theincentives and restraints applied by religious sanctions, or by sanctions legal ormoral. And, assuming that general utility is the index to the Divine commands,we may fairly infer that acts of such classes are not enjoined or forbidden bythe law of God; that he no more enjoins or forbids acts of the classes in question,than he enjoins or forbids such acts as are generally pernicious or useful.

There are also classes of acts, generally useful or pernicious, which demandthe incentives or restraints applied by religious sanctions, or by sanctions legalor moral. Without the incentives and restraints applied by religious sanctions, orapplied by sanctions legal or moral, we are not sufficiently prone to those whichare generally useful, and are not sufficiently averse from those which are generallypernicious. And, assuming that general utility is the index to the Divine commands,all these classes of useful, and all these classes of pernicious acts, are enjoinedand forbidden respectively by the law of God.

Being enjoined or being forbidden by the Deity, all these classes of useful,and all these classes of pernicious acts, ought to be enjoined or forbidden bypositive morality: that is to say, by the positive morality which consists of opinionsor sentiments. But, this notwithstanding, some of these classes of acts ought notto be enjoined or forbidden by positive law. Some of these classes of acts oughtnot to be enjoined or forbidden even by the positive morality which consists ofimperative rules.

Every act or forbearance that ought to be an object of positive law, ought tobe an object of the positive morality which consists of opinions or sentiments.

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In consequence of the frequent coincidence of positive law andmorality, and of positive law and the law of God, the true natureand fountain of positive law is often absurdly mistaken by writersupon jurisprudence. Where positive law has been fashioned onpositive morality, or where positive law has been fashioned onthe law of God, they forget that the copy is the creature of thesovereign, and impute it to the author of the model.

For example: Customary laws are positive laws fashioned byjudicial legislation upon pre-existing customs. Now, till theybecome the grounds of judicial decisions upon cases, and areclothed with legal sanctions by the sovereign one or number, thecustoms are merely rules set by opinions of the governed, andsanctioned or enforced morally: Though, when they become thereasons of judicial decisions upon cases, and are clothed withlegal sanctions by the sovereign one or number, the customs arerules of positive law as well as of positive morality. But, becausethe customs were observed by the governed before they wereclothed with sanctions by the sovereign one or number, it isfancied that customary laws exist as positive laws by the institutionof the private persons with whom the customs originated. -Admitting the conceit, and reasoning by analogy, we ought toconsider the sovereign the author of the positive morality whichis often a consequence of positive law. Where a positive law, notfashioned on a custom, is favourably received by the governed,and enforced by their opinions or sentiments, we must deem theso called law, set by those opinions or sentiments, a law imperativeand proper of the supreme political superior.

Every act or forbearance that ought to be an object of the latter, is an object ofthe law of God as construed by the principle of utility. But the circle embracedby the law of God, and which may be embraced to advantage by positive morality,is larger than the circle which can be embraced to advantage by positive law.Inasmuch as the two circles have one and the same centre, the whole of theregion comprised by the latter is also comprised by the former. But the wholeof the region comprised by the former is not comprised by the latter.

To distinguish die acts and forbearances that ought to be objects of law, fromthose that ought to be abandoned to the exclusive cognisance of morality, is,perhaps, the hardest of the problems which the science of ethics presents. Theonly existing approach to a solution of the problem, may be found in the writingsof Mr. Bentham: who, in most of the departments of the two great branches ofethics, has accomplished more for the advancement of the science than all hispredecessors put together. - See, in particular, his Principles of Morals andLegislation, ch. xvii.

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The foregoingdistribution oflaws proper, andof such improperlaws as are closelyanalogous to theproper, tallies, inthe main, with adivision of lawswhich is givenincidentally byLocke in hisEssay on HumanUnderstanding.

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Again: The portion of positive law which is parcel of the lawof nature (or, in the language of the classical jurists, which isparcel of the jus gentium) is often supposed to emanate, even aspositive law, from a Divine or Natural source. But (admitting thedistinction of positive law into law natural and law positive) it ismanifest that law natural, considered as a portion of positive, isthe creature of human sovereigns, and not of the Divine monarch.To say that it emanates, as positive law, from a Divine or Naturalsource, is to confound positive law with law whereon it isfashioned, or with law whereunto it conforms.

The foregoing distribution of laws proper, and of such improperlaws as are closely analogous to the proper, tallies, in the main,with a division of laws which is given incidentally by Locke inhis Essay on Human Understanding. And since this division oflaws, or of the sources of duties or obligations, is recommendedby the great authority which the writer has justly acquired, Igladly append it to my own division or analysis. The passage ofhis essay in which the division occurs, is part of an inquiry intothe nature of relation, and is therefore concerned indirectly withthe nature and kinds of law. With the exclusion of all that isforeign to the nature and kinds of law, with the exclusion of afew expressions which are obviously redundant, and with thecorrection of a few expressions which are somewhat obscure, thepassage containing the divisions may be rendered in the wordsfollowing:10

'The conformity or disagreement men's voluntary actions haveto a rule to which they are referred, and by which they are judgedof, is a sort of relation which may be called moral relation.

10 Locke's division or analysis is far from being complete, and the language inwhich it is stated is often extremely unapt. It must, however, be remembered,that the nature of relation generally (and not the nature of law, with its principalkinds) is the appropriate object of his inquiry. Allowing for the defects, which,therefore, were nearly inevitable, his analysis is strikingly accurate. It evincesthat matchless power of precise and just thinking, with that religious regard forgeneral utility and truth, which marked the incomparable man who emancipatedhuman reason from the yoke of mystery and jargon. And from this his incidentalexcursion into the field of law and morality, and from other passages of hisessay wherein he touches upon them, we may infer the important services whichhe would have rendered to the science of ethics, if, complying with the instancesof Molyneux, he had examined the subject exactly.

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'Human actions, when with their various ends, objects, manners,and circumstances, they are framed into distinct complex ideas,are, as has been shown, so many mixed modes, a great part whereofhave names annexed to them. Thus, supposing gratitude to bea readiness to acknowledge and return kindness received, orpolygamy to be the having more wives than one at once, whenwe frame these notions thus in our minds, we have there somany determined ideas of mixed modes.

'But this is not all that concerns our actions. It is not enoughto have determined ideas of them, and to know what namesbelong to such and such combinations of ideas. We have a furtherand greater concernment. And that is, to know whether suchactions are morally good or bad.

'Good or evil is nothing but pleasure or pain, or that whichoccasions or procures pleasure or pain to us. Moral good or evil,then, is only the conformity or disagreement of our voluntaryactions to some law, whereby good or evil is drawn on us by thewill and power of the law-maker: which good or evil, pleasureor pain, attending our observance or breach of the law, by thedecree of the law-maker, is that we call reward or punishment.

'Of these moral rules or laws, to which men generally refer,and by which they judge of the rectitude or pravity of theiractions, there seem to me to be three sorts, with their threedifferent enforcements, or rewards and punishments. For sinceit would be utterly in vain to suppose a rule set to the freeactions of man, without annexing to it some enforcement of goodand evil to determine his will, we must, wherever we suppose alaw, suppose also some reward or punishment annexed to thatlaw. It would be in vain for one intelligent being to set a ruleto the actions of another, if he had it not in his power to rewardthe compliance with, and punish deviation from his rule, by somegood and evil that is not the natural product and consequenceof the action itself: for that being a natural convenience orinconvenience, would operate of itself without a law. This, if Imistake not, is the true nature of all law properly so called.

'The laws that men generally refer their actions to, to judgeof their rectitude or obliquity, seem to me to be these three: i.The Divine law. 2. The civil law. 3. The law of opinion or

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reputation, if I may so call it. - By the relation they bear to thefirst of these, men judge whether their actions are sins or duties:by the second, whether they be criminal or innocent: and by thethird, whether they be virtues or vices.

'By the Divine law, I mean that law which God hath set to theactions of men, whether promulgated to them by the light ofnature, or the voice of revelation. This is the only true touchstoneof moral rectitude. And by comparing them to this law, it is, thatmen judge of the most considerable moral good or evil of theiractions: that is, whether as duties or sins, they are like to procurethem happiness or misery from the hands of the Almighty.

'The civil law, the rule set by the commonwealth to the actionsof those who belong to it, is a rule to which men refer theiractions, to judge whether they be criminal or no. This law nobodyoverlooks, the rewards and punishments that enforce it beingready at hand, and suitable to the power that makes it: which isthe force of the commonwealth, engaged to protect the lives,liberties and possessions of those who live according to its law,and has power to take away life, liberty or goods from him whodisobeys.

'The law of opinion or reputation is another law that mengenerally refer their actions to, to judge of their rectitude orobliquity.

'Virtue and vice are names pretended, and supposed everywhereto stand for actions in their own nature right or wrong: and asfar as they really are so applied, they so far are coincident withthe Divine law above mentioned. But yet, whatever is pretended,this is visible, that these names virtue and vice, in the particularinstances of their application through the several nations andsocieties of men in the world, are constantly attributed to suchactions only as in each country and society are in reputation ordiscredit. Nor is it to be thought strange, that men everywhereshould give the name of virtue to those actions which amongstthem are judged praiseworthy, and call that vice which they accountblameable; since they would condemn themselves, if they shouldthink anything right, to which they allowed not commendation;anything wrong, which they let pass without blame.

'Thus the measure of what is everywhere called and esteemedvirtue and vice, is this approbation or dislike, praise or blame,

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which by a secret and tacit consent establishes itself in the severalsocieties, tribes, and clubs of men in the world; whereby severalactions come to find credit or disgrace amongst them, accordingto the judgment, maxims, or fashions of that place. For thoughmen uniting into politick societies have resigned up to the publickthe disposing of all their force, so that they cannot employ itagainst any fellow-citizens any further than the law of the countrydirects, yet they retain still the power of thinking well or ill,approving or disapproving of the actions of those whom they liveamongst and converse with: and by this approbation and dislike,they establish amongst themselves what they will call virtue andvice.

'That this is the common measure of virtue and vice, will appearto any one who considers, that, though that passes for vice in onecountry, which is counted virtue (or, at least, not vice) in another,yet everywhere virtue and praise, vice and blame go together.Virtue is everywhere that which is thought praiseworthy; andnothing but that which has the allowance of public esteem iscalled virtue. Virtue and praise are so united, that they are oftencalled by the same name. "Sunt sua proemia laudi," says Virgil.And, says Cicero, "nihil habet natura praestantius, quam honesta-tem, quam laudem, quam dignitatem, quam decus'P all which, hetells you, are names for the same thing. Such is the language of theheathen philosophers, who well understood wherein the notions ofvirtue and vice consisted.

'But though, by the different temper, education, fashion,maxims, or interest of different sorts of men, it fell out, that whatwas thought praiseworthy in one place, escaped not censure inanother, and so in different societies virtues and vices werechanged, yet, as to the main, they for the most part kept thesame everywhere. For since nothing can be more natural, thanto encourage with esteem and reputation that wherein everyonefinds his advantage, and to blame and discountenance the contrary,it is no wonder that esteem and discredit, virtue and vice, shouldin a great measure everywhere correspond with the unchangeablerule of right and wrong which the law of God hath established:there being nothing that so directly and visibly secures andadvances the general good of mankind in this world as obedienceto the law He has set them, and nothing that breeds such mischiefs

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and confusion as the neglect of it. And therefore men, withoutrenouncing all sense and reason, and their own interest, couldnot generally mistake in placing their commendation or blame onthat side which really deserved it not. Nay, even those men,whose practice was otherwise, failed not to give their approbationright: few being depraved to that degree, as not to condemn, atleast in others, the faults they themselves were guilty of. Whereby,even in the corruption of manners, the law of God, which oughtto be the rule of virtue and vice, was pretty well observed.

'If any one shall imagine that I have forgotten my own notionof a law, when I make the law, whereby men judge of virtue andvice, to be nothing but the consent of private men who have notauthority to make a law; especially wanting that which is sonecessary and essential to a law, a power to enforce it: I think,I may say, that he who imagines commendation and disgrace notto be strong motives on men to accommodate themselves to theopinions and rules of those with whom they converse, seems littleskilled in the nature or history of mankind: The greatest partwhereof he shall find to govern themselves chiefly, if not solely,by this law of fashion: and so they do that which keeps them inreputation with their company, little regard the law of God orthe magistrate. The penalties that attend the breach of God'slaw, some, nay, perhaps, most men seldom seriously reflect on;and amongst those that do, many, whilst they break the law,entertain thoughts of future reconciliation, and making their peacefor such breaches. And as to the punishments due from the lawof the commonwealth, they frequently flatter themselves with thehope of impunity. But no man escapes the punishment of theircensure and dislike, who offends against the fashion and opinionof the company he keeps, and would recommend himself to. Noris there one of ten thousand, who is stiff and insensible enoughto bear up under the constant dislike and condemnation of hisown club. He must be of a strange and unusual constitution, whocan content himself to live in constant disgrace and disreputewith his own particular society. Solitude many men have soughtand been reconciled to: but nobody that has the least thought orsense of a man about him, can live in society under the constantdislike and ill opinion of his familiars, and those he converseswith. This is a burthen too heavy for human sufferance: and he

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must be made up of irreconcileable contradictions, who can takepleasure in company, and yet be insensible of contempt anddisgrace from his companions.

'The law of God, the law of politick societies, and the law offashion or private censure, are, then, the three rules to which menvariously compare their actions. And it is from their conformity ordisagreement to one of these rules, that they judge of theirrectitude or obliquity, and name them good or bad.

'Whether we take the rule, to which, as to a touchstone, webring our voluntary actions, from the fashion of the country, orfrom the will of a law-maker, the mind is easily able to observethe relation any action hath to it, and to judge whether the actionagrees or disagrees with the rule. And thus the mind hath anotion of moral goodness or evil: which is either conformity or notconformity of any action to that rule. If I find an action to agreeor disagree with the esteem of the country I have been bred in,and to be held by most men there worthy of praise or blame, Icall the action virtuous or vicious. If I have the will of a supremeinvisible law-maker for my rule, then, as I suppose the actioncommanded or forbidden by God, I call it good or evil, duty orsin. And if I compare it to the civil law, the rule made by thelegislative power of the country, I call it lawful or unlawful, nocrime or a crime. So that whencesoever we take the rule ofactions, or by what standard soever we frame in our minds theideas of virtues or vices, their rectitude or obliquity consists intheir agreement or disagreement with the patterns prescribed bysome law.

'Before I quit this argument, I would observe that, in therelations which I call moral relation, I have a true notion ofrelation, by comparing the action with the rule, whether the rulebe true or false. For if I measure any thing by a supposed yard,I know whether the thing I measure be longer or shorter thanthat supposed yard, though the yard I measure by be not exactlythe standard. Measuring an action by a wrong rule, I shall judgeamiss of its moral rectitude: but I shall not mistake the relationwhich the action bears to the rule whereunto I compare it.' -Essay Concerning Human Understanding. Book II. Chap. XXVIII.

The analogy borne to a law proper by a law which opinion Laws metaphoricalimposes, lies mainly in the following point of resemblance. In the ^

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The common and case of a law set by opinion, as well as in the case of a lawnegative nature of p r O p e r i v s o called, a rational being or beings are obnoxious tolaws of the class. r r J ' & &

contingent evil, in the event of their not complying with a knownor presumed desire of another being or beings of a like nature.If, in either of the two cases, the contingent evil is suffered, itis suffered by a rational being, through a rational being: And itis suffered by a rational being, through a rational being, inconsequence of the suffering party having disregarded a desireof a rational being or beings. — The analogy, therefore, by whichthe laws are related, mainly lies in the resemblance of the impropersanction and duty to the sanction and duty properly so called.The contingent evil in prospect which enforces the law improper,and the present obnoxiousness to that contingent evil, may belikened to the genuine sanction which enforces the law proper,and the genuine duty or obligation which the law properimposes. - The analogy between a law in the proper acceptationof the term, and a law improperly so called which opinion setsor imposes, is, therefore, strong or close. The defect whichexcludes the latter from the rank of a law proper, merely consistsin this: that the wish or desire of its authors has not been dulysignified, and that they have no formed intention of inflicting evilor pain upon those who may break or transgress it.

But, beside the laws improper which are set or imposed byopinion, there are laws improperly so called which are related tolaws proper by slender or remote analogies. And, since they havegotten the name of laws from their slender or remote analogiesto laws properly so called, I style them laws metaphorical, or lawsmerely metaphorical.

The metaphorical applications of the term law are numerousand different. The analogies by which they are suggested, or bywhich metaphorical laws are related to laws proper, will, therefore,hardly admit of a common and positive description. But lawsmetaphorical, though numerous and different, have the followingcommon and negative nature. - No property or character of anymetaphorical law can be likened to a sanction or a duty. Conse-quently, every metaphorical law wants that point of resemblancewhich mainly constitutes the analogy between a law proper anda law set by opinion.

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To show that figurative laws want that point of resemblance, The common andand are therefore remotely analogous to laws properly so called, Zm^metThI will touch slightly and briefly upon a few of the numberless or figurative,cases in which the term law is extended and applied by a metaphor. s^£

The most frequent and remarkable of those metaphorical appli-cations is suggested by that uniformity, or that stability of conduct,which is one of the ordinary consequences of a law proper. - Byreason of the sanction working on their wills or desires, theparties obliged by a law proper commonly adjust their conductto the pattern which the law prescribes. Consequently, whereverwe observe a uniform order of events, or a uniform order ofcoexisting phenomena, we are prone to impute that order to alaw set by its author, though the case presents us <with nothingthat can be likened to a sanction or a duty.

For example: We say that the movements of lifeless bodies aredetermined by certain laws: though, since the bodies are lifelessand have no desires or aversions, they cannot be touched byaught which in the least resembles a sanction, and cannot besubject to aught which in the least resembles an obligation. Wemean that they move in certain uniform modes, and that they movein those uniform modes through the pleasure and appointment ofGod: just as parties obliged behave in a uniform manner throughthe pleasure and appointment of the party who imposes the lawand the duty. - Again: We say that certain actions of the lowerand irrational animals are determined by certain laws: though,since they cannot understand the purpose and provisions of alaw, it is impossible that sanctions should effectually move themto obedience, or that their conduct should be guided by a regardto duties or obligations. We mean that they act in certain uniformmodes, either in consequence of instincts (or causes which wecannot explain), or else in consequence of hints which they catchfrom experience and observation: and that, since their uniformityof action is an effect of the Divine pleasure, it closely resemblesthe uniformity of conduct which is wrought by the authors oflaws in those who are obnoxious to the sanctions.11 - In short,II Speaking with absolute precision, the lower animals, or the animals inferior to

man, are not destitute of reason. Since their conduct is partly determined byconclusions drawn from experience, they observe, compare, abstract, and infer.

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whenever we talk of laws governing the irrational world, themetaphorical application of the term law is suggested by thisdouble analogy, i. The successive and synchronous phenomenacomposing the irrational world, happen and exist, for the mostpart, in uniform series: which uniformity of succession and coexist-ence resembles the uniformity of conduct produced by an impera-tive law. 2. That uniformity of succession and coexistence, likethe uniformity of conduct produced by an imperative law, springsfrom the will and intention of an intelligent and rational author. -When an atheist speaks of laws governing the irrational world,the metaphorical application is suggested by an analogy still moreslender and remote than that which I have now analyzed. Hemeans that the uniformity of succession and coexistence resemblesthe uniformity of conduct produced by an imperative rule. If, todraw the analogy closer, he ascribes those laws to an author, hepersonifies a verbal abstraction, and makes it play the legislator.He attributes the uniformity of succession and coexistence to lawsset by nature: meaning, by nature, the world itself; or, perhaps,that very uniformity which he imputes to nature's commands.

Many metaphorical applications of the term law or rule aresuggested by the analogy following. - An imperative law or ruleguides the conduct of the obliged, or is a norma, model, orpattern, to which their conduct conforms. A proposed guide ofhuman conduct, or a model or pattern offered to human imitation,is, therefore, frequently styled a law or rule of conduct, althoughthere be not in the case a shadow of a sanction or a duty.

For example: To every law properly so called there are twodistinct parties: a party by whom it is established, and a party towhom it is set. But, this notwithstanding, we often speak of alaw set by a man to himself: meaning that he intends to pursuesome given course of conduct as exactly as he would pursue itif he were bound to pursue it by a law. An intention of pursuingexactly some given course of conduct, is the only law or rule

But the intelligence of the lower animals is so extremely limited, that, adoptingthe current expression, I style them irrational. Some of the more sagacious areso far from being irrational, that they understand and observe laws set to themby human masters. But these laws being few and of little importance, I throwthem, for the sake of simplicity, out of my account. I say universally of thelower animals, that they cannot understand a law, or guide their conduct by aduty.

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which a man can set to himself. The binding virtue of a law liesin the sanction annexed to it. But in the case of a so called lawset by a man to himself, he is not constrained to observe it byaught that resembles a sanction. For though he may fairly purposeto inflict a pain on himself, if his conduct shall depart from theguide which he intends it shall follow, the infliction of the con-ditional pain depends upon his own will. - Again: When we talkof rules of art, the metaphorical application of the term rules issuggested by the analogy in question. By a rule of art, we meana prescription or pattern which is offered to practitioners of anart, and which they are advised to observe when performing somegiven process. There is not the semblance of a sanction, nor isthere the shadow of a duty. But the offered prescription or patternmay guide the conduct of practitioners, as a rule imperative andproper guides the conduct of the obliged.12

The preceding disquisition on figurative laws is not so Laws metaphoricalsuperfluous as some of my hearers may deem it. Figurative laws Zi^^dZndare not unfrequently mistaken for laws imperative and proper, confounded with

lNay, attempts have actually been made, and by writers of the l"™highest celebrity, to explain and illustrate the nature of lawsimperative and proper, by allusions to so called laws which aremerely such through a metaphor. Of these most gross and scarcelycredible errors, various cases will be mentioned in future stagesof my Course. For the present, the following examples will amplydemonstrate that the errors are not impossible.

In an excerpt from Ulpian placed at the beginning of thePandects, and also inserted by Justinian in the second title of hisInstitutes, a fancied jus naturale, common to all animals, is thusdistinguished from the jus naturale or gentium to which I haveadverted above. 'Jus naturale est, quod natura omnia animaliadocuit: nam jus istud non humani generis proprium, sed omniumanimalium, quae in terra, quae in mari nascuntur, avium quoquecommune est. Hinc descendit mans atque feminae conjunctio,quam nos matrimonium appellamus; hinc liberorum procreatio,hinc educatio: videmus etenim cetera quoque animalia, feras etiam,istius juris peritia censeri. jfus gentium est, quo gentes humanaeutuntur. Quod a naturali recedere, inde facile intelligere licet;

12 Supposed difference between law and rule. - MS. note.

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quia illud omnibus animalibus, hoc solis hominibus inter se com-mune est.5 The jus naturale which Ulpian here describes, andwhich he here distinguishes from the jus naturale or gentium, isa name for the instincts of animals. More especially, it denotesthat instinctive appetite which leads them to propagate their kinds,with that instinctive sympathy which inclines parent animals tonourish and educate their young. Now the instincts of animalsare related to laws by the slender or remote analogy which I havealready endeavoured to explain. They incline the animals to actin certain uniform modes, and they are given to the animals forthat purpose by an intelligent and rational Author. But thesemetaphorical laws which govern the lower animals, and whichgovern (though less despotically) the human species itself, shouldnot have been blended and confounded, by a grave writer uponjurisprudence, with laws properly so called. It is true that theinstincts of the animal man, like many of his affections which arenot instinctive, are amongst the causes of laws in the properacceptation of the term. More especially, the laws regarding therelation of husband and wife, and the laws regarding the relationof parent and child, are mainly caused by the instincts whichUlpian particularly points at. And, that, it is likely, was the reasonwhich determined this legal oracle to class the instincts of animalswith laws imperative and proper. But nothing can be more absurdthan the ranking with laws themselves the causes which lead totheir existence. And if human instincts are laws because they arecauses of laws, there is scarcely a faculty or affection belongingto the human mind, and scarcely a class of objects presented bythe outward world, that must not be esteemed a law and anappropriate subject of jurisprudence. - I must, however, remark,that the jus quod natura omnia animalia docuit is a conceit peculiarto Ulpian: and that this most foolish conceit, though inserted inJustinian's compilations, has no perceptible influence on the detailof the Roman law. The jus naturale of the classical jurists generally,and the jus naturale occurring generally in the Pandects, is equival-ent to the natural law of modern writers upon jurisprudence, andis synonymous with the jus gentium, or the jus naturale et gentium,which I have tried to explain concisely at the end of a precedingnote. It means those positive laws and those rules of positivemorality, which are not peculiar or appropriate to any nation or

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age, but obtain, or are thought to obtain, in all nations and ages:and which, by reason of their obtaining in all nations and ages,are supposed to be formed or fashioned on the law of God orNature as known by the moral sense. 'Omnes populi' (says Gaius),'qui legibus et moribus reguntur, partim suo proprio, partimcommuni omnium hominum jure utuntur. Nam quod quisquepopulus ipse sibi jus constituit, id ipsius proprium est, vocaturquejus civile; quasi jus proprium ipsius civitatis. Quod vero naturalisratio inter omnes homines constituit, id aput omnes populosperaeque custoditur, vocaturque jus gentium; quasi quo jure omnesgentes utuntur.' The universal leges et mores here described byGaius, and distinguished from the leges et mores peculiar to aparticular nation, are styled indifferently, by most of the classicaljurists, jus gentium, jus naturale, or jus naturale et gentium. Andthe law of nature, as thus understood, is not intrinsically absurd.For as some of the dictates of utility are always and everywherethe same, and are also so plain and glaring that they hardly admitof mistake, there are legal and moral rules which are nearly orquite universal, and the expediency of which must be seen bymerely natural reason, or by reason without the lights of extensiveexperience and observation. The distinction of law and moralityinto natural and positive, is a needless and futile subtilty: but stillthe distinction is founded on a real and manifest difference. Thejus naturale or gentium would be liable to little objection, if itwere not supposed to be the offspring of a moral instinct orsense, or of innate practical principles. But, since it is closelyallied (as I shall show hereafter) to that misleading and perniciousjargon, it ought to be expelled, with the natural law of themoderns, from the sciences of jurisprudence and morality.

The following passage is the first sentence in Montesquieu'sSpirit of Laws. 'Les lois, dans la signification la plus etendue,sont les rapports necessaires qui derivent de la nature des choses:et dans ce sens tous les etres ont leurs lois: la Divinite a seslois; le monde materiel a ses lois; les intelligences superieures aPhomme ont leurs lois; les betes ont leurs lois; Phomme a seslois.' Now objects widely different, though bearing a commonname, are here blended and confounded. Of the laws whichgovern the conduct of intelligent and rational creatures, some arelaws imperative and proper, and others are closely analogous to

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laws of that description. But the so called laws which govern thematerial world, with the so called laws which govern the loweranimals, are merely laws by a metaphor. And the so called lawswhich govern or determine the Deity are clearly in the samepredicament. If his actions were governed or determined by lawsimperative and proper, he would be in a state of dependence onanother and superior being. When we say that the actions of theDeity are governed or determined by laws, we mean that theyconform to intentions which the Deity himself has conceived, andwhich he pursues or observes with inflexible steadiness or con-stancy. To mix these figurative laws with laws imperative andproper, is to obscure, and not to elucidate, the nature or essenceof the latter. - The beginning of the passage is worthy of thesequel. We are told that laws are the necessary relations whichflow from the nature of things. But what, I would crave, arerelations? What, I would also crave, is the nature of things? Andhow do the necessary relations which flow from the nature ofthings differ from those relations which originate in other sources?The terms of the definition are incomparably more obscure thanthe term which it affects to expound.

If you read the disquisition in Blackstone on the nature of lawsin general, or the fustian description of law in Hooker's Ecclesias-tical Polity, you will find the same confusion of laws imperativeand proper with laws which are merely such by a glaring perversionof the term. The cases of this confusion are, indeed, so numerous,that they would fill a considerable volume.

Physical or From the confusion of laws metaphorical with laws imperativenatural sanctions. a n d p r o p e r ) \ tum t 0 a mistake, somewhat similar, which, I

presume to think, has been committed by Mr. Bentham.Sanctions proper and improper are of three capital classes: -

the sanctions properly so called which are annexed to the lawsof God: the sanctions properly so called which are annexed topositive laws: the sanctions properly so called, and the sanctionsclosely analogous to sanctions properly so called, which respect-ively enforce compliance with positive moral rules. But to sanctionreligious, legal, and moral, this great philosopher and jurist addsa class of sanctions which he styles physical or natural.

When he styles these sanctions physical, he does not intend tointimate that they are distinguished from other sanctions by the

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mode wherein they operate: he does not intend to intimate thatthese are the only sanctions which affect the suffering partiesthrough physical or material means. Any sanction of any classmay reach the suffering party through means of that description.If a man were smitten with blindness by the immediate appoint-ment of the Deity, and in consequence of a sin he had committedagainst the Divine law, he would suffer a religious sanctionthrough his physical or bodily organs. The thief who is hangedor imprisoned by virtue of a judicial command, suffers a legalsanction through physical or material means. If a man of the classof gentlemen violates the law of honour, and happens to be shotin a duel arising from his moral delinquency, he suffers a moralsanction in a physical or material form.

The meaning annexed by Mr. Bentham to the expression'physical sanction,' may, I believe, be rendered in the followingmanner. - A physical sanction is an evil brought upon the sufferingparty by an act or omission of his own. But, though it is broughtupon the sufferer by an act or omission of his own, it is notbrought upon the sufferer through any Divine law, or throughany positive law, or rule of positive morality. For example: If yourhouse be destroyed by fire through your neglecting to put out alight, you bring upon yourself, by your negligent omission, aphysical or natural sanction: supposing, I mean, that your omissionis not to be deemed a sin, and that the consequent destructionof your house is not to be deemed a punishment inflicted by thehand of the Deity. In short, though a physical sanction is an evilfalling on a rational being, and brought on a rational being byan act or omission of his own, it is neither brought on the suffererthrough a law imperative and proper, nor through an analogouslaw set or imposed by opinion. In case I borrowed the just,though tautological language of Locke, I should describe a physicalsanction in some such terms as the following. 'It is an evil naturallyproduced by the conduct whereon it is consequent: and, beingnaturally produced by the conduct whereon it is consequent, itreaches the suffering party without the intervention of a law.'

Such physical or natural evils are related by the followinganalogy to sanctions properly so called, i. When they are actuallysuffered, they are suffered by rational beings through acts oromissions of their own. 2. Before they are actually suffered, or

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In strictness,declaratory lam,laws repealinglams, and lam ofimperfectobligation (in thesense of theRoman jurists),ought to be classedrespectively withlaws metaphoricalor figurative, andrules of positivemorality.

whilst they exist in prospect, they affect the wills or desires ofthe parties obnoxious to them as sanctions properly so calledaffect the wills of the obliged. The parties are urged to the actswhich may avert the evils from their heads, or the parties aredeterred from the acts which may bring the evils upon them.

But in spite of the specious analogy at which I have nowpointed, I dislike, for various reasons, the application of the termsanction to these physical or natural evils. Of those reasons I willbriefly mention the following. - i. Although these evils aresuffered by intelligent rational beings, and by intelligent rationalbeings through acts or omissions of their own, they are notsuffered as consequences of their not complying with desires ofintelligent rational beings. The acts or omissions whereon theseevils are consequent, can hardly be likened to breaches of duties,or to violations of imperative laws. The analogy borne by theseevils to sanctions properly so called, is nearly as remote as theanalogy borne by laws metaphorical to laws imperative and proper.2. By the term sanction^ as it is now restricted, the evils enforcingcompliance with laws imperative and proper, or with the closelyanalogous laws which opinion sets or imposes, are distinguishedfrom other evils briefly and commodiously. If the term werecommonly extended to these physical or natural evils, this advan-tage would be lost. The term would then comprehend everypossible evil which a man may bring upon himself by his ownvoluntary conduct. The term would then comprehend every con-tingent evil which can work on the will or desires as a motive toaction or forbearance.

I close my disquisitions on figurative laws, and on those meta-phorical sanctions which Mr. Bentham denominates physical^ withthe following connected remark.

Declaratory laws, laws repealing laws, and laws of imperfectobligation (in the sense of the Roman jurists), are merely analogousto laws in the proper acceptation of the term. Like laws imperativeand proper, declaratory laws, laws repealing laws, and laws ofimperfect obligation (in the sense of the Roman jurists), are signsof pleasure or desire proceeding from law-makers. A law ofimperfect obligation (in the sense of the Roman jurists) is alsoallied to an imperative law by the following point of resemblance.Like a law imperative and proper, it is offered as a norma, or

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guide of conduct, although it is not armed with a legal or politicalsanction.

Declaratory laws, and laws repealing laws, ought in strictnessto be classed with laws metaphorical or figurative: for the analogyby which they are related to laws imperative and proper isextremely slender or remote. Laws of imperfect obligation (in thesense of the Roman jurists) are laws set or imposed by theopinions of the law-makers, and ought in strictness to be classedwith rules of positive morality. But though laws of these threespecies are merely analogous to laws in the proper acceptationof the term, they are closely connected with positive laws, andare appropriate subjects of jurisprudence. Consequently I treatthem as improper laws of anomalous or eccentric sorts, andexclude them from the classes of laws to which in strictness theybelong.

[Note - on the prevailing tendency to confound what is with whatought to be law or morality, that is, ist, to confound positive lawwith the science of legislation, and positive morality with deontology;and 2ndly, to confound positive law with positive morality, and bothwith legislation and deontology. - (See pp. 140-2.)

The existence of law is one thing; its merit or demerit is another, Bt. Tendency toWhether it be or be not is one enquiry; whether it be or be not ^found positiveconformable to an assumed standard, is a different enquiry. A law, JJ^which actually exists, is a law, though we happen to dislike it, or legislation andthough it vary from the text, by which we regulate our approbation /™^ w"™%and disapprobation. This truth, when formally announced as an Example fromabstract proposition, is so simple and glaring that it seems idle to Bhchtone.insist upon it. But simple and glaring as it is, when enunciated inabstract expressions the enumeration of the instances in which it hasbeen forgotten would fill a volume.

Sir William Blackstone, for example, says in his 'Commentaries/that the laws of God are superior in obligation to all other laws; thatno human laws should be suffered to contradict them; that humanlaws are of no validity if contrary to them; and that all valid lawsderive their force from that Divine original.

Now, he may mean that all human laws ought to conform to theDivine laws. If this be his meaning, I assent to it without hesitation.The evils which we are exposed to suffer from the hands of God asa consequence of disobeying His commands are the greatest evils towhich we are obnoxious; the obligations which they impose are

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consequently paramount to those imposed by any other laws, and ifhuman commands conflict with the Divine law, we ought to disobeythe command which is enforced by the less powerful sanction; thisis implied in the term ought: the proposition is identical, and thereforeperfectly indisputable - it is our interest to choose the smaller andmore uncertain evil, in preference to the greater and surer. If thisbe Blackstone's meaning, I assent to his proposition, and have onlyto object to it, that it tells us just nothing.

Perhaps, again, he means that human lawgivers are themselvesobliged by the Divine laws to fashion the laws which they imposeby that ultimate standard, because if they do not, God will punishthem. To this also I entirely assent: for if the index to the law ofGod be the principle of utility, that law embraces the whole of ourvoluntary actions in so far as motives applied from without arerequired to give them a direction conformable to the generalhappiness.

But the meaning of this passage of Blackstone, if it has a meaning,seems rather to be this: that no human law which conflicts with theDivine law is obligatory or binding; in other words, that no humanlaw which conflicts with the Divine law is a law, for a law withoutan obligation is a contradiction in terms. I suppose this to be hismeaning, because when we say of any transaction that it is invalidor void, we mean that it is not binding: as, for example, if it be acontract, we mean that the political law will not lend its sanction toenforce the contract.

Now, to say that human laws which conflict with the Divine laware not binding, that is to say, are not laws, is to talk stark nonsense.The most pernicious laws, and therefore those which are mostopposed to the will of God, have been and are continually enforcedas laws by judicial tribunals. Suppose an act innocuous, or positivelybeneficial, be prohibited by the sovereign under the penalty of death;if I commit this act, I shall be tried and condemned, and if I objectto the sentence, that it is contrary to the law of God, who hascommanded that human lawgivers shall not prohibit acts which haveno evil consequences, the Court of Justice will demonstrate theinconclusiveness of my reasoning by hanging me up, in pursuanceof the law of which I have impugned the validity. An exception,demurrer, or plea, founded on the law of God was never heard ina Court of Justice, from the creation of the world down to the presentmoment.

But this abuse of language is not merely puerile, it is mischievous.When it is said that a law ought to be disobeyed, what is meant is

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that we are urged to disobey it by motives more cogent and compulsorythan those by which it is itself sanctioned. If the laws of God arecertain, the motives which they hold out to disobey any humancommand which is at variance with them are paramount to all others.But the laws of God are not always certain. All divines, at least allreasonable divines, admit that no scheme of duties perfectly completeand unambiguous was ever imparted to us by revelation. As an indexto the Divine will, utility is obviously insufficient. What appearspernicious to one person may appear beneficial to another. And asfor the moral sense, innate practical principles, conscience they aremerely convenient cloaks for ignorance or sinister interest: they meaneither that I hate the law to which I object and cannot tell why, orthat I hate the law, and that the cause of my hatred is one which Ifind it incommodious to avow. If I say openly, I hate the law, ergo,it is not binding and ought to be disobeyed, no one will listen tome; but by calling my hate my conscience or my moral sense, I urgethe same argument in another and a more plausible form: I seem toassign a reason for my dislike, when in truth I have only given it asounding and specious name. In times of civil discord the mischiefof this detestable abuse of language is apparent. In quiet times thedictates of utility are fortunately so obvious that the anarchical doctrinesleeps, and men habitually admit the validity of laws which theydislike. To prove by pertinent reasons that a law is pernicious ishighly useful, because such process may lead to the abrogation ofthe pernicious law. To incite the public to resistance by determinateviews of utility may be useful, for resistance, grounded on clear anddefinite prospects of good, is sometimes beneficial. But to proclaimgenerally that all laws which are pernicious or contrary to the willof God are void and not to be tolerated, is to preach anarchy, hostileand perilous as much to wise and benign rule as to stupid and gallingtyranny.

In another passage of his 'Commentaries,' Blackstone enters into Another examplean argument to prove that a master cannot have a right to the from Blackstone-labour of his slave. Had he contented himself with expressing hisdisapprobation, a very well-grounded one certainly, of the institutionof slavery, no objection could have been made to his so expressinghimself. But to dispute the existence or the possibility of the rightis to talk absurdly. For in every age, and in almost every nation, theright has been given by positive law, whilst that pernicious dispositionof positive law has been backed by the positive morality of the freeor master classes.

Paley's admired definition of civil liberty appears to me to be Paiey's definitionobnoxious to the very same objection: it is a definition of civil liberty °fdvil liberty-

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Example from thewriters oninternational law.

