Lectures on jurisprudence, or

The philosophy of positive

law (5e éd. rev.) / by the late
John Austin,... ; 5th ed., rev.
[...]

Source gallica.bnf.fr / Bibliothèque nationale de France

 Austin, John (1790-1859). Auteur du texte. Lectures on
jurisprudence, or The philosophy of positive law (5e éd. rev.) / by
the late John Austin,... ; 5th ed., rev. and ed. by Robert
Campbell,.... 1885.

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 8° F 8085
I.OlUloi)
1885
Austin, John
Lectures on Jurisprudence, or the
philosophy of positive law
~y ~e-:
_`r yt~ a~
 AUSTIN
os

JURISPRUDENCE

VOL. I.
 LECTURES
ox

JURISPRUDENCE
OB
THE PHILOSOPHY OF POSITIVE LAW

/liâJtï
By THE LATE JOHN AUSTIN
or rai unn TEMne, BAHmsTenfliflW1"™

FIFTH EDITION, REVISED AND EDITED

By ROBERT CAMPBELL
AOVOCiTE («.OICH B*B), A.VD OF UXCOI_V'a m, »*ltR|srEIt.«-lAW

IX TWO VOUS– VOL. I.

LOXDOX
JOHN ilUEKAY, ALBEMABLE STBEET
1885

Tht right o/tmtutati<m ii rutnvl.

PritltJtr R. & R. Ct-AMt,Eilinburfh.
 ADVEBTISEMENT
TO THIS EDITION.

It must be gratifying to ail who value and appreciate the

work of the late JOHN AUSTIN to know that
a new edition
of these Lectures has been urgently called for. The
cir-
cumstance significant not only as a publie recognition
is
of the merit of the lectures themselves, but also
as a proof
of the growing interest which is becoming awakened
in
this country towards the philosophical study
of juris-
prudence.
The present edition has been prepared with the
assist-
ance of notes of the original lectures which have been
preserved by Mr. J. S. Mill, and
were kindly furnished
by him to the late Mrs. Austin for the
purpose of a new
edition which she meditated, but did not live
to com-
plete. These notes have now been collated
with the
lectures as already published, and
are found so accuratc
and full in the parts where the printed lectures
are com-
plete that they may be confidently relied for
on supplying
thé lacun» which, owing to the state of the author's
IIS.,
were in the foimer publication inevitable.
In revising the six lectures which formed the volume
published in the author's lifetime,
care has been taken to
make no material alteration except in accordance
with a
clcnrly expressed intention of the author contained
in his
memoranda preserved by the late editor, and published
in the notes to. tlie former édition. Whete, however,
such intention was cienr upon the face of that text and
notes, the présent editor has chosen rather to venturo on
the attempt to embody it explicitly in the text, than to
lcave the task to eaeh reader of collecting tlutt inten-
tion from the scattered passages and fragments. In tho
instances, confined to thé matter of a few pages, where
any such altération has been made, the nature und extent
of the alteration is explicitly stated in thé foot-notes by
the present editor, distinguished by the initiais R. C7
With regard to the remaining Lwrtures, free use has
been made of the notes above described (hereafter shortly
referred to as 'J. S. M.'s notes '), both for purposes of
arrangement and addition. For the purpose of arrange-
ment, these notes hâve often furnished the due wherc,
for want of such a due, inévitable mispluc«ment of pas-
sages had taken place in the former edition. Of the
additions the most important are in the 39th and 40th
lectures. The latter part of the 39th lecture, on the
important topie of Codification/ fornied au entire lecture
in the course presei-ved in J. S. M.'s notes. The 40th
lecture, which is described in the former édition as miss-
ing, is now restored, and forms the leading chapter of
one of the author's main divisions of his subject.
Neglect could not have efl'aced the impress whieh
John Austin and his work has stamped upon the thought
of posterity. But that so much lias been recorded iu
explieit and substuntive form, is due tu the ability and
diligence of tlie lady whose preface heuds the following
pages. Mrs. died at Weybridge on thé 8th of
August 186", and it may be interesting to tlie reader,
and can scanely be inappropriate hère, to supplément the
ensuing prefac. with a short account of lier uwn lifu. In
doing so the editor takes the liberty of borrowing from
the pen of one entitled to speak from long and iutiiuato
aequaintanee. The Times of the 12th August 1867 con-
tains thé followiug notice
It 1ms already been announced, in nnother part of these
eolunms, that Mrs. Austin, widow of tho late John Austin, well
known as one of thé most eminent professors of the science of
jurisprudence whom this country lias produced, expired on the
8th inst. at lier résidence at Weybridge, after an acute attack
of a uitiliidy of the heurt, with which she had long bewi afllicted.
Althougli the life of Mrs. Austiu was spcnt in thé active dis-
chargc of lier privnte duties, aud nlthough no one was less dis-
posed to court celebrity, winch she might have enjoyed iu a far
larger d^rcu had she cared to seek it, she xmdoubtedly filled so
considérable a place in Society aud in literature that some record
of so remarkabJt: a woman may not uiifitly appear iu this place.
To the attractions of great personal ljeauty in early life, and of
a grâce of manner undinihiislied hy years, Mrs. Austin added a
masculine intellect and a large heart. It was not by the play
of a vivid imagination, or by au habituai displny of what is
termed vit, that she secured the affections and thé friendship
of so many of thé wisest and noblest of her eontemporarif.s.
The power she excreised in society was due to the sterling
qualities of her judgment, her knowled«e, her literary style
which was one of great pvivity and excellence and, abovo ail.
to her cordial reudiness to proniote ail good objects, to maintain
higli principles of action, and to confer heuefits on ail who
claimed her aid.
Mrs. Austin was descended from the Taylors of Xorwich,
a family whieh lias