2nd. Tendency toconfound positivelaw with positivemorality, and bothwith legislationand deontology.Examples from theRoman jurists.

as it ought to be. 'Civil liberty/ he says, 'is the not being restrainedby any law but which conduces in a greater degree to the publicwelfare;' and this is distinguished from natural liberty, which is thenot being restrained at all. But when liberty is not exactly synonymouswith right, it means, and can mean nothing else, but exemption fromrestraint or obligation, and is therefore altogether incompatible withlaw, the very idea of which implies restraint and obligation. Butrestraint is restraint although it be useful, and liberty is liberty thoughit may be pernicious. You may, if you please, call a useful restraintliberty, and refuse the name liberty to exemption from restraint whenrestraint is for the public advantage. But by this abuse of languageyou throw not a ray of light upon the nature of political liberty; youonly add to the ambiguity and indistinctness in which it is alreadyinvolved. I shall have to define and analyze the notion of libertyhereafter, on account of its intimate connexion with right, obligation,and sanction.

Grotius, Puffendorf, and the other writers on the so-called law ofnations, have fallen into a similar confusion of ideas: they haveconfounded positive international morality, or the rules which actuallyobtain among civilized nations in their mutual intercourse, with theirown vague conceptions of international morality as it ought to he, withthat indeterminate something which they conceived it would be, if itconformed to that indeterminate something which they call the lawof nature. Professor Von Martens, of Gottingen, who died only afew years ago, is actually the first of the writers on the law of nationswho has seized this distinction with a firm grasp, the first who hasdistinguished the rules which ought to be received in the intercourseof nations, or which would be received if they conformed to anassumed standard of whatever kind, from those which are so received,endeavoured to collect from the practice of civilized communitieswhat are the rules actually recognized and acted upon by them, andgave to these rules the name of positive international law.

I have given several instances in which law and morality as theyought to be are confounded with the law and morality which actuallyexist. I shall next mention some examples in which positive law isconfounded with positive morality, and both with the science oflegislation and deontology.

Those who know the writings of the Roman lawyers only byhearsay are accustomed to admire their philosophy. Now this, in myestimation, is the only part of their writings which deserves contempt.Their extraordinary merit is evinced not in general speculation, butas expositors of the Roman law. They have seized its general principles

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with great clearness and penetration, have applied these principleswith admirable logic to the explanation of details, and have thusreduced this positive system of law to a compact and coherent whole.But the philosophy which they borrowed from the Greeks, or which,after the examples of the Greeks, they themselves fashioned, isnaught. Their attempts to define jurisprudence and to determine theprovince of the jurisconsult are absolutely pitiable, and it is hardlyconceivable how men of such admirable discernment should havedisplayed such contemptible imbecility.

At the commencement of the digest is a passage attempting todefine jurisprudence. I shall first present you with this passage in afree translation, and afterwards in the original. 'Jurisprudence,' Saysthis definition, 'is the knowledge of things divine and human; thescience which teaches men to discern the just from the unjust.''Jurisprudentia est divinarum atque humanarum rerum notitia, justiatque injusti scientia.' In the excerpt from Ulpian, which is placedat the beginning of the Digest, it is attempted to define the officeor province of the jurisconsult. 'Law,' says the passage, 'derives itsname from justice, justitia, and is the science or skill in the goodand the equitable. Law being the creature of justice, we the juriscon-sults may be considered as her priests, for justice is the goddesswhom we worship, and to whose service we are devoted. Justice andequity are our vocation; we teach men to know the difference betweenthe just and the unjust, the lawful and the unlawful; we strive toreclaim them from vice, not only by the terrors of punishment, butalso by the blandishment of rewards; herein, unless we flatter our-selves, aspiring to sound and real philosophy, and not like somewhom we could mention, contenting ourselves with vain and emptypretension.' 'Juri operam daturum prius nosse oportet, unde nomenjuris descendat. Est autem a justitia appellatum; nam, ut eleganterCelsus definit, jus est ars boni et aequi. Cujus merito quis nossacerdotes appellet; justitiam namque colimus, et boni et aequi notitiamprofitemur, aequum ab iniquo separantes, licitum ab illicito discern-entes, bonos non solum metu poenarum verum etiam prcemiorumquoque exhortatione efficere cupientes, veram, nisi fallor, philoso-phiam, non simulatam affectantes.'

Were I to present you with all the criticisms which these twopassages suggest, I should detain you a full hour. I shall contentmyself with one observation on the scope and purpose of them both.That is, that they affect to define jurisprudence, or what comesexactly to the same thing, the office or province of the jurisconsult.Now jurisprudence, if it is anything, is the science of law, or at most

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the science of law combined with the art of applying it; but what ishere given as a definition of it, embraces not only law, but positivemorality, and even the test to which both these are to be referred.It therefore comprises the science of legislation and deontology.Further, it affirms that law is the creature of justice, which is asmuch as to say that it is the child of its own offspring. For whenby just we mean anything but to express our own approbation wemean something which accords with some given law. True, we speakof law and justice, or of law and equity, as opposed to each other,but when we do so, we mean to express mere dislike of the law, orto intimate that it conflicts with another law, the law of God, whichis its standard. According to this, every pernicious law is unjust. But,in truth, law is itself the standard of justice. What deviates from anylaw is unjust with reference to that law, though it may be just withreference to another law of superior authority. The terms just andunjust imply a standard, and conformity to that standard and adeviation from it; else they signify mere dislike, which it would befar better to signify by a grunt or a groan than by a mischievous anddetestable abuse of articulate language. But justice is commonlyerected into an entity, and spoken of as a legislator, in which characterit is supposed to prescribe the law, conformity to which it shoulddenote. The veriest dolt who is placed in a jury box, the merest oldwoman who happens to be raised to the bench, will talk finely ofequity or justice - the justice of the case, the equity of the case, theimperious demands of justice, the plain dictates of equity. He forgetsthat he is there to enforce the law of the land, else he does notadminister that justice or that equity with which alone he is immedi-ately concerned.

Example from This is well known to have been a strong tendency of LordLord Mansfield Mansfield - a strange obliquity in so great a man. I will give an

instance. By the English law, a promise to give something for thebenefit of another is not binding without what is called a consideration,that is, a motive assigned for the promise, which motive must be ofa particular kind. Lord Mansfield, however, overruled the distinctprovisions of the law by ruling that moral obligation was a sufficientconsideration. Now, moral obligation is an obligation imposed byopinion, or an obligation imposed by God: that is, moral obligationis anything which we choose to call so, for the precepts of positivemorality are infinitely varying, and the will of God, whether indicatedby utility or by a moral sense, is equally matter of dispute. Thisdecision of Lord Mansfield, which assumes that the judge is toenforce morality, enables the judge to enforce just whatever hepleases.

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I must here observe that I am not objecting to Lord Mansfieldfor assuming the office of a legislator. I by no means disapprove ofwhat Mr. Bentham has chosen to call by the disrespectful, andtherefore, as I conceive, injudicious, name of judge-made law. ForI consider it injudicious to call by any name indicative of disrespectwhat appears to me highly beneficial and even absolutely necessary.I cannot understand how any person who has considered the subjectcan suppose that society could possibly have gone on if judges hadnot legislated, or that there is any danger whatever in allowing themthat power which they have in fact exercised, to make up for thenegligence or the incapacity of the avowed legislator. That part ofthe law of every country which was made by judges has been farbetter made than that part which consists of statutes enacted by thelegislature. Notwithstanding my great admiration for Mr. Bentham,I cannot but think that, instead of blaming judges for having legislated,he should blame them for the timid, narrow, and piecemeal mannerin which they have legislated, and for legislating under cover of vagueand indeterminate phrases, such as Lord Mansfield employed in theabove example, and which would be censurable in any legislator.]

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Lecture VI.

The connection ofthe sixth lecturewith the first,second, third,fourth, and fifth.

POSITIVE laws, the appropriate matter of jurisprudence, are relatedin the way of resemblance, or by a close or remote analogy, tothe following objects. - i. In the way of resemblance, they arerelated to the laws of God. 2. In the way of resemblance, theyare related to those rules of positive morality which are lawsproperly so called. 3. By a close or strong analogy, they are relatedto those rules of positive morality which are merely opinions orsentiments held or felt by men in regard to human conduct.4. By a remote or slender analogy, they are related to laws merelymetaphorical, or laws merely figurative.

To distinguish positive laws from the objects now enumerated,is the purpose of the present attempt to determine the provinceof jurisprudence.

In pursuance of the purpose to which I have now adverted, Istated, in my first lecture, the essentials of a law or rule (takenwith the largest signification which can be given to the termproperly).

In my second, third, and fourth lectures, I stated the marksor characters by which the laws of God are distinguished fromother laws. And, stating those marks or characters, I explainedthe nature of the index to his unrevealed laws, or I explainedand examined the hypotheses which regard the nature of thatindex.

In my fifth lecture, I examined or discussed especially thefollowing principal topics (and I touched upon other topics ofsecondary or subordinate importance). - I examined the dis-

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tinguishing marks of those positive moral rules which are lawsproperly so called: I examined the distinguishing marks of thosepositive moral rules which are styled lams or rules by an analogicalextension of the term: and I examined the distinguishing marksof laws merely metaphorical, or laws merely figurative.

I shall finish, in the present lecture, the purpose mentionedabove, by explaining the marks or characters which distinguishpositive laws, or laws strictly so called. And, in order to anexplanation of the marks which distinguish positive laws, I shallanalyze the expression sovereignty, the correlative expression subjec-tion, and the inseparably connected expression independent politicalsociety. With the ends or final causes for which governments oughtto exist, or with their different degrees of fitness to attain orapproach those ends, I have no concern. I examine the notionsof sovereignty and independent political society, in order that I mayfinish the purpose to which I have adverted above: in orderthat I may distinguish completely the appropriate province ofjurisprudence from the regions which lie upon its confines, andby which it is encircled. It is necessary that I should examinethose notions, in order that I may finish that purpose. For theessential difference of a positive law (or the difference that seversit from a law which is not a positive law) may be stated thus.Every positive law, or every law simply and strictly so called, isset by a sovereign person, or a sovereign body of persons, to amember or members of the independent political society whereinthat person or body is sovereign or supreme. Or (changing theexpression) it is set by a monarch, or sovereign number, to aperson or persons in a state of subjection to its author. Eventhough it sprung directly from another fountain or source, it isa positive law, or a law strictly so called, by the institution ofthat present sovereign in the character of political superior. Or(borrowing the language of Hobbes) 'the legislator is he, not bywhose authority the law was first made, but by whose authorityit continues to be a law.'

Having stated the topic or subject appropriate to my present The distinguishingdiscourse, I proceed to distinguish sovereignty from other superi- ^ J V andority or might, and to distinguish society political and independent independentfrom society of other descriptions. political sodety'

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The relation ofsovereignty and

Strictly speaking,the sovereignportion of thesociety, and notthe society itselfis independent,sovereign, orsupreme.

The superiority which is styled sovereignty, and the independentpolitical society which sovereignty implies, is distinguished fromother superiority, and from other society, by the following marksor characters. - i. The bulk of the given society are in a habit ofobedience or submission to a determinate and common superior: letthat common superior be a certain individual person, or a certainbody or aggregate of individual persons. 2. That certain individual,or that certain body of individuals, is not in a habit of obedience toa determinate human superior. Laws (improperly so called) whichopinion sets or imposes, may permanently affect the conduct ofthat certain individual or body. To express or tacit commands ofother determinate parties, that certain individual or body may yieldoccasional submission. But there is no determinate person, ordeterminate aggregate of persons, to whose commands, express ortacit, that certain individual or body renders habitual obedience.

Or the notions of sovereignty and independent political societymay be expressed concisely thus. - If a determinate human superior,not in a habit of obedience to a like superior, receive habitualobedience from the bulk of a given society, that determinatesuperior is sovereign in that society, and the society (includingthe superior) is a society political and independent.

To that determinate superior, the other members of the societyare subject: or on that determinate superior, the other membersof the society are dependent. The position of its other memberstowards that determinate superior, is a state of subjection, or a stateof dependence. The mutual relation which subsists between thatsuperior and them, may be styled the relation of sovereign andsubject, or the relation of sovereignty and subjection.

Hence it follows, that it is only through an ellipsis, or anabridged form of expression, that the society is styled independent.The party truly independent (independent, that is to say, of adeterminate human superior), is not the society, but the sovereignportion of the society: that certain member of the society, or thatcertain body of its members, to whose commands, expressed orintimated, the generality or bulk of its members render habitualobedience. Upon that certain person, or certain body of persons,the other members of the society are dependent: or to that certainperson, or certain body of persons, the other members of the

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society are subject. By 'an independent political society,' or 'anindependent and sovereign nation,' we mean a political societyconsisting of a sovereign and subjects, as opposed to a politicalsociety which is merely subordinate: that is to say, which is merelya limb or member of another political society, and which thereforeconsists entirely of persons in a state of subjection.

In order that a given society may form a society political and in order that aindependent, the two distinguishing marks which I have mentioned ®ven soctety may

x v v form a society

above must unite. The generality of the given society must be in political andthe habit of obedience to a determinate and common superior: whilst tndeP™ dent>the

r two distinguishing

that determinate person, or determinate body of persons must not marks which arebe habitually obedient to a determinate person or body. It is the menttoned d

J r j m u s t u m t e

union of that positive, with this negative mark, which renders thatcertain superior sovereign or supreme, and which renders thatgiven society (including that certain superior) a society politicaland independent.

To show that the union of those marks renders a given societya society political and independent, I call your attention to thefollowing positions and examples.

i. In order that a given society may form a society political,the generality or bulk of its members must be in a habit ofobedience to a determinate and common superior.

In case the generality of its members obey a determinatesuperior, but the obedience be rare or transient and not habitualor permanent, the relation of sovereignty and subjection is notcreated thereby between that certain superior and the membersof that given society. In other words, that determinate superiorand the members of that given society do not become therebyan independent political society. Whether that given society bepolitical and independent or not, it is not an independent politicalsociety whereof that certain superior is the sovereign portion.

For example: In 1815 the allied armies occupied France; andso long as the allied armies occupied France, the commands ofthe allied sovereigns were obeyed by the French government, and,through the French government, by the French people generally.But since the commands and the obedience were comparativelyrare and transient, they were not sufficient to constitute therelation of sovereignty and subjection between the allied sovereignsand the members of the invaded nation. In spite of those com-

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mands, and in spite of that obedience, the French governmentwas sovereign or independent. Or in spite of those commands,and in spite of that obedience, the French government and itssubjects were an independent political society whereof the alliedsovereigns were not the sovereign portion.

Now if the French nation, before the obedience to those sover-eigns, had been an independent society in a state of nature oranarchy, it would not have been changed by the obedience intoa society political. And it would not have been changed by theobedience into a society political, because the obedience was nothabitual. For, inasmuch as the obedience was not habitual, itwas not changed by the obedience from a society political andindependent, into a society political but subordinate. - A givensociety, therefore, is not a society political, unless the generalityof its members be in a habit of obedience to a determinate andcommon superior.

Again: A feeble state holds its independence precariously, or atthe will of the powerful states to whose aggressions it is obnoxious.And since it is obnoxious to their aggressions, it and the bulk ofits subjects render obedience to commands which they occasionallyexpress or intimate. Such, for instance, is the position of the Saxongovernment and its subjects in respect of the conspiring sovereignswho form the Holy Alliance. But since the commands and theobedience are comparatively few and rare, they are not sufficientto constitute the relation of sovereignty and subjection between thepowerful states and the feeble state with its subjects. In spite ofthose commands, and in spite of that obedience, the feeble state issovereign or independent. Or in spite of those commands, and inspite of that obedience, the feeble state and its subjects are anindependent political society whereof the powerful states are notthe sovereign portion. Although the powerful states are perma-nently superior, and although the feeble state is permanentlyinferior, there is neither a habit of command on the part of theformer, nor a habit of obedience on the part of the latter. Althoughthe latter is unable to defend and maintain its independence, thelatter is independent of the former in fact or practice.

From the example now adduced, as from the example adducedbefore, we may draw the following inference: that a given societyis not a society political, unless the generality of its members be

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in a habit of obedience to a determinate and common superior. -By the obedience to the powerful states, the feeble state and itssubjects are not changed from an independent, into a subordinatepolitical society. And they are not changed by the obedience into asubordinate political society, because the obedience is not habitual.Consequently, if they were a natural society (setting that obedienceaside), they would not be changed by that obedience into a societypolitical.

2. In order that a given society may form a society political,habitual obedience must be rendered, by the generality or bulk ofits members, to a determinate and common superior. In otherwords, habitual obedience must be rendered, by the generality orbulk of its members, to one and the same determinate person, ordeterminate body of persons.

Unless habitual obedience be rendered by the bulk of its mem-bers, and be rendered by the bulk of its members to one and thesame superior, the given society is either in a state of nature, oris split into two or more independent political societies.

For example: In case a given society be torn by intestine war,and in case the conflicting parties be nearly balanced, the givensociety is in one of the two positions which I have now supposed. -As there is no common superior to which the bulk of its membersrender habitual obedience, it is not a political society single orundivided. - If the bulk of each of the parties be in a habit ofobedience to its head, the given society is broken into two ormore societies, which, perhaps, may be styled independent politicalsocieties. - If the bulk of each of the parties be not in that habitof obedience, the given society is simply or absolutely in a stateof nature or anarchy. It is either resolved or broken into itsindividual elements, or into numerous societies of an extremelylimited size: of a size so extremely limited, that they could hardlybe styled societies independent and political. For, as I shall showhereafter, a given independent society would hardly be styledpolitical, in case it fell short of a number which cannot be fixedwith precision, but which may be called considerable, or notextremely minute.

3. In order that a given society may form a society political,the generality or bulk of its members must habitually obey asuperior determinate as well as common.

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On this position I shall not insist here. For I have shownsufficiently in my fifth lecture, that no indeterminate party cancommand expressly or tacitly, or can receive obedience or sub-mission: that no indeterminate body is capable of corporate con-duct, or is capable, as a body, of positive or negative deportment.

4. It appears from what has preceded, that, in order that agiven society may form a society political, the bulk of its membersmust be in a habit of obedience to a certain and common superior.But, in order that the given society may form a society politicaland independent, that certain superior must not be habituallyobedient to a determinate human superior.

The given society may form a society political and independent,although that certain superior be habitually affected by laws whichopinion sets or imposes. The given society may form a societypolitical and independent, although that certain superior renderoccasional submission to commands of determinate parties. Butthe society is not independent, although it may be political, incase that certain superior habitually obey the commands of acertain person or body.

Let us suppose, for example, that a viceroy obeys habituallythe author of his delegated powers. And, to render the examplecomplete, let us suppose that the viceroy receives habitual obedi-ence from the generality or bulk of the persons who inhabit hisprovince. - Now though he commands habitually within the limitsof his province, and receives habitual obedience from the gener-ality or bulk of its inhabitants, the viceroy is not sovereign withinthe limits of his province, nor are he and its inhabitants anindependent political society. The viceroy, and (through theviceroy) the generality or bulk of its inhabitants, are habituallyobedient or submissive to the sovereign of a larger society. Heand the inhabitants of his province are therefore in a state ofsubjection to the sovereign of that larger society. He and theinhabitants of his province are a society political but subordinate,or form a political society which is merely a limb of another.

A society A natural society, a society in a state of nature, or a society? b independent but natural, is composed of persons who are connec-

ted by mutual intercourse, but are not members, sovereign orsubject, of any society political. None of the persons who composeit lives in the positive state which is styled a state of subjection:

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or all the persons who compose it live in the negative state whichis styled a state of independence.

Considered as entire communities, and considered in respect Society formed byof one another, independent political societies live, it is commonly f ^ ^ T ' ^said, in a state of nature. And considered as entire communities, political societies.and as connected by mutual intercourse, independent politicalsocieties form, it is commonly said, a natural society. Theseexpressions, however, are not perfectly apposite. Since all themembers of each of the related societies are members of a societypolitical, none of the related societies is strictly in a state of nature:nor can the larger society formed by their mutual intercourse bestyled strictly a natural society. Speaking strictly, the several mem-bers of the several related societies are placed in the followingpositions. The sovereign and subject members of each of therelated societies form a society political: but the sovereign portionof each of the related societies lives in the negative conditionwhich is styled a state of independence.

Society formed by the intercourse of independent politicalsocieties, is the province of international law, or of the lawobtaining between nations. For (adopting a current expression)international law, or the law obtaining between nations, is convers-ant about the conduct of independent political societies consideredas entire communities: circa negotia et causas gentium integrarum.Speaking with greater precision, international law, or the lawobtaining between nations, regards the conduct of sovereignsconsidered as related to one another.

And hence it inevitably follows, that the law obtaining betweennations is not positive law: for every positive law is set by a givensovereign to a person or persons in a state of subjection to itsauthor. As I have already intimated, the law obtaining betweennations is law (improperly so called) set by general opinion. Theduties which it imposes are enforced by moral sanctions: by fearon the part of nations, or by fear on the part of sovereigns, ofprovoking general hostility, and incurring its probable evils, incase they shall violate maxims generally received and respected.

A society political but subordinate is merely a limb or member A society politicalof a society political and independent. All the persons who com- hut subordimte-pose it, including the person or body which is its immediate chief,live in a state of subjection to one and the same sovereign.

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A society notpolitical, butforming a limb ormember of asociety politicaland independent.

The definition ofthe abstract termindependentpolitical society(including thedefinition of thecorrelative termsovereignty)cannot be renderedin expressions ofperfectly preciseimport, and istherefore a fallibletest of specific orparticular cases.

Besides societies political and independent, societies indepen-dent but natural, society formed by the intercourse of independentpolitical societies, and societies political but subordinate, thereare societies which will not quadrate with any of those descriptions.Though, like a society political but subordinate, it forms a limbor member of a society political and independent, a society ofthe class in question is not a political society. Although it consistsof members living in a state of subjection, it consists of subjectsconsidered as private persons. - A society consisting of parentsand children, living in a state of subjection, and considered inthose characters, may serve as an example.

To distinguish societies political but subordinate from societiesnot political but consisting of subject members, is to distinguishthe rights and duties of subordinate political superiors from therights and duties of subjects considered as private persons. Andbefore I can draw that distinction, I must analyze many expressionsof large and intricate meaning which belong to the detail ofjurisprudence. But an explanation of that distinction is notrequired by my present purpose. To the accomplishment of mypresent purpose, it is merely incumbent upon me to determinethe notion of sovereignty, with the inseparably connected notionof independent political society. For every positive law, or everylaw simply and strictly so called, is set directly or circuitously bya monarch or sovereign number to a person or persons in a stateof subjection to its author.

The definition of the abstract term independent political society(including the definition of the correlative term sovereignty) cannotbe rendered in expressions of perfectly precise import, and istherefore a fallible test of specific or particular cases. The leastimperfect definition which the abstract term will take, wouldhardly enable us to fix the class of every possible society. It wouldhardly enable us to determine of every independent society, whetherit were political or natural It would hardly enable us to determineof every political society, whether it were independent or subordinate.

In order that a given society may form a society political andindependent, the positive and negative marks which I have men-tioned above must unite. The generality or bulk of its membersmust be in a habit of obedience to a certain and common superior:

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whilst that certain person, or certain body of persons, must notbe habitually obedient to a certain person or body.

But, in order that the bulk of its members may render obedienceto a common superior, how many of its members, or what proportionof its members, must render obedience to one and the samesuperior? And, assuming that the bulk of its members renderobedience to a common superior, how often must they render it,and how long must they render it, in order that that obediencemay be habitual? - Now since these questions cannot be answeredprecisely, the positive mark of sovereignty and independent politi-cal society is a fallible test of specific or particular cases. It wouldnot enable us to determine of every independent society, whetherit were political or natural.

In the cases of independent society which lie, as it were, atthe extremes, we should apply that positive test without a moment'sdifficulty, and should fix the class of the society without amoment's hesitation. - In some of those cases, so large a pro-portion of the members obey the same superior, and the obedienceof that proportion is so frequent and continued, that, without amoment's difficulty and without a moment's hesitation, we shouldpronounce the society political: that, without a moment's difficultyand without a moment's hesitation, we should say the generalityof its members were in a habit of obedience or submission to acertain and common superior. Such, for example, is the ordinarystate of England, and of every independent society somewhatadvanced in civilization. - In other of those cases, obedience tothe same superior is rendered by so few of the members, orgeneral obedience to the same is so unfrequent and broken, that,without a moment's difficulty and without a moment's hesitation,we should pronounce the society natural: that, without a moment'sdifficulty and without a moment's hesitation, we should say thegenerality of its members were not in a habit of obedience to acertain and common superior. Such, for example, is the state ofthe independent and savage societies which subsist by hunting orfishing in the woods or on the coasts of New Holland.

But in the cases of independent society which lie between theextremes, we should hardly find it possible to fix with absolutecertainty the class of the given community. We should hardly

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find it possible to determine with absolute certainty, whether thegenerality of its members did or did not obey one and the samesuperior. Or we should hardly find it possible to determine withabsolute certainty, whether the general obedience to one and thesame superior was or was not habitual. For example: During theheight of the conflict between Charles the First and the Parlia-ment, the English nation was broken into two distinct societies:each of which societies may perhaps be styled political, and maycertainly be styled independent. After the conflict had subsided,those distinct societies were in their turn dissolved; and the nationwas reunited, under the common government of the Parliament,into one independent and political community. But at what junc-ture precisely, after the conflict had subsided, was a commongovernment completely re-established? Or at what juncture pre-cisely, after the conflict had subsided, were those distinct societiescompletely dissolved, and the nation completely reunited into onepolitical community? When had so many of the nation renderedobedience to the Parliament, and when had the general obediencebecome so frequent and lasting, that the bulk of the nation werehabitually obedient to the body which affected sovereignty? Andafter the conflict had subsided, and until that juncture had arrived,what was the class of the society which was formed by the Englishpeople? - These are questions which it were impossible to answerwith certainty, although the facts of the case were precisely known.

The positive mark of sovereignty and independent politicalsociety is therefore a fallible test. It would not enable us todetermine of every independent society, whether it were political ornatural.

The negative mark of sovereignty and independent politicalsociety is also an uncertain measure. It would not enable us todetermine of every political society, whether it were independent orsubordinate. - Given a determinate and common superior, andalso that the bulk of the society habitually obey that superior, isthat common superior free from a habit of obedience to a determi-nate person or body? Is that common superior sovereign andindependent, or is that common superior a superior in a state ofsubjection?

In numerous cases of political society, it were impossible toanswer this question with absolute certainty. For example:

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Although the Holy Alliance dictates to the Saxon government,the commands which it gives, and the submission which it receives,are comparatively few and rare. Consequently, the Saxon govern-ment is sovereign or supreme, and the Saxon government andits subjects are an independent political society, notwithstandingits submission to the Holy Alliance. But, in case the commandsand submission were somewhat more numerous and frequent, wemight find it impossible to determine certainly the class of theSaxon community. We might find it impossible to determinecertainly where the sovereignty resided: whether the Saxon govern-ment were a government supreme and independent; or were ina habit of obedience, and therefore in a state of subjection, tothe allied or conspiring monarchs.

The definition or general notion of independent political society,is therefore vague or uncertain. Applying it to specific or particularcases, we should often encounter the difficulties which I havelaboured to explain.

The difficulties which I have laboured to explain, often embar-rass the application of those positive moral rules which are styledinternational law.

For example: When did the revolted colony, which is now theMexican nation, ascend from the condition of an insurgent prov-ince to that of an independent community? When did the bodyof colonists, who affected sovereignty in Mexico, change thecharacter of rebel leaders for that of a supreme government? Or(adopting the current language about governments de jure and defacto) when did the body of colonists, who affected sovereignty inMexico, become sovereign in fact} - And (applying internationallaw to the specific or particular case) when did international lawauthorize neutral nations to admit the independence of Mexicowith the sovereignty of the Mexican government?

Now the questions suggested above are equivalent to this: -When had the inhabitants of Mexico obeyed that body so generally,and when had that general obedience become so frequent andlasting, that the bulk of the inhabitants of Mexico were habituallydisobedient to Spain, and probably would not resume their dis-carded habit of submission?

Or the questions suggested above are equivalent to this: -When had the inhabitants of Mexico obeyed that body so generally,

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and when had that general obedience become so frequent andlasting, that the inhabitants of Mexico were independent of Spainin practice, and were likely to remain permanently in that stateof practical independence?

At that juncture exactly (let it have arrived when it may), neutralnations were authorized, by the morality which obtains betweennations, to admit the independence of Mexico with the sovereigntyof the Mexican government. But, by reason of the perplexingdifficulties which I have laboured to explain, it was impossiblefor neutral nations to hit that juncture with precision, and to holdthe balance of justice between Spain and her revolted colony witha perfectly even hand.

[This difficulty presents itself under numerous forms in inter-national law: indeed almost the only difficult and embarrassingquestions in that science arise out of it. And as I shall often haveoccasion to show, law strictly so called is not free from likedifficulties. What can be more indefinite, for instance, than theexpressions reasonable time, reasonable notice, reasonable diligence?than the line of demarcation which distinguishes libel and faircriticism; than that which constitutes a violation of copyright; thanthat degree of mental aberration which constitutes idiocy orlunacy? In all these cases, the difficulty is of the same naturewith that which adheres to the phrases sovereignty and indepen-dent society; it arises from the vagueness or indefiniteness of theterms in which the definition or rule is inevitably conceived. Andthis, I suppose, is what people were driving at when they haveagitated the very absurd enquiry whether questions of this kindare questions of law or of fact. The truth is that they are questionsneither of law nor of fact. The fact may be perfectly ascertained,and so may the law, as far as it is capable of being ascertained.The rule is known, and so is the given species, as the Romanjurists term it; the difficulty is in bringing the species under therule; in determining not what the law is, or what the fact is, butwhether the given law is applicable to the given fact.]

I have tacitly supposed, during the preceding analysis, thatevery independent society forming a society political possesses theessential property which I will now describe.

in order that an In order that an independent society may form a society political,independent society i t m u s t n o t fa l l s h o r t of a number which cannot be fixed withmay jorm a

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precision, but which may be called considerable, or not extremely society political, itminute. A given independent society, whose number may be called ^ n^aU

inconsiderable, is commonly esteemed a natural, and not a political number whichsociety, although the generality of its members be habitually obedi- *^£jlj*?butent or submissive to a certain and common superior. which may be

Let us suppose, for example, that a single family of savages ^nitlives in absolute estrangement from every other community. And minute.let us suppose that the father, the chief of this insulated family,receives habitual obedience from the mother and children. - Now,since it is not a limb of another and larger community, the societyformed by the parents and children is clearly an independentsociety. And, since the rest of its members habitually obey itschief, this independent society would form a society political, incase the number of its members were not extremely minute. But,since the number of its members is extremely minute, it would(I believe) be esteemed a society in a state of nature: that is tosay, a society consisting of persons not in a state of subjection.Without an application of the terms which would somewhat smackof the ridiculous, we could hardly style the society a societypolitical and independent, the imperative father and chief a monarchor sovereign, or the obedient mother and children subjects. - 'Lapuissance politique' (says Montesquieu) 'comprend necessairementPunion de plusieurs families.'

Again: let us suppose a society which may be styled indepen-dent, or which is not a limb of another and larger community.Let us suppose that the number of its members is not extremelyminute. And let us suppose it in the savage condition, or inthe extremely barbarous condition which closely approaches thesavage.

Inasmuch as the given society lives in the savage condition, orin the extremely barbarous condition which closely approachesthe savage, the generality or bulk of its members is not in a habitof obedience to one and the same superior. For the purpose ofattacking an external enemy, or for the purpose of repelling anattack made by an external enemy, the generality or bulk of itsmembers, who are capable of bearing arms, submits to one leader,or to one body of leaders. But so soon as that exigency passes,this transient submission ceases; and the society reverts to thestate which may be deemed its ordinary state. The bulk of each

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of the families which compose the given society, renders habitualobedience to its own peculiar chief: but those domestic societiesare themselves independent societies, or are not united or com-pacted into one political society by general and habitual obedienceto a certain and common superior. And, as the bulk of the givensociety is not in a habit of obedience to one and the samesuperior, there is no law (simply or strictly so styled) which canbe called the law of that given society or community. The so-calledlaws which are common to the bulk of the community, are purelyand properly customary laws: that is to say, laws which are setor imposed by the general opinion of the community, but whichare not enforced by legal or political sanctions. - The state whichI have briefly delineated, is the ordinary state of the savage andindependent societies which live by hunting or fishing in thewoods or on the coasts of New Holland. It is also the ordinarystate of the savage and independent societies which range in theforests or plains of the North American continent. It was alsothe ordinary state of many of the German nations whose mannersare described by Tacitus.

Now, since the bulk of its members is not in a habit ofobedience to one and the same superior, the given independentsociety would (I believe) be esteemed a society in a state ofnature: that is to say, a society consisting of persons not in astate of subjection. But such it could not be esteemed, unlessthe term political were restricted to independent societies whosenumbers are not inconsiderable. Supposing that the term politicalapplied to independent societies whose numbers are extremelyminute, each of the independent families which constitute thegiven society would form of itself a political community: for thebulk of each of those families renders habitual obedience to itsown peculiar chief. And, seeing that each of those families wouldform of itself an independent political community, the given inde-pendent society could hardly be styled with strictness a naturalsociety. Speaking strictly, that given society would form a congeriesof independent political communities. Or, seeing that a few ofits members might not be members also of those independentfamilies, it would form a congeries of independent political com-munities mingled with a few individuals living in a state ofnature. - Unless the term political were restricted to independent

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societies whose numbers are not inconsiderable, few of the manysocieties which are commonly esteemed natural could be stylednatural societies with perfect precision and propriety.

For the reasons which I have now produced, and for reasonswhich I pass in silence, we must, I believe, arrive at the followingconclusion. - A given independent society, whose number maybe called inconsiderable, is commonly esteemed a natural, andnot a political society, although the generality of its membersbe habitually obedient or submissive to a certain and commonsuperior.

And arriving at that conclusion, we must proceed to this furtherconclusion. - In order that an independent society may form asociety political, it must not fall short of a number which may becalled considerable.

The lowest possible number which will satisfy that vague con-dition cannot be fixed precisely. But, looking at many of thecommunities which commonly are considered and treated as inde-pendent political societies, we must infer that an independentsociety may form a society political, although the number of itsmembers exceed not a few thousands, or exceed not a fewhundreds. The ancient Grison Confederacy (like the ancient SwissConfederacy with which the Grison was connected) was ratheran alliance or union of independent political societies, than oneindependent community under a common sovereign. Now thenumber of the largest of the societies which were independentmembers of the ancient Grison Confederacy hardly exceeded afew thousands. And the number of the smallest of those numerousconfederated nations hardly exceeded a few hundreds.

The definition of the terms sovereignty and independent politicalsociety, is, therefore, embarrassed by the difficulty following, aswell as by the difficulties which I have stated in a foregoingdepartment of my discourse. - In order that an independentsociety may form a society political, it must not fall short of anumber which may be called considerable. And the lowest possiblenumber which will satisfy that vague condition cannot be fixedprecisely.

But here I must briefly remark, that, though the essentialproperty which I have now described is an essential or necessaryproperty of independent political society, it is not an essential

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property of subordinate political society. If the independent society,of which it is a limb or member, be a political and not a naturalsociety, a subordinate society may form a society political, althoughthe number of its members might be called extremely minute.For example: A society incorporated by the state for political orpublic purposes is a society or body politic: and it continues tobear the character of a society or body politic, although its numberbe reduced, by deaths or other causes, to that of a small familyor small domestic community.

Certain of the Having tried to determine the notion of sovereignty, with thedefinitions of the \mr)\izdi Or correlative notion of independent political society, Iterm sovereignty, r r r J1

and of the implied will produce and briefly examine a few of the definitions of thoseor correlative term n o t i o n s w h i c h have been given by writers of celebrity.independent ° J J

political society, Distinguishing political from natural society, Mr. Bentham, inwhich have been h i s Fragment on Government, thus defines the former: 'When agiven by writers of a 7

celebrity. number of persons (whom we may style subjects) are supposed tobe in the habit of paying obedience to a person, or an assemblageof persons, of a known and certain description (whom we maycall governor or governors), such persons altogether (subjects andgovernors) are said to be in a state of political society.' And inorder to exclude from his definition such a society as the singlefamily conceived of above, he adds a second essential of politicalsociety, namely that the society should be capable of indefiniteduration. - Considered as a definition of independent politicalsociety, this definition is inadequate or defective. In order that agiven society may form a society political and independent, thesuperior habitually obeyed by the bulk or generality of its membersmust not be habitually obedient to a certain individual or body:which negative character or essential of independent politicalsociety Mr. Bentham has forgotten to notice. And, since thedefinition in question is an inadequate or defective definition ofindependent society, it is also an inadequate or defective definitionof political society in general. Before we can define politicalsociety, or can distinguish political society from society not politi-cal, we must determine the nature of those societies which areat once political and independent. For a political society whichis not independent is a member or constituent parcel of a politicalsociety which is. Or (changing the expression) the powers orrights of subordinate political superiors are merely emanations of

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sovereignty. They are merely particles of sovereignty committedby sovereigns to subjects.

According to the definition of independent political societywhich is stated or supposed by Hobbes in his excellent treatiseson government, a society is not a society political and independent,unless it can maintain its independence, against attacks fromwithout, by its own intrinsic or unaided strength. But if powerto maintain its independence by its own intrinsic strength be acharacter or essential property of an independent political society,the name will scarcely apply to any existing society, or to any ofthe past societies which occur in the history of mankind. Theweaker of such actual societies as are deemed political and inde-pendent, owe their precarious independence to positive inter-national morality, and to the mutual fears or jealousies of strongercommunities. The most powerful of such actual societies as aredeemed political and independent could hardly maintain its inde-pendence, by its own intrinsic strength, against an extensive con-spiracy of other independent nations. - Any political society is (Iconceive) independent, if it be not dependent in fact or practice:if the party habitually obeyed by the bulk or generality of itsmembers be not in a habit of obedience to a determinate individualor body.

In his great treatise on international law, Grotius defines sover-eignty in the following manner. 'Summa potestas dvilis ilia dicitur,cujus, actus alterius juri non subsunt, ita ut alterius voluntatishumanae arbitrio irriti possint reddi. Alterius cum dico, ipsumexcludo, qui summa potestate utitur; cui voluntatem mutare licet.'Which definition is thus rendered by his translation and commen-tator Barbeyrac. 'La puissance souveraine est celle dont les actessont independans de tout autre pouvoir superieur, en sorte qu'ilsne peuvent etre annullez par aucune autre volonte humaine. Jedis, par aucune autre volonte humaine; car il faut excepter ici lesouverain lui-meme, a qui il est libre de changer de volonte.' -Now in order that an individual or body may be sovereign in agiven society, two essentials must unite. The generality of the givensociety must render habitual obedience to that certain individual orbody: whilst that individual or body must not be habitually obedi-ent to a determinate human superior. In order to an adequateconception of the nature of international morality, as in order to

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an adequate conception of the nature of positive law, the formeras well as the latter of those two essentials of sovereignty mustbe noted or taken into account. But, this notwithstanding, theformer and positive essential of sovereign or supreme power isnot inserted by Grotius in that his formal definition. And thelatter and negative essential is stated inaccurately. Sovereign power(according to Grotius) is perfectly or completely independent ofother human power; inasmuch that its acts cannot be annulledby any human will other than its own. But if perfect or completeindependence be of the essence of sovereign power, there is notin fact the human power to which the epithet sovereign will applywith propriety. Every government, let it be never so powerful,renders occasional obedience to commands of other governments.Every government defers frequently to those opinions and senti-ments which are styled international law. And every governmentdefers habitually to the opinions and sentiments of its own sub-jects. If it were not in a habit of obedience to the commands ofa determinate party, a government has all the independence whicha government can possibly enjoy.

According to Von Martens of Gottingen (the writer on positiveinternational law already referred to), 'a sovereign government isa government which ought not to receive commands from anyexternal or foreign government.' - Of the conclusive and obviousobjections to this definition of sovereignty the following are onlya few. i. If the definition in question will apply to sovereigngovernments, it will also apply to subordinate. If a sovereign oughtto be free from the commands of foreign governments, so oughtevery government which is merely the creature of a sovereign,and which holds its powers or rights as a mere trustee for itsauthor. 2. Whether a given government be or be not supreme,is rather a question of fact than a question of international law.A government reduced to subjection is actually a subordinategovernment, although the state of subjection wherein it is actuallyheld be repugnant to the positive morality which obtains betweennations or sovereigns. Though, according to that morality, it oughtto be sovereign or independent, it is subordinate or dependentin practice. 3. It cannot be affirmed absolutely of a sovereign orindependent government, that it ought not to receive commandsfrom foreign or external governments. The intermeddling of inde-

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pendent governments with other independent governments is oftenrepugnant to the morality which actually obtains between nations.But according to that morality which actually obtains betweennations (and to that international morality which general utilitycommends), no independent government ought to be freed com-pletely from the supervision and control of its fellows. 4. In thisdefinition by Von Martens (as in that which is given by Grotius)there is not the shadow of an allusion to the positive characterof sovereignty. The definition points at the relations which areborne by sovereigns to sovereigns: but it omits the relations, notless essential, which are borne by sovereigns to their own subjects.

I have now endeavoured to determine the general notion of The ensuingsovereignty, including the general notion of independent political p0™™ ^ e h

society. But in order that I may further elucidate the nature or concerned with theessence of sovereignty, and of the independent political society "f ^ "which sovereignty implies, I will call the attention of my hearers supremeto a few concise remarks upon the following subjects or topics. - 8nTiimits of1. The various shapes which sovereignty may assume, or the sovereign power.various possible forms of supreme government. 2. The real and 3' The origin °f

r r o government, or theimaginary limits which bound the power of sovereigns, and by origin of politicalwhich the power of sovereigns is supposed to be bounded. 3. soctety'The origin of government, with the origin of political society: orthe causes of the habitual obedience which is rendered by thebulk of subjects, and from which the power of sovereigns tocompel and restrain the refractory is entirely or mainly derived.

An independent political society is divisible into two portions: The forms ofnamely, the portion of its members which is sovereign or supreme,and the portion of its members which is merely subject. Thesovereignty can hardly reside in all the members of a society: forit can hardly happen that some of those members shall not benaturally incompetent to exercise sovereign powers. In most actualsocieties, the sovereign powers are engrossed by a single memberof the whole, or are shared exclusively by a very few of itsmembers: and even in the actual societies whose governments areesteemed popular, the sovereign number is a slender portion ofthe entire political community. An independent political societygoverned by itself, or governed by a sovereign body consisting ofthe whole community, is not impossible: but the existence of such

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Every supremegovernment is amonarchy(properly so called)or an aristocracy(in the genericmeaning of theexpression). Inother words, it isa government ofone, or agovernment of anumber.

societies is so extremely improbable, that, with this passing notice,I throw them out of my account.13

Every society political and independent is therefore divisibleinto two portions: namely, the portion of its members which issovereign or supreme, and the portion of its members which ismerely subject. In case that sovereign portion consists of a singlemember, the supreme government is properly a monarchy, or thesovereign is properly a monarch. In case that sovereign portionconsists of a number of members, the supreme governmentmay be styled an aristocracy (in the generic meaning of theexpression). - And here I may briefly remark, that a monarchyor government of one, and an aristocracy or government of anumber, are essentially and broadly distinguished by the followingimportant difference. In the case of a monarchy or governmentof one, the sovereign portion of the community is simply or purelysovereign. In the case of an aristocracy or government of anumber, that sovereign portion is sovereign as viewed from oneaspect, but is also subject as viewed from another. In the caseof an aristocracy or government of a number, the sovereignnumber is an aggregate of individuals, and, commonly, of smalleraggregates composed by those individuals. Now, considered collec-tively, or considered in its corporate character, that sovereignnumber is sovereign and independent. But, considered severally,the individuals and smaller aggregates composing that sovereignnumber are subject to the supreme body of which they arecomponent parts.

In every society, therefore, which may be styled political and

13 If every member of an independent political society were adult and of soundmind, every member would be naturally competent to exercise sovereign powers:and if we suppose a society so constituted, we may also suppose a society whichstrictly is governed by itself, or in which the supreme government is strictly agovernment of all. But in every actual society, many of the members are naturallyincompetent to exercise sovereign powers: and even in an actual society whosegovernment is the most popular, the members naturally incompetent to exercisesovereign powers are not the only members excluded from the sovereign body.If we add to the members excluded by reason of natural incompetency, themembers (women, for example), excluded without that necessity, we shall findthat a great majority even of such a society is merely in a state of subjection.Consequently, though a government of all is not impossible, every actual societyis governed by one of its members, or by a number of its members which liesbetween one and all.

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independent, one of the individual members engrosses the sover-eign powers, or the sovereign powers are shared by a number ofthe individual members less than the number of the individualscomposing the entire community. Changing the phrase, everysupreme government is a monarchy (properly so called), or anaristocracy (in the generic meaning of the expression).14

14 In every monarchy, the monarch renders habitual deference to the opinions andsentiments held and felt by his subjects. But in almost every monarchy, hedefers especially to the opinions and sentiments, or he consults especially theinterest and prejudices, of some especially influential though narrow portion ofthe community. If the monarchy be military, or if the main instrument of rulebe the sword, this influential portion is the military class generally, or a selectbody of the soldiery. If the main instrument of rule be not the sword, thisinfluential portion commonly consists of nobles, or of nobles, priests, and lawyers.For example: In the Roman world, under the sovereignty of the princes oremperors, this influential portion was formed by the standing armies, and, moreparticularly, by the Praetorian guard: as, in the Turkish empire, it consists, orconsisted, of the corps of Janizaries. In France, after the kings had becomesovereign, and before the great revolution, this influential portion was formedby the nobility of the sword, the secular and regular clergy, and the membersof the parliaments or higher courts of justice.

Hence it has been concluded, that there are no monarchies properly so called:that every supreme government is a government of a number: that in everycommunity which seems to be governed by one, the sovereignty really residesin the seeming monarch or autocrator, with that especially influential thoughnarrow portion of the community to whose opinions and sentiments he especiallydefers. This, though plausible, is an error. If he habitually obeyed the commandsof a determinate portion of the community, the sovereignty would reside in themiscalled monarch, with that determinate body of his miscalled subjects: or thesovereignty would reside exclusively in that determinate body, whilst he wouldbe merely a minister of the supreme government. For example: In case thecorps of Janizaries, acting as an organised body, habitually addressed commandsto the Turkish sultan, the Turkish sultan if he habitually obeyed those commands,would not be sovereign in the Turkish empire. The sovereignty would residein the corps of Janizaries, with the miscalled sultan or monarch: or the sovereigntywould reside exclusively in the corps of Janizaries, whilst he would be merely theirvizier or prime minister. But habitual deference to opinions of the community orhabitual and especial deference to opinions of a portion of the community,consists with that independence which is one of the essentials of sovereignty. Ifit did not, none of the governments deemed supreme would be truly sovereign;for habitual deference to opinions of the community, or habitual and especialdeference to opinions of a portion of the community, is rendered by everyaristocracy, or by every government of a number, as well as by every monarch.Nay, supreme government would be impossible: for if the sovereignty residedin the portion of the community to whose opinions and sentiments the sovereignespecially deferred, it would reside in a body uncertain (that is to say, nowhere),or in a certain body not in a habit of command. A confusion of laws properlyso called with laws improper imposed by opinion, is the source of the error inquestion. The habitual independence which is one of the essentials of sovereignty,

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Of suchdistinctionsbetweenaristocracies as are

differences betweenthe proportionswhich the numberof the sovereignbody may bear tothe number of thecommunity.

Of suchdistinctionsbetweenaristocracies as arefounded ondifferences betweenthe modes whereinthe sovereignnumber may sharethe sovereignpowers.

Governments which may be styled aristocracies (in the genericmeaning of the expression) are not unfrequently distinguishedinto the three following forms: namely, oligarchies, aristocracies (inthe specific meaning of the name), and democracies. If the pro-portion of the sovereign number to the number of the entirecommunity be deemed extremely small, the supreme governmentis styled an oligarchy. If the proportion be deemed small, but notextremely small, the supreme government is styled an aristocracy(in the specific meaning of the name). If the proportion be deemedlarge, the supreme government is styled popular, or is styled ademocracy. But these three forms of aristocracy (in the genericmeaning of the expression) can hardly be distinguished withprecision, or even with a distant approach to it. A governmentwhich one man shall deem an oligarchy, will appear to anothera liberal aristocracy: whilst a government which one man shalldeem an aristocracy, will appear to another a narrow oligarchy.A government which one man shall deem a democracy, will appearto another a government of a few: whilst a government whichone man shall deem an aristocracy, will appear to another agovernment of many. The proportion, moreover, of the sovereignnumber to the number of the entire community, may stand, it ismanifest, at any point in a long series of minute degrees.

The distinctions between aristocracies to which I have nowadverted, are founded on differences between the proportionswhich the number of the sovereign body may bear to the numberof the community.

Other distinctions between aristocracies are founded on differ-ences between the modes wherein the sovereign number mayshare the sovereign powers.

For though the sovereign number may be a homogeneous body,or a body of individual persons whose political characters aresimilar, it is commonly a mixed or heterogeneous body, or a bodyof individual persons whose political characters are different. Thesovereign number, for example, may consist of an oligarchical ornarrower, and a democratical or larger body: of a single individualperson styled an emperor or king, and a body oligarchical, or a

is merely habitual independence of laws imperative and proper. By laws whichopinion imposes, every member of every society is habitually determined.

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body democratical: or of a single individual person bearing oneof those names, and a body of the former description, with anotherof the last-mentioned kind. And in any of these cases, or ofnumberless similar cases, the various constituent members of theheterogeneous and sovereign body may share the sovereign powersin any of infinite modes.

The infinite forms of aristocracy which result from those infinite ofsuchmodes, have not been divided systematically into kinds and sorts, f flTMtor have not been distinguished systematically by generic and monarchiespecific names. But some of those infinite forms have been dis-tinguished broadly from the rest, and have been marked with thecommon name of limited monarchies.

Now (as I have intimated above, and shall show more fullyhereafter), the difference between monarchies or governments ofone, and aristocracies or governments of a number, is of all thedifferences between governments the most precise or definite,and, in regard to the pregnant distinction between positive lawand morality, incomparably the most important. And, since thiscapital difference between governments of one and a number isinvolved in some obscurity through the name of limited monarchy,I will offer a few remarks upon the various forms of aristocracyto which that name is applied.

In all or most of the governments which are styled limitedmonarchies, a single individual shares the sovereign powers withan aggregate or aggregates of individuals: the share of that singleindividual, be it greater or less, surpassing or exceeding the shareof any of the other individuals who are also constituent membersof the supreme and heterogeneous body. And by that pre-eminence of share in the sovereign or supreme powers, and(perhaps) by precedence in rank or other honorary marks, thatsingle individual is distinguished, more or less conspicuously,from any of the other individuals with whom he partakes in thesovereignty.

But in spite of that pre-eminence, and in spite of that pre-cedence, that foremost individual member of the mixed or hetero-geneous aristocracy, is not a monarch in the proper acceptationof the term: nor is the mixed aristocracy of which he is theforemost member, a monarchy properly so called. Unlike a mon-arch in the proper acceptation of the term, that single individual

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is not a sovereign, but is one of a sovereign number. Unlike amonarch properly so called, that single individual, consideredsingly, lives in a state of subjection. Considered singly, he issubject to the sovereign body of which he is merely a limb.

Limited monarchy, therefore, is not monarchy. It is one or anotherof those infinite forms of aristocracy which result from the infinitemodes wherein the sovereign number may share the sovereignpowers. And, like any other of those infinite forms, it belongs to oneor another of those three forms of aristocracy which I have noticed ina preceding paragraph. If the number of the sovereign body (the socalled monarch included) bear to the number of the community anextremely small proportion, the so called monarchy is an oligarchy. Ifthe same proportion be small, but not extremely small, the so calledlimited monarchy is an aristocratical government (in the specificmeaning of the name). If the same proportion be large, the so calledlimited monarchy is a democratical or popular government, or agovernment of many.15

As meaning monarchical power limited by positive law, the namelimited monarchy involves a contradiction in terms. For a monarchproperly so called is sovereign or supreme; and, as I shall showhereafter, sovereign or supreme power is incapable of legal limi-tation, whether it reside in an individual, or in a number of individ-uals. It is true that the power of an aristocracy, styled a limitedmonarchy, is limited by positive morality, and also by the law ofGod. But, the power of every government being limited by those

15 T h e government of a kingdom wherein the king is limited, is by most writerscalled monarchy. Such a king, however, is not soveraign, but is a minister ofhim or them who truly have the soveraign power.' T h e king whose power islimited, is not the soveraign of the assembly which hath the power to limit it.The soveraignty, therefore, is in that assembly which hath the power to limithim. And, by consequence, the government is not monarchy, but aristocracy ordemocracy.' - In these extracts from Hobbes' Leviathan, the true nature of thesupreme governments which are styled limited monarchies is well stated. Itcannot, however, be said, with perfect precision, that the so called limitedmonarch is merely a minister of the sovereign. He commonly, it is true, hassubordinate political powers, or is a minister of the sovereign body: but, unlesshe also partook in the supreme powers, or unless he were a member, as wellas a minister of the body, he would hardly be complimented with the magnificentname of monarch, and the sovereign government of which he was merely aservant would hardly be styled a monarchy. I shall revert to the character orposition of a so called limited monarch, when I come to consider the limits ofsovereign power.

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restraints, the name limited monarchy, as pointing to those restraints,is not a whit more applicable to such aristocracies as are markedwith it, than to monarchies properly so called. - And as the nameis absurd or inappropriate, so is its application capricious. Althoughit is applied to some of the aristocracies wherein a single individualhas the pre-eminence mentioned above, it is also withheld fromothers to which it is equally applicable. Its application, indeed, iscommonly determined by a purely immaterial circumstance: by thenature of the title, or the nature of the name of office, which thatforemost member of the mixed aristocracy happens to bear. If hehappens to bear a title which commonly is borne by monarchs in theproper acceptation of the term, the supreme government whereof heis a member is usually styled a limited monarchy. Otherwise, thesupreme government whereof he is a member is usually markedwith a different name. For example: The title of paaiXetig, rex, orking, is commonly borne by monarchs in the proper acceptation ofthe term: and since our own king happens to bear that title, ourown mixed aristocracy of king, lords, and commons, is usually styleda limited monarchy. If his share in the sovereign powers were exactlywhat it is now, but he were called protector, president, or stadt-holder, the mixed aristocracy of which he is a member would prob-ably be styled a republic. And for such verbal differences betweenforms of supreme government has the peace of mankind been fre-quently troubled by ignorant and headlong fanatics.16

16 The present is a convenient place for the following remarks upon terms. Various meaningsThe term 'sovereign,' or 'die sovereign,' applies to a sovereign body as well of the following

as to a sovereign individual. 'II sovrano' and 'le souverain' are used by Italian terms: i. Theand French writers with this generic and commodious meaning. I say commodious: term 'sovereign,'for supreme government abstracted from form, is frequently a subject of dis- w e sovere^Sn'course. 'Die O^ngkeit' (the person or body over the community) is also applied f" * f"indifferently, by German writers, to a sovereign individual or a sovereign number:though it not unfrequently signifies the aggregate of the political superiors who 3 j ^ e tmnin capacities supreme and subordinate govern the given society. But though 'state,' or *the'sovereign' is a generic name for sovereign individuals and bodies, it is not state.' 4. Theunfrequently used as if it were appropriate to the former: as if it were synonymous term 'nation.'with 'monarch' in the proper acceptation of the term. 'Sovereign,' as well as'monarch,' is also often misapplied to the foremost individual member of a socalled limited monarchy. Our own king, for example, is neither 'sovereign' nor'monarch:' but, this notwithstanding, he hardly is mentioned oftener by hisappropriate title of 'king,' than by those inappropriate and affected names.

'Republic,' or 'commonwealth,' has the following amongst other meanings. -

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To the foregoing brief analysis of the forms of supreme govern-ment, I append a short examination of the four following topics: forthey are far more intimately connected with the subject of thatanalysis than with any of the other subjects which the scope of mylecture embraces, i. The exercise of sovereign powers, by a mon-arch or sovereign body, through political subordinates or delegatesrepresenting their sovereign author. 2. The distinction of sovereignand other political powers, into such as are legislative, and such asare executive or administrative. 3. The true natures of the communi-ties or governments which are styled by writers on positive inter-national law half-sovereign states. 4. The nature of a composite state,or a supreme federal government: with the nature of a system of confeder-ated states, or a permanent confederacy of supreme governments.

1. Without reference to the form of the government, it denotes the main objectfor which a government should exist. It denotes the weal or good of anindependent political society: that is to say, the aggregate good of all theindividual members, or the aggregate good of those of the individual memberswhose weal is deemed by the speaker worthy of regard. 2. Without referenceto the form of the government, it denotes a society political and independent.3. Any aristocracy, or government of a number, which has not acquired thename of a limited monarchy, is commonly styled a republican government, or,more briefly, a republic. But the name 'republican government,' or the name'republic,' is applied emphatically to such of the aristocracies in question as aredeemed democracies or governments of many. 4. 'Republic' also denotes anindependent political society whose supreme government is styled republican.

The meanings of 'state,' or 'the state,' are numerous and disparate: of whichnumerous and disparate meanings the following are the most remarkable - 1.'The state' is usually synonymous with 'the sovereign.' It denotes the individualperson, or the body of individual persons, which bears the supreme powers inan independent political society. This is the meaning which I annex to the term,unless I employ it expressly with a different import. 2. By the Roman lawyers,the expression 'status reipublicae' seems to be used in two senses. As used inone of those senses, it is synonymous with 'republic,' or 'commonwealth,' in thefirst of the four meanings which I have enumerated above: that is to say, itdenotes the weal or good of an independent political society. As used in theother of those senses, it denotes the individual or body which is sovereign in agiven society, together with the subject individuals and subject bodies who holdpolitical rights from that sovereign one or number. Or (changing the phrase) itdenotes the respective conditions of the several political superiors who withsovereign and delegated powers govern the community in question. And the'status reipublicae,' as thus understood, is the appropriate subject of public lawin the definite meaning of the term: that is to say, the portion of a corpus juriswhich is concerned with political conditions, or with the powers, rights, andduties of political superiors. It is hardly necessary to remark, that the expression'status republicae' is not coextensive or synonymous with the expression 'status.'The former is a collective name for political or public conditions, or for the

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In an independent political society of the smallest possible magni- ofthe exercise oftude, inhabiting a territory ofthe smallest possible extent, and living s^erf^J^^runder a monarchy or an extremely narrow oligarchy, all the supreme sovereign body,powers brought into exercise (save those committed to subjects as thr°u& P°ltttcalr o \ > subordinates orprivate persons) might possibly be exercised directly by the monarch delegatesor supreme body. But by every actual sovereign (whether the sover- ^eign be one individual, or a number or aggregate of individuals),some of those powers are exercised through political subordinatesor delegates representing their sovereign author. This exercise ofsovereign powers through political subordinates or delegates, isrendered absolutely necessary, in every actual society, by innumer-able causes. For example, if the number of the society be large, orif its territory be large, although its number be small, the quantityof work to be done in the way of political government is more thancan be done by the sovereign without the assistance of ministers. Ifthe society be governed by a popular body, there is some of thebusiness of government which cannot be done by the sovereignwithout the intervention of representatives; for there is some of thebusiness of government to which the body is incompetent by reasonof its own bulk; and some of the business of government the bodyis prevented from performing by the private avocations of its mem-bers. If the society be governed by a popular body whose memberslive dispersedly throughout an extensive territory, the sovereignbody is constrained by the wide dispersion of its members toexercise through representatives some of its sovereign powers.

In most or many of the societies whose supreme governmentsare monarchical, or whose supreme governments are oligarchical,

powers, rights, and duties of political superiors. The latter is synonymous withthe term 'condition,' and denotes a private condition as well as a political orpublic. 3. Where a sovereign body is compounded of minor bodies, or of oneindividual person and minor bodies, those minor bodies are not unfrequentlystyled 'states' or 'estates.' For example: Before the kings of France had becomesubstantially sovereign, the sovereignty resided in the king with the three estatesof the realm. 4. An independent political society is often styled a 'state,' or a'sovereign and independent state.'

An independent political society is often styled a 'nation,' or a 'sovereign andindependent nation.' But the term 'nation,' or the term 'gens,' is used moreproperly with the following meaning. It denotes an aggregate of persons,exceeding a single family, who are connected through blood or lineage, and,perhaps, through a common language. And, thus understood, a 'nation' or lgens'is not necessarily an independent political society.

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or whose supreme governments are aristocratical (in the specificmeaning of the name), many of the sovereign powers are exercisedby the sovereign directly, or the sovereign performs directly muchof the business of government.

Many of the sovereign powers are exercised by the sovereigndirectly, or the sovereign performs directly much of the business ofgovernment, even in some of the societies whose supreme govern-ments are popular. For example: in all or most of the democracies ofancient Greece and Italy, the sovereign people or number, formallyassembled, exercised directly many of its sovereign powers. Andin some of the Swiss Cantons whose supreme governments arepopular, the sovereign portion of the citizens, regularly convened,performs directly much of the business of government.

But in many of the societies whose supreme governments arepopular, the sovereign or supreme body (or any numerous bodyforming a component part of it) exercises through representatives,whom it elects and appoints, the whole, or nearly the whole, of itssovereign or supreme powers. In our own country, for example, onecomponent part of the sovereign or supreme body is the numerousbody of the commons (in the strict signification of the name): that isto say, such of the commons (in the large acceptation of the term)as share the sovereignty with the king and the peers, and electthe members of the commons' house. Now the commons exercisethrough representatives the whole of their sovereign powers; orthey exercise through representatives the whole of their sovereignpowers, except their sovereign power of electing and appointingrepresentatives to represent them in the British Parliament. So thatif the commons were sovereign without the king and the peers, nota single sovereign power, save that which I have now specified,would be exercised by the sovereign directly.

Where a sovereign body (or any smaller body forming a compo-nent part of it) exercises through representatives the whole of itssovereign powers, it may delegate those its powers to those its rep-resentatives, in either of two modes, i. It may delegate those itspowers to those its representatives, subject to a trust or trusts. 2. Itmay delegate those its powers to those its representatives, absolutelyor unconditionally: insomuch that the representative body, duringthe period for which it is elected and appointed, occupies completelythe place of the electoral; or insomuch that the former, during the

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period for which it is elected and appointed, is invested completelywith the sovereign character of the latter.

For example: the commons delegate their powers to the membersof the commons' house, in the second of the above-mentionedmodes. During the period for which those members are elected,or during the parliament of which those members are a limb, thesovereignty is possessed by the king and the peers, with the mem-bers of the commons' house, and not by the king and the peers,with the delegating body of the commons: though when that periodexpires, or when that parliament is any how dissolved, the delegatedshare in the sovereignty reverts to that delegating body, or the kingand the peers, with the delegating body of the commons, are thenthe body wherein the sovereignty resides. So that if the commonswere sovereign without the king and the peers, their present rep-resentatives in parliament would be the sovereign in effect, or wouldpossess the entire sovereignty free from trust or obligation. - Thepowers of the commons are delegated so absolutely to the membersof the commons' house, that this representative assembly mightconcur with the king and the peers in defeating the principal endsfor which it is elected and appointed. It might concur, for instance,in making a statute which would lengthen its own duration fromseven to twenty years; or which would annihilate completely theactual constitution of the government, by transferring the sover-eignty to the king or the peers from the tripartite body wherein itresides at present.

But though the commons delegate their powers in the second ofthe above-mentioned modes, it is clear that they might delegatethem subject to a trust or trusts. The representative body, forinstance, might be bound to use those powers consistently withspecific ends pointed out by the electoral: or it might be bound,more generally and vaguely, not to annihilate, or alter essentially,the actual constitution of the supreme government. And if the com-mons were sovereign without the king and the peers, they mightimpose a similar trust upon any representative body to which theymight delegate the entire sovereignty.

Where such a trust is imposed by a sovereign or supreme body(or by a smaller body forming a component part of it), the trust isenforced by legal, or by merely moral sanctions. The representativebody is bound by a positive law or laws: or it is merely bound by a

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fear that it may offend the bulk of the community, in case it shallbreak the engagement which it has contracted with the electoral.

And here I may briefly remark, that this last is the positionwhich really is occupied by the members of the commons' house.Adopting the language of most of the writers who have treatedof the British Constitution, I commonly suppose that the presentparliament, or the parliament for the time being, is possessed ofthe sovereignty: or I commonly suppose that the king and thelords, with the members of the commons' house, form a tripartitebody which is sovereign or supreme. But, speaking accurately,the members of the commons' house are merely trustees for thebody by which they are elected and appointed: and, consequently,the sovereignty always resides in the king and the peers, with theelectoral body of the commons. That a trust is imposed by theparty delegating, and that the party representing engages to dis-charge the trust, seems to be imported by the correlativeexpressions delegation and representation. It were absurd to supposethat the delegating empowers the representative party to defeator abandon any of the purposes for which the latter is appointed:to suppose, for example, that the commons empower theirrepresentatives in parliament to relinquish their share in thesovereignty to the king and the lords. - The supposition that thepowers of the commons are delegated absolutely to the membersof the commons' house probably arose from the following causes,i. The trust imposed by the electoral body upon the bodyrepresenting them in parliament, is tacit rather than express: itarises from the relation between the bodies as delegating andrepresentative parties, rather than from oral or written instructionsgiven by the former to the latter. But since it arises from thatrelation, the trust is general and vague. The representatives aremerely bound, generally and vaguely, to abstain from any suchexercise of the delegated sovereign powers as would tend to defeatthe purposes for which they are elected and appointed. 2. Thetrust is simply enforced by moral sanctions. In other words, thatportion of constitutional law which regards the duties of therepresentative towards the electoral body, is positive moralitymerely. Nor is this extraordinary. For (as I shall show hereafter)all constitutional law, in every country whatever, is, as against thesovereign, in that predicament: and much of it, in every country,

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is also in that predicament, even as against parties who are subjector subordinate to the sovereign, and who therefore might be heldfrom infringing it by legal or political sanctions.

If a trust of the kind in question were enforced by legalsanctions, the positive law binding the representative body mightbe made by the representative body and not by the electoral. Forexample: If the duties of the commons' house towards the com-mons who appoint it were enforced by legal sanctions, the positivelaw binding the commons' house might be made by the parliament:that is to say, by the commons' house itself in conjunction withthe king and the peers. Or, supposing the sovereignty resided inthe commons without the king and the peers, the positive lawbinding the commons' house might be made by the house itselfas representing the sovereign or state. - But, in either of thesecases, the law might be abrogated by its immediate author withoutthe direct consent of the electoral body. Nor could the electoralbody escape from that inconvenience, so long as its direct exerciseof its sovereign or supreme powers was limited to the electionof representatives. In order that the electoral body might escapefrom that inconvenience, the positive law binding its representa-tives must be made directly by itself or with its direct concurrence.For example: In order that the members of the commons' housemight be bound legally and completely to discharge their dutiesto the commons, the law must be made directly by the commonsthemselves in concurrence with the king and the lords: or, suppos-ing the sovereignty resided in the commons without the king andthe peers, the law must be made directly by the commons them-selves as being exclusively the sovereign. In either of these cases,the law could not be abrogated without the direct consent of theelectoral body itself. For the king and the lords with the electoralbody of the commons, or the electoral body of the commons asbeing exclusively the sovereign, would form an extraordinary andulterior legislature: a legislature superior to that ordinary legis-lature which would be formed by the parliament or by the com-mons' house. A law of the parliament, or a law of the commons'house, which affected to abrogate a law of the extraordinary andulterior legislature, would not be obeyed by the courts of justice.The tribunals would enforce the latter in the teeth of the former.They would examine the competence of the ordinary legislature

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Of the distinctionof sovereign, andother politicalpowers, into suchas are legislative,and such as areexecutive oradministrative.

to make the abrogating law, as they now examine the competenceof any subordinate corporation to establish a by-law or otherstatute or ordinance. In the state of New York, the ordinarylegislature of the state is controlled by an extraordinary legislature,in the manner which I have now described. The body of citizensappointing the ordinary legislature, forms an extraordinary andulterior legislature by which the constitution of the state wasdirectly established: and any law of the ordinary legislature, whichconflicted with a constitutional law directly proceeding from theextraordinary, would be treated by the courts of justice as a legallyinvalid act. - That such an extraordinary and ulterior legislatureis a good or useful institution, I pretend not to affirm. I merelyaffirm that the institution is possible, and that in one politicalsociety the institution actually obtains.

From the exercise of sovereign powers by the sovereign directly,and also by the sovereign through political subordinates ordelegates, I pass to the distinction of sovereign, and other politicalpowers, into such as are legislative, and such as are executive oradministrative.

It seems to be supposed by many writers, that legislative politicalpowers, and executive political powers, may be distinguished pre-cisely, or, at least, with an approach to precision: and that inevery society whose government is a government of a number,or, at least, in every society whose government is a limited mon-archy, the legislative sovereign powers, and the executive sovereignpowers, belong to distinct parties. According, for example, to SirWilliam Blackstone, the legislative sovereign powers reside in theparliament: that is to say, in the tripartite sovereign body formedby the king, the members of the house of lords, and the membersof the house of commons. But, according to the same writer, theexecutive sovereign powers reside in the king alone.

Now the distinction of political powers into such as are legis-lative, and such as are executive, scarcely coincides with the distinc-tion of those powers into such as are supreme and such as aresubordinate: for it is stated or assumed by the writers who makethe former distinction, that sovereign political powers (and, indeed,subordinate also) are divisible into such as are legislative andsuch as are executive. If the distinction of political powers intolegislative and executive have any determinate meaning, its mean-

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ing must be this: The former are powers of establishing laws,and of issuing other commands: whilst the latter are powers ofadministering, or of carrying into operation, laws or other com-mands already established or issued. But the distinction, as thusunderstood, is far from approaching to precision. For of all theinstruments or means by which laws and other commands areadministered or executed, laws and other commands are incom-parably the most frequent: insomuch that most of the powersdeemed executive or administrative are themselves legislativepowers, or involve powers which are legislative. For example: asadministered or executed by courts of justice, laws are mainlyadministered through judgments or decrees: that is to say, throughcommands issued in particular cases by supreme or subordinatetribunals. And, in order that the law so administered may beadministered well, they must be administered agreeably to lawswhich are merely subservient to that purpose. Thus: all laws orrules determining the practice of courts, or all laws or rulesdetermining judicial procedure, are purely subsidiary to the dueexecution of others.

That the legislative sovereign powers, and the executive sover-eign powers, belong, in any society, to distinct parties, is a suppo-sition too palpably false to endure a moment's examination. Ofthe numerous proofs of its falsity which it were easy to producethe following will more than suffice. - i. Of the laws or rulesmade by the British parliament, or by any supreme legislature,many are subsidiary, and are intended to be subsidiary, to thedue execution of others. And as making laws or rules subservientto that purpose, it is not less executive than courts of justice asmaking regulations of procedure. - 2. In almost every society,judicial powers, commonly esteemed executive or administrative, areexercised directly by the supreme legislature. For example: TheRoman emperors or princes, who were virtually sovereign in theRoman empire or world, not only issued the edictal constitutionswhich were general rules or laws, but, as forming the highest orultimate tribunal of appeal, they also issued the particular consti-tutions which were styled decretes or judgments. In libera republica,or before the virtual dissolution of the free or popular government,the sovereign Roman people, then the supreme legislature, wasa high court of justice for the trial of criminal causes. The powers

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of supreme judicature inhering in the modern parliament, or thebody formed by the king and the upper and lower houses, haveever (I believe) been dormant, or have never been brought intoexercise: for, as making the particular but ex post facto statuteswhich are styled acts of attainder, it is not properly a court ofjustice. But the ancient parliament, formed by the king and thebarons, of which the modern is the offspring, was the ultimatecourt of appeal as well as the sovereign legislature. - 3. Thepresent British constitution affords not the slightest countenanceto the supposition which I am now examining. It is absurd to saythat the parliament has the legislative sovereign powers, but thatthe executive sovereign powers belong to the king alone. If theparliament (as Blackstone affirms) be sovereign or absolute, everysovereign power must belong to that sovereign body, or to oneor more of its members as forming a part or parts of it. Thepowers of the king considered as detached from the body, or thepowers of any of its members considered in the same light, arenot sovereign powers, but are simply or purely subordinate: or(changing the phrase) if the king or any of its members, consideredas detached from the body, be invested with political powers, thatmember as so detached is merely a minister of the body, or thosepolitical powers are merely emanations of its sovereignty. Besides,political powers which surely may be deemed executive are exer-cised by each of the houses; whilst political powers which surelymay be deemed legislative are exercised by the king. In civil causes,the house of lords is the ultimate court of appeal; and of all thepolitical powers which are deemed executive or administrative,judicial powers are the most important and remarkable. Theexecutive or administrative powers which reside in the lowerhouse, are not so weighty and obvious as those which belong tothe upper: but still it were easy to show that it exercises powersof the kind. For example: Exercising judicature, through selectcommittees of its members, it adjudges that elections of itsmembers are legally valid or void. The political powers exercisedby the king which surely may be deemed legislative, are of vastextent and importance. As captain general, for example, he makesarticles of war: that is to say, laws which regard especially thediscipline or government of the soldiery. As administering thelaw, through subordinate courts of justice, he is the author of

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the rules of procedure which they have established avowedly, orin the properly legislative mode: and (what is of greaterimportance) he is the author of that measureless system of judge-made rules of law, or rules of law made in the judicial manner,which has been established covertly by those subordinate tribunalsas directly exercising their judicial functions.17

Of all the larger divisions of political powers, the division ofthose powers into supreme and subordinate is perhaps the onlyprecise one. The former are the political powers, infinite innumber and kind, which, partly brought into exercise, and partlylying dormant, belong to a sovereign or state: that is to say, tothe monarch properly so called, if the government be a governmentof one: and, if the government be a government of a number, tothe sovereign body considered collectively, or to its various mem-bers considered as component parts of it. The latter are thoseportions of the supreme powers which are delegated to politicalsubordinates: such political subordinates being subordinate orsubject merely, or also immediate partakers in those very supremepowers of portions or shares wherein they are possessed asministers and trustees.

There were formerly in Europe many of the communities or The true naturesgovernments which are styled by writers on positive international oi the communities

° J J r or governments

law half sovereign states. In consequence of the mighty changes which are siykdwrought by the French revolution, such communities or govern- by

o^rs on

ments have wholly or nearly disappeared: and I advert to the true international lawnatures of such communities or governments, not because they half sovereign

are intrinsically of any importance or interest, but because theincongruous epithet half or imperfectly sovereign obscures theessence of sovereignty and independent political society. It seemsto import that the governments marked with it are sovereign andsubject at once.

According to writers on positive international law, a governmenthalf or imperfectly sovereign occupies the following position. -In spite of its half or imperfect dependence, it has most of the

17 Division of governments according to forma imperii (Monarchy, Aristocracy, andDemocracy), or forma regiminis (despotic or republican). The latter is foundedon a fancied distinction between executive and legislative. See Kant, Entwurfzum ewigen Frieden, pp. 25-30. Krug, Allgemeines Handworterbuch der Philosophies&c, Vol. IV., p. 37. Politz, StaatsTPtssenschaft, Vol. I. MS. note.

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political and sovereign powers which belong to a governmentwholly or perfectly supreme. More especially, in all or most ofits foreign relations, or in all or most of its relations to foreignor external governments, it acts and is treated as a perfectlysovereign government, and not as a government in a state ofsubjection to another: insomuch that it makes and breaks alliances,and makes war or peace, without authority from another govern-ment, or of its own discretion. But, this notwithstanding, thegovernment, or a member of the government, of another politicalsociety, has political powers over the society deemed imperfectlyindependent. For example: In the Germanico-Roman or Romano-Germanic empire, the particular German governments dependingon the empire immediately, or holding of the emperor by tenurein capite were deemed imperfectly sovereign in regard to thatgeneral government which consisted of the emperor and them-selves as forming the Imperial Diet. For though in their foreignrelations they were wholly or nearly independent, they were bound(in reality or show) by laws of that general government: and itstribunals had appellate judicature (substantially or to appearance)over the political and half independent communities wherein theywere half supreme. Most, indeed, of the governments deemedimperfectly supreme, are governments which in their origin hadbeen substantially vassal: but which had insensibly escaped frommost of their feudal bonds, though they still continued apparentlyin their primitive state of subjection.

Now I think it will appear on analysis, that every governmentdeemed imperfectly supreme is really in one or another of thethree following predicaments. It is perfectly subject to that othergovernment in relation to which it is deemed imperfectly supreme:Or it is perfectly independent of the other, and therefore is ofitself a truly sovereign government: Or in its own community itis jointly sovereign with the other, and is therefore a constituentmember of a government supreme and independent. And if everygovernment deemed imperfectly supreme be really in one oranother of the three foregoing predicaments, there is no suchpolitical mongrel as a government sovereign and subject. - i.The political powers of the government deemed imperfectlysupreme, may be exercised entirely and habitually at the pleasureand bidding of the other. On which supposition, its so called half

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sovereignty is merely nominal and illusive. It is perfectly subjectto the other government, though that its perfect subjection maybe imperfect in ostent. For example: Although, in its own name,and as of its own discretion, it makes war or peace, its power ofmaking either is merely nominal and illusive, if the power beexercised habitually at the bidding of the other government. - 2.The political powers exercised by the other government over thepolitical society deemed imperfectly independent, may be exercisedthrough the permission, or through the authority, of the govern-ment deemed imperfectly supreme. On which supposition, thegovernment deemed imperfectly supreme is of itself a truly sover-eign government: those powers being legal rights over its ownsubjects, which it grants expressly or tacitly to another sovereigngovernment. (For, as I shall show hereafter, a sovereign govern-ment, with the permission or authority of another, may possesslegal rights against the subjects of the latter.) For example: Thegreat Frederic of Prussia, as prince-elector of Brandenburg, wasdeemed half or imperfectly sovereign in respect of his feudalconnection with the German empire. Potentially and in practice,he was thoroughly independent of the Imperial government: and,supposing it exercised political powers over his subjects of theelectorate, it virtually exercised them through his authority, andnot through his obedience to its commands. Being in a habit ofthrashing its armies, he was not in a habit of submission to hisseeming feudal superior. - 3. The political powers of the govern-ment deemed imperfectly supreme, may not be exercised entirelyand habitually at the pleasure and bidding of the other: but yetits independence of the other may not be so complete, that thepolitical powers exercised by the other over the political societydeemed imperfectly independent, are merely exercised throughits permission or authority. For example: We may suppose that theelector of Bavaria was independent of the Imperial government, inall or most of his foreign, and in most of his domestic relations:but that, this his independence notwithstanding, he could nothave abolished completely, without incurring considerable danger,the appellate judicature of the Imperial tribunals over the Bavariancommunity. But on the supposition which I have now stated andexemplified, the sovereignty of the society deemed imperfectlyindependent resides in the government deemed imperfectly

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supreme together with the other government: and, consequently,the government deemed imperfectly supreme is properly a con-stituent member of a government supreme and independent. Thesupreme government of the society deemed imperfectly indepen-dent, is one of the infinite forms of supreme government by anumber, which result from the infinite modes wherein the sover-eign number may share the sovereign powers. There is in the case,nothing extraordinary but this: that all the constituent members ofthe supreme government in question are not exclusively membersof the political society which it governs; since one of them is alsosovereign in another political society, or is also a constituentmember of another supreme government. In consequence of thisanomaly, the interests and pretensions of the constituent membersmore or less antagonize. But in almost every case of supremegovernment by a number, the interests and pretensions of themembers more or less antagonize, although the supreme govern-ment be purely domestic. Whether a supreme government bepurely domestic, or one of its limbs be also a limb of another,the supreme government is perpetuated through the mutual con-cessions of its members, notwithstanding the opposition of theirinterests and pretensions, and the bloody or bloodless conflictswhich the opposition may occasionally beget. - For the reasonsproduced and suggested in the course of the foregoing analysis,I believe that no government is sovereign and subject at once:that no government can be styled with propriety half or imperfectlysupreme™

18 The application of the epithet half sovereign seems to be capricious. For example:Over most of the political communities wherein the Roman Catholic is theprevalent and established religion, legislative and judicial powers are exercisedby the Pope: that is to say, by an external government, or a member of anexternal government. But those political communities, or their domestic andtemporal governments, are not denominated, therefore, by writers on internationallaw, half independent or half supreme. It seems to be supposed by such writers,that, in every political community occupying that position, those powers aremerely exercised by the authority of the domestic government, or the domesticgovernment and the Pope are jointly sovereign. On the first of which suppositions,the former is of itself perfectly sovereign: and on the last of which suppositions,the former is a constituent member of a government supreme and independent.

According, indeed, to some of such writers, if those powers be exclusivelyexercised in matters strictly ecclesiastical, the sovereignty of the domestic govern-ment is not impaired by the exercise, though they are not merely exercisedthrough its permission or authority. And, consequently, it is not necessary to

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Before I dismiss the riddle which I have now endeavoured toresolve, I must state or suggest the following difference. - Innumberless cases, political powers are exercised over a politicalcommunity, by the government, or a member of the government,of an external political community. But the government of theformer community is scarcely denominated half or imperfectlysovereign, unless the government of the latter, or the member ofthe government of the latter, possess those political powers asbeing the government of the latter, or as being a member of itsgovernment. For example: The particular German governmentswhich depended on the empire immediately, are denominatedhalf sovereign: for the powers exercised by the Imperial govern-ment over their respective communities, were exercised by thatgovernment as being that very government, or as being (at least,to appearance) the general government of Germany. But thegovernment of the British Islands is not imperfectly sovereign inregard to the government of Hanover: nor is the government ofHanover an imperfectly sovereign government in regard to thegovernment of the British Islands. For though the king of theBritish Islands is also king of Hanover, he is not king in eithercountry as being king in the other. The powers which he exercisesthere, have no dependence whatever on his share in the sover-eignty here: nor have the powers which he exercises here, anydependence on his sovereignty (or his share in the sovereignty)there. - The difference which I have now suggested, is analogousto the difference, in the Roman law, between real and personalservitudes: or to the resembling difference, in the law of England,between easements appurtenant and easements in gross. A real rightof servitude, or a right of easement appurtenant, belongs to theparty invested with the right, as being the owner or occupier ofspecifically determined land. A personal right of servitude, or aright of easement in gross, does not belong to the party as being

suppose that it shares the sovereignty with the Pope, or to mark it with theincongruous epithet of half or imperfectly supreme. But though those powersbe exclusively exercised in matters strictly ecclesiastical, still they are legislativeand judicial powers. And how is it possible to distinguish precisely, matterswhich are strictly ecclesiastical, from matters which are not? The powers ofecclesiastical regiment which none but the church should wield, from the powersof ecclesiastical regiment (or the jus circa sacra) which secular and profanegovernments may handle without sin?

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such owner or occupier, but (according to the current jargon) isannexed to, or inheres in, his person.

Before I proceed to composite states, and systems of confeder-ated states, I will try to explain a difficulty that is closely connectedwith the subjects which I have examined in the present section. -I have remarked already, and shall endeavour to demonstratehereafter, that all the individuals or aggregates composing a sover-eign number are subject to the supreme body of which they arecomponent parts. Now where a member of a body which issovereign in one community, is exclusively sovereign in another,how does the sovereignty of that member in the latter of the twocommunities, consist with the subjection of that member to thebody which is sovereign in the former? Supposing, for example,that our own king was monarch and autocrator in Hanover, howwould his subjection to the sovereign body of king, lords, andcommons, consist with his sovereignty in his German kingdom?A limb or member of a sovereign body would seem to be shorn,by its habitual obedience to the body, of the habitual independencewhich must needs belong to it as sovereign in a foreign com-munity. - To explain the difficulty, we must assume that thecharacters of sovereign, and member of the sovereign body, arepractically distinct: that, as monarch (for instance) of the foreigncommunity, a member of the sovereign body neither habituallyobeys it, nor is habitually obeyed by it. For if, as monarch of theforeign community, he habitually obeyed the body, the body wouldbe sovereign in that community, and he would be merely itsminister: and, if, as monarch of the foreign community, he werehabitually obeyed by the body, he, and not the body, would besovereign in the other society. Insomuch that if the characters werepractically blended, or, remaining practically distinct, thoroughlyconflicted, one of the following results would probably ensue.The member would become subject, or else exclusively sovereign,in both communities: or to preserve his sovereignty in the one,or his part sovereignty in the other, he would renounce hisconnection with the latter, or with the former society.

Wherever a member of a body sovereign in one community, isalso a member of a body sovereign in another, there is the sameor a similar difficulty. A state of subjection to the former, and astate of subjection to the latter, may become incompatible: just

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as a state of subjection may become incompatible with the inde-pendence which is one of the essentials of sovereignty.

It not unfrequently happens, that two or more independentpolitical societies become subject to a common sovereign: but thatafter their union, through that common subjection, they still aregoverned distinctly, and distinguished by their ancient titles. Inthis case, there is not the difficulty suggested above. The monarchor sovereign body ruling the two societies, is one and the samesovereign: and, through their subjection to that common sovereign,they are one society political and independent.

It frequently happens, that one society political and independent The nature of aarises from a federal union of several political societies: or, rather, comP°slte state>

r or a supremethat one government political and sovereign arises from a federal federalunion of several political governments. By some of the writers on government: mth

r ° J the nature of apositive international law, such an independent political society, system ofor the sovereign government of such a society, is styled a composite ^ ^ ^state. But the sovereign government of such a society, might be permanentstyled more aptly, as well as more popularly, a supreme federal confederacy of

government. governments.It also frequently happens, that several political societies which

are severally independent, or several political governments whichare severally sovereign, are compacted by a permanent alliance.By some of the writers on positive international law, the severalsocieties or governments, considered as thus compacted, are styleda system of confederated states. But the several governments, con-sidered as thus compacted, might be styled more aptly, as wellas more popularly, a permanent confederacy of supreme governments.

I advert to the nature of a composite state, and to that of asystem of confederated states, for the following purposes. - Itresults from positions which I shall try to establish hereafter, thatthe power of a sovereign is incapable of legal limitation. It alsoresults from positions which I have tried to establish already, thatin every society political and independent, the sovereign is oneindividual, or one body of individuals: that unless the sovereignbe one individual, or one body of individuals, the given independentsociety is either in a state of nature, or is split into two or moreindependent political societies. But in a political society styled acomposite state, the sovereignty is so shared by various individualsor bodies, that the one sovereign body whereof they are the

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constituent members, is not conspicuous and easily perceived. Ina political society styled a composite state, there is not obviouslyany party truly sovereign and independent: there is not obviouslyany party armed with political powers incapable of legal limitation.Accordingly, I advert to the nature of a supreme federal govern-ment, to show that the society which it rules is ruled by onesovereign, or is ruled by a party truly sovereign and independent.And adverting to the nature of a composite state, I also advertto the nature of a system of confederated states. For the fallaciousresemblance of those widely different objects, tends to producea confusion which I think it expedient to obviate: and, througha comparison or contrast of those widely different objects, I canindicate the nature of the former, more concisely and clearly.

i. In the case of a composite state, or a supreme federal government,the several united governments of the several united societies,together with a government common to those several societies,are jointly sovereign in each of those several societies, and alsoin the larger society arising from the federal union. Or, since thepolitical powers of the common or general government wererelinquished and conferred upon it by those several united govern-ments, the nature of a composite state may be described moreaccurately thus. As compacted by the common government whichthey have concurred in creating, and to which they have severallydelegated portions of their several sovereignties, the severalgovernments of the several united societies are jointly sovereignin each and all.

It will appear on a moment's reflection, that the common orgeneral government is not sovereign or supreme. It will also appearon a moment's reflection, that none of the several governments issovereign or supreme, even in the several society of which it isthe immediate chief.

If the common or general government were sovereign orsupreme, the several united societies, though constituting onesociety, would not constitute a composite state: or, though theywould be governed by a common and supreme government, theircommon and supreme government would not be federal. For inalmost every case of independent political society, several politicalsocieties, governed by several governments, are comprised by theone society which is political and independent: insomuch that a

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government supreme and federal, and a government supreme butnot federal, are merely distinguished by the following difference.Where the supreme government is not federal, each of the severalgovernments, considered in that character, is purely subordinate:or none of the several governments, considered in that character,partakes of the sovereignty. But where the supreme governmentis properly federal, each of the several governments, which wereimmediate parties to the federal compact, is, in that character, a limbof the sovereign body. Consequently, although they are subjectto the sovereign body of which they are constituent members,those several governments, even considered as such, are not purelyin a state of subjection. - But since those several governments,even considered as such, are not purely in a state of subjection,the common or general government which they have concurredin creating is not sovereign or supreme.

Nor is any of those several governments sovereign or supreme,even in the several society of which it is the immediate chief. Ifthose several governments were severally sovereign, they wouldnot be members of a composite state: though, if they were severallysovereign, and yet were permanently compacted, they would form(as I shall show immediately) a system of confederated states.

To illustrate the nature of a composite state, I will add thefollowing remark to the foregoing general description. - Neitherthe immediate tribunals of the common or general government,nor the immediate tribunals of the several united governments,are bound, or empowered, to administer or execute every commandthat it may issue. The political powers of the common or generalgovernment, are merely those portions of their several sovereignt-ies, which the several united governments, as parties to the federalcompact, have relinquished and conferred upon it. Consequently,its competence to make laws and to issue other commands, mayand ought to be examined by its own immediate tribunals, andalso by the immediate tribunals of the several united governments.And if, in making a law or issuing a particular command, itexceed the limited powers which it derives from the federalcompact, all those various tribunals are empowered and boundto disobey. - And since each of the united governments, as aparty to the federal compact, has relinquished a portion of itssovereignty, neither the immediate tribunals of the common or

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general government, nor the immediate tribunals of the otherunited governments, nor even the immediate tribunals which itselfimmediately appoints, are bound, or empowered, to administer orexecute every command that it may issue. Since each of the unitedgovernments, as a party to the federal compact, has relinquisheda portion of its sovereignty, its competence to make laws and toissue other commands, may and ought to be examined by allthose various tribunals. And if it enact a law or issue a particularcommand, as exercising the sovereign powers which it hasrelinquished by the compact, all those various tribunals areempowered and bound to disobey.

If, then, the general government were of itself sovereign, or ifthe united governments were severally sovereign, the unitedsocieties would not constitute one composite state. The unitedsocieties would constitute one independent society, with a govern-ment supreme but not federal; or a knot of societies severallyindependent, with governments severally supreme. Consequently,the several united governments as forming one aggregate body, orthey and the general government as forming a similar body, arejointly sovereign in each of the united societies, and also in thelarger society arising from the union of all.

Now since the political powers of the common or generalgovernment are merely delegated to it by the several unitedgovernments, it is not a constituent member of the sovereign body,but is merely its subject minister. Consequently, the sovereignty ofeach of the united societies, and also of the larger society arisingfrom the union of all, resides in the united governments as formingone aggregate body: that is to say, as signifying their joint pleasure,or the joint pleasure of a majority of their number, agreeably tothe modes or forms determined by their federal compact.

By that aggregate body, the powers of the general governmentwere conferred and determined: and by that aggregate body, itspowers may be revoked, abridged, or enlarged. - To that aggregatebody, the several united governments, though not merely sub-ordinate, are truly in a state of subjection. Otherwise, those unitedgovernments would be severally sovereign or supreme, and theunited societies would merely constitute a system of confederatedstates. Besides, since the powers of the general government were

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determined by that aggregate body, and since that aggregate bodyis competent to enlarge those powers, it necessarily determinedthe powers, and is competent to abridge the powers, of its ownconstituent members. For every political power conferred on thegeneral government, is subtracted from the several sovereigntiesof the several united governments. - From the sovereignty of thataggregate body, we may deduce, as a necessary consequence, thefact which I have mentioned above: namely, that the competenceof the general government, and of any of the united governments,may and ought to be examined by the immediate tribunals of theformer, and also by the immediate tribunals of any of the latter.For since the general government, and also the united govern-ments, are subject to that aggregate body, the respective courtsof justice which they respectively appoint, ultimately derive theirpowers from that sovereign and ultimate legislature. Consequently,those courts are ministers and trustees of that sovereign andultimate legislature, as well as of the subject legislatures by whichthey are immediately appointed. And, consequently, those courtsare empowered, and are even bound to disobey, wherever thosesubject legislatures exceed the limited powers which that sovereignand ultimate legislature has granted or left them.

The supreme government of the United States of America,agrees (I believe) with the foregoing general description of asupreme federal government. I believe that the common govern-ment, or the government consisting of the congress and thepresident of the united states, is merely a subject minister of theunited states' governments. I believe that none of the latter isproperly sovereign or supreme, even in the state or political societyof which it is the immediate chief. And, lastly, I believe that thesovereignty of each of the states, and also of the larger statearising from the federal union, resides in the states' governmentsas forming one aggregate body, meaning by a state's government,not its ordinary legislature, but the body of its citizens whichappoints its ordinary legislature, and which, the union apart, isproperly sovereign therein. If the several immediate chiefs of theseveral united states, were respectively single individuals, or wererespectively narrow oligarchies, the sovereignty of each of thestates, and also of the larger state arising from the federal union,

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would reside in those several individuals, or would reside in thoseseveral oligarchies, as forming a collective whole.19

2. A composite state, and a system of confederated states, are broadlydistinguished by the following essential difference. In the case ofa composite state, the several united societies are one independentsociety, or are severally subject to one sovereign body: which,through its ministers the general government, and through itsmembers and ministers the several united governments, is habitu-ally and generally obeyed in each of the united societies, and alsoin the larger society arising from the union of all. In the case ofa system of confederated states, the several compacted societies arenot one society, and are not subject to a common sovereign: or(changing the phrase) each of the several societies is an indepen-dent political society, and each of their several governments isproperly sovereign or supreme. Though the aggregate of theseveral governments was the framer of the federal compact, andmay subsequently pass resolutions concerning the entire confeder-acy, neither the terms of that compact, nor such subsequentresolutions, are enforced in any of the societies by the authorityof that aggregate body. To each of the confederated governments,those terms and resolutions are merely articles of agreement whichit spontaneously adopts: and they owe their legal effect, in itsown political society, to laws and other commands which it makesor fashions upon them, and which, of its own authority, itaddresses to its own subjects. In short, a system of confederatedstates is not essentially different from a number of independentgovernments connected by an ordinary alliance. And where inde-pendent governments are connected by an ordinary alliance, none

19 The Constitution of the United States, or the constitution of their generalgovernment, was framed by deputies from the several states in 1787. It may (Ithink) be inferred from the fifth article, that the sovereignty of each of thestates, and also of the larger state arising from the federal union, resides in thestates' governments as forming one aggregate body. It is provided by that article,that 'the congress, whenever two-thirds of both houses shall deem it necessaryshall propose amendments to this constitution: or, on the application of thelegislatures of two-thirds of the several states, shall call a convention for proposingamendments: which amendments, in either case, shall be valid to all intents andpurposes, as part of this constitution, when ratified by the legislatures 0/three-fourthsof the several states, or by convention in three-fourths thereof See also the tenthsection of the first article: in which section, some of the disabilities of theseveral states' governments are determined expressly.

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of the allied governments is subject to the allied governmentsconsidered as an aggregate body: though each of the alliedgovernments adopts the terms of the alliance, and commonlyenforces those terms, by laws and commands of its own, in itsown independent community. Indeed, a system of confederatedstates, and a number of independent governments connected byan ordinary alliance, cannot be distinguished precisely throughgeneral or abstract expressions. So long as we abide in generalexpressions, we can only affirm generally and vaguely, that thecompact of the former is intended to be permanent, whilst thealliance of the latter is commonly intended to be temporary: andthat the ends or purposes which are embraced by the compact,are commonly more numerous, and are commonly more compli-cated, than those which the alliance contemplates.

I believe that the German Confederation, which has succeededto the ancient Empire, is merely a system of confederated states.I believe that the present Diet is merely an assembly of am-bassadors from several confederated but severally independentgovernments: that the resolutions of the Diet are merely articlesof agreement which each of the confederated governmentsspontaneously adopts: and that they owe their legal effect, in eachof the compacted communities, to laws and commands which arefashioned upon them by its own immediate chief. I also believethat the Swiss Confederation was and is of the same nature. If,in the case of the German, or of the Swiss Confederation, thebody of confederated governments enforces its own resolutions,those confederated governments are one composite state, ratherthan a system of confederated states. The body of confederatedgovernments is properly sovereign: and to that aggregate andsovereign body, each of its constituent members is properly in astate of subjection.

From the various shapes which sovereignty may assume or The limits offrom the various possible forms of supreme government, I sovereign power-proceed to the limits, real and imaginary, of sovereign or supremepower.

Subject to the slight correctives which I shall state at the close The essentialof my discourse, the essential difference of a positive law (or the d^^difference that severs it from a law which is not a positive law)

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may be put in the following manner. - Every positive law, or everylaw simply and strictly so called, is set, directly or circuitously, bya sovereign person or body, to a member or members of theindependent political society wherein that person or body is sover-eign or supreme. Or (changing the expression) it is set, directlyor circuitously, by a monarch or sovereign number, to a personor persons in a state of subjection to its author.

it follows from the Now it follows from the essential difference of a positive law,tfT'thh^hw anc* f r o m t h e n a t u r e o f sovereignty and independent politicaland from the society, that the power of a monarch properly so called, or thenature of power of a sovereign number in its collegiate and sovereignindependent capacity, is incapable of legal limitation. A monarch or sovereignPthaTthe$°twtof n u m b e r D O u n d by a l e S a l dutv> w e r e subject to a higher ora monarch superior sovereign: that is to say, a monarch or sovereign numberproperly so called, bo u n ci by a legal duty, were sovereign and not sovereign. Supremesovereign number power limited by positive law, is a flat contradiction in terms.in its collegiate ^QY ^ovld a political society escape from legal despotism,capacity, is although the power of the sovereign were bounded by legalincapable of legal restraints. The power of the superior sovereign immediatelyAttempts of imposing the restraints, or the power of some other sovereignsovereigns to oblige SUperiOr to that superior, would still be absolutely free from thethemselves, or to r \ ' . . /oblige the fetters of positive law. For unless the imagined restraints weresuccessors to their ultimately imposed by a sovereign not in a state of subjection tosovereign powers. , . , . . . r • i-

a higher or superior sovereign, a series of sovereigns ascendingto infinity would govern the imagined community. Which isimpossible and absurd.

Monarchs and sovereign bodies have attempted to oblige them-selves, or to oblige the successors to their sovereign powers. Butin spite of the laws which sovereigns have imposed on themselves,or which they have imposed on the successors to their sovereignpowers, the position that 'sovereign power is incapable of legallimitation' will hold universally or without exception.

The immediate author of a law of the kind, or any of thesovereign successors to that immediate author, may abrogate thelaw at pleasure. And though the law be not abrogated, the sover-eign for the time being is not constrained to observe it by a legalor political sanction. For if the sovereign for the time being werelegally bound to observe it, that present sovereign would be in astate of subjection to a higher or superior sovereign.

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As it regards the successors to the sovereign or supreme powers,a law of the kind amounts, at the most, to a rule of positive morality.As it regards its immediate author, it is merely a law by a metaphor.For if we would speak with propriety, we cannot speak of a law set bya man to himself: though a man may adopt a principle as a guide tohis own conduct, and may observe it as he would observe it if he werebound to observe it by a sanction.

The laws which sovereigns affect to impose upon themselves, orthe laws which sovereigns affect to impose upon their followers, aremerely principles or maxims which they adopt as guides, or whichthey commend as guides to their successors in sovereign power. Adeparture by a sovereign or state from a law of the kind in question,is not illegal. If a law which it sets to its subjects conflict with a lawof the kind, the former is legally valid, or legally binding.

For example: The sovereign Roman people solemnly voted orresolved, that they would never pass, or even take into consider-ation, what I will venture to denominate a bill of pains and penalties.For though, at the period in question, the Roman people werebarbarians, they keenly felt a truth which is often forgotten by legis-lators in nations boasting of refinement: namely, that punishmentought to be inflicted agreeably to prospective rules, and not inpursuance of particular and ex post facto commands. This solemnresolution or vote was passed with the forms of legislation, andwas inserted in the twelve tables in the following imperative terms:privilegia ne irroganto. But although the resolution or vote was passedwith the forms of legislation, although it was clothed with theexpressions appropriate to a law, and although it was inserted as alaw in a code or body of statutes, it scarcely was a law in the properacceptation of the term, and certainly was not a law simply andstrictly so called. By that resolution or vote, the sovereign peopleadopted, and commended to their successors in the sovereignty, anethical principle or maxim. The present and future sovereign whichthe resolution affected to oblige, was not bound or estopped by it.Privileges enacted in spite of it by the sovereign Roman people,were not illegal. The Roman tribunals might not have treated themas legally invalid acts, although they conflicted with the maxim,wearing the guise of a law, privilegia ne irroganto.

Again: By the authors of the union between England andScotland, an attempt was made to oblige the legislature, which, in

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The meaning ofthe epithetunconstitutional,as it iscontradistinguishedto the epithetillegal, and as itis applied toconduct of amonarch, or toconduct of asovereign numberin its collegiateand sovereigncapacity.

consequence of that union, is sovereign in both countries. It isdeclared in the Articles and Acts, that the preservation of theChurch of England, and of the Kirk of Scotland, is a fundamentalcondition of the union: or, in other words, that the Parliament ofGreat Britain shall not abolish those churches, or make an essentialchange in their structures or constitutions. Now, so long as the bulkof either nation shall regard its established church with love andrespect, the abolition of the church by the British Parliament wouldbe an immoral act; for it would violate positive morality whichobtains with the bulk of the nation, or would shock opinions andsentiments which the bulk of the nation holds. Assuming that thechurch establishment is commended by the revealed law, the abol-ition would be irreligious: or, assuming that the continuance of theestablishment were commended by general utility, the abolition, asgenerally pernicious, would also amount to a sin. But no man, talk-ing with a meaning, would call a parliamentary abolition of eitheror both of the churches an illegal act. For if the parliament for thetime being be sovereign in England and Scotland, it cannot bebound legally by that condition of the union which affects to conferimmortality upon those ecclesiastical institutions. That condition ofthe union is not a positive law, but is counsel or advice offered bythe authors of the union to future supreme legislatures.

By the two examples which I have now adduced, I am led toconsider the meanings of the epithet unconstitutional, as it is contra-distinguished to the epithet illegal, and as it is applied to conductof a monarch, or to conduct of a sovereign number in its collegiateand sovereign capacity. The epithet unconstitutional, as thus opposedand applied, is sometimes used with a meaning which is more gen-eral and vague, and is sometimes used with a meaning which ismore special and definite. I will begin with the former.

i. In every, or almost every, independent political society, thereare principles or maxims which the sovereign habitually observes,and which the bulk of the society, or the bulk of its influentialmembers, regard with feelings of approbation. Not unfrequently,such maxims are expressly adopted, as well as habitually observed,by the sovereign or state. More commonly, they are not expresslyadopted by the sovereign or state, but are simply imposed upon itby opinions prevalent in the community. Whether they are expresslyadopted by the sovereign or state, or are simply imposed upon it by

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opinions prevalent in the community, it is bound or constrained toobserve them by merely moral sanctions. Or (changing the phrase)in case it ventured to deviate from a maxim of the kind in question,it would not and could not incur a legal pain or penalty, but itprobably would incur censure, and might chance to meet withresistance, from the generality or bulk of the governed.

Now, if a law or other act of a monarch or sovereign numberconflict with a maxim of the kind to which I have adverted above,the law or other act may be called unconstitutional (in that moregeneral meaning which is sometimes given to the epithet). Forexample: The ex post facto statutes which are styled acts of attainder,may be called unconstitutional, though they cannot be called illegal.For they conflict with a principle of legislation which parliamenthas habitually observed, and which is regarded with approbation bythe bulk of the British community.

In short, when we style an act of a sovereign an unconstitutionalact (with that more general import which is sometimes given tothe epithet), we mean, I believe, this: That the act is inconsistentwith some given principle or maxim: that the given supremegovernment has expressly adopted the principle, or, at least, hashabitually observed it: that the bulk of the given society, or thebulk of its influential members, regard the principle with appro-bation: and that, since the supreme government has habituallyobserved the principle, and since the bulk of the society regardit with approbation, the act in question must thwart the expec-tations of the latter, and must shock their opinions and sentiments.Unless we mean this, we merely mean that we deem the act inquestion generally pernicious: or that, without a definite reasonfor the disapprobation which we feel, we regard the act withdislike.

2. The epithet unconstitutional as applied to conduct of asovereign, and as used with the meaning which is more specialand definite, imports that the conduct in question conflicts withconstitutional law.

And here I would briefly remark, that I mean by the expressionconstitutional law, the positive morality, or the compound of positivemorality and positive law, which fixes the constitution or structureof the given supreme government. I mean the positive morality,or the compound positive morality and positive law, which

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determines the character of the person, or the respective charactersof the persons, in whom, for the time being, the sovereignty shallreside: and, supposing the government in question an aristocracyor government of a number, which determines moreover the modewherein the sovereign powers shall be shared by the constituentmembers of the sovereign number or body.

Now, against a monarch properly so called, or against a sover-eign body in its collegiate and sovereign capacity, constitutionallaw is positive morality merely, or is enforced merely by moralsanctions: though, as I shall show hereafter, it may amount topositive law, or may be enforced by legal sanctions, against themembers of the body considered severally. The sovereign for thetime being, or the predecessors of the sovereign, may haveexpressly adopted, and expressly promised to observe it. Butwhether constitutional law has thus been expressly adopted, orsimply consists of principles current in the political community,it is merely guarded, against the sovereign, by sentiments orfeelings of the governed. Consequently, although an act of thesovereign which violates constitutional law, may be styled withpropriety unconstitutional, it is not an infringement of law simplyand strictly so called, and cannot be styled with propriety illegal.

For example: From the ministry of Cardinal Richelieu downto the great revolution, the king for the time being was virtuallysovereign in France. But, in the same country, and during thesame period, a traditional maxim cherished by the courts ofjustice, and rooted in the affections of the bulk of the people,determined the succession to the throne: It determined that thethrone, on the demise of an actual occupant, should invariablybe taken by the person who then might happen to be heir to itagreeably to the canon of inheritance which was named the Saliclaw. Now, in case an actual king, by a royal ordinance or law,had attempted to divert the throne to his only daughter and child,that royal ordinance or law might have been styled with perfectpropriety an unconstitutional act. It would have conflicted with thetraditional maxim which fixed the constitution of the monarchy,and which was guarded from infringement by sentiments prevalentin the nation. But illegal it could not have been called: for,inasmuch as the actual king was virtually sovereign, he wasinevitably independent of legal obligation. Nay, if the governed

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had resisted the unconstitutional ordinance, their resistance wouldhave been illegal or a breach of positive law, though consonantto the positive morality which is styled constitutional law, andperhaps to that principle of utility which is the test of positiverules.

Again: An act of the British parliament vesting the sovereigntyin the king, or vesting the sovereignty in the king and the upperor lower house, would essentially alter the structure of our presentsupreme government, and might therefore be styled with proprietyan unconstitutional law. In case the imagined statute were alsogenerally pernicious, and in case it offended moreover the gener-ality or bulk of the nation, it might be styled irreligious and immoralas well as unconstitutional But to call it illegal were absurd: forif the parliament for the time being be sovereign in the UnitedKingdom, it is the author, directly or circuitously, of all ourpositive law, and exclusively sets us the measure of legal justiceand injustice.20

20 It is affirmed by Hobbes, in his masterly treatises on government, that 'no law The meaning ofcan be unjust:' which proposition has been deemed by many, an immoral or Hobbes'pernicious paradox. If we look at the scope of the treatises in which it occurs, Proposition thator even at the passages by which it is immediately followed, we shall find that no. atp

t ™ n

the proposition is neither pernicious nor paradoxical, but is merely a truism put unj!*st' . . or

, , T T . . . 1 . 1 1 . 1 c . . i . » it unjust, justice, orin unguarded terms. His meaning is obviously this: that no positive law is legally ^ , 5 ^ is a

unjust.' And the decried proposition, as thus understood, is indisputably true. term of relativeFor positive law is the measure or test of legal justice and injustice: and, and varyingconsequently, if positive law might be legally unjust, positive law might be unjust import.as measured or tried by itself. In the passages immediately following, he tellsus that positive law may be generally pernicious; that is to say, may conflictwith the Divine law which general utility indicates, and, as measured or triedby that law, may be unjust. He might have added, that it also may be unjustas measured by positive morality, although it must needs be just as measuredby itself, and although it happen to be just as measured by the law of God.

For just or unjust, justice, or injustice, is a term of relative and varying import.Whenever it is uttered with a determinate meaning, it is uttered with relationto a determinate law which the speaker assumes as a standard of comparison.This is hinted by Locke at the end of the division of laws which I have insertedin my fifth lecture; and it is, indeed, so manifest, on a little sustained reflection,that it hardly needs the authority of that great and venerable name.

By the epithet just, we mean that a given object, to which we apply theepithet, accords with a given law to which we refer it as to a test. And as thatwhich is just conforms to a determinate law, justice is the conformity of a givenobject to the same or a similar measure: for justice is the abstract term whichcorresponds to the epithet just. By the epithet unjust, we mean that the givenobject conforms not to the given law. And since the term injustice is merely thecorresponding abstract, it signifies the nonconformity of the given and compared

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Consideredseverally, themembers of asovereign body arein a state ofsubjection to thebody, and maytherefore be legallybound, even asmembers of thebody, by laws ofwhich it is theauthor.

But when I affirm that the power of a sovereign is incapableof legal limitation, I always mean by a 'sovereign,' a monarchproperly so called, or a sovereign number in its collegiate andsovereign capacity. Considered collectively, or considered in itscorporate character, a sovereign number is sovereign and indepen-dent: but, considered severally, the individuals and smaller aggre-gates composing that sovereign number are subject to the supremebody of which they are component parts. Consequently, thoughthe body is inevitably independent of legal or political duty, anyof the individuals or aggregates whereof the body is composedmay be legally bound by laws of which the body is the author.For example: A member of the house of lords, or a member ofthe house of commons, may be legally bound by an act ofparliament, which, as one of the sovereign legislature, he hasconcurred with others in making. Nay, he may be legally boundby statutes, or by rules made judicially, which have immediatelyproceeded from subject or subordinate legislatures: for a law whichproceeds immediately from a subject or subordinate legislature isset by the authority of the supreme.

And hence an important difference between monarchies orgovernments of one, and aristocracies or governments of a number.

Against a monarch properly so called, or against a sovereignnumber in its collegiate and sovereign capacity, constitutional law

object to that determinate law which is assumed as the standard of comparison. -And since such is the relative nature of justice and injustice, one and the sameact may be just and unjust as tried by different measures. Or (changing theexpression) an act may be just as agreeing with a given law, although the actitself, and the law with which it agrees, are both of them unjust as comparedwith a different rule. For example: Where positive law conflicts with positivemorality, that which is just as tried by the former, is also unjust, as tried bythe latter: or where law or morality conflicts with the law of God, that whichis just as tried by the human rule, is also unjust as tried by the Divine.

Though it signifies conformity or nonconformity to any determinate law, theterm justice or injustice sometimes denotes emphatically, conformity or noncon-formity to the ultimate measure or test: namely, the law of God. This is themeaning annexed to justice, when law and justice are opposed: when a positivehuman rule is styled unjust. And when it is used with this meaning, justice isnearly equivalent to general utility. The only difference between them consistsin this: that, as agreeing immediately with the law of God> a given and comparedaction is just; whilst, as agreeing immediately with the principle which is theindex to the law of God, that given and compared action is generally useful. And

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(as I have remarked already) is enforced, or protected frominfringement, by merely moral sanctions. Against a monarch prop-erly so called, or against a sovereign number in its collegiate andsovereign capacity, constitutional law and the law of nations arenearly in the same predicament. Each is positive morality ratherthan positive law. The former is guarded by sentiments currentin the given community, as the latter is guarded by sentimentscurrent amongst nations generally.

But, considered severally, the members of a sovereign body,even as members of the body, may be legally bound by laws ofwhich the body is the author, and which regard the constitutionof the given supreme government. - In case it be clothed witha legal sanction, or the means of enforcing it judicially be providedby its author, a law set by the body to any of its own membersis properly a positive law: It is properly a positive law, or a lawstrictly so called, although it be imposed upon the obliged partyas a member of the body which sets it. If the means of enforcingit judicially be not provided by its author, it is rather a rule ofpositive morality than a rule of positive law. But it wants theessentials of a positive law, not through the character of the partyto whom it is set or directed, but because it is not invested witha legal or political sanction, or is a law of imperfect obligationin the sense of the Roman jurists. - In case the law be investedwith a legal or political sanction, and regard the constitution orstructure of the given supreme government, a breach of the law,by the party to whom it is set, is not only unconstitutional but isalso illegal. The breach of the law is unconstitutional, inasmuch asthe violated law regards the constitution of the state. The breachof the law is also illegal, inasmuch as the violated law may beenforced by judicial procedure.

For example: The king, as a limb of the parliament, might bepunishable by act of parliament, in the event of his transgressingthe limits which the constitution has set to his authority: in theevent, for instance, of his pretending to give to a proclamationof his own the legal effect of a statute emanating from the

hence it arises, that when we style an action just or unjust, we not uncommonlymean that it is generally useful or pernicious.

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sovereign legislature. Or the members of either house might bepunishable by act of parliament, if, as forming a limb of theparliament, they exceeded their constitutional powers: if, forinstance, they pretended to give that legal effect to an ordinanceor resolution of their own body.

Where, then, the supreme government is a monarchy or govern-ment of one, constitutional law, as against that government, isinevitably nothing more than positive morality. Where the supremegovernment is an aristocracy or government of a number, consti-tutional law, as against the members of that government, mayeither consist of positive morality, or of a compound of positivemorality and positive law. Against the sovereign body in its corpor-ate and sovereign character, it is inevitably nothing more thanpositive morality. But against the members considered severally,be they individuals or be they aggregates of individuals, it maybe guarded by legal or political, as well as by moral sanctions.

In fact or practice, the members considered severally, but con-sidered as members of the body, are commonly free, wholly orpartially, from legal or political restraints. For example: The king,as a limb of the parliament, is not responsible legally, or cannotcommit a legal injury: and, as partaking in conduct of the assemblyto which he immediately belongs, a member of the house oflords, or a member of the house of commons, is not amenableto positive law. But though this freedom from legal restraints maybe highly useful or expedient, it is not necessary or inevitable.Considered severally, the members of a sovereign body, be theyindividuals or be they aggregates of individuals, may clearly belegally amenable, even as members of the body, to laws whichthe body imposes.

And here I may remark, that if a member considered severally,but considered as a member of the body, be wholly or partiallyfree from legal or political obligation, that legally irresponsibleaggregate, or that legally irresponsible individual, is restrained ordebarred in two ways from an unconstitutional exercise of itslegally unlimited power, i. Like the sovereign body of which itis a member, it is obliged or restrained morally: that is to say, itis controlled by opinions and sentiments current in the givencommunity. 2. If it affected to issue a command which it is notempowered to issue by its constitutional share in the sovereignty,

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its unconstitutional command would not be legally binding, anddisobedience to that command would therefore not be illegal. Nay,although it would not be responsible legally for thus exceeding itspowers, those whom it commissioned to execute its unconsti-tutional command, would probably be amenable to positive law,if they tried to accomplish their mandate. For example: If theking or either of the houses, by way of proclamation or ordinance,affected to establish a law equivalent to an act of parliament, thepretended statute would not be legally binding, and disobedienceto the pretended statute would therefore not be illegal. Andalthough the king or the house would not be responsible legallyfor this supposed violation of constitutional law or morality, thosewhom the king or the house might order to enforce the statute,would be liable civilly or criminally, if they attempted to executethe order.

I have affirmed above, that, taken or considered severally, allthe individuals and aggregates composing a sovereign number aresubject to the supreme body of which they are component parts.By the matter contained in the last paragraph, I am led to clearthe proposition to which I have now adverted, from a seemingdifficulty.

Generally speaking, if a member of a sovereign body, taken orconsidered severally, be not amenable to positive law, it is merelyas a member of the body that he is free from legal obligation.Generally speaking, he is bound, in his other characters, by legalrestraints. But in some of the mixed aristocracies which are styledlimited monarchies, the so called limited monarch is exemptedor absolved completely from legal or political duty. For example:According to a maxim of the English law, the king is incapableof committing wrong: that is to say, he is not responsible legallyfor aught that he may please to do, or for any forbearance oromission.

But though he is absolved completely from legal or politicalduty, it cannot be thence inferred that the king is sovereign orsupreme, or that he is not in a state of subjection to the sovereignor supreme parliament of which he is a constituent member.

Of the numerous proofs of this negative conclusion, which itwere easy to produce, the following will amply suffice. - i.Although he is free in fact from the fetters of positive law, he is

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not incapable of legal obligation. A law of the sovereign parliament,made with his own assent, might render himself and his successorslegally responsible. But a monarch properly so called, or a sover-eign number in its corporate and sovereign character, cannot berendered, by any contrivance, amenable to positive law. - 2. Ifhe affected to transgress the limits which the constitution has setto his authority, disobedience on the part of the governed to hisunconstitutional commands, would not be illegal: whilst the minis-ters or instruments of his unconstitutional commands, would belegally amenable, for their unconstitutional obedience, to laws ofthat sovereign body whereof he is merely a limb. But commandsissued by sovereigns cannot be disobeyed by their subjects withoutan infringement of positive law: whilst the ministers or instrumentsof such a sovereign command, cannot be legally responsible toany portion of the community, excepting the author of theirmandate. - 3. He habitually obeys the laws set by the sovereignbody of which he is a constituent member. If he did not, hemust speedily yield his office to a less refractory successor, orthe British constitution must speedily expire. If he habitually brokethe laws set by the sovereign body, the other members of thebody would probably devise a remedy: though a prospective anddefinite remedy, fitted to meet the contingency, has not beenprovided by positive law, or even by constitutional morality. Conse-quently, he is bound by a cogent sanction to respect the laws ofthe body, although that cogent sanction is not predetermined andcertain. A law which is set by the opinion of the upper and lowerhouses (besides a law which is set by the opinion of the communityat large) constrains him to observe habitually the proper andpositive laws which are set by the entire parliament. - But habitu-ally obeying the laws of a determinate and sovereign body, he isnot properly sovereign: for such habitual obedience consists notwith that independence which is one of the essentials of sover-eignty. And habitually obeying the laws of a certain and supremebody, he is really in a state of subjection to that certain andsupreme body, though the other members of the body, togetherwith the rest of the community, are commonly styled his subjects.It is mainly through the forms of procedure which obtain in thecourts of justice, that he is commonly considered sovereign. Heis clothed by the British constitution, or rather by the parliament

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of which he is a limb, with subordinate political powers of adminis-tering the law, or rather of supervising its administration. Infringe-ments of the law are, therefore, in the style of procedure, offencesagainst the king. In truth, they are not offences against the king,but against that sovereign body of king, lords, and commons, bywhich our positive law is directly or circuitously established. Andto that sovereign body, and not to the king, the several membersof the body, together with the rest of the community, are trulysubject.

But if sovereign or supreme power be incapable of legal limi- The nature oftation, or if every supreme government be legally absolute, wherein ^^™J{^(it may be asked) doth political liberty consist, and how do the with the supposedsupreme governments which are commonly deemed free, differ dE?21 dTfrom the supreme governments which are commonly deemed governments.despotic?

I answer, that political or civil liberty is the liberty from legalobligation, which is left or granted by a sovereign government toany of its own subjects: and that, since the power of the govern-ment is incapable of legal limitation, the government is legallyfree to abridge their political liberty, at its own pleasure ordiscretion. I say it is legally free to abridge their political liberty,at its own pleasure or discretion. For a government may behindered by positive morality from abridging the political libertywhich it leaves or grants to its subjects: and it is bound by thelaw of God, as known through the principle of utility, not to loadthem with legal duties which general utility condemns. - Thereare kinds of liberty from legal obligation, which will not quadratewith the foregoing description: for persons in a state of natureare independent of political duty and independence of politicalduty is one of the essentials of sovereignty. But political or civilliberty supposes political society, or supposes a Jto^ig or civitas:and it is the liberty from legal obligation which is left by a stateto its subjects, rather than the liberty from legal obligation whichis inherent in sovereign powers.

Political or civil liberty has been erected into an idol, andextolled with extravagant praises by doting and fanatical worship-pers. But political or civil liberty is not more worthy of eulogythan political or legal restraint. Political or civil liberty, like politicalor legal restraint, may be generally useful, or generally pernicious;

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and it is not as being liberty, but as conducing to the generalgood, that political or civil liberty is an object deserving applause.

To the ignorant and bawling fanatics who stun you with theirpother about liberty, political or civil liberty seems to be theprincipal end for which government ought to exist. But the finalcause or purpose for which government ought to exist, is thefurtherance of the common weal to the greatest possible extent.And it must mainly attain the purpose for which it ought to exist,by two sets of means: first, by conferring such rights on its subjectsas general utility commends, and by imposing such relative duties(or duties corresponding to the rights) as are necessary to theenjoyment of the former: secondly, by imposing such absoluteduties (or by imposing such duties without corresponding rights)as tend to promote the good of the political community at large,although they promote not specially the interests of determinateparties. Now he who is clothed with a legal right, is also clothedwith a political liberty: that is to say, he has the liberty from legalobligation, which is necessary to the enjoyment of the right.Consequently, in so far as it attains its appropriate purpose byconferring rights upon its subjects, government attains that pur-pose through the medium of political liberty. But since it mustimpose a duty wherever it confers a right, and should also imposeduties which have no corresponding rights, it is less through themedium of political liberty, than through that of legal restraints,that government must attain the purpose for which it ought toexist. To say that political liberty ought to be its principal end,or to say that its principal end ought to be legal restraint, is totalk absurdly: for each is merely a means to that furtherance ofthe common weal, which is the only ultimate object of good orbeneficent sovereignty. But though both propositions are absurd,the latter of the two absurdities is the least remote from thetruth. - As I shall show hereafter, political or civil liberties rarelyexist apart from corresponding legal restraints. Where persons ina state of subjection are free from legal duties, their liberties(generally speaking) would be nearly useless to themselves, unlessthey were protected in the enjoyment of their liberties, by legalduties on their fellows: that is to say, unless they had legal rights(importing such duties on their fellows) to those political libertieswhich are left them by the sovereign government. I am legally

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free, for example, to move from place to place, in so far as I canmove from place to place consistently with my legal obligations: butthis my political liberty would be but a sorry liberty unless myfellow-subjects were restrained by a political duty from assaultingand imprisoning my body. Through the ignorance or negligenceof a sovereign government, some of the civil liberties which itleaves or grants to its subjects, may not be protected against theirfellows by answering legal duties: and some of those civil libertiesmay perhaps be protected sufficiently by religious and moralobligations. But, speaking generally, a political or civil liberty iscoupled with a legal right to it: and, consequently, political libertyis fostered by that very political restraint from which the devoteesof the idol liberty are so fearfully and blindly averse.21

From the nature of political or civil liberty, I turn to thesupposed difference between free and despotic governments.

Every supreme government is free from legal restraints: or (whatis the same proposition dressed in a different phrase) everysupreme government is legally despotic. The distinction, therefore,of governments into free and despotic, can hardly mean that someof them are freer from restraints than others: or that the subjectsof the governments which are denominated free, are protectedagainst their governments by positive law.

Nor can it mean that the governments which are denominatedfree, leave or grant to their subjects more of political liberty thanthose which are styled despotic. For the epithet free importingpraise, and the epithet despotic importing blame, they who dis-tinguish governments into free and despotic, suppose that thefirst are better than the second. But inasmuch as political libertymay be generally useful or pernicious, we cannot infer that agovernment is better than another government, because the sum21 Political or civil liberties are left or granted by sovereigns in two ways; namely,

through permissions coupled with commands, or through simple permissions. Ifa subject possessed of a liberty be clothed with a legal right to it, the libertywas granted by the sovereign through a permission coupled with a command:a permission to the subject who is clothed with the legal right, and a commandto the subject or subjects who are burthened with the relative duty. But apolitical or civil liberty left or granted to a subject, may be merely protectedagainst his fellows by religious and moral obligations. In other words, the subjectpossessed of the political liberty may not be clothed with a legal right to it.And, on that supposition, the political or civil liberty was left or granted to thesubject through a simple permission of the sovereign or state.

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of the liberties which the former leaves to its subjects, exceedsthe sum of the liberties which are left to its subjects by the latter.The excess in the sum of the liberties which the former leavesto its subjects, may be purely mischievous. It may consist offreedom from restraints which are required by the common weal;and which the government would lay upon its subjects, if itfulfilled its duties to the Deity. In consequence, for example, ofthat mischievous freedom, its subjects may be guarded inad-equately against one another, or against attacks from externalenemies.

They who distinguish governments into free and despotic, prob-ably mean this:

The rights which a government confers, and the duties whichit lays on its subjects, ought to be conferred and imposed for theadvancement of the common weal, or with a view to the aggregatehappiness of all the members of the society. But in every politicalsociety, the government deviates, more or less, from that ethicalprinciple or maxim. In conferring rights and imposing duties, itmore or less disregards the common or general weal, and looks,with partial affection, to the peculiar and narrower interests of aportion or portions of the community. - Now the governmentswhich deviate less from that ethical principle or maxim, are betterthan the governments which deviate more. But, according tothe opinion of those who make the distinction in question, thegovernments which deviate less from that ethical principle ormaxim, are popular governments (in the largest sense of theexpression): meaning by a popular government (in the largest senseof the expression), any aristocracy (limited monarchy or other)which consists of such a number of the given political communityas bears a large proportion to the number of the whole society.For it is supposed by those who make the distinction in question,that, where the government is democratical or popular, the inter-ests of the sovereign number, and the interests of the entirecommunity, are nearly identical, or nearly coincide: but that,where the government is properly monarchical, or where thesupreme powers reside in a comparatively few, the sovereign oneor number has numerous sinister interests, or interests which arenot consistent with the good or weal of the general. - According,therefore, to those who make the distinction in question the duties

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which a government of many lays upon its subjects, are moreconsonant to the general good than the duties which are laidupon its subjects by a government of one or a few. Consequently,though it leaves or grants not to its subjects, more of politicalliberty than is left or granted to its subjects by a government ofone or a few, it leaves or grants to its subjects more of thepolitical liberty which conduces to the common weal. But, as leavingor granting to its subjects more of that useful liberty, a governmentof many may be styled free: whilst, as leaving or granting to itssubjects less of that useful liberty, a government of one or a fewmay be styled not free, or may be styled despotic or absolute.Consequently, a free government, or a good government, is ademocratical or popular government (in the largest sense of theexpression): whilst a despotic government, or a bad government, iseither a monarchy properly so called, or any such narrow aristoc-racy (limited monarchy or other) as is deemed an oligarchy.

They who distinguish governments into free and despotic, aretherefore lovers of democracy. By the epithet free, as applied togovernments of many, they mean that governments of many arecomparatively good: and by the epithet despotic, as applied tomonarchies or oligarchies, they mean that monarchies or oligar-chies are comparatively bad. The epithets free and despotic arerarely, I think, employed by the lovers of monarchy or oligarchy.If the lovers of monarchy or oligarchy did employ those epithets,they would apply the epithet free to governments of one or a few,and the epithet despotic to governments of many. For they thinkthe former comparatively good, and the latter comparatively bad',or that monarchical or oligarchical governments are better adaptedthan popular, to attain the ultimate purpose for which governmentsought to exist. They deny that the latter are less misled than theformer, by interests which are not consistent with the commonor general weal: or, granting that excellence to governments ofmany, they think it greatly outweighed by numerous other excel-lences which they ascribe to governments of one or to governmentsof a few.

But with the respective merits or demerits of various forms ofgovernment, I have no direct concern. I have examined the currentdistinction between free and despotic governments, because it isexpressed in terms which are extremely inappropriate and absurd,

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and which tend to obscure the independence of political or legalobligation, that is common to sovereign governments of all formsor kinds.

why it has been That the power of a sovereign is incapable of legal limitation,doubted that the h a s b e e n d o u b t e d a n d e v e n denied. But the difficulty, like thou-power of a ' J7

sovereign is sands of others, probably arose from a verbal ambiguity. - Theincapable of legal f o r e m o s t individual member of a so called limited monarchy, islimitation. J

styled improperly monarch or sovereign. Now the power of a mon-arch or sovereign, thus improperly so styled, is not only capableof legal limitations, but is sometimes actually limited by positivelaw. But monarchs or sovereigns, thus improperly so styled, wereconfounded with monarchs, and other sovereigns, in the properacceptation of the terms. And since the power of the former iscapable of legal limitations, it was thought that the power of thelatter might be bounded by similar restraints.

The proposition is Whatever may be its origin, the error is remarkable. For theasserted expressly j e g a j independence of monarchs in the proper acceptation of theby renowned ° r . . . . . . . .political writers of term, and of sovereign bodies in their corporate and sovereignopposite parties or capacities, not only follows inevitably from the nature of sovereign

power, but is also asserted expressly by renowned political writersof opposite parties or sects: by celebrated advocates of the govern-ments which are decked with the epithet free, as by celebratedadvocates of the governments which are branded with the epithetdespotic.

'If it be objected (says Sidney) that I am a defender of arbitrarypowers, I confess I cannot comprehend how any society can beestablished or subsist without them. The difference between goodand ill governments is not, that those of one sort have an arbitrarypower which the others have not; for they all have it; but thatin those which are well constituted, this power is so placed as itmay be beneficial to the people.'

'It appeareth plainly (says Hobbes) to my understanding, thatthe sovereign power whether placed in one man, as in monarchy,or in one assembly of men, as in popular and aristocraticallcommonwealths, is as great as men can be imagined to make it.And though of so unlimited a power men may fancy many evillconsequences, yet the consequence of the want of it, which iswarre of every man against his neighbour, is much worse. Thecondition of man in this life shall never be without inconveniences:but there happeneth in no commonwealth any great inconvenience,

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but what proceeds from the subjects' disobedience. And whoso-ever, thinking soveraign power too great, will seek to make itlesse, must subject himselfe to a power which can limit it: thatis to say, to a greater.' - 'One of the opinions (says the samewriter) which are repugnant to the nature of a commonwealth, isthis: that he who hath the soveraign power is subject to the civilllawes. It is true that all soveraigns are subject to the lawes ofnature; because such lawes be Divine, and cannot by any man,or by any commonwealth, be abrogated. But to the civill lawes,or to the lawes which the soveraign maketh, the soveraign is notsubject: for if he were subject to the civill lawes, he were subjectto himselfe; which were not subjection, but freedom. The opinionnow in question, because it setteth the civill lawes above thesoveraign, setteth also a judge above him, and a power to punishhim: which is to make a new soveraign; and, again, for the samereason, a third to punish the second; and so continually withoutend, to the confusion and dissolution of the commonwealth.' -The difference (says the same writer) between the kinds or formsof commonwealth, consisteth not in a difference between theirpowers, but in a difference between their aptitudes to producethe peace and security of the people: which is their end.'22

By his modern censors, French, German, and even English, Hobbes' maindesign in his various treatises on politics, is grossly and thoroughly mistaken.With a marvelous ignorance of the writings which they impudently presume tocondemn, they style him 'the apologist of tyranny:1 meaning by that rant, thathis main design is the defence of monarchical government. Now, though heprefers monarchical, to popular, or oligarchical government, it is certain that hismain design is the establishment of these propositions: i. That sovereign power,whether it reside in one, or in many or a few, cannot be limited by positive law:2. That a present or established government, be it a government of one, or agovernment of many or a few, cannot be disobeyed by its subjects consistentlywith the common weal, or consistently with the law of God as known throughutility or the scriptures. — That his principal purpose is not the defence ofmonarchy, is sufficiently evinced by the following passages from his Leviathan.T h e prosperity of a people ruled by an aristocraticall or democraticall assembly,cometh not from aristocracy or democracy, but from the obedience and concordof the subjects: nor do the people flourish in a monarchy because they are ruledby one man, but because they obey him. Take away in a state of any kind, theobedience, and consequently the concord of the people, and they shall not onlynot flourish, but in short time be dissolved. And they that go about by dis-obedience to doe no more than reforme the commonwealth, shall find that theydoe thereby destroy it.' 'In monarchy one man is supreme; and all other menwho have power in the state, have it by his commission, and during his pleasure.In aristocracy or democracy there is one supreme assembly; which supreme

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A sovereigngovernment of one,or a sovereigngovernment of anumber in itscollegiate andsovereign capacity,has no legal

The Province of Jurisprudence Determined

Before I discuss the origin of political government and society,I will briefly examine a topic allied to the liberty of sovereignsfrom political or legal restraints.

A sovereign government of one, or a sovereign government of anumber in its collegiate and sovereign capacity, has no legal rights (inthe proper acceptation of the term) against its own subjects.

assembly hath the same unlimited power that in monarchy belongeth to themonarch. And which is the best of these three kinds of government, is not tobe disputed there where any of them is already established.' So many similarpassages occur in the same treatise, and also in his treatise De Cive, that theywho confidently style him 'the apologist of tyranny or monarchy,' must havetaken their notion of his purpose from mere hearsay. A dip here or there intoeither of the decried books, would have led them to withhold their sentence.To those who have really read, although in a cursory manner, these the mostlucid and easy of profound and elaborate compositions, the current conceptionof their object and tendency is utterly laughable.

The capital errors in Hobbes' political treatises are the following: - i. Heinculcates too absolutely the religious obligation of obedience to present orestablished government. He makes not the requisite allowance for the anomalousand excepted cases wherein disobedience is counselled by that very principle ofutility which indicates the duty of submission. Writing in a season of civildiscord, or writing in apprehension of its approach, he naturally fixed his attentionto the glaring mischiefs of resistance, and scarcely adverted to the mischiefswhich obedience occasionally engenders. And although his integrity was not lessremarkable than the gigantic strength of his understanding, we may presumethat his extreme timidity somewhat corrupted his judgment, and inclined himto insist unduly upon the evils of rebellion and strife. - 2. Instead of directlyderiving the existence of political government from a perception by the bulk ofthe governed of its great and obvious expediency, he ascribes the origin ofsovereignty, and of independent political society, to a fictitious agreement orcovenant. He imagines that the future subjects covenant with one another, orthat the future subjects covenant with the future sovereign, to obey withoutreserve every command of the latter: And of this imaginary covenant, immediatelypreceding the formation of the political government and community, the religiousduty of the subjects to render unlimited submission, and the divine right of thesovereign to exact and receive such submission, are, according to Hobbes,necessary and permanent consequences. He supposes, indeed, that the subjectsare induced to make that agreement, by their perception of the expediency ofgovernment, and by their desire to escape from anarchy. But, placing his systemimmediately on that interposed figment, instead of resting it directly on theultimate basis of utility, he often arrives at his conclusions in a sophistical andquibbling manner, though his conclusions are commonly such as the principleof utility will warrant. The religious duty of the subjects to render unlimitedobedience, and the divine right of the sovereign to exact and receive suchobedience, cannot, indeed, be reckoned amongst those of Hobbes' conclusionswhich that principle will justify. In truth, the duty and the right cannot beinferred logically even from his own fiction. For, according to his own fiction,the subjects were induced to promise obedience, by their perception of theutility of government: and, since their inducement to the promise was that

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Every legal right is the creature of a positive law: and it answers rights (in theto a relative duty imposed by that positive law, and incumbent p^e^atim

on a person or persons other than the person or persons in whom against its ownthe right resides. To every legal right, there are therefore three sub'ects-parties: the sovereign government of one or a number which setsthe positive law, and which through the positive law confers the

perception of utility, they hardly promised to obey in those anomalous caseswherein the evils of anarchy are surpassed by the evils of submission. Andthough they promised to obey even in those cases, they are not religiouslyobliged to render unlimited obedience: for, as the principle of general utility isthe index to religious obligations, no religious obligation can possibly arise froma promise whose tendency is generally pernicious. Besides though the subjectfounders of the political community were religiously obliged by their mischievouspromise, a religious obligation would hardly be imposed upon their followers,by virtue of a mischievous agreement to which their followers were strangers.The last objection, however, is not exclusively applicable to Hobbes' peculiarfiction. That, or a like objection, may be urged against all the romances whichderive the existence of government from a fancied original contract. Whetherwe suppose, with Hobbes, that the subjects were the only promisers, or wesuppose, with others, that the sovereign also covenanted; whether we suppose,with Hobbes, that they promised unlimited obedience, or we suppose, withothers, that their promise contained reservations; we can hardly suppose thatthe contract of the founders, unless it be presently useful, imposes religiousobligations on the present members of the community.

If these two capital errors be kept in mind by the reader, Hobbes' extremelycelebrated but extremely neglected treatises may be read to great advantage. Iknow of no other writer (excepting our great contemporary Jeremy Bentham)who has uttered so many truths, at once new and important, concerning thenecessary structure of supreme political government, and the larger of thenecessary distinctions implied by positive law. And he is signally gifted with thetalent, peculiar to writers of genius, of inciting the mind of the student to activeand original thought.

The authors of the antipathy with which he is commonly regarded, were thepapistical clergy of the Roman Catholic Church, the high church clergy of theChurch of England, and the Presbyterian clergy of the true blue complexion.In matters ecclesiastical (a phrase of uncertain meaning, and therefore ofmeasureless compass), independence of secular authority was more or lessaffected by churchmen of each of those factions. In other words they held thattheir own church was coordinate with the secular government: or that the seculargovernment was not of itself supreme, but rather partook in the supreme powerswith one or more of the clerical order. Hobbes' unfailing loyalty to the presenttemporal sovereign, was alarmed and offended by this anarchical pretension:and he repelled it with a weight of reason, and an aptness and pungency ofexpression, which the aspiring and vindictive priests did bitterly feel and resent.Accordingly, they assailed him with the poisoned weapons which are ministeredby malignity and cowardice. All of them twitted him (agreeably to their wont)with flat atheism; whilst some of them affected to style him an apologist oftyranny or misrule, and to rank him with the perverse writers (Machiavelli, forexample) who really have applauded tyranny maintained by ability and courage.

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legal right, and imposes the relative duty: the person or personson whom the right is conferred: the person or persons on whomthe duty is imposed, or to whom the positive law is set ordirected. - As I shall show hereafter, the person or personsinvested with the right, are not necessarily members of the inde-pendent political society wherein the author of the law is sovereign

By these calumnies, those conspiring and potent factions blackened the reputationof their common enemy. And so deep and enduring is the impression whichthey made upon the public mind, that 'Hobbes the Atheist,' or 'Hobbes theapologist of tyranny,' is still regarded with pious, or with republican horror, byall but the extremely few who have ventured to examine his writings.

Of positive atheism; of mere scepticism concerning the existence of the Deity;or of, what is more impious and mischievous than either, a religion imputingto the Deity human infirmities and vices; there is not, I believe, in any of hiswritings, the shadow of a shade.

It is true that he prefers monarchical (though he intimates his preferencerarely), to popular or oligarchical government. If, then, tyranny be synonymouswith monarchy, he is certainly an apologist and fautor of tyranny, inasmuch ashe inclines to the one, rather than the many or the few. But if tyranny besynonymous with misrule, or if tyranny be specially synonymous with monarchicalmisrule, he is not of the apologists and fautors of tyranny, but may rank withthe ablest and most zealous of its foes. Scarcely a single advocate of free orpopular institutions, even in these latter and comparatively enlightened ages,perceives and inculcates so clearly and earnestly as he, the principal cause andpreventive of tyrannous or bad government. The principal cause of tyrannousor bad government, is ignorance, on the part of the multitude of sound politicalscience (in the largest sense of the expression): that is to say, political osconomy,with the two great branches of ethics, as well as politics (in the strict acceptationof the term). And if such be the principal cause of tyrannous or of badgovernment, the principal preventive of the evil must lie in the diffusion of suchknowledge throughout the mass of the community. Compared with this, the bestpolitical constitution that the wit of man could devise, were surely a poor securityfor good or beneficent rule. - Now in those departments of his treatises onpolitics, which are concerned with 'the office (or duty) of the sovereign,' Hobbesinsists on the following propositions: That good and stable government is simply ornearly impossible, unless the fundamentals of political science be known by the bulk ofthe people: that the bulk of the people are as capable of receiving such scienceas the loftiest and proudest of their superiors in station, wealth, or learning:that to provide for the diffusion of such science throughout the bulk of thepeople, may be classed with the weightiest of the duties which the Deity laysupon the sovereign: that he is bound to hear their complaints, and even to seektheir advice, in order that he may better understand the nature of their wants,and may better adapt his institutions to the advancement of the general good:that he is bound to render his laws as compendious and clear as possible, andalso to promulge a knowledge of their more important provisions through everypossible channel: that if the bulk of his people know their duties imperfectly,for want of the instruction which he is able and bound to impart, he is responsiblereligiously for all their breaches of the duties whereof he hath left them inignorance.

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or supreme. The person or persons invested with the right, maybe a member or members, sovereign or subject, of another societypolitical and independent. But (taking the proposition with theslight correctives which I shall state hereafter) the person orpersons on whom the duty is imposed, or to whom the law isset or directed, are necessarily members of the independent

In regard to the respective aptitudes of the several forms of government toaccomplish the ultimate purpose for which government ought to exist, Hobbes'opinion closely resembles the doctrine, which, about the middle of the eighteenthcentury, was taught by the French philosophers who are styled emphatically the(economists. - In order, say the (Economists, to the being of a good government,two things must preexist: i. Knowledge by the bulk of the people, of theelements of political science (in the largest sense of the expression): 2. Anumerous body of citizens versed in political science, and not misled by interestsconflicting with the common weal, who may shape the political opinions, andsteer the political conduct of the less profoundly informed, though instructedand rational multitude. - Without that knowledge in the bulk of the people,and without that numerous body of 'gens lumineux,' the government, say the(Economists, will surely be bad, be it a government of one or a few, or be ita government of many. If it be a government of one or a few, it will consultexclusively the peculiar and narrow interests of a portion or portions of thecommunity: for it will not be constrained to the advancement of the general orcommon good, by the general opinion of a duly instructed society. If it be agovernment of many, it may not be diverted from the advancement of the generalor common good, by partial and sinister regard for peculiar and narrow interest:but, being controlled by the general opinion of the society, and that society notbeing duly instructed, it will often be turned from the paths leading to itsappropriate end, by the restive and tyrannous prejudices of an ignorant andasinine multitude. - but, given that knowledge in the bulk of the people, andgiven that numerous body of 'light-diffusing citizens,' the government, say the(Economists, let the form be what it may, will be strongly and steadily impelledto the furtherance of the general good, by the sound and commanding moralityobtaining throughout the community. And, for numerous and plausible reasons(which my limits compel me to omit), they affirm, that in any society thus dulyinstructed, monarchical government would not only be the best, but would surelybe chosen by that enlightened community, in preference to a government of afew, or even to a government of many.

Such is the opinion (stated briefly, and without their peculiar phraseology)which was taught by Quesnai and the other (Economists about the middle ofthe last century. And such is also the opinion (although he conceived it lessclearly, and less completely, than they) which was published by their greatprecursor, in the middle of the century preceding.

The opinion taught by the (Economists is rather, perhaps, defective, thanpositively erroneous. Their opinion, perhaps, is sound, so far as it reaches: butthey leave an essential consideration uncanvassed and nearly untouched. - In apolitical community not duly instructed, a government good and stable is, Ibelieve, impossible: and in a political community duly instructed, monarchy, Iincline to believe, were better than democracy. But in a political community notduly instructed, is not popular government, with all its awkward complexness,

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political society wherein the author of the law is sovereign orsupreme. For unless the party burthened with the duty weresubject to the author of the law, the party would not be obnoxiousto the legal or political sanction by which the duty and the rightare respectively enforced and protected. A government can hardlyimpose legal duties or obligations upon members of foreign societ-ies: although it can invest them with legal rights, by imposingrelative duties upon members of its own community. A partybearing a legal right, is not necessarily burthened with a legaltrust. Consequently, a party may bear and exercise a legal right,though the party cannot be touched by the might or power of itsauthor. But unless the opposite party, or the party burthened withthe relative duty, could be touched by the might of its author,the right and the relative duty, with the law which confers andimposes them, were merely nominal and illusory. And (taking theproposition with the slight correctives which I shall state hereafter)a person obnoxious to the sanction enforcing a positive law, isnecessarily subject to the author of the law, or is necessarily amember of the society, wherein the author is sovereign.

It follows from the essentials of a legal right, that a sovereigngovernment of one, or a sovereign government of a number inits collegiate and sovereign capacity, has no legal rights (in theproper acceptation of the term) against its own subjects.

less inconvenient than monarchy? And, unless the government be popular, cana political community not duly instructed, emerge from darkness to light? fromthe ignorance of political science, which is the principal cause of misrule, tothe knowledge of political science, which were the best security against it? -To these questions, the (Economists hardly advert: and, unhappily, the best ofpossible governments for a society already enlightened, is, when compared withthese, a question of little importance. The (Economists, indeed, occasionallyadmit, 'que dans Vetat d'ignorance Pautorite, est plus dangereuse dans les mainsd'un seul, qu'elle ne Test dans les mains de plusieurs.' But with this considerationthey rarely meddle. They commonly infer or assume, that, since in the state ofignorance the government is inevitably bad, the form of the government, duringthat state, is a matter of consummate indifference. Agreeing with them in mostof their premises, I arrive at an inference extremely remote from theirs; namely,that in a community already enlightened, the form of the government werenearly a matter of indifference; but that where a community is still in the stateof ignorance, the form of the government is a matter of the highest importance.

The political and economical system of Quesnai and the other (Economists,is stated concisely and clearly by M. Mercier de la Riviere in his 'L'Ordrenaturel et essentiel des Societes politiques.'

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Lecture VI.

To every legal right, there are three several parties: namely, aparty bearing the right; a party burthened with the relative duty;and a sovereign government setting the law through which theright and the duty are respectively conferred and imposed. Asovereign government cannot acquire rights through laws set byitself to its own subjects. A man is no more able to confer aright on himself, than he is able to impose on himself a law orduty. Every party bearing a right (divine, legal, or moral) hasnecessarily acquired the right through the might or power ofanother: that is to say, through a law and a duty (proper orimproper) laid by that other party on a further and distinct party.Consequently, if a sovereign government had legal rights againstits own subjects, those rights were the creatures of positive lawsset to its own subjects by a third person or body. And, as everypositive law is laid by a sovereign government on a person orpersons in a state of subjection to itself, that third person orbody were sovereign in that community whose own sovereigngovernment bore the legal rights: that is to say, the communitywere subject to its own sovereign, and were also subject to asovereign conferring rights upon its own. Which is impossibleand absurd.23

It has often been affirmed that 'right is might,' or that 'might is right.' But this 'Right is might.'paradoxical proposition (a great favourite with shallow scoffers and buffoons) iseither a flat truism affectedly and darkly expressed, or is thoroughly false andabsurd.

If it mean that a party who possesses a right possesses the right throughmight or power of his own, the proposition is false and absurd. For a partywho possesses a right necessarily possesses the right through the might or powerof another: namely, the author of the law by which the right is conferred, andby which the duty answering to the right is laid on a third and distinct party.Speaking generally, a person who is clothed with a right is weak rather thanmighty; and unless he were shielded from harm by the might of the author ofthe right, he would live, by reason of his weakness, in ceaseless insecurity andalarm. For example: Such is the predicament of persons clothed with legalrights, who are merely subject members of an independent political society, andwho owe their legal rights to the might and pleasure of their sovereign.

If it mean that right and might are one and the same thing, or are merelydifferent names for one and the same object, the proposition in question is alsofalse and absurd. My physical ability to move about, when my body is free frombonds, may be called might or pon>ery but cannot be called a right: though myability to move about without hindrance from you, may doubtless be styled a right,with perfect precision and propriety, if I owe the ability to a law imposed uponyou by another.

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But so far as they are bound by the law of God to obey theirtemporal sovereign, a sovereign government has rights divineagainst its own subjects: rights which are conferred upon itself,through duties which are laid upon its subjects, by laws of acommon superior. And so far as the members of its own com-munity are severally constrained to obey it by the opinion of thecommunity at large, it has also moral rights (or rights arising frompositive morality) against its own subjects severally considered:rights which are conferred upon itself by the opinion of thecommunity at large, and which answer to relative duties laid uponits several subjects by the general or prevalent opinion of thesame indeterminate body.

If it mean that every right is a creature of might or power, the propositionis merely a truism disguised in paradoxical language. For every right (divine,legal, or moral) rests on a relative duty; that is to say, a duty lying on a partyor parties other than the party or parties in whom the right resides. And,manifestly, that relative duty would not be a duty substantially, if the law whichaffects to impose it were not sustained by might.

I will briefly remark before I conclude the note, that 'right' has two meaningswhich ought to be distinguished carefully.

The noun substantive la right' signifies that which jurists denominate 'afaculty:' that which resides in a determinate party or parties, by virtue of a givenlaw; and which avails against a party or parties (or answers to a duty lying ona party or parties) other than the party or parties in whom it resides. And thenoun substantive 'rights' is the plural of the noun substantive '# right.' But theexpression 'right,' when it is used as an adjective, is equivalent to the adjective'just:' as the adverb 'rightly' is equivalent to the adverb 'justly.' And when it isused as the abstract name corresponding to the adjective 'right,' the nounsubstantive 'right' is synonymous with the noun substantive 'justice.' - If, forexample, I owe you a hundred pounds, you have 'a right' to the payment ofthe money; a right importing an obligation to pay the money, which is incumbentupon me. Now in case I make the payment to which you have 'a right,' I dothat which is 'right' or just, or I do that which consists with 'right' or justice. -Again: I have '# right' to the quiet enjoyment of my house: a right importinga duty to forbear from disturbing my enjoyment, which lies upon other personsgenerally, or lies upon the world at large. Now they who practise the forbearanceto which I have '# right,' conduct themselves therein 'rightly' or justly. Or sofar as they practise the forbearance to which I have ka right,' their conduct is'right' or just. Or so far as they practise the forbearance to which I have '0right,' they are observant of 'right' or justice.

It is manifest that 'right' as signifying 'faculty,' and 'right' as signifying 'justice,'are widely different though not unconnected terms. But, nevertheless, the termsare confounded by many of the writers who attempt a definition of 'right:' andtheir attempts to determine the meaning of that very perplexing expression, are,therefore, sheer jargon. By many of the German writers on the sciences oflaw and morality (as by Kant, for example, in his 'Metaphysical Principles ofJurisprudence'), 'right' in the one sense is blended with 'right' in the other.

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Consequently, when we say that a sovereign government, asagainst its own subjects, has or has not a right to do this or that,we necessarily mean a right (supposing we speak exactly), a rightdivine or moral, we necessarily mean (supposing we speak exactly),that it has or has not a right derived from a law of God, orderived from a law improperly so called which the general opinionof the community sets to its members severally.

But when we say that a government, as against its own subjects,has or has not a right to do this or that, we not uncommonly

And through the disquisition on 'right' or 'rights,' which occurs in his 'MoralPhilosophy,' Paley obviously wavers between the dissimilar meanings.

An adequate definition of 'a right,' or of 'right' as signifying 'faculty,' cannot, 'Right' asindeed, be rendered easily. In order to a definition of '0 right,' or of 'right' as meaning faculty,'signifying 'faculty,' we must determine the respective differences of the principal (^Snt' « meaningkinds of rights, and also the respective meanings of many intricate terms whichare implied by the term to be defined.

The Italian 'diritto,' the French 'droit,' the German 'recht,' and the English'right,' signify 'right' as meaning 'faculty,' and also signify 'justice:' though eachof those several tongues has a name which is appropriate to 'justice,' and bywhich it is denoted without ambiguity.

In the Latin, Italian, French, and German, the name which signifies 'right'as meaning 'faculty,' also signifies 'law:' 'jus,' 'diritto,' 'droit,' or 'recht,' denotingindifferently either of the two objects. Accordingly, the 'recht' which signifies'law,' and the 'recht' which signifies 'right' as meaning 'faculty,' are confoundedby German writers on the philosophy or rationale of law, and even by Germanexpositors of particular systems of jurisprudence. Not perceiving that the twonames are names respectively for two disparate objects, they make of the twoobjects, or make of the two names, one 'recht.' Which one 'recht,' as forminga genus or kind, they divide into two species or two sorts: namely, the 'recht'equivalent to 'law,' and the 'recht' equivalent to 'right' as meaning 'faculty.' Andsince the strongest and wariest minds are often ensnared by ambiguous words,their confusion of those disparate objects is a venial error. Some, however, ofthese German writers are guilty of a grave offence against good sense and taste.They thicken the mess which that confusion produces, with a misapplication ofterms borrowed from the Kantian philosophy. They divide 'recht,' as formingthe genus or kind, into 'recht in the objective sense,' and 'recht in the subjectivesense;' denoting by the former of those unapposite phrases, 'law;' and denotingby the latter, 'right' as meaning 'faculty.'

The confusion of 'law' and 'right,' our own writers avoid: for the two disparateobjects which the terms respectively signify, are commonly denoted in our ownlanguage by palpably distinct marks. I say that they are commonly denoted inour own language by palpably distinct marks: for the modern English 'right'(which probably comes from the Anglo Saxon, and therefore is allied to theGerman 'recht') means, in a few instances, 'law.'*

*'Hale and Blackstone (as I have mentioned in the Outline) are misled bythis double meaning of the word jus. They translate jus personarum et rerum,"rights of persons and things:" which is mere jargon.' - MS. note.

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mean that we deem the act in question generally useful or pernicious.This application of the term right, resembles an application ofthe term justice to which I have adverted above. - An act whichconforms to the Divine law, is styled, emphatically, just: an actwhich does not, is styled, emphatically, unjust. An act which isgenerally useful, conforms to the Divine law as known throughthe principle of utility: an act which is generally pernicious, doesnot conform to the Divine law as known through the sameexponent. Consequently, 'an act which is just or unjust,' and 'anact which is generally useful or generally pernicious/ are nearlyequivalent expressions. - An act which a sovereign governmenthas a Divine right to do, it, emphatically, has a right to do: if ithas not a Divine right, it, emphatically, has not a right. An actwhich were generally useful, the Divine law, as known throughthe principle of utility, has conferred on the sovereign governmenta right to do: an act which were generally pernicious, the Divinelaw, as known through the same exponent, has not conferred onthe sovereign government a right to do. Consequently, an actwhich the government has a right to do, is an act which weregenerally useful: as an act which the government has not a rightto do, is an act which were generally pernicious.

To ignorance or neglect of the palpable truths which I haveexpounded in the present section, we may impute a perniciousjargon that was current in our own country on the eve of herhorrible war with her North American children. By the great andsmall rabble in and out of parliament, it was said that the govern-ment sovereign in Britain was also sovereign in the colonies; andthat, since it was sovereign in the colonies, it had a right to taxtheir inhabitants. It was objected by Mr. Burke to the project oftaxing their inhabitants, that the project was inexpedient: pregnantwith probable evil to the inhabitants of the colonies, and pregnantwith probable evil to the inhabitants of the mother country. Butto that most rational objection, the sticklers for the scheme oftaxation returned this asinine answer. They said that the Britishgovernment had a right to tax the colonists; and that it ought notto be withheld by paltry considerations of expediency, from enforc-ing its sovereign right against its refractory subjects. - Now,assuming that the government sovereign in Britain was properlysovereign in the colonies, it had no legal right to tax its colonial

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subjects; although it was not restrained by positive law, fromdealing with its colonial subjects at its own pleasure or discretion.If, then, the sticklers for the scheme of taxation had any determi-nate meaning, they meant that the British government was empow-ered by the law of God to tax its American subjects. But it hadnot a Divine right to tax its American subjects, unless the projectof taxing them accorded with general utility: for every Divineright springs from the Divine law; and to the Divine law, generalutility is the index. Consequently, when the sticklers for thescheme of taxation opposed the right to expediency, they opposedthe right to the only test by which it was possible to determinethe reality of the right itself.

A sovereign government of one, or a sovereign government of From ana number in its collegiate and sovereign capacity, may appear in aMea™ nce °fa

the character of defendant, or may appear in the character of government beforedemandant, before a tribunal of its own appointment, or deriving a tnbunal °ftts

7 r r 7 o 0jpW) we cannot

jurisdiction from itself. But from such an appearance of a sover- infer that theeign government, we cannot infer that the government lies under 2™2T/ dutieslegal duties, or has legal rights against its own subjects. or has legal rights

Supposing that the claim of the plaintiff against the sovereign 2fmJ Us °wn

defendant were truly founded on a positive law, it were foundedon a positive law set to the sovereign defendant by a third personor body: or (changing the phrase) the sovereign defendant wouldbe in a state of subjection to another and superior sovereign.Which is impossible and absurd. - And supposing that the claimof the sovereign demandant were truly founded on a positive law,it were founded on a positive law set by a third party to a member,or members of the society wherein the demandant is supreme:or (changing the phrase) the society subject to the sovereigndemandant, were subject, at the same time, to another supremegovernment which is also impossible and absurd.

Besides, where the sovereign government appears in the charac-ter of defendant, it appears to a claim founded on a so calledlaw which it has set to itself. It therefore may defeat the claimby abolishing the law entirely, or by abolishing the law in theparticular or specific case. - Where it appears in the characterof demandant, it apparently founds its claim on a positive law ofits own, and it pursues its claim judicially. But although it reachesits purpose through a general and prospective rule, and through

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the medium of judicial procedure, it is legally free to accomplishits end by an arbitrary or irregular exercise of its legally unlimitedpower.

The rights which are pursued against it before tribunals of itsown, and also the rights which it pursues before tribunals of itsown, are merely analogous to legal rights (in the proper acceptationof the term): or (borrowing the brief and commodious expressionsby which the Roman jurists commonly denote an analogy) theyare legal rights quasi, or legal rights uti. - The rights which arepursued against it before tribunals of its own, it may extinguishby its own authority. But, this notwithstanding, it permits thedemandants to prosecute their claims: and it yields to those claims,when they are established judicially, as if they were truly foundedon positive laws set to itself by a third and distinct party. - Therights which it pursues before tribunals of its own, are powerswhich it is free to exercise according to its own pleasure. But,this notwithstanding, it prosecutes its claims through the mediumof judicial procedure, as if they were truly founded on positivelaws set to the parties defendant by a third person or body.24

The foregoing explanation of the seeming legal rights whichare pursued against sovereign governments before tribunals oftheir own, tallies with the style of judicial procedure, which, inall or most nations, is observed in cases of the kind. The objectof the plaintiff's claim is not demanded as of right, but is beggedof the sovereign defendant as a grace or favour.

In our own country, claims pursued judicially against our ownking are presented to the courts of justice in the same or a similarstyle. The plaintiff petitions the royal defendant to grant him hisso called right: or he shows to the royal defendant his so calledright and injury, and prays the royal defendant to yield him fittingredress. - But where a claim is pursued judicially against ourown king, this mendicant style of presenting the claim is merelyaccidental. It arises from the mere accident to which I haveadverted already: namely, that our own king, though not properlysovereign, is completely free in fact from legal or political duties.Since he is free in fact from every legal obligation, no one has24 A good government will not arbitrarily (or by ex post facto commands) abrogate

quasi rights which it has conferred. And, where possible, will accomplish itsends by prospective rules. - MS. note.

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a legal right (in the proper acceptation of the term) against theking: for if any had a legal right against the king, the king werenecessarily subject to an answering legal duty. But seeing thatour own king is merely a limb of the parliament, and is virtuallyin a state of subjection to that sovereign body or aggregate, heis capable of legal duties: that is to say, duties imposed uponhim by that sovereign body or aggregate in its collegiate andsovereign character. For the same reason, he is capable of legalrights: that is to say, rights conferred upon him by that sovereignbody or aggregate, and answering to relative duties imposed bythe same body on others of its own subjects. Accordingly, theking has legal rights against others of his fellow subjects: thoughby reason of his actual exemption from every legal obligation,none of his fellow subjects have legal rights against him.

Though a sovereign government of one, or a sovereign govern- Though ament of a number in its collegiate and sovereign capacity, cannot S€^^ent f

have legal rights against its own subjects, it may have a legal or a sovereignright against a subject or subjects of another sovereign government. J ^ ^ ' a f *For seeing that a legal or political right is not of necessity saddled collegiate andwith a legal or political trust, the positive law conferring the right ^n^haTeT^aimay not be set to the government on which the right is conferred, rights against itsThe law conferring the right (as well as the relative duty answering ™ ^ ^ }* al

to the right) may be laid or imposed exclusively on the subject right against aor subjects of the government by which the right is imparted. s^Jh

rJubiects

The possession of a legal or political right against a subject or sovereignsubjects of another sovereign government, consists, therefore, with ffmemment-that independence which is one of the essentials of sovereignty.And since the legal right is acquired from another government,and through a law which it sets to a subject or subjects of itsown, the existence of the legal right implies no absurdity. It isneither acquired through a positive law set by the governmentwhich acquires it, nor through a positive law set by anothergovernment to a member or members of the society wherein theacquirer is supreme.

I now have defined or determined the general notion of sover- The origin oreignty, including the general notion of independent political aws*oi P°Mcf

. * i . i i x . 1 ^ 1 i . i 1 government and

society: And, in order that I might further elucidate the nature society.or essence of sovereignty, and of the independent political society

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which sovereignty implies, I have considered the possible formsof supreme political government with the limits, real or imaginary,of supreme political power. To complete my intended disquisitionon the nature or essence of sovereignty, and of the independentpolitical society that sovereignty implies, I proceed to the originor causes of the habitual or permanent obedience, which, in everysociety political and independent, is rendered by the bulk of thecommunity to the monarch or sovereign number. In other words,I proceed to the origin or causes of political government andsociety.

The proper purpose or end of a sovereign political government,or the purpose or end for which it ought to exist, is the greatestpossible advancement of human happiness: Though, if it wouldduly accomplish its proper purpose or end, or advance as far asis possible the weal or good of mankind, it commonly must labourdirectly and particularly to advance as far as is possible the wealof its own community. The good of the universal society formedby mankind, is the aggregate good of the particular societies intowhich mankind is divided: just as the happiness of any of thosesocieties is the aggregate happiness of its single or individualmembers. Though, then, the weal of mankind is the proper objectof a government, or though the test of its conduct is the principleof general utility, it commonly ought to consult directly andparticularly the weal of the particular community which the Deityhas committed to its rule. If it truly adjust its conduct to theprinciple of general utility, it commonly will aim immediately atthe particular and more precise, rather than the general and lessdeterminate end.

It were easy to show, that the general and particular ends neveror rarely conflict. Universally, or nearly universally, the endsare perfectly consistent, or rather are inseparably connected. Anenlightened regard for the common happiness of nations, impliesan enlightened patriotism; whilst the stupid and atrocious patriot-ism which looks exclusively to country, and would further theinterests of country at the cost of all other communities, grosslymisapprehends and frequently crosses the interests that are theobject of its narrow concern. - But the topic which I now havesuggested, belongs to the province of ethics, rather than the

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province of jurisprudence. It belongs especially to the peculiardepartment of ethics, which is concerned with international moral-ity: which affects to determine the morality that ought to obtainbetween nations, or to determine the international morality com-mended by general utility.25

From the proper purpose or end of a sovereign political govern-ment, or from the purpose or end for which it ought to exist,we may readily infer the causes of that habitual obedience whichwould be paid to the sovereign by the bulk of an enlightenedsociety. Supposing that a given society were adequately instructedor enlightened, the habitual obedience to its government whichwas rendered by the bulk of the community, would exclusivelyarise from reasons bottomed in the principle of utility. If theythought the government perfect, or that the governmentaccomplished perfectly its proper purpose or end, this their convic-tion or opinion would be their motive to obey. If they deemedthe government faulty, a fear that the evil of resistance mightsurpass the evil of obedience, would be their inducement tosubmit: for they would not persist in their obedience to a govern-ment which they deemed imperfect, if they thought that a better25 The proper purpose or end of a sovereign political government, or the purpose

or end for which it ought to exist, is conceived inadequately, or is conceivedobscurely, by most or many of the speculators on political government andsociety.

To advance as far as is possible the weal or good of mankind, is moregenerally but more vaguely its proper purpose or end: To advance as far as ispossible the weal of its own community, is more particularly and more determi-nately the purpose or end for which it ought to exist. Now if it would accomplishthe general object, it commonly must labour directly to accomplish the particular:And it hardly will accomplish the particular object, unless it regard the general.Since, then, each of the objects is inseparably connected with the other, eithermay be deemed the paramount object for which the sovereign government oughtto exist. We therefore may say, for the sake of conciseness, that its proper The properparamount purpose, or its proper absolute end, is 'the greatest possible advance- purpose or end ofment of the common happiness or weaW meaning indifferently by 'the common politicalhappiness or weal,' the common happiness or weal of its own particular com- Sffvernment a»dmunity, or the common happiness or weal of the universal community of mankind. soae^t or l e/T T T 1 1 . r i i r T I I purpose or end for(Here I may remark that in my fourth lecture, from page 95 to 97, I shortly ^ ^ ^ ,examined a current misconception of the theory of general utility; and that the t0 ^^brief suggestions which I then threw out, may easily be fitted to the topic onwhich I now have touched.)

To advance as far as is possible the weal or good of mankind, or to advanceas far as is possible the weal of its own community, is, then, the paramount or

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government might probably be got by resistance, and that theprobable good of the change outweighed its probable mischief.

Since every actual society is inadequately instructed or enlight-ened, the habitual obedience to its government which is renderedby the bulk of the community, is partly the consequence ofcustom: They partly pay that obedience to that present or estab-

absolute end for which a sovereign government ought to exist. We may say ofthe government itself, what Bacon says of the law which it sets to its subjects:'Finis et scopus quem intueri debet, non alius est, quam ut cives feliciter degant.'The way, indeed, of the government to the attainment of its absolute end, liesthrough the attainment of ends which may be styled subordinate or instrumental:Or in order that the government may accomplish its proper absolute end, thegovernment must accomplish ends subserving that absolute end, or serving asmeans to its accomplishment. But the subordinate or instrumental ends throughwhich the government must accomplish its paramount or absolute end, willhardly admit of a complete description, or a description approaching to complete-ness. Certainly they are not to be determined, and are not to be suggestedjustly, by a short and sweeping definition. For, assuming that the governmentaccomplished thoroughly its paramount or absolute purpose, its care wouldextend (as Bacon adequately affirms) 'ad omnia circa bene esse civitatis;' its carewould extend to all the means through which it probably might minister to thefurtherance of the common weal.

But, by most or many of the speculators on political government and society,one or a few of the instrumental ends through which a government mustaccomplish its proper absolute end, are mistaken for that paramount purpose.

For example: It is said by many of the speculators on political governmentand society, that 'the end of every government is to institute and protect property.'And here I must remark, by the by, that the propounders of this absurdity giveto the term 'property' an extremely large and not very definite signification.They mean generally by the term 'property,' legal rights, or legal faculties: Andthey mean not particularly by the term 'property,' the legal rights, or legalfaculties, which are denominated strictly 'rights of property or dominion.' If theylimited the term 'property' to legal rights of dominion, their proposition wouldstand thus: 'The creation and protection of legal rights of dominion, is the endof every government; but the creation of legal rights which are not rights ofdominion (as legal rights, for example, which are properly effects of contracts),is not parcel of its end, or falls not within its scope.' Consequently, theirproposition amounts to this: 'To confer on its subjects legal rights, and topreserve those rights from infringement, is the end of every government.'* Nowthe proper paramount purpose of a sovereign political government, is not thecreation and protection of legal rights or faculties, or (in the terms of theproposition) the institution and protection of property. If the creation andprotection of legal rights were its proper paramount purpose, its proper paramountpurpose might be the advancement of misery, rather than the advancement ofhappiness; since many of the legal rights which governments have created andprotected (as the rights of masters, for example, to and against slaves), aregenerally pernicious, rather than generally useful. To advance as far as is possiblethe common happiness or weal, a government must confer on its subjects legalrights: that is to say, a government must confer on its subjects beneficent legal

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lished government, because they, and perhaps their ancestors,have been in a habit of obeying it. Or the habitual obedience tothe government which is rendered by the bulk of the community,is partly the consequence of prejudices: meaning by 'prejudices,'opinions and sentiments which have no foundation whatever inthe principle of general utility. If, for example, the government

rights, or such legal rights as general utility commends. And, having conferredon its subjects beneficent legal rights, the government, moreover, must preservethose rights from infringement, by enforcing the corresponding sanctions. Butthe institution and protection of beneficent legal rights, or of the kinds ofproperty that are commended by general utility, is merely a subordinate andinstrumental end through which the government must accomplish its paramountor absolute purpose. - As affecting to determine the absolute end for which asovereign government ought to exist, the proposition in question is, therefore,false. And, considered as a definition of the means through which the sovereigngovernment must reach that absolute end, the proposition in question is defective.If the government would duly accomplish its proper paramount purpose, it mustnot confine its care to the creation of legal rights, and to the creation andenforcement of the answering relative duties. There are absolute legal duties,or legal duties without corresponding rights, that are not a whit less requisiteto the advancement of the general good than legal rights themselves with therelative duties which they imply. Nor would a government accomplish thoroughlyits proper paramount purpose, if it merely conferred and protected the requisiterights, and imposed and enforced the requisite absolute duties: that is to say,if it merely established and issued the requisite laws and commands, and lookedto their due execution. The sum of the subordinate ends which may subserveits absolute end, is scarcely comprised by a good legislation and a good adminis-tration of justice: Though a good legislation with a good administration ofjustice, or good laws well administered, are doubtless the chief of the meansthrough which it must attain to that end, or (in Bacon's figurative language) arethe nerves of the common weal.

The prevalent mistake which I now have stated and exemplified, is committedby certain of the writers on the science of political ceconomy, whenever theymeddle incidentally with the connected science of legislation. Whenever theystep from their own into the adjoining province, they make expressly, or theymake tacitly and unconsciously, the following assumption: that the proper absoluteend of a sovereign political government is to further as far as is possible thegrowth of the national wealth. If they think that a political institution fostersproduction and accumulation, or that a political institution damps productionand accumulation, they pronounce, without more, that the institution is good orbad. They forget that the wealth of the community is not the weal of thecommunity, though wealth is one of the means requisite to the attainment ofhappiness. They forget that a political institution may further the weal of thecommunity, though it checks the growth of its wealth; and that a politicalinstitution which quickens the growth of its wealth, may hinder the advancementof its weal.

*The maintenance of the Rights which are vested in private individuals (i.e.in the governed) is not the only end for which Government ought to exist. Itis often expedient that it should be invested with powers which neither directly

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is monarchical, they partly pay that obedience to that present orestablished government because they are fond of monarchy inas-much as it is monarchy, or because they are fond of the racefrom which the monarch has descended. Or if, for example, thegovernment is popular, they partly pay that obedience to thatpresent or established government, because they are fond ofdemocracy inasmuch as it is democracy, or because the word'republic' captivates their fancies and affections.

But though that habitual obedience is partly the consequenceof custom, or though that habitual obedience is partly the conse-quence of prejudices, it partly arises from a reason bottomed inthe principle of utility.26 It partly arises from a perception, by the

nor indirectly subserve that end, though they minister to that ultimate purposefor which Rights themselves should exist: viz. the general wellbeing.** {e.g.Powers to construct roads, etc.) see Hugo Lehrbuch des Naturrechts, p. 183. -MS. note.

** ['Neque tamen jus publicum ad hoc tantum spectat, ut addatur tanquam custosjuri privato, ne illud violetur atque cessent injuriae; sed extenditur etiam adreligionem et arma et disciplinam et ornamenta et opes, denique ad omnia circaBENE ESSE civitatis.' - Bacon.]

[Mistakes like those of political oeconomists are made by utilitarians, only ofa more general nature. Instead of confounding (specifically) some subordinateend of government with the paramount end of the same, they take a part ofhuman happiness, or a part of the means towards it, for the whole of humanhappiness, or the whole of those means {e.g. The exclusion of poetry or thefine arts, or the degrading them to 'the agreeable.' Their eminent utility. Thewisdom to be got from poets. Give examples.)

This partial view of human happiness, or of means towards it, will always betaken till a system of ethical teleology be constructed: i.e. an analysis of happiness,the means towards it, and therefore the ends to be pursued directly. - MS.fragment.]

26 As connected with the proper purpose or end of political government and society,I may mention one cause which always will make political government (orpolitical government quasi) necessary or highly expedient: namely, the uncertainty,scantiness, and imperfection of positive moral rules. Hence the necessity for acommon governing (or common guiding) head to whom the community may inconcert defer.

It is possible to conceive a society in which legal sanctions would lie dormant,or in which quasi government would merely recommend, or utters laws ofimperfect obligation (in the sense of Roman Jurists). But however perfect anduniversal the inclination to act up to rules tending to the general good, it isimpossible to dispense with a governing or guiding head.

(Uncertainty of existence of positive moral rules: want of the precision anddetail required by dispositions regarding the objects about which positive law isconversant. Hence Godwin, Fichte, and others have made a great mistake.)

In many cases, however, notwithstanding its defectiveness, it is necessary toabandon acts to positive morality. (See Note, pp. 140-41) - MS. fragment.

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generality or bulk of the community, of the expediency of politicalgovernment: or (changing the phrase) it partly arises from apreference, by the generality or bulk of the community, of anygovernment to anarchy. If, for specific reasons, they are attachedto the established government, their general perception of theutility of government concurs with their special attachment. Ifthey dislike the established government, their general perceptionof the utility of government controls and masters their dislike.They detest the established government: but if they would changeit for another by resorting to resistance, they must travel to theirobject through an intervening anarchy which they detest more.

The habitual obedience to the government which is renderedby the bulk of the community, partly arises, therefore, in almostevery society, from the cause which I now have described: namely,a perception, by the bulk of the community, of the utility ofpolitical government, or a preference by the bulk of the com-munity, of any government to anarchy. And this is the only causeof the habitual obedience in question, which is common to allsocieties, or nearly all societies. It therefore is the only cause ofthe habitual obedience in question, which the present generaldisquisition can properly embrace. The causes of the obediencein question which are peculiar to particular societies, belong tothe province of statistics, or the province of particular history.

The only general cause of the permanence of political govern-ments, and the only general cause of the origin of political govern-ments, are exactly or nearly alike. Though every government hasarisen in part from specific or particular causes, almost everygovernment must have arisen in part from the following generalcause: namely, that the bulk of the natural society from whichthe political was formed, were desirous of escaping to a state ofgovernment, from a state of nature or anarchy. If they likedspecially the government to which they submitted, their generalperception of the utility of government concurred with their specialinclination. If they disliked the government to which they submit-ted, their general perception of the utility of government controlledand mastered their repugnance.

The specific or particular causes of specific or particular govern-ments, are rather appropriate matter for particular history, thanfor the present general disquisition.

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The position 'thatevery governmentcontinues throughthe people'sconsent,' and theposition 'thatevery governmentarises through thepeople's consent,'examined and

According to a current opinion (or according to a currentexpression), the permanence and origin of every government areowing to the people's consent: that is to say, every governmentcontinues through the consent of the people, or the bulk of thepolitical community: and every government arises through theconsent of the people, or the bulk of the natural society fromwhich the political is formed. According to the same opiniondressed in a different phrase, the power of the sovereign flowsfrom the people, or the people is the fountain of sovereign power.

Now the permanence of every government depends on thehabitual obedience which it receives from the bulk of the com-munity. For if the bulk of the community were fully determinedto destroy it, and to brave and endure the evils through whichthey must pass to their object, the might of the government itself,with the might of the minority attached to it, would scarcelysuffice to preserve it, or even to retard its subversion. And thoughit were aided by foreign governments, and therefore were morethan a match for the disaffected and rebellious people, it hardlycould reduce them to subjection, or constrain them to permanentobedience, in case they hated it mortally, and were prepared toresist it to the death. - But all obedience is voluntary or free, orevery party who obeys consents to obey. In other words, every partywho obeys wills the obedience which he renders, or is determinedto render it by some motive or another. That acquiescence whichis purely involuntary, or which is purely the consequence ofphysical compulsion or restraint, is not obedience or submission.If a man condemned to imprisonment were dragged to the prisonby the jailers, he would not obey or submit. But if he were liableto imprisonment in the event of his refusing to walk to it, andif he were determined to walk to it by a fear of that furtherrestraint, the man would render obedience to the sentence orcommand of the judge. Moved by his dislike of the contingentpunishment, he would consent to the infliction of the present. -Since, then, a government continues through the obedience ofthe people, and since the obedience of the people is voluntaryor free, every government continues through the consent of thepeople, or the bulk of the political society. If they like thegovernment, they are determined to obey it habitually or to consentto its continuance, by their special inclination or attachment. If

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they hate the government, they are determined to obey it habitu-ally, or to consent to its continuance, by their dread of a violentrevolution. They consent to what they abhor, because they avoidthereby what they abhor more. - As correctly or truly apprehen-ded, the position 'that every government continues through thepeople's consent? merely amounts to this: That, in every societypolitical and independent, the people are determined by motivesof some description or another, to obey their government habitu-ally: and that, if the bulk of the community ceased to obey ithabitually, the government would cease to exist.

But the position in question, as it is often understood, is takenwith one or another of the two following meanings.

Taken with the first of those meanings, the position amountsto this: That the bulk of every community, without inconvenienceto themselves, can abolish the established government: and thatbeing able to abolish it without inconvenience to themselves, theyyet consent to its continuance or pay it habitual obedience. Or,taken with the first of those meanings, the position amounts tothis: That the bulk of every community approve of the establishedgovernment, or prefer it to every government which could besubstituted for it: and that they consent to its continuance, orpay it habitual obedience, by reason of that their approbation orby reason of that their preference. As thus understood, the positionis ridiculously false: the habitual obedience of the people in mostor many communities, arising wholly or partly from their fear ofthe probable evils which they might suffer by resistance.

Taken with the second of those meanings, the position amountsto this: That, if the bulk of a community dislike the establishedgovernment, the government ought not to continue: or that, if thebulk of a community dislike the established government, thegovernment therefore is bad or pernicious, and the general goodof the community requires its abolition. And, if every actual societywere adequately instructed or enlightened, the position, as thusunderstood, would approach nearly to the truth. For the dislikeof an enlightened people towards their established government,would beget a violent presumption that the government was faultyor imperfect. But, in every actual society, the government hasneglected to instruct the people in sound political science; orpains have been taken by the government, or the classes that

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influence the government, to exclude the bulk of the communityfrom sound political science, and to perpetuate or prolong theprejudices which weaken and distort their undertakings. Everysociety, therefore, is inadequately instructed or enlightened: And,in most or many societies the love or hate of the people towardstheir established government would scarcely beget a presumptionthat the government was good or bad. An ignorant people maylove their established government, though it positively crosses thepurpose for which it ought to exist: though, by cherishing perni-cious institutions and fostering mischievous prejudices, it positivelyprevents the progress in useful knowledge and in happiness, whichits subjects would make spontaneously if it simply were carelessof their good. If the goodness of an established government beproportioned to the love of the people, the priest-bestriddengovernment of besotted Portugal or Spain is probably the best ofgovernments: As weighed against Miguel and Ferdinand, Trajanand Aurelius, or Frederic and Joseph, were fools and malignanttyrants. And as an ignorant people may love their establishedgovernment, though it positively crosses the purpose for which itought to exist, so many an ignorant people hate their establishedgovernment, though it labours strenuously and wisely to furtherthe general weal. The dislike of the French people to the ministryof the godlike Turgot, amply evinces the melancholy truth. Theystupidly thwarted the measures of their warmest and wisest friend,and made common cause with his and their enemies: with therabble of nobles and priests who strove to uphold misrule, andto crush the reforming ministry with a load of calumny andridicule.

That the permanence of every government is owing to thepeople's consent, and that the origin of every government is owingto the people's consent, are two positions so closely allied, thatwhat I have said of the former will nearly apply to the latter.

Every government has arisen through the consent of the people,or the bulk of the natural society from which the political wasformed. For the bulk of the natural society from which a politicalis formed, submit freely or voluntarily to the inchoate politicalgovernment. Or (changing the phrase) their submission is a conse-quence of motives, or they will the submission which they render.

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But a special approbation of the government to which theyfreely submit, or a preference of that government to every othergovernment, may not be their motive to submission. Althoughthey submit to it freely, the government perhaps is forced uponthem: that is to say, they could not withhold their submissionfrom that particular government, unless they struggled throughevils which they are loath to endure, or unless they resisted tothe death. Determined by a fear of the evils which would followa refusal to submit (and, probably, by a general perception of theutility of political government), they freely submit to a governmentfrom which they are specially averse.

The expression 'that every government arises through thepeople's consent? is often uttered with the following meaning: Thatthe bulk of a natural society about to become a political, or theinchoate subjects of an inchoate political government, promise•,expressly or tactitly, to obey the future sovereign. The expression,however, as uttered with the meaning in question confounds con-sent and promise, and therefore is grossly incorrect. That the incho-ate subjects of every inchoate government will or consent to obey it,is one proposition: that they promise, expressly or tacitly, to renderit obedience, is another proposition. Inasmuch as they actuallyobey, they will or consent to obey: or their will or consent to obey,is evinced by their actual obedience. But a will to render obedienceas evinced by actual obedience, is not of necessity a tacit promiseto render it: although by a promise to render obedience, a will orconsent to render it is commonly expressed or intimated.

That the inchoate subjects of every inchoate government promiseto render it obedience, is a position involved by an hypothesiswhich I shall examine in the next section.

In every community ruled by a monarch, the subject members The hypothesis ofof the community lie under duties to the monarch; and in every the onginal

J ' J covenant, or the

community ruled by a sovereign body, the subject members of fundamental civilthe community (including the several members of the body itself), pacL

lie under duties to the body in its collective and sovereign capacity.In every community ruled by a monarch, the monarch lies underduties towards his subjects: and in every community ruled by asovereign body, the collective and sovereign body lies under dutiesto its subjects (including its own members considered severally).

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The duties of the subjects towards the sovereign government,are partly religious, partly legal, and partly moral.

The religious duties of the subjects towards the sovereigngovernment, are creatures of the Divine law as known throughthe principles of utility. If it thoroughly accomplish the purposefor which it ought to exist, or further the general weal to thegreatest possible extent, the subjects are bound religiously to payit habitual obedience. And, if the general good which probablywould follow submission outweigh the general good which prob-ably would follow resistance, the subjects are bound religiouslyto pay it habitual obedience, although it accomplish imperfectlyits proper purpose or end. - The legal duties of the subjectstowards the sovereign government, are creatures of positive lawswhich itself has imposed upon them, or which are incumbentupon them by its own authority and might. - The moral dutiesof the subjects towards the sovereign government, are creaturesof positive morality. They mainly are creatures of laws (in theimproper acceptation of the term) which the general opinion ofthe community itself sets to its several members.

The duties of the sovereign government towards the subjectsare partly religious and partly moral. If it lay under legal dutiestowards the subjects, it were not a supreme, but were merely asubordinate government.

Its religious duties towards the subjects, are creatures of theDivine law as known through the principle of utility. It is boundby the Divine law as known through the principle of utility, toadvance as far as is possible the weal or good of mankind: andto advance as far as is possible the weal or good of mankind, itcommonly must labour directly and particularly to advance as faras is possible the happiness of its own community. - Its moralduties towards the subjects, are creatures of positive morality.They mainly are creatures of laws (in the improper acceptationof the term) which the general opinion of its own communitylays or imposes upon it.

It follows from the foregoing analysis, that the duties of thesubjects towards the sovereign government, with the duties of thesovereign government towards the subjects, originate respectivelyin three several sources: namely, the Divine law (as indicated bythe principle of utility), positive law, and positive morality. And,

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to my understanding, it seems that we account sufficiently forthe origin of those obligations, when we simply refer them tothose their obvious fountains. It seems to my understanding, thatan ampler solution of their origin is not in the least requisite,and, indeed, is impossible. But there are many writers on politicalgovernment and society, who are not content to account for theirorigin, by simply referring them to those their manifest sources.It seems to the writers in question, that we want an amplersolution of the origin of those obligations, or, at least, of theorigin of such of them as are imposed by the law of God. And,to find that ampler solution which they believe requisite, thosewriters resort to the hypothesis of the original covenant or contract,or the fundamental civil pact.11

By the writers who resort to it, this renowned and not explodedhypothesis is imagined and rendered variously. But the purportor effect of the hypothesis, as it is imagined and rendered bymost of those writers, may be stated generally thus:

To the formation of every society political and independent, orto the institution of every JtoXig or civitas, all its future membersthen in being are joint or concurring parties: for all are partiesto an agreement in which it then originates, and which is alsothe basis whereon it afterwards rests. As being the necessarysource of the independent political society, or as being a conditionnecessarily preceding its existence, this agreement of all is styledthe original covenant: as being the necessary basis whereon thedvitas afterwards rests, it is styled pactum civile fundamentale. - Inthe process of making this covenant or pact, or the process offorming the society political and independent, there are threeseveral stages: which three several stages may be described inthe following manner, i. The future members of the communityjust about to be created, jointly resolve to unite themselves intoan independent political society: signifying and determining withalthe paramount purpose of their union, or even more or fewer of

27 I style the supposed covenant 'the original covenant or convention, rather than'the original contract? Every convention, agreement, or pact, is not a contractproperly so called: though every contract properly so called is a convention,agreement, or pact. A contract properly so called, is a convention which bindslegally the promising party or parties. But admitting the hypothesis, the supposed'original covenant' would not and could not engender legal or political duties.

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its subordinate or instrumental ends. And here I must brieflyremark, that the paramount purpose of their union, or the para-mount purpose of the community just about to be created, is theparamount purpose (let it be what it may) for which a societypolitical and independent ought to be founded and perpetuated.By the writers who resort to the hypothesis, this paramountpurpose or absolute end is conceived differently: their severalconceptions of this purpose or end, differing with the severalnatures of their respective ethical systems. To writers who admitthe system which I style the theory of utility, this purpose or endis the advancement of human happiness. To a multitude of writerswho have flourished and flourish in Germany, the following is thetruly magnificent though somewhat mysterious object of politicalgovernment and society: namely, the extension over the earth, orover its human inhabitants, of the empire of right or justice. Itwould seem that this right or justice, like the good Ulpian'sjustice, is absolute, eternal, and immutable. It would seem thatthis right or justice is not a creature of law: that it was anteriorto every law; exists independently of every law; and is the measureor test of all law and morality. Consequently, it is not the rightor justice which is a creature of the law of God, and to whichthe name of 'justice5 is often applied emphatically. It rather is asomething, perfectly self-existent, to which his law conforms, orto which his law should conform. I, therefore, cannot understandit, and will not affect to explain it. Merely guessing at what itmay be, I take it for the right or justice mentioned in a precedingnote: I take it for general utility darkly conceived and expressed.Let it be what it may, it doubtless is excellently good, or issuperlatively fair or high, or (in a breath) is pre-eminently worthyof praise. For, compared with the extension of its empire overmankind, the mere advancement of their happiness is a meanand contemptible object. 2. Having resolved to unite themselvesinto an independent political society, all the members of theinchoate community jointly determine the constitution of its sover-eign political government. In other words, they jointly determinethe member or members in whom the sovereignty shall reside:and, in case they will that the sovereignty shall reside in morethan one, they jointly determine the mode wherein the sovereignnumber shall share the sovereign powers. 3. The process of

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forming the independent political society, or the process of formingits supreme political government, is completed by promises givenand accepted: namely, by a promise of the inchoate sovereign tothe inchoate subjects, by promises of the latter to the former,and by a promise of each of the latter to all and each of therest. The promise made by the sovereign, and the promises madeby the subjects, are made to a common object: namely, theaccomplishment of the paramount purpose of the independentpolitical society, and of such of its subordinate purposes as weresignified by the resolution to form it. The purport of the promisemade by the sovereign, and the purport of the promises made bythe subjects, are, therefore, the following. The sovereign promisesgenerally to govern to the paramount end of the independentpolitical society: and, if any of its subordinate ends were signifiedby the resolution to form it, the sovereign moreover promisesspecifically to govern specifically to those subordinate ends. Thesubjects promise to render to the sovereign a qualified or con-ditional obedience: that is to say, to render to the sovereign allthe obedience which shall consist with that paramount purposeand those subordinate purposes. - The resolution of the membersto unite themselves into an independent political society, is styledpactum unionis. Their determination of the constitution or structureof the sovereign political government, is styled pactum constitutionisor pactum ordinationis. The promise of the sovereign to the sub-jects, with the promises of the subjects to the sovereign and to oneanother, are styled pactum subjectionis: for, through the promises ofthe subjects, or through the promises of the subjects coupled withthe promise of the sovereign, the former are placed completely ina state of subjection to the latter, or the relation of subjectionand sovereignty arises between the parties. But of the so-calledpact of union, the so-called pact constituent, and the so-called pactof subjection, the last only is properly a convention. The so-calledpact of union and the so-called pact constituent are properlyresolves or determinations introductory to the pact of subjection:the pact of subjection being the original covenant or the funda-mental civil pact. - Through this original covenant, or thisfundamental pact, the sovereign is bound (or at least is boundreligiously) to govern as is mentioned above: and the subjects arebound (or, at least, are bound religiously) to render to the

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sovereign for the time being, the obedience above described. Andthe binding virtue of this fundamental pact is not confined to thefounders of the independent political society. The binding virtueof this fundamental pact extends to the following members of thesame community. For the promises which the founders of thecommunity made for themselves respectively, import similar prom-ises which they make for their respective successors. Throughthe promise made by the original sovereign, following sovereignsare bound (or at least, are bound religiously) to govern as ismentioned above. Through the promises made by the originalsubjects, following subjects are bound (or at least, are boundreligiously) to render to the sovereign for the time being, theobedience above described. - In every society political and inde-pendent, the duties of the sovereign towards the subjects (or thereligious duties of the sovereign towards the subjects) spring froman original covenant like that which I now have delineated: Andin every society political and independent, the duties of the sub-jects towards the sovereign (or the religious duties of the subjectstowards the sovereign) arise from a similar pact. Unless we sup-pose that such an agreement is incumbent on the sovereign andsubjects, we cannot account adequately for those their respectiveobligations. Unless the subjects were held to render it by anagreement that they shall render it, the subjects would not beobliged, or would not be obliged sufficiently, to render to thesovereign the requisite obedience: that is to say, the obediencerequisite to the accomplishment of the proper purpose or end ofthe independent political society. Unless the sovereign were heldby an agreement to govern as is mentioned above, the sovereignwould not be obliged, or would not be obliged sufficiently, fromgoverning despotically or arbitrarily: that is to say, governing withlittle or no regard to the proper purpose or end of a supremepolitical government.

Such, I believe, is the general purport of the hypothesis, as itis imagined and rendered by most of the writers who resort to it.

But, as I have remarked above, the writers who resort to thehypothesis imagine and render it variously. - According, forexample, to some of those writers, The original subjects, covenant-ing for themselves and their followers, promise obedience to theoriginal and following sovereigns. But the original sovereign is

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not a promising party to the fundamental civil pact. The originalsovereign does not agree with the subjects, that the sovereignpowers shall be used to a given end or ends, or that those powersshall be used in a given mode or modes. - And by the differentwriters who render the hypothesis thus, the purport of the subjects'promises is imagined. For example: Some suppose that the obedi-ence promised by the subjects, is the qualified or conditionalobedience briefly described above: whilst others suppose that theobedience promised by the subjects, is an obedience passive orunlimited. - The writers, in short, who suppose an originalcovenant, think variously concerning the nature of the end forwhich a supreme government ought to exist. They think moreovervariously concerning the extent of the obedience which a supremegovernment ought to receive from its subjects. And to his ownopinion concerning the nature of that end, or to his own opinionconcerning the extent of that obedience, each of the writers inquestion endeavours to shape the hypothesis. - But though thewriters who resort to the hypothesis imagine and render it vari-ously, they concur in this: That the duties of the subjects towardsthe sovereign (or the religious duties of the subjects towards thesovereign) are creatures of the original covenant. And the writerswho fancy that the original sovereign was a promising party tothe pact, also concur in this: That the duties of the sovereigntowards the subjects (or the religious duties of the sovereigntowards the subjects) are engendered by the same agreement.

A complete though concise exposition of the various forms orshapes in which various writers imagine and render the hypothesis,would fill a considerable volume. Besides, the ensuing stricturesapply exactly, or may be fitted easily, to any original covenantthat has been or can be conceived; although they are directedmore particularly to the fancied original covenant which I havedelineated above. My statement of the purport of the hypothesis,I, therefore, conclude here. And I now will suggest shortly a fewof the conclusive objections to which the hypothesis is open.

i. To account for the duties of subjects towards their sovereigngovernment, or for those of the sovereign government towards itssubjects, or for those of each of the parties towards the other, isthe scope of every writer who supposes an original covenant. - But,to account for the duties of subjects towards their sovereign

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government, or for those of the sovereign government towards itssubjects, we need not resort to the hypothesis of a fundamentalcivil pact. We sufficiently account for the origin of those respectiveobligations, when we refer them simply (or without the suppositionof an original covenant) to their apparent and obvious fountains:namely, the law of God, positive law, and positive morality. -Besides, although the formation of an independent political societywere really preceded by a fundamental civil pact, scarce any of theduties lying thereafter on the subjects, or of the duties lying there-after on the sovereign, would be engendered or influenced by thatforegoing convention. - The hypothesis, therefore, of an originalcovenant, is needless, and is worse than needless. It affects toassign the cause of certain phaenomena: namely, the duties of sub-jects towards their sovereign government, or the duties of the sov-ereign government towards its subjects, or the duties of each of theparties towards the other. But the cause which it assigns issuperfluous; inasmuch as there are other causes which are at onceobvious and adequate: And that superfluous cause is inefficient aswell as superfluous, or could not have produced the phaenomenawhereof it is the fancied source.

It will appear from the following analysis, that, although theformation of an independent political society were really precededby an original covenant, scarce any of the duties lying thereafteron the subjects, or of the duties lying thereafter on the sovereign,would be engendered or affected by that foregoing agreement. Inother words, the covenant would hardly oblige (legally, religiously,or morally) the original or following subjects, or the original orfollowing sovereigns.

Every convention which obliges legally (or every contract prop-erly so called) derives its legal efficacy from a positive law.Speaking exactly, it is not the convention that obliges legally, orthat engenders the legal duty: but the law obliges legally, orengenders the legal duty, through the convention. In other words,the positive law annexes the duty to the convention: or it deter-mines that duties of the given class shall follow conventions ofthe given description. - Consequently, if the sovereign governmentwere bound legally by the fundamental civil pact, the legal dutylying on the government were the creature of a positive law: thatis to say, the legal duty lying on the government were the creature

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of a positive law annexing the duty to the pact. And, seeing thata law set by the government to itself were merely a law througha metaphor, the positive law annexing the duty to the pact wouldbe set to the sovereign government by another and superiorsovereign. Consequently, the sovereign government legally boundby the pact would be in a state of subjection. - Through apositive law set by their own sovereign, the subjects might bebound legally to keep the original covenant. But the legal orpolitical duty thus incumbent on the subjects, would properlyproceed from the law set by their own sovereign, and not fromthe covenant itself. If they were bound legally to keep the originalcovenant, without a positive law set by their own sovereign, thesubjects would be bound legally to keep the original covenant,through a positive law set by another sovereign: that is to say,they would be in a state of subjection to their own sovereigngovernment, and also to a sovereign government conferring rightsupon their own.

Every convention which obliges (properly or improperly), derivesits efficacy from law (proper or improper). As obliging legally, aconvention derives its efficacy from law positive: As obligingreligiously or morally, it derives its efficacy from the law of Godor from positive morality. - Consequently, if the sovereign orsubjects were bound religiously by the fundamental civil pact, thereligious duty lying on the sovereign, or the religious duty lyingon the subjects, would properly proceed from the Divine law,and not from the pact itself. The party bound religiously wouldbe bound by the law of God through the original covenant: orthe religious duty lying on the party, would be annexed to theoriginal covenant by the law of God.

Now the proper absolute end of an independent political society,and the nature of the index to the law of God, are conceiveddifferently by different men. But whatever be the absolute endof an independent political society, and whatever be the natureof the index to the law of God, the sovereign would be boundreligiously, without an original covenant, to govern to that absoluteend: whilst the subjects would be bound religiously, without anoriginal covenant, to render to the sovereign the obedience whichthe accomplishment of the end might require. Consequently,whether it consisted or conflicted with that proper absolute end,

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the original covenant would not oblige religiously either of thetwo parties. - If the original covenant consisted with that absoluteend, the original covenant would be superfluous, and thereforewould be inoperative. The religious duties lying on the sovereignand subjects, would not be effects or consequences, mediately orimmediately, of the fundamental civil pact. Inasmuch as the Divinelaw would impose those religious duties, although the pact had notbeen made, they would not be effects or consequences annexed tothe pact by the law, or would not be imposed by the law throughthe pact. - If the original covenant conflicted with that absoluteend, it would also conflict with the law which is the source ofreligious obligations, and would not oblige religiously the sovereigngovernment or its subjects.

For example: Let us suppose that the principle of utility is theindex to the law of God; and that, since the principle of utilityis the index to the law of God, the greatest possible advancementof the common happiness or weal is the proper absolute end ofan independent political society. Let us suppose, moreover, thatthe accomplishment of this absolute end was the scope of theoriginal covenant. Now no religious obligation would be laid onthe sovereign or subjects through the fundamental pact. For thesovereign would be bound religiously, without the fundamentalpact, to govern to the very end at which its authors had aimed:whilst the subjects would be bound religiously, without the funda-mental pact, to render to the sovereign the obedience which theaccomplishment of the end might require. And if the accomplish-ment of this same end were not the scope of the pact, the pactwould conflict with the law as known through the principle ofutility, and would not oblige religiously either of the two parties.To make a promise which general utility condemns, is an offenceagainst the law of God: but to break a promise of a generallypernicious tendency, is the fulfilment of a religious duty.

And though the original sovereign or the original subjects mighthave been bound religiously by the original covenant, why or howshould it bind religiously the following sovereigns or subjects?Duties to the subjects for the time being, would be laid by thelaw of God on all the following sovereigns; and duties to thesovereign for the time being, would be laid by the law of Godon all the following subjects: but why should those obligations

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be laid on those following parties, through the fundamental pact?through or in consequence of a pact made without their authority,and even without their knowledge? Legal obligations often lieupon parties (as, for example, upon heirs or administrators),through or in consequence of promises made by other partieswhose legal representatives they are: whose faculties or means offulfilling obligations devolve or descend to them by virtue ofpositive law. And I perceive readily, why the legal obligationswhich are consequent on those promises, extend from the makersof the promises to the parties who legally represent them. It isexpedient, for various reasons, that positive law should imposeobligations on the makers of certain promises: and for the same,or nearly the same, reasons, it is expedient that the legal dutieswhich are laid on the makers themselves, should pass to theparties who legally represent them, and who take their facultiesor means. But I am unable to perceive, why or how a promiseof the original sovereign or subjects should bind religiously thefollowing sovereigns or subjects: Though I see that the cases oflegal obligation to which I now have adverted, probably suggestedthe groundless conceit to those who devised the hypothesis of afundamental civil pact.

If the sovereign were bound morally to keep the original coven-ant, the sovereign would be bound by opinions current amongstthe subjects, to govern to the absolute end at which its authorshad aimed: And if the subjects were bound morally to keep theoriginal covenant, the subjects would be bound severally by opi-nions of the community at large, to render to the sovereign theobedience which the accomplishment of the end might require.But the moral obligations thus incumbent on the sovereign, withthe moral obligations thus incumbent on the subjects, would notbe engendered or affected by the original covenant. They wouldnot be imposed by the positive morality of the community, throughor in consequence of the pact. For the opinions obliging thesovereign to govern to that absolute end, with the opinions obligingthe subjects to render that requisite obedience, would not beconsequents of the pact, but would have been its antecedent:inasmuch as the pact itself would have been made by the foundersof the community, because those very opinions were held by allor most of them.

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We may, if we like, imagine and assume, that the fanciedoriginal covenant was conceived and constructed by its authors,with some particularity and precision: that, having determined theabsolute end of their union, it specified some of the ends positiveor negative, or some of the means or modes positive or negative,through which the sovereign government should rule to thatabsolute end. The founders, for example, of the independentpolitical society (like the Roman people who adopted the TwelveTables), might have adverted specially to the monstrous andpalpable mischiefs of ex post facto legislation: and therefore thefancied covenant might have determined specially, that the sover-eign government about to be formed should forbear from legis-lation of the kind. And if any of those positive or negative endswere specified by the original covenant, the promise of the subjectsto render obedience to the sovereign, was made with specialreservations; it was not extended to any of the cases wherein thesovereign might deviate from any of the subordinate ends whichthe covenant determined specially.

Now the bulk or generality of the subjects, in an independentpolitical community, might think alike or uniformly concerningthe absolute end to which their sovereign government ought torule: and yet their uniform opinions concerning that absolute endmight bind or control their sovereign very imperfectly. Notwith-standing the uniformity of their opinions concerning that absoluteend, the bulk of the subjects might think variously concerningthe conduct of their sovereign: since the proper absolute end ofa sovereign political government, or the absolute end for whichit ought to exist, is inevitably conceived in a form, or is inevitablystated in expressions, extremely abstract and vague. For example:The bulk or generality of the subjects might possibly concur inthinking, that the proper absolute end of their sovereign politicalgovernment was the greatest possible advancement of the generalor common weal: but whether a positive law made by it ex postfacto did or did not comport with its proper absolute end, is clearlya question which they might answer variously, notwithstanding theuniformity of their opinions concerning that paramount purpose.Unless, then, the bulk of the subjects thought alike or uniformlyconcerning more or fewer of its proper subordinate ends, theyhardly would oppose to the government, in any particular case,

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a uniform, simultaneous, and effectual resistance. Consequently,the sovereign government would not be affected constantly by thefear of an effectual resistance from the subject members of thecommunity: and, consequently, their general and uniform opinionsconcerning its paramount purpose would bind or control itfeebly. - But if the mass of the subjects thought alike or uniformlyconcerning more or fewer of its proper subordinate ends, theuniform opinions of the mass, concerning those subordinate ends,would probably control it potently. Speaking generally, the propersubordinate ends of a sovereign political government (let thoseends or means be what they may) may be imagined in forms, ormay be stated in expressions, which are neither extremely abstract,nor extremely vague. Consequently, if the government venturedto deviate from any of the subordinate ends to which thoseuniform opinions were decidedly favourable, the bulk or generalityof the subjects would probably unite in resenting, and even inresisting its measure: for if they tried its measure by one and thesame standard, and if that standard or test were determinate andnot dubious, their respective opinions concerning its measureswould exactly or nearly tally. Consequently, a fear of encounteringan effectual resistance, in case it should venture to deviate fromany of those ends, would constantly hold the government to allthe subordinate ends which the uniform opinions of the massdecidedly favoured. - The extent to which a government is boundby the opinions of its subjects, and the efficacy of the moralduties which their opinions impose upon it, therefore dependmainly on the two following causes: First, the number of itssubordinate ends (or the number of the ends subserving itsabsolute end) concerning which the mass of its subjects thinkalike or uniformly: secondly, the degree of clearness and precisionwith which they conceive the ends in respect whereof theiropinions thus coincide. The greater is that number, and the greateris that degree, the more extensively, and the more effectually, isthe government bound or controlled by the positive morality ofthe community.

Now it follows from what I have premised, that, if an originalcovenant had determined clearly and precisely some of the subor-dinate ends whereto the sovereign should rule, the sovereign wouldbe bound effectually by the positive morality of the community, to

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rule to the subordinate ends which the covenant had thus speci-fied: supposing (I, of course, understand) that those same subordi-nate ends were favoured by opinions and sentiments which themass of the subjects for the time being held and felt. And here(it might be argued) the sovereign would be bound morally torule to those same ends, through the fundamental pact, or inconsequence of the fundamental pact. For (it might be said) theefficacy of the opinions binding the sovereign government wouldmainly arise from the clearness and precision with which thosesame ends were conceived by the mass of the subjects; whilstthe clearness and precision of their conceptions would mainlyarise from the clearness and precision with which those sameends had been specified by the original covenant. It will, however,appear on a moment's reflection, that the opinions of the generalityof the subjects, concerning those same ends, would not be engen-dered by but rather would have engendered the covenant: For ifmost of the subject founders of the independent political societyhad not been affected by opinions exactly similar, why were thosesame ends specially determined by the covenant of which thosesubject founders were the principal authors? And, granting thatthe clearness with which they were specified by the covenantwould impart an answering clearness to the conceptions of thefollowing subjects, that effect on the opinions held by the followingsubjects would not be wrought by the covenant as being a covenantor pact: that is to say, as being a promise, or mutual promises,proffered and accepted. That effect would be wrought by the covenantas being a luminous statement of those same subordinate ends.And any similar statement which might circulate widely (as asimilar statement, for example, by a popular and respected writer),would work a similar effect on the opinions of the followingsubjects. Stating clearly and precisely those same subordinateends, it would naturally give to their conceptions of those samesubordinate ends a corresponding clearness and precision.

The following (I think) is the only, or nearly the only case,wherein an original covenant, as being a covenant or pact, mightgenerate or influence any of the duties lying on the sovereign orsubjects.

It might be believed by the bulk of the subjects, that anagreement or convention (or a promise proffered and accepted)

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has that mysterious efficacy which is expressly or tacitly ascribedto it by those who resort to the hypothesis of a fundamental civilpact. - It might be believed by the bulk of the subjects, thatunless their sovereign government had promised so to govern, itwould not be bound by the law of God, or would not be boundsufficiently by the law of God, to govern to what they esteemedits proper absolute end. It might be believed moreover by thebulk of the subjects, that the promise made by the originalsovereign was a promise made in effect by each of the followingsovereigns, and therefore it might be believed by the bulk of thesubjects, that their sovereign government was bound religiouslyto govern to that absolute end, rather because it had promised togovern to that absolute end, than by reason of the intrinsic worthbelonging to the end itself. - Now, if the mass of the subjectspotently believed these positions, the duties of the governmenttowards its subjects, which the positive morality of the communityimposed upon it, would be engendered or affected by the originalcovenant. They would be imposed upon it, wholly or in part,because the original covenant had preceded or accompanied theinstitution of the independent political society. For if it departedfrom any of the ends determined by the original covenant, themass of its subjects would be moved to anger (and perhaps toeventual rebellion), by its breach of its promise, real or supposed,rather than by that misrule of which they esteemed it guilty. Itsbreach of its promise, as being a breach of a promise, would bethe cause of their offence, wholly or in part. For they wouldimpute to the promise, real or supposed, a proper and absoluteworth; or they would care for the promise, real or supposed,without regard to its scope and tendency.

It appears from the foregoing analysis, that, although the forma-tion of the independent political society had really been precededby a fundamental civil pact, none of the legal or religious dutieslying on the sovereign or subjects could be engendered or influ-enced by that preceding convention: that there is only a singlecase, or are only a few cases, wherein it could engender orinfluence any of the moral duties lying on the same parties. Itwill appear from the following analysis, that, where it mightengender or influence any of those moral duties, that precedingconvention would probably be pernicious.

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Of the duties of the sovereign towards the subjects, and of theduties of the subjects towards the sovereign, it is only those whichare moral, or are imposed by positive morality, that any originalcovenant could possibly affect. And, considered with reference tothose, an original covenant would be simply useless, or would bepositively pernicious.

An original covenant would be simply useless, if it merelydetermined the absolute end of the sovereign political government:if it merely determined that the absolute end of the governmentwas the greatest possible advancement of the common happinessor weal. For though the covenant might give uniformity to theopinions of the mass of the subjects, it would only affect theiropinions concerning that absolute end: And, as I have shownalready, the uniformity of their opinions concerning the paramountpurpose, would hardly influence the conduct of their sovereignpolitical government.

But the covenant might specify some of the means, or someof the subordinate or instrumental ends, through which thegovernment should rule to that its absolute end, or through whichit should so rule as to further the common weal. And as speciallydetermining any of those means, or any of the subordinate endsto which the government should rule, the original covenant wouldbe simply useless, or would be positively pernicious.

For the opinions of the following members of the independentpolitical community, concerning the subordinate ends to whichthe government should rule, would or would be not affected bythe covenant or pact of the founders.

If the covenant of the founders of the community did not affectthe opinions of its following members, the covenant would besimply useless.

If the covenant of the founders of the community did affectthe opinions of its following members, the covenant probablywould be positively pernicious. For the opinions of the followingmembers would probably be affected by the covenant as being acovenant or pact made by the founders. They probably wouldimpute to the subordinate ends specified by the original covenant,a worth extrinsic and arbitrary, or independent of their intrinsicmerits. A belief that the specified ends were of a useful orbeneficent tendency, or were ends tending to the furtherance of

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the common happiness or weal, would not be their reason, orwould not be their only reason, for regarding the ends with respect.They probably would respect the specified ends, or probablywould partly respect them, because the venerable founders of theindependent political society (by the venerable covenant or pactwhich was the basis of the social fabric) had determined thatthose same ends were some of the ends or means through whichthe weal of the community might be furthered by its sovereigngovernment. Now the venerable age or times wherein thecommunity was founded, would probably be less enlightened(notwithstanding its claims to veneration) than any of the ensuingand degenerate ages through which the community might endure.Consequently, the following pernicious effect would be wrought bythe original covenant. The opinions held in an age comparativelyignorant, concerning the subordinate ends to which the govern-ment should rule, would influence, more or less, through themedium of the covenant, the opinions held, concerning those ends,in ages comparatively knowing. - Let us suppose, for example,that the formation of the British community was preceded by afundamental pact. Let us suppose (a 'most unforced' supposition),that the ignorant founders of the community deemed foreigncommerce hurtful to domestic industry. Let us, therefore, suppose,moreover, that the government about to be formed promised foritself and its successors, to protect the industry of its own society, byforbidding and preventing the importation of foreign manufactures.Now if the fundamental pact made by our worthy ancestors weredevoutly reverenced by many of ourselves, it would hinder thediffusion of sound ceconomical doctrines through the presentcommunity. The present sovereign government would, therefore,be prevented by the pact, from legislating wisely and usefully inregard to our commercial intercourse with other independentnations. If the government attempted to withdraw the restrictionswhich the laws of preceding governments have laid on our foreigncommerce, the fallacies which now are current, and the nonsensewhich now is in vogue, would not be the only fallacies, and wouldnot be the only nonsense, wherewith the haters of improvementwould belabour the audacious innovators. All who delighted in'things ancient,' would certainly accuse it of infringing a principlewhich was part of the very basis whereon the community rested:

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which the wise and venerable authors of the fundamental pactitself had formerly adopted and consecrated. Nay, the lovers ofdarkness assuredly would affirm, and probably would potentlybelieve, that the government was incompetent to withdraw therestrictions which the laws of preceding governments have laidon our foreign commerce: that being, as it were, a privy of thefirst or original government, it was estopped by the solemn promisewhich that government had given.

Promises or oaths on the part of the original sovereign, orpromises or oaths on the part of succeeding sovereigns, are notthe efficient securities, moral or religious, for beneficent governmentor rule. - The best of moral securities, or the best of the securitiesyielded by positive morality, would arise from a wide diffusion,through the mass of the subjects, of the soundest political sciencewhich the lights of the age could afford. If they conceived correctlythe paramount end of their government, with the means or subor-dinate ends through which it must accomplish that end, none ofits measures would be grossly foolish or wicked, and its conductpositive and negative would commonly be wise and beneficent. -The best of religious securities, or the best of the securities yieldedby religious convictions, would arise from worthy opinions, heldby rulers and subjects, concerning the wishes and purposes ofthe Good and Wise Monarch, and concerning the nature of theduties which he lays upon earthly sovereigns.

2. It appears from the foregoing strictures on the hypothesisof the original covenant, that the hypothesis is needless, and isworse than needless: that we are able to account sufficiently,without resorting to the hypothesis, for the duties of subjectstowards their sovereign government, with the duties of the sover-eign government towards its subjects; and that, though the forma-tion of the independent political society had really been precededby a fundamental civil pact, scarce any of those obligations wouldbe engendered or influenced by that preceding agreement. It willappear from the following strictures, that the hypothesis of thefundamental pact is not only a fiction, but is a fiction approachingto an impossibility: that the institution of a JtoAig or civitas, orthe formation of a society political and independent, was neverpreceded or accompanied, and could hardly be preceded oraccompanied, by an original covenant properly so called, or byaught resembling the idea of a proper original covenant.

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Every convention properly so called, or every pact or agreementproperly so called, consists of a promise (or mutual promises)proffered and accepted. Wherever mutual promises are profferedand accepted, there are, in strictness, two or more conventions:for the promise proffered by each, and accepted by the other ofthe agreeing parties, is of itself an agreement. But where theperformance of either of the promises is made by either to dependon the performance of the other, the several conventions are crossor implicated conventions, and commonly are deemed, therefore,one convention. - Where one only of the agreeing parties givesor passes a promise, the promise which is proffered by the one,and which is accepted by the other, is, in the language of jurists,'a convention unilateral? Where each of the agreeing parties givesor passes a promise, and the performance of either of the promisesis made to depend on the performance of the other, the severalpromises respectively proffered and accepted, are, in the languageof jurists, a 'convention bilateral? Where each of the agreeingparties gives or passes a promise, but the performance of eitherof the promises is not made to depend on the performance ofthe other, each of the several conventions is a separate unilateralconvention, although the several conventions be made at one time.For example: If I promise you to render you a service, and ifyou accept the proffered promise, the promise proffered andaccepted forms a convention unilateral. If I promise you to renderyou a service, and you promise me to render me a service therefore,the promises respectively proffered, if they are respectivelyaccepted, form a convention bilateral. If each of us promise theother to render the other a service, but the render of either ofthe services is not made to depend on the render of the other,the promises proffered and accepted are separate unilateral con-ventions, although they be proffered and accepted at one and thesame time. - Since, then, a convention bilateral is formed by theimplication of several unilateral conventions, every convention isproperly a unilateral convention, or a promise proffered andaccepted.

The essentials of a convention may be stated generally thus,i. The promisor, or the party who proffers the promise, promisesthe promisee, or the party to whom it is proffered, that he willdo or perform some given act or acts, will forbear or abstainfrom some given act or acts, or will do or perform and also forbear

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or abstain. And the acts or forbearances which he promises, orthe acts and forbearances which he promises, may be styled theobject of his promise, and also the object of the convention. 2.The promisor signifies to the promisee, that he intends to do theacts, or to observe the forbearances, which form the object ofhis promise. If he signifies this his intention by spoken or writtenwords (or by signs which custom or usage has rendered equivalentto words), his proffered promise is express. If he signifies this hisintention by signs of another nature, his proffered promise is stilla genuine promise, but is implied or tacit. If, for example, Ireceived goods from a shopkeeper, telling him that I mean topay for them, I promise expressly to pay for the goods which Ireceive: for I signify an intention to pay for them, through spokenor written language. Again: Having been accustomed to receivegoods from the shopkeeper, and also to pay for the goods whichI have been accustomed to receive, I receive goods which theshopkeeper delivers at my house, without signifying by wordsspoken or written (or by signs which custom or usage has renderedequivalent to words), any intention or purpose of paying for thegoods which he delivers. Consequently, I do not promise expresslyto pay for the particular goods. I promise, however, tacitly. Forby receiving the particular goods, under the various circumstanceswhich have preceded and accompanied the reception, I signify tothe party who delivers them, my intention of paying for the goods,as decidedly as I should signify it if I told him that I meant topay. The only difference between the express, and the tacit orimplied promise, lies in the difference between the natures of thesigns through which the two intentions are respectively signified orevinced. 3. The promisee accepts the proffered promise. In otherwords, he signifies to the promisor, expressly or tacitly, his beliefor expectation that the latter will do or forbear agreeably to theintention or purpose which the latter has expressed or intimated.Unless the promise be accepted, or such a belief or expectationbe signified expressly or tacitly, the promise is not a convention.If the acts or forbearances which form the object of the promisebe afterwards done or observed, they are done or observed spon-taneously by the promising party, or not by reason of the promiseconsidered as such: for the promise would not be enforced (legallyor morally) by a rational supreme government or a sane public

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opinion. In the technical language of the Roman jurists, and bymost of the modern jurists who are familiar with that technicallanguage, a promise proffered but not accepted is styled apollicitation.

Consequently, the main essentials of a convention are these:First, a signification by the promising party, of his intention to dothe acts, or to observe the forbearances, which he promises todo or observe: secondly, a signification by the promisee, that heexpects the promising party will fulfil the proffered promise. Andthat this signification of intention and this signification of expec-tation are of the very essence of a proper convention or agreement,will appear on a moment's reflection.

The conventions enforced by positive law or morality, areenforced legally or morally for various reasons. But of the variousreasons for enforcing any convention, the following is alwaysone. - Sanctions apart, a convention naturally raises in the mindof the promisee (or a convention tends to raise in the mind ofthe promisee), an expectation that its object will be accomplished:and to the expectation naturally raised by the convention, he asnaturally shapes his conduct. Now, as much of the business ofhuman life turns or moves upon conventions, frequent disappoint-ments of those expectations which conventions naturally excite,would render human society a scene of baffled hopes, and ofthwarted projects and labours. To prevent disappointments ofsuch expectations, is therefore a main object of the legal and moralrules whose direct and appropriate purpose is the enforcement ofpacts or agreements. But the promisee would not entertain theexpectation, unless the corresponding intention were signified bythe promising party: and, unless the existence of the expectationwere signified by the promisee, the promising party would notbe apprised of its existence, although the proffered promise hadactually raised it. Without the signification of the intention, therewere no promise properly so called: without the signification ofthe expectation, there were no sufficient reason for enforcing thegenuine promise which really may have been proffered.28

28 The incidental statement, in the text, of the essentials of a convention or pact,is sufficient for the limited purpose to which I have there placed it. If I wereexpounding directly the rationale of the doctrine of contracts, I should annex tothe general statement which I have placed in the text, many explanations and

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It follows from the foregoing statement of the main essentialsof a convention, that an original covenant properly so called, oraught resembling the idea of a proper original covenant, couldhardly precede the formation of an independent political society.

According to the hypothesis of the original covenant, in so faras it regards the promise of the original sovereign, the sovereignpromises to govern to the absolute end of the union (and, perhaps,to more or fewer of its subordinate or instrumental ends). And thepromise is proffered to, and is accepted by, all the original sub-jects. In case the inchoate government be a government of one,the promise passes from the monarch to all the members of thecommunity (excepting the monarch himself). In case the inchoategovernment be a government of a number, it passes from thesovereign body (in its collective and sovereign capacity) to all thesubject members of the inchoate community (including the mem-bers of the body considered severally). - According to the hypoth-esis of the original covenant, in so far as it regards the promise ofthe original subjects, they promise to render to the sovereign apassive and unlimited obedience, or they promise to render to thesovereign such a qualified obedience as shall consist with a givenend or with given ends. And the promise of the subjects passesfrom all the subjects: from all and each of the subjects to themonarch or sovereign body, or from each of the subjects to all andeach of the rest. In case the inchoate government be a governmentof one, it passes from all the members of the inchoate community(excepting the monarch). In case the inchoate government be a

restrictions which now I must pass in silence. A good exposition of that rationale(which jargon and bad logic have marvellously perplexed and obscured) wouldinvolve a searching analysis of the following intricate expressions: promise;pollicitation; convention; agreement, or pact; contract; quasi-contract.

But I will add to the statement in the text, before I conclude the note, thefollowing remark on that consent which is of the essence of a convention. Thatconsent which is of the essence of a convention, is formed of the intentionsignified by the promisor, and of the corresponding expectation signified by thepromisee. This intention with this expectation is styled the consensus of theparties, because the intention and expectation chime or go together, or becausethey are directed to a common object; namely, the acts or forbearances whichform the object of the convention. But the term consent, as used with a widermeaning, signifies any compliance with any wish of another. And, taking theterm with this wider meaning, subjects (as I have shown already) consent to obeytheir sovereign, whether they promise or not to render obedience, and whateverbe the nature of the motives by which they are determined to render it.

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government of a number, it passes from all the members of theinchoate community (including the several members of the sover-eign body).

Now it appears from the foregoing statement of the mainessentials of a convention, that the promise of the sovereign tothe subjects would not be a covenant properly, unless the subjectsaccepted it. But the subjects could hardly accept it, unless theyapprehended its object. Unless they apprehended its object, ithardly could raise in their minds any determinate expectation:and unless it raised in their minds a determinate expectation,they hardly could signify virtually any determinate expectation, orcould hardly accept virtually the proffered promise. The signs ofacceptance which might actually fall from them, would not besigns of virtual acceptance, but would be in reality unmeaningnoise or show. - Now the ignorant and weaker portion of theinchoate community (the portion, for example, which was notadult) could hardly apprehend the object of the sovereign's prom-ise, whether the promise were general or special: whether thesovereign promised generally to govern to the absolute end ofthe independent political society, or promised moreover speciallyto govern specially and directly to certain subordinate ends. Weknow that the great majority, in any actual community, have nodeterminate notions concerning the absolute end to which theirsovereign government ought to rule: that they have no determinatenotions concerning the ends or means through which it shouldaim at the accomplishment of that its paramount purpose. Itsurely, therefore, were absurd to suppose, that all or many of themembers of any inchoate community would have determinatenotions (or notions approaching to determinateness) concerningthe scope of their union, or concerning the means to its attainment.Consequently, most or many of the original subjects would notapprehend the object of the original sovereign's promise: and,not apprehending its object, they would not accept it in effect,although they might accept it in show. With regard to most ormany of the original subjects, the promise of the original sovereignwere hardly a covenant or pact, but were rather a pollicitation.

The remarks which I now have made on the promise of theoriginal sovereign, will apply, with a few adaptations, to the prom-ise of the original subjects. If really they proffered to the sovereign

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(or if really they proffered to one another) that promise to renderobedience which the hypothesis supposes or feigns, they wouldsignify expressly or tacitly an intention of fulfilling it. But such asignification of intention could not be made by all of them, oreven by most or many of them: for by most or many of them,the object of the fancied promise would not be apprehendeddeterminately, or with a distant approach to determinateness. -If you feign that the promise to obey passes from the subjectsto the subjects, you thicken the absurdity of the fiction. You fancythat a promise is proffered by parties to whom the object of thepromise is nearly or quite unintelligible: and, seeing that thepromisors are also the promisees, you fancy that the promise isaccepted by parties to whom the object of the promise is equallyincomprehensible.

If you would suppose an original covenant which as a merehypothesis will hold water, you must suppose that the societyabout to be formed is composed entirely of adult members: thatall these adult members are persons of sane mind, and even ofmuch sagacity and much judgment: and that being very sagaciousand very judicious, they also are perfectly familiar, or at least arepassably acquainted, with political and ethical science. On thesebare possibilities, you may build an original covenant which shallbe a coherent fiction.

It hardly is necessary to add, that the hypothesis of the originalcovenant, in any of its forms or shapes, has no foundation inactual facts. There is no historical evidence, that the hypothesishas ever been realised: that the formation of any society politicaland independent has actually been preceded by a proper originalcovenant, or by aught approaching to the idea.

In a few societies political and independent (as, for example,in the Anglo-American States), the sovereign political governmenthas been determined at once, and agreeably to a scheme orplan. But, even in these societies, the parties who determinedthe constitution (either as scheming or planning, or as simplyvoting or adopting it) were merely a slender portion of thewhole of the independent community, and were virtually sover-eign therein before the constitution was determined: insomuchthat the constitution was not constructed by the whole of aninchoate community, but rather was constructed by a fraction

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of a community already consummate or complete. If you wouldshow me an actual case exactly squaring with the idea of aproper original covenant, you must show me a society politicaland independent, with a government political and sovereign,which all the members of the society who were then in existencejointly founded and constituted. You must show me, also, thatall the subject or sovereign authors of this society and govern-ment were parties expressly or tacitly to a true or genuineconvention resembling the original covenants which I have men-tioned above. - In most societies political and independent, theconstitution of the supreme government has grown. By whichfustian but current phrase, I tend not to intimate that it hathcome of itself, or is a marvellous something fashioned withouthands. For though we say of governments which we mean topraise, 'that they are governments of laws, and not governmentsof men,' all human governments are governments of men: And,without men to make them, and without men to enforce them,human laws were just nothing at all, or were merely idle wordsscribbled on paper or parchment. I intend to intimate, by thephrase in question, that the constitution of the supreme govern-ment has not been determined at once, or agreeably to a schemeor plan: that positive moral rules of successive generations ofthe community (and, perhaps, positive laws made by its successivesovereigns) have determined the constitution, with more or lessof exactness, slowly and unsystematically. Consequently, thesupreme government was not constituted by the original membersof the society: Its constitution has been the work of a longseries of authors, comprising the original members and manygenerations of their followers. And the same may be said ofmost of the ethical maxims which opinions current with thesubjects constrain the sovereign to observe. The original sover-eign government could not have promised its subjects to governby those maxims. For the current opinions which actually enforcethose maxims, are not coeval with the independent politicalsociety, but rather have arisen insensibly since the society wasformed. - In some societies political and independent, oaths orpromises are made by rulers on their accession to office. Butsuch an oath or promise, and an original covenant to whichthe original sovereign is a promising party, have little or no

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resemblance. That the formation of the society political andindependent preceded the conception of the oath itself, is com-monly implied by the terms of the latter. The swearing party,moreover, is commonly a limited monarch, or occupies someposition like that of a limited monarch: that is to say, theswearing party is not sovereign, but is merely a limb or memberof a sovereign body.

And if actual original covenants might be detected in history,they would not sustain the hypothesis. For, according to thehypothesis, an original covenant necessarily precedes the formationof an independent political society. And in numerous cases ofindependent political society, the formation of the society, as weknow from history, was not preceded by an original covenant: Or,at least, the formation of the society, as we know from history,was not preceded by an express original covenant.

It is said, however, by the advocates of the hypothesis (for thepurpose of obviating the difficulty which these negative casespresent), that a tacit original covenant preceded the formation ofthe society, although its formation was not preceded by an expresscovenant of the kind.

Now (as I have shown above) an actual signification of intentionon the part of the promisor, with an actual acceptance of thepromise on the part of the promisee, are of the very essence ofa genuine convention or pact, be it express, or be it tacit. Theonly difference between an express, and a tacit or implied conven-tion, lies in this: That, where the convention is express, theintention and acceptance are signified by language, or by signswhich custom or usage has rendered equivalent to language: butthat, where the convention is tacit or implied, the intention andacceptance are not signified by words, or by signs which customor usage has made tantamount to words.29

29 Quasi-contracts, or contracts quasi or uti, ought to be distinguished carefullyfrom tacit or implied contracts. A tacit or implied contract is a genuine contract:that is to say, a genuine convention which binds legally, or to which positivelaw annexes an obligation. But a quasi-contract is not a genuine convention,and, by consequence, is not a genuine contract. It is some fact or event, not agenuine convention, to which positive law annexes an obligation, as if (quasi oruti) it were a genuine convention. And the analogy between a contract and acontract quasi or wft, merely lies in the resemblance between the two obligationswhich are annexed respectively to the two facts or events. In other respects the

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Most or many, therefore, of the members of the inchoatesociety, could not have been parties, as promisors or promisees,to a tacit original covenant. Most or many of the members couldnot have signified virtually the requisite intention or acceptance:for they could not have conceived the object (as I have shownabove) with which, according to the hypothesis, an original coven-ant is concerned.

two facts are dissimilar. For example: The payment and receipt of moneyerroneously supposed to be owed, is a fact or event amounting to a contractquasi. There is nothing in the fact or event that savours of a convention orpact; for the fulfilment of an existing obligation, and not the creation of a futureobligation, is the scope or design of the transaction between the payor andpayee. But since the money is not owed, and is not given as a gift, a legalobligation to return it lies upon the payee from the moment of the erroneouspayment. Although he is not obliged ex contractu, he is obliged quasi ex contractu,as if he truly had contracted to return the money. The payee is obliged toreturn it, as he might have been obliged, if, he had promised to return it, andthe payor had accepted his promise.

In the language of English jurisprudence, facts or events which are contractsquasi, or uti, are styled implied contracts, or contracts which the law implies: that isto say, contracts quasi or uti, and genuine though tacit contracts, are denotedby a common name, or by names nearly alike. And, consequently, contracts, quasior uti, and implied or tacit contracts, are commonly or frequently confounded byEnglish lawyers. See, in particular, Sir William Blackstone's Commentaries, B.II.Ch. 30., and B.III. Ch. 9.

As the reader may see in the annexed outline (LJ, p. 45), rights of one greatclass are rights in personam certam: that is to say, rights which avail exclusivelyagainst persons determined specifically, or which answer to duties that lieexclusively on persons determined specifically. To the duties answering to suchrights, the Roman lawyers limit the expression obligationes: and since they haveno name appropriate to rights of the class, they apply that expression to therights themselves as well as to the answering duties which the rights import.Now rights in personam, or obligationes, arise principally from facts of two classes:namely, genuine contracts express or tacit, and delicts or injuries. But besidescontracts and delicts, there are facts or events, not contracts or delicts, to whichpositive law annexes obligationes. By the Roman lawyers, these facts or eventsare styled quasi-contracts: or the obligations annexed to these facts or events,are styled obligations quasi ex contractu. These facts or events are styled quasi-contracts, for two reasons. 1. Inasmuch as the obligations annexed to themresemble the obligations annexed to contracts, they are, in that respect, analogousto contracts. 2. The only resemblance between their species or sorts, lies in theresemblance between the obligations which are respectively annexed to them.Consequently, the common name of quasi-conxxzcxs is applied to the genus orkind, for want of a generic term more apt and significant. - As the expressionis employed by the Roman lawyers, 'obligationes quasi ex contractu' is equivalentto 'anomalous obligations/ or to 'miscellaneous obligations:' that is to say, obli-gationes, or rights in personam, which are annexed to facts that are neither contractsnor delicts', and which being annexed to facts that are neither contracts nor

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Besides, in many of the negative cases to which I now amadverting, the position and deportment of the original sovereigngovernment, and the position and deportment of the bulk of theoriginal subjects, exclude the supposition of a tacit original coven-ant. For example: Where the original government begins in aviolent conquest, it scarcely promises tacitly, by its violencestowards the vanquished, that it will make their weal the paramountend of its rule. And a tacit promise to render obedience to theintrusive and hated government, scarcely passes from the reluctantsubjects. They presently will to obey it, or presently consent toobey it, because they are determined to obey it, by their fear ofits military sword. But the will or consent to obey it presently, towhich they are thus determined, is scarcely a tacit promise (or atacit manifestation of intention) to render it future obedience. Forthey intimate pretty significantly, by the reluctance with whichthey obey it, that they would kick with all their might against theintrusive government, if the military sword which it brandisheswere not so long and fearful.

By the recent and present advocates of the hypothesis of theoriginal covenant (who chiefly are German writers on politicalgovernment and society), it commonly is admitted that originalcovenants are not historical facts: that an actual original covenantnever preceded the formation of any actual society political andindependent. But they zealously maintain, notwithstanding thissweeping admission, that the only sufficient basis of an indepen-dent political society is a fundamental civil pact. Their doctrine,therefore, touching the original covenant amounts to this: namely,that the original covenant hath not preceded the formation of anysociety political and independent: but that though it hath notpreceded the formation of any, it yet precedeth inevitably theformation of every. - Such is a taste or sample of the high idealphilosophy which the Germans oppose exultingly to the philosophy

delicts, cannot be brought under either of those two principal classes into whichrights in personam are aptly divisible. 'Obligationes (say the Digests) aut excontractu nascuntur, aut ex maleficio (sive delicto), aut proprio quodam jure exvariis causarum figuris.' - The confusion of quasi-contracts with tacit yet genuinecontracts, is certainly not imputable to the Roman jurists. But with modernlawyers (how, I cannot conjecture), this gross confusion of ideas is extremelyfrequent. It is, indeed, the cause of most of the nonsense and jargon whichhave covered the nature of conventions with nearly impenetrable obscurity.

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of Bacon and Locke: to the earthly, grovelling, empirical philos-ophy, which deigns to scrutinise facts, or stoops to observationand induction.

It would seem that the propounders of this lucid and coherentdoctrine, mean to insist on one or another of the two followingpositions, i. That an express original covenant has not precededthe formation of any society political and independent: but thata tacit original covenant (or an original covenant imported by thefact of the formation) necessarily precedes the formation of everysociety of the kind. 2. That the formation of a society politicaland independent must have been preceded by a fundamental civilpact, if the sovereign political government be rightful, lawful, orjust - Venn es rechtsbestdndig sein soil:' Meaning by 'rightful,''lawful,' or 'just,' consonant to the law of God (as known somehowor other), or consonant to the right or justice (mentioned inforegoing pages) which exists independently of law, and is thetest of all law.

On which of these positions they mean to insist, I cannotdetermine: for they waver impartially between the two, or evincea perceptible inclination to neither. And an attempt to determinethe position on which they mean to insist, were profitless labour:seeing that both positions are false and absurd. - As I haveshown above, a tacit original covenant could scarcely precede theformation of an independent political society. And, granting thesecond of the two positions, no sovereign government has beenor can be lawful. For, according to their own admission, theformation of a society political and independent was never pre-ceded actually by a fundamental civil pact: And, as I have shownabove, a proper original covenant, or aught approaching to theidea, could scarcely precede the formation of any society of thekind.30

30 For the notions or language, concerning the original covenant, of recent Germanwriters on political government and society, I refer the curious reader to thefollowing books. - 1. Kant's Metaphysical Principles of Jurisprudence. For theoriginal covenant, see the head Das Staatsrecht. - 2. A well made PhilosophicalDictionary (in four octavo volumes), by Professor Krug of the University ofLeipzig. For the original covenant, see the article Staatsursprung. - 3. AnExposition of the Political Sciences {Staats-wissenschafteri), by Professor Politz ofthe same University: an elaborate and useful work in five octavo volumes. Forthe original covenant, see the head Stoats und Staatenrecht. - 4. The Historical

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3. I close my strictures on the hypothesis of the original coven-ant, with the following remark:

It would seem that the hypothesis was suggested to its authors,by one or another of these suppositions. 1. Where there is noconvention, there is no duty. In other words, whoever is obliged,is obliged through a promise given and accepted. 2. Every conven-tion is necessarily followed by a duty. In other words, wherevera promise is given and accepted, the promising party is obligedthrough the promise, let its object and tendency be what theymay. - It is assumed, expressly or tacitly, by Hobbes, Kant, andothers, that he who is bound has necessarily given a promise,and that he who has given a promise is necessarily bound.

It follows from the first supposition, that unless the sovereignand subjects were bound through a pact, neither of the partieswould lie under duties to the other. It follows from the secondsupposition, that if the sovereign and subjects were parties to anoriginal covenant (either immediately, or as representing the foun-ders of the community), each of the parties would be bound tothe other, assuredly and indissolubly. As the duties of each towardsthe other would be imposed through a pact, they would possessa certain sacredness which perhaps they might want if they wereimposed otherwise.

But both suppositions are grossly and obviously false. - Ofreligious, legal, and moral duties, some are imposed by the laws

Journal (for Nov. 1799) of Fr. v. Gentz: a celebrated servant of the Austriangovernment.

For, in Germany, the lucid and coherent doctrine to which I have advertedin the text, is not maintained exclusively by mere metaphysical speculators, andmere university-professors, of politics and jurisprudence. We are gravely assuredby Gentz, that the original covenant (meaning this same doctrine touching theoriginal covenant) is the very basis of the science of politics: that, without acorrect conception of the original covenant, we cannot judge soundly on any ofthe questions or problems which the science of politics presents. 'Der gesell-schaftliche Vertrag (says he) ist die Basis der allgemeinen Staatswissenschaft.Eine richtige Vorstellung von diesem Vertrage ist das erste Erforderniss zueinem reinen Urtheile iiber alle Fragen und Aufgaben der Politik.' Nay, hethinks that this same doctrine touching the original covenant, is probably thehappiest result of the newer German philosophy; insomuch that the fairestproduct of the newer German philosophy, is the conceit of an original covenantwhich never was made anywhere, but which is the necessary basis of politicalgovernment and society. - Warmly admiring German literature, and profoundlyrespecting German scholarship, I cannot but regret the proneness of Germanphilosophy to vague and misty abstraction.

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which are their respective sources, through or in consequence ofconventions. But others are annexed to facts which have noresemblance to a convention, or to aught that can be deemed apromise. Consequently, a sovereign government might lie underduties to its subjects, and its subjects might lie under dutiestowards itself, though neither it nor its subjects were boundthrough a pact. - And as duties are annexed to facts which arenot pacts or conventions, so are there pacts or conventions whichare not followed by duties. Conventions are not enforced by divineor human law, without reference to their objects and tendencies.There are many conventions which positive morality reprobates:There are many which positive law will not sustain, and manywhich positive law actively annuls: There are many which conflictwith the law of God, inasmuch as their tendencies are generallypernicious. Consequently, although the sovereign and subjectswere parties to an original covenant, neither the sovereign norsubjects would of necessity be bound by it.

From the origin or causes of political government and society, The distinction ofI pass to the distinction of sovereign governments into govern- s<

0^^ents int0ments de jure and governments de facto. For the two topics are governments deso connected, that the few brief remarks which I shall make on jure and

t .7 governments de

the latter, may be placed aptly at the end of my disquisition on facto.the former.

In respect of the distinction now in question, governments arecommonly divided into three kinds: First, governments which aregovernment de jure and also de facto; secondly, governments whichare government de jure but not de facto; thirdly, governments whichare government de facto but not de jure. A government de jure andalso de facto•, is a government deemed lawful, or deemed rightfulor just, which is present or established: that is to say, whichreceives presently habitual obedience from the bulk or generalityof the members of the independent political community. A govern-ment de jure but not de facto, is a government deemed lawful, ordeemed rightful or just, which, nevertheless, has been supplantedor displaced: that is to say, which receives not presently (althoughit received formerly) habitual obedience from the bulk of thecommunity. A government de facto but not de jure, is a governmentdeemed unlawful, or deemed wrongful or unjust, which, neverthe-less, is present or established: that is to say, which receives

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presently habitual obedience from the bulk of the community. Agovernment supplanted or displaced, and not deemed lawful, isneither a government de facto nor a government de jure. - Anygovernment deemed lawful, be it established or be it not, is agovernment de jure. By a government, however, de jure we oftenmean, a government which is deemed unlawful, but which, never-theless, has been supplanted or displaced. Any established govern-ment, be it deemed lawful or be it deemed unlawful, is a govern-ment de facto. By a government, however, de facto, we often meana government which is deemed unlawful, but which, nevertheless,is established or present. - It scarcely is necessary to add, thatevery government properly so called is a government de facto. Instrictness, a so called government de jure but not de facto, is nota government. It merely is that which was a government once,and which (according to the speaker) ought to be a governmentstill.

In respect of positive law, a sovereign political government whichis established or present, is neither lawful nor unlawful: In respectof positive law, it is neither rightful nor wrongful, it is neitherjust nor unjust. Or (changing the expression) a sovereign politicalgovernment which is established or present, is neither legal norillegal.

In every society political and independent, the actual positivelaw is a creature of the actual sovereign. Although it was positivelaw under foregoing sovereigns, it is positive law presently, or ispositive law, through the power and authority of the presentsupreme government. For though the present government mayhave supplanted another, and though the supplanted governmentbe deemed the lawful government, the supplanted government isstripped of the might which is requisite to the enforcement ofthe law considered as positive law. Consequently, if the law werenot enforced by the present supreme government, it would wantthe appropriate sanctions which are essential to positive law, and,as positive law, would not be law imperative: that is to say, aspositive law, it would not be law. - To borrow the language ofHobbes, 'The legislator is he (not by whose authority the lawwas first made, but) by whose authority it continues to be law.'

Consequently, an established sovereign government, in respectof the positive law of its own independent community, is neither

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lawful nor unlawful. If it were lawful or unlawful, in respect ofthe positive law of its own independent community, it were lawfulor unlawful by law of its own making, or were lawful or unlawfulby its own appointment. Which is absurd. - And if it were lawfulor unlawful, in respect of the positive law of another independentcommunity, it were lawful or unlawful by the appointment ofanother sovereign: that is to say, it were not an actual supreme,but an actual subordinate government. Which also is absurd.

In respect of the positive law of that independent communitywherein it once was sovereign, a so called government de jure butnot de facto, is not, and cannot be, a lawful government: for thepositive law of that independent community is now positive lawby the authority of the government de facto. And though it nowwere positive law by the authority of the displaced government,the displaced government, in respect of this law, were neitherlawful nor unlawful: for if, in respect of this law, the displacedgovernment were lawful or unlawful, it were lawful or unlawfulby law of its own making, or were lawful or unlawful by its ownappointment. The truth is, that, in respect of the positive law ofthat independent community, the supplanted government, thoughdeemed de jure, is unlawful: for, being positive law by the authorityof the government de facto, this positive law proscribes the sup-planted government, and determines that attempts to restore itare legal wrongs. - In respect of the positive law of anotherindependent community, a so called government de jure but notde facto, is neither lawful nor unlawful. For if, in respect of thislaw, it were lawful or unlawful, it were lawful or unlawful by theappointment of the law-maker; that is to say, it were not anousted supreme, but an ousted subordinate government.

In respect, then, of positive law, the distinction of sovereigngovernments into lawful and unlawful is a distinction without ameaning. For, as tried by this test, or as measured by this standard,a so called government de jure but not de facto cannot be lawful:And, as tried by the same test, or measured by the same standard,a government de facto is neither lawful nor unlawful.

In respect, however, of positive morality, the distinction of sover-eign governments into lawful and unlawful, is not a distinctionwithout a meaning. For, in respect of positive morality, a govern-ment not de facto is not of necessity unlawful. And, in respect of

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positive morality, the term 'lawful' or 'unlawful,' as applied to agovernment de facto, is not of necessity jargon.

A government de facto may be lawful, or a government de factomay be unlawful, in respect of the positive morality of thatindependent community wherein it is established. If the opinionsof the bulk of the community favour the government de facto, thegovernment de facto is morally lawful in respect of the positivemorality of that particular society. If the opinions of the bulk ofthe community be adverse to the government de facto, it is morallyunlawful in respect of the same standard. The bulk, however, ofthe community, may regard it with indifference: or a large portionof the community may regard it with favour, whilst another con-siderable portion regards it with aversion. And, in either of thesecases, it is neither morally lawful, nor morally unlawful, in respectof the positive morality of that independent community whereinit is established. - And what I have said of a government de facto,in regard to the morality of the community wherein it is estab-lished, may also be said of a government not a government defacto, in regard to the morality of the community wherein itformerly ruled.

And a government de facto, or a government not de facto, maybe morally lawful, or morally unlawful, in respect of the positivemorality which obtains between nations or states. Though positiveinternational morality looks mainly at the possession, every govern-ment in possession, or every government de facto, is not acknowl-edged of course by other established governments. In respect,therefore, of positive international morality, a government de factomay be unlawful, whilst a government not de facto may be agovernment de jure.

A government, moreover, de facto, or a government not de facto,may be lawful or unlawful in respect of the law of God. Triedby the Divine law, as known through the principle of utility, asovereign government de facto is lawfully a sovereign government,if the general happiness or weal requires its continuance: Triedby the same law, as known through the same index, a sovereigngovernment de facto is not lawfully sovereign, if the general happi-ness or weal requires its abolition. Tried by the Divine law, asknown through the principle of utility, a government not de factois yet a government de jure, if the general happiness or weal

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requires its restoration: Tried by the same law, as known throughthe same exponent, a government not de facto is also not de jure,if the general happiness or weal requires its exclusion.

A positive law may be defined generally in the following manner: A generalor the essential difference of a positive law (or the difference dtfi^km. ofa

nr v positive law: Or a

which severs it from a law not a positive law) may be stated general statementgenerally in the following manner. - Every positive law (or every ^ ^ J ^ T ' ^law simply and strictly so called) is set, directly or circuitously, which it is severedby a sovereign individual or body, to a member or members of ^°™ tive &»? ^ *the independent political society wherein its author is supreme.In other words, it is set, directly or circuitously, by a monarchor sovereign number, to a person or persons in a state of subjectionto its author.

This definition of a positive law is assumed expressly or tacitly This definition ofthroughout the foregoing lectures. But it only approaches to a Jperfectly complete and perfectly exact definition. It is open to or tacitlycertain correctives which I now will briefly suggest. tfea

The party or parties to whom a law is set, or the party or But it onlyparties on whom a duty is laid, are necessarily obnoxious to the ^ff^jL^sanction which enforces the law and the duty. In other words, and perfectly exactevery law properly so called is set by a superior to an inferior or ^slTmtt^theinferiors: It is set by a party armed with might, to a party or determination ofparties whom that might can reach. If the party to whom it is t%£™j^set could not be touched by the might of its author, its author which is attemptedwould signify to the party a wish or desire, but would not impose fj^/0^™ 8

on the party a proper and imperative law. Now (speaking generally) approves to aa party who is obnoxious to a legal sanction, or to the might of ^ ^ ^ o ! Lthe author of the law which the legal sanction enforces, is a determination.member of the independent community wherein the author issovereign. In other words, a party who is obnoxious to a legalsanction is a subject of the author of the law to which the sanctionis annexed. But as none but members of the community whereinthe law obtains are obnoxious to the legal sanction which enforcesa positive law, the positive law is imposed exclusively on a memberor members of that independent community. Although the positivelaw may affect to oblige strangers (or parties who are not membersof that independent community), none but members of that inde-pendent community are virtually or truly bound by it. - Besides,

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if the positive law of one independent community bound legallythe members of another, the other independent community werenot an independent community, but were merely a subordinatecommunity forming a limb of the first. If it bound the sovereigngovernment of the other independent community, that sovereigngovernment would be in a state of subjection to the sovereignauthor of the law. If it bound the subject members of the otherindependent community, the sovereign author of the law wouldusurp the functions and authority of their own sovereign govern-ment: or their own sovereign government would be displaced orsupplanted by the foreign and intrusive lawgiver. So that if thepositive law of every independent community bound legally themembers of others, the subjects in every community would besubject to all sovereigns, and every sovereign government wouldbe sovereign in all societies. In other words, the subject membersof every independent community would be in a state of subjectionto every supreme government; whilst every supreme governmentwould be the subject of the rest, and, at the same time, wouldbe their sovereign.

Speaking, then, generally, we may say that a positive law is setor directed exclusively to a subject or subjects of its author: orthat a positive law is set or directed exclusively to a member ormembers of the community wherein its author is sovereign. But,in many cases, the positive law of a given independent communityimposes a duty on a stranger, on a party who is not a member ofthe given independent community, or is only a member to certainlimited purposes. For such, in these cases, is the position of thestranger, that, though he is properly a member of a foreignindependent community, and therefore is properly a subject of aforeign supreme government, he yet is obnoxious to the sanctionby which the duty is enforced, or to the might of the author ofthe law through which the duty is imposed. And such, in thesecases, is also the position of the stranger, that the imposition ofthe legal duty consists with the sovereignty of the government ofwhich he is properly a subject. Although the legal duty is laidon one of its subjects, it is not laid on the foreign governmentitself: nor does the author of the law, by imposing the legalduty, exercise sovereign power in the community of the foreigngovernment, or over one of its subjects as being one of its

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subjects. - For example: A party not a member of a givenindependent community, but living within its territory and withinthe jurisdiction of its sovereign, is bound or obliged, to a certainlimited extent by its positive law. Living within the territory, heis obnoxious to the legal sanctions by which the law is enforced.And the legal duties imposed upon him by the law are consistentwith the sovereignty of the foreign government of which he isproperly a subject. For the duties are not imposed upon theforeign government itself, or upon a party within its independentcommunity: nor are they laid upon the obliged party as beingone of its subjects, but as being a member, to certain limitedpurposes, of the community wherein he resides. Again: If astranger not residing within the given community be the ownerof land or moveables lying within its territory, a convention ofthe stranger, with any of its members or a stranger, may beenforced against him by its positive law. For if he be sued onthe agreement, and judgment be given for the plaintiff, the tribunalmay execute its judgment by resorting to the land or moveables,although the defendant's body is beyond the reach of its process.And this execution of the judgment consists with the sovereigntyof the government of which the stranger is properly a subject.For the judgment is not executed against that foreign government,or within the independent community of which it is the chief:nor is it executed against the defendant as being one of itssubjects, but as owning land or moveables within the jurisdictionof the tribunal. If the judgment were executed within the jurisdic-tion of the foreign supreme government, the execution wouldwound the sovereignty of the foreign supreme government, unlessthe judgment were executed through its permission and authority.And if the judgment were executed through its permission andauthority, the duty enforced against the defendant would beimposed in effect by the law of his own community: the law ofhis own community adopting the law of the other, by reason ofa special convention between the respective governments, or of arule of international morality which the governments acknowledgeand observe. - In all the cases, therefore, which I now have notedand exemplified, the positive law of a given independent societymay impose a duty on a stranger. By reason of the obstaclesmentioned in the last paragraph, the binding virtue of the positive

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law cannot extend generally to members of foreign communities.But in the cases which I now have noted and exemplified thoseobstacles do not intervene. For the stranger is obnoxious to thesanctions by which the law is enforced: and the enforcement ofthe law against the stranger is not inconsistent with the sovereigntyof a foreign supreme government.

The definition, therefore, of a positive law, which is assumedexpressly or tacitly throughout the foregoing lectures, is not a per-fectly complete and perfectly exact definition. In the cases noted andexemplified in the last paragraph, a positive law obliges legally, or apositive law is set or directed to, a stranger or strangers: that is to say, aperson or persons not of the community wherein the author of the lawis sovereign or supreme. Now, since the cases in question are omittedby that definition, the definition is too narrow, or is defective or inad-equate. To render that definition complete or adequate, a compre-hensive summary of these anomalous cases (or, perhaps, a full enu-meration of these anomalous cases) must be tacked to the definitionin the way of supplement. - But positive law, the subject of the defi-nition, is the subject of the foregoing attempt to determine the prov-ince of jurisprudence. And since the definition is defective or inad-equate, and is assumed expressly or tacitly throughout the foregoinglectures, the determination of the province of jurisprudence, which isattempted in those discourses, is not a perfectly complete and per-fectly exact determination.

But I think that the foregoing attempt to determine the provinceof jurisprudence, and the definition of a positive law which theattempt assumes throughout, have as much of completeness andexactness as the scope of the attempt requires. - To determinethe province of jurisprudence is to distinguish positive law (theappropriate matter of jurisprudence) from the various objects(noted in the foregoing lectures) to which it is allied or relatedin the way of resemblance or analogy. But so numerous are theties by which it is connected with those objects, or so numerousare the points at which it touches those objects, that a perfectdetermination of the province of jurisprudence were a perfectexposition of the science in all its manifold parts. An adequateexposition of the science (the only adequate determination of theprovince of jurisprudence) is really the ambitious aim of the entireCourse of Lectures of which the foregoing attempt is merely the

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opening portion. But a perfect determination of the province ofjurisprudence is not the purpose of the attempt itself. Its purposeis merely to suggest (with as much of completeness and exactnessas consist with generality and brevity) the subject of that adequateexposition of the science of jurisprudence, or the subject of thatadequate determination of the province of jurisprudence, whichis the purpose of the entire Course. - Since such is the scopeof the foregoing attempt, the definition of a positive law whichit assumes throughout has as much of completeness and exactnessas its scope requires. To render that definition complete oradequate, a comprehensive summary of the anomalous cases inquestion (or, perhaps, a full enumeration of the anomalous casesin question) must be tacked to the definition in the way ofsupplement. But these anomalous cases belong to the departmentsof my Course which are concerned with the detail of the science.They hardly were appropriate matter for the foregoing generalattempt to determine the province of jurisprudence: for the forego-ing attempt to suggest the subject of the science, with as muchof completeness and exactness as consist with generality andbrevity. Accordingly, the definition or notion of a positive lawwhich is assumed expressly or tacitly throughout the precedinglectures, omits entirely the anomalous cases in question. And thetruth of the positions and inferences contained by the precedinglectures is not, I believe, impaired, or is not impaired materially,by this omission and defect.

And though the definition is not complete, it approaches nearlyto completeness. Allowing for the omission of the anomalouscases in question, it is, I believe, an adequate definition of itssubject. I hardly could have rendered a juster definition of thesubject, in brief and abstract expressions: that is to say, unless Ihad descended from the generals to the detail of the science ofjurisprudence.

Defining sovereignty and independent political society (or stating An explanation oftheir characters or distinguishing marks), I have said that a given "^^"Jj^nsociety is a society political and independent, if the bulk or general definitiongenerality of its members habitually obey the commands of a f ^ ^determinate and independent party: meaning by 'a determinateand independent party' a determinate individual, or a determinatebody of individuals, not obeying habitually the express or tacit

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commands of a determinate human superior. - But who are themembers of a given society? By what characters, or by whatdistinguishing marks, are its members severed from persons whoare not of its members? Or how is a given person determined toa given community? - By the foregoing general definition ofindependent political society (or the foregoing general statementof its characters or distinguishing marks) the questions which Inow have suggested are not resolved or touched: And it may seem,therefore, that the foregoing general definition is not complete oradequate. But, for the following reasons, I believe that the forego-ing definition, considered as a general definition, is, notwithstand-ing, complete or adequate: that a general definition of independentpolitical society (or such a definition as is applicable to everysociety of the kind) could hardly resolve the questions which Ihave suggested above.

i. It is not through one mode, or it is not through one cause,that the members of a given society are members of that com-munity. In other words, it is not through one mode, or it is notthrough one cause, that they are subjects of the person or bodysovereign therein. A person may be a member of a given society,or a person may be determined to a given society, by any ofnumerous modes, or by any of numerous causes: as, for example,by birth within the territory which it occupies; by birth withoutits territory, but of parents being of its members; by simpleresidence within its territory; or by naturalization.31 - Again: Asubject member of one society may be, at the same time, a subjectmember of another. A person, for example, who is naturalizedin one independent society, may yet be a member completely, orto certain limited purposes, of that independent society which heaffects to renounce: or a member of one society who simply31 The following brief explanation may be placed pertinently here.

Generally speaking, a society political and independent occupies a determinedterritory, Consequently, when we imagine an independent political society, wecommonly imagine it in that plight: And, according to the definition of indepen-dent political society which is assumed expressly or tacitly by many writers, theoccupation (by the given society) of a determined territory, or seat, is of thevery essence of a society of the kind. But this is an error. History presents uswith societies of the kind, which have been, as it were, in transitu. Many, forexample, of the barbarous nations which invaded and settled in the RomanEmpire, were not, for many years before their final establishment, occupants ofdetermined seats.

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resides in another, may be a member completely of the formersociety, and, to limited purposes, a member of the latter. Nay, aperson who is sovereign in one society, may be, at the same time,a subject member of another. Such, for example, would be theplight of a so called limited monarch, if he were monarch andautocrator in a foreign independent community. - Now if theforegoing definition of independent political society had affectedto resolve the questions which I have suggested above, I musthave discussed the topics which I have touched in the presentparagraph. I must have gone from the generals into the detail ofjurisprudence; and therefore I must have wandered from theproper purpose or scope of the foregoing general attempt todetermine the province of the science.

2. By a general definition of independent political society (orsuch a definition as is applicable to every society of the kind), Icould not have resolved completely the questions suggested above,although I had discussed the topics touched in the last paragraph.For the modes through which persons are members of particularsocieties (or the causes by which persons are determined toparticular societies) differ in different communities. These modesare fixed differently in different particular societies, by their differ-ent particular systems of positive law or morality. In some societies,for example, a person born of aliens within the territory of thecommunity, is, ipso jure, or without an act of his own, a perfectmember of the community within whose territory he is born; but,in other societies, he is not a perfect member (or is merely aresident alien) unless he acquire the character by fulfilling certainconditions. (See the French Code, Article 9.) It therefore is onlyin relation to a given particular society that the questions suggestedabove can be completely resolved.

I have assumed expressly or tacitly throughout the foregoing Restrictions orlectures that a sovereign government of one, or a sovereign govern- ^o

laT^-n °^the

ment of a number in its collective and sovereign capacity, cannot positions: namely,be bound legally. In the sense with which I have assumed it, the *** a savereign

° J 7 government cannotposition will hold universally. But it needs a slight restriction, or be bound legally,rather a slight explanation, which may be placed conveniently at J^'JfJ' **^£the close of my present discourse. against its own

It is true universally, that as being the sovereign of the com- subJects-munity wherein it is sovereign, a sovereign government cannot

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be bound legally: And this is the sense with which I have assumedthe position throughout the foregoing lectures. But, as being asubject of a foreign supreme government (either generally or tocertain limited purposes), it may be bound by laws (simply andstrictly so called) of that foreign supreme government. In the casewhich I now am supposing, the sovereign political governmentbound by positive laws bears two characters, or bears two persons:namely, the character or person of sovereign in its own indepen-dent society, and the character or person of subject in the foreignindependent community. And in order to the existence of thecase which I now am supposing, its two characters or two personsmust be distinct in practice, as well as in name and show. Thelaws which are laid upon it by the foreign supreme governmentmay really be laid upon it as chief in its own society: and, onthis supposition, it is subject (in that character) to the sovereignauthor of the laws, in case the obedience which it yields to themamounts to a habit of obedience. But if the laws be exclusivelylaid upon it as subject in the foreign community, its sovereigntyis not impaired by the obedience which it yields to them, althoughthe obedience amounts to a habit. - The following cases willamply illustrate the meaning which I have stated in generalexpressions. - Let us suppose that our own king is properlymonarch in Hanover: and that our own king, as limited monarchin Britain, is not absolved completely from legal obligation. Nowif, as chief in Hanover, he be not in a habit of obedience to thesovereign British parliament, the legal duties incumbent upon himconsist with his sovereignty in his German kingdom. For theduties are incumbent upon him (not as autocrator there, but) aslimited monarch here: as member of the sovereign body by whichhe is legally bound. - Before the French Revolution, the sovereigngovernment of the Canton of Bern had money in the Englishfunds: And if the English law empowered it to hold lands, itmight be the owner of lands within the English territory, as wellas the owner of money in the English funds. Now, assuming thatthe government of Bern is an owner of lands in England, it alsois subject to the legal duties with which property in land issaddled by the English law. But by its subjection to those duties,and its habitual observance of the law through which those dutiesare imposed, its sovereignty in its own Canton is not annulled

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or impaired. For the duties are incumbent upon it (not as govern-ing there, but) as owning lands here: as being, to limited purposes,a member of the British community, and obnoxious, through thelands, to the process of the English tribunals.

I have said in a preceding section, that a sovereign governmentof one, or a sovereign government of a number in its collectiveand sovereign capacity, cannot have legal rights (in the properacceptation of the term) against its own subjects. In the sensewith which I have advanced it, the position will hold universally.But it needs a slight restriction, or rather a slight explanation,which I now will state or suggest.

It is true universally, that against a subject of its own, as beinga subject of its own, a sovereign political government cannot havelegal rights: And this is the sense with which I have advancedthe position. But against a subject of its own, as being generallyor partially a subject of a foreign government, a sovereign politicalgovernment may have legal rights. For example: Let us supposethat a Russian merchant is resident and domiciled in England:that he agrees with the Russian emperor to supply the latter withnaval stores: and that the laws of England, or the English tribunals,lend their sanctions to the agreement. Now, according to thesesuppositions, the emperor bears a right, given by the law ofEngland, against a Russian subject. But the emperor has not theright through a law of his own, or against a Russian subject inthat capacity or character. He bears the legal right against asubject of his own, through the positive law of a foreign indepen-dent society; and he bears it against his subject (not as being hissubject, but) as being, to limited purposes, a subject of a foreignsovereign. And the relative legal duty lying on the Russian mer-chant consists with the emperor's autocracy in all the Russias.For since it lies upon the merchant as resident and domiciled inEngland, the sovereign British parliament, by imposing the dutyupon him, does not interfere with the autocrat in his own indepen-dent community.

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Index

John Austin's name has been abbreviated to JA.

America, United States of, vii, xxii,56, 274 (see also Constitution,American)

analogy, 10, 60, 80, 106-8anarchy, 53, 159, 247aristocracy

definition of, 184-5forms of, 186-9

Austin, Anne, viiiAustin, John

courses on jurisprudence, ix, xempiricism of, xx-xxi, xxiii-xxivintentions of, xx, xxvi-xxviilife, viii-xipolitical views of, ix

Austin, Jonathan, viiiAustin, Lucie (see Duff Gordon,

Lucie)Austin, Sarah, viii, xi-xii, xxv, xxvi

Bacon, Francis, 53, 279benevolence, 41, 86, 93, 94, 97, 100,

102-3 n, 104, 105Bentham, Jeremy, viii, xviii, 14, 23,

113, 14m, 23mJA's relationship to, viii—ixclassification of sanctions, 154-6criticisms of judicial legislation, 163definition of political society, 180-1impact on JA's philosophy, viii—ixand principle of utility, xv, io in ,

iO2n, 105

Blackstone, Sir William,confusion of law and morality,

xvii-xviii, I57~9ndefinition of a law, 28, 154separation of legislative and

executive powers, 196, 198Bryce, James, xxiiBurke, Edmund, 55, 57, 238Butler, Joseph, 79, 80, 81, 86, 91

Campbell, Robert, xxv-xxviCanada, 57Codification, xiicommands 25-9

key to jurisprudence, xiv, 21and laws properly so called, 10, 21nature of, xiv-xv, 21-5necessity for, 28-9occasional or particular, xiv, xv, 25,

26, 27, 29(see also law, properly so called;

persons)common sense, 40, 41conscience, xvi, 41, 81, 83, 159Constitution

American, xix, xxii, 209-1 on, 274British, xxii, 128, 129, 194, 198,

original, 253-6, 257-81quasi and implied, 276-8n(see also convention)

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Index

conventionand divine, moral, and positive laws,

280-1essentials of, 253, 269-72, 276

Criminal Law Commission, xicustom

basis of rules, 62grounds of judicial decisions, 141and habitual obedience, 244-6{see also laws, customary)

deontology, 14, 60, 113, i57n, i62nDicey, Albert Venn, xxiiDigest, 161, 278nDuff Gordon, Lucie, viiiduty {see obligation)

economists, political, 233-4^ 245~6neducation

definition and impact of, 84legal, viii, xipopular, 68-9

empiricism, xx-xxi, xxiii-xxiv, 60, 69,74, 279

ethics, science ofand ends of government, 242-3and geometrical methods, 73-4and the multitude, 63, 68-9, 74nature of, 14, 60, 72, 73-4, 113need for authority in, 74progress in, 69-70, 72-4and sinister interests, 61-2and uncertainty, 70{see also law, divine; legislation,

science of; utility, principle of)

Gaius, 153general terms

vagueness of, xviii-xix, 172-3, 176German writers and philosophers,

236-7^ 254, 278-8onGod, law of {see law, divine; utility,

principle of)Godwin, William, 101government

and consent, 248-51de facto and de jure, 281-5end or ends of, 165, 224, 242,

243~6n, 262, 273forms of, 183-9free and despotic, 225-8merits of different forms of, 227

{see also obedience; resistance;sovereignty)

Gray, John Chipman, vii, xviii, xxiiGrotius, i6on, 181, 182, 183

Hamburger, Joseph, vii, ix, xiHamburger, Lotte, vii, ix, xiHart, H. L. A., xii, xxi, xxvHartley, David, 101, 105history

subject matter of, 247Hobbes, Thomas, viii, xiii, 54, 73,

165, i88n, 2i7n, 228, 229-33^280, 282

conception of justice, 217definition of independent political

society, 181political philosophy of, 229~33n

Holds worth, Sir William, viiiHolmes, Oliver Wendell, vii, xviiiHooker, Richard, 154Horner, Leonard, xHume, David, 86

Inner Temple, x, xiiInstitutes, 13instinct, 82, 152-3interpretation, 31-2, 107Ireland, 57

judicial legislation {see law, judiciary)judicial review, 195-6, 207-8jurisprudence

analytical, xiiBritish, xiidefinition of, i6i-2n, 288-9English, viigeneral, xiii, xxiii-xxiv, 15German, ixinterpretations of JA's, xx, xxi,

xxiii-xxivlectures on, xx, 11, 18, 20, 116,

164-5particular, xiii, 15province of, 18, 20, 31, 38, 288-9sciences of ethics and legislation,

distinguished from, 14, 112-13subject matter of, xiii, 11, 18, 19,

31-3, 112, 157, 164jurists, Roman, 29, 32, 33, 36, 92,

115, 156, i6on, 176, i9on, 271,

295

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jurists, Roman (cont.)expositions of Roman law, 160-inphilosophy of law, 160-in

jus civile, 13, 92jus gentium, 13, 92, 115, 142, 152,

153justice, 254

definition of, i62n, 2i7~i8nJustinian, 151, 152

Kant, Immanuel, i99n, 236-7^ 279^280

lawambiguity of, xiii-xiv, 31autonomic, 12 inconstitutional, 214-23customary, 34-6, 141, 178declaratory, 31, 36, 156definition of, xiii-xiv, 18, 21divine; goodness of, 114; as laws

properly so-called, 10, 15, 38,109, n o , 118; relationship tohuman laws, xv, xviii, 14, 15,i n , 113, 138-42, i57-9n;revealed and unrevealed, xv,38-9, i59n; test or measure ofhuman laws, xiv, 14, i n , 113,i57~8n; uncertainty of, i59n {seealso contract, original; utility,principle of)

imperfect, 32, 33, 36, 156improperly so called, 20, 31-3,

109-10, 136international (see law of nations)judiciary, or judge-made, xii, xxii,

35-6, i63nmeaning of, 18metaphorical or figurative, xvii, 10,

11, 15, 16, 20, 33, 148-54, 156,157

of nations, 20, i6on; as positiveinternational morality, 112, 124,175; nature of, 123, 171;improperly so-called, xvii, 123,171; vagueness of, 175-6

nature or essence of, xiv, n , 12,20-1, 27, 117

natural, 13, 19, 39, 92, 114-15,142, 151-3

permissive, 32positive; definition of, xiii, xiv,

xix-xx, xxiii, 16, 19, 109-10,

116-17, 118, 165, 172, 211-12,285-91; reasons for use of term,19, n o - n ; relationship tocustomary laws, 34-6; sources of,118; and sovereign governments,xix, 282-5

properly so-called, xvii, xxi; ascommands, 10, 29, 31, 117-18;defined, classified, or illustrated,10, n , 12, 15, 16, 18, 109-10,117-23, 164

Roman, ix, 31, 108, 152, i6onstrictly so-called, n , 16, 18, 91-2,

122Lectures on Jurisprudence or the

Philosophy of Positive Law, vii, x,xii, xiii

legal obligation (see obligation)legal positivism, xii

JA's relationship to, xviiilegislation

ex post facto, 262judicial (see law, judiciary)science of, xiii, 14, 58, 113

Lewis, George Cornewall, xiliberty, civil or political, 32, i59~6on,

223-5nLobban, Michael, xxiLocke, John, viii, 16, 23, 44, 70, 73,

74, 81, 155, 2i7n, 279;and classification of laws, 142-7

London, University of, ix, x, xii

Maine, Sir Henry, xii, xxi, xxiiMalta, xiMalthus, Thomas Robert, 65Mansfield, Lord (Sir William Murray),

162-3Martens, Georg Friedrich von, 112,

i6on, 182-3mathematical truths, 60-1Mill, James, viii, xiMill, John Stuart, ix, xMoles, Robert N., viimonarchy

definition of, 184-5limited, 187-9

Montesquieu, Baron de, 153, 177moral sense, xv, 12, 14, 48, i04n,

criticisms of, xvi, 81-93theory of, 39-40

296

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morality, positivemeaning of, 20, 110-12,and moral rules, xvii, 109-12,

119-26, i36-7npositive and divine law, relationship

to, 136-41, 157-63uncertainty of rules of, 246n

Morison, W. L., vii, xx, xxiimotives

good and bad, 98-100, iO2nprinciple of utility and, xvii, 93-7,

103-5murder, 84, 138-9

nature, state of, 119, 121, 122, 169,170, 171

New York, state of, 196

obedience, xvi, xviii, 168-9origin or causes of, 242-7, 249(see also resistance; sovereignty;

utility, principle of)obligation, xv, 12, 22-3, 24-5, 32,

118, 140, 148, 224between subjects and government,

252-3, 258, 266opinion, general

analogous to laws properly socalled, 125-6, 147-8

laws set by, xvii, 20, 166and laws improperly so called,

123-6, 129, 134-5nature of, 134-6

Outline of a Course of Lectures, xiii

Paley, William, 22, 23, 39, 82, ioin,23711

criticisms of, 71-2, i59-6onand principle of utility, xv, 103

Pandects, 13, 152Parliament, xi, xxii, 26, 29, 128, 174persons, bodies of, 126-36Plea for the Constitution, xipolitical, meaning of, 167-70, 176-9political economy, 61, 64, 68political science, 249-50, 268powers

delegation of, xix, 190-6executive and legislative, separation

of, 196-9supreme and subordinate, 199(see also sovereign; sovereignty)

privilegium, 29nproperty, 42, 64, 66, 85Province of Jurisprudence Determined,

The, x, xi, xii, xiiicriticisms of, xxi-xxiieditions of, xxv-xxviiinterpretations of, xx, xxi, xxiii-xxiv;

nineteenth-century Englishjurisprudence, and, vii

purpose of, 11, 18, 20, 116, 164,165, 288-9; and its readers, vii

summary of lectures in, xii-xxPufendorf, Samuel von, i6on

resistance, 263justification of, xvi, 53-5, 230-inprinciple of utility and, 54-5, 57,

public opinion and, 263right(s)

difficulty of defining, 34, 23 7nof man, 55nature of, i37-8n, 235~7npositive law and, 120-inproperly so-called, 137-8legal duties, relationship to, 33-4,

224-5of sovereigns, 230-41

Ross, Janet, viii, xiRumble, Wilfrid E., vii, xi

sanction, xvand binding virtue of a law, 151meaning of, 22-5, 118, 148rewards as, 24of various types of laws, 136-7,

154-6(see also Bentham)

security, 84slavery, 12 m, i59nsociety, independent political

definition of, 166-83, 289-91sovereign

American, 209-1 onBritish, 192-6, 240liberty and, 225nmeaning of, 179, 189-9inand other sovereigns, 182powers of, xix, xxi-xxii, 188, 205,

212-14, 2 I 8 , 223, 228, 291-3states, 199-202suability of, 239-41

297

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sovereign (cont.)(see also constitution; contract,

original; government; obligation;sovereignty)

sovereigntyand composite or supreme federal

government, xix, 205-11criticisms of JA's conception of,

xxi-xxiidefinition of, xviii, 165, 172, 179,

189-91essential or necessary concept, xviiiforms of, 183-9judges and, xxii, 34-6limits on, 188, 205, 211-41marks of, 166-80

state, meanings of, 190-inStone, Julius, xxi

Tacitus, Cornelius, 21, 178theory, in relation to practice, 50-1Thibault, Anton Friedrich Justus, 108

Ulpian, 151, 152, 254definition of jurisprudence and law,

161-2unconstitutional, 214-21

utilitarians, viii, xv,utility, principle of

and commands of God, 41-5,59-60, 90-1, 103, 113, i4on

dictates of, 153and ends of government, 254and ethics, 70and freedom of inquiry, 73and legal and moral rules, 90-1limitations of, 74-5, 79-81misconceptions of, 93-105nature of, 41-5, 49and obedience, 243-7objections to, 45-53, 77-80property and, 58-9, 84-5relevance to jurisprudence, xx, xxiii,

13-15, 58, 92-3and rules, xv-xvi, 43-4, 49, 50-5,

58-9truth of, 15(see also ethics, science of;

jurisprudence; law, divine;motives; obedience; property;resistance)

Vespian, 21

Williams, Glanville, xxi

298

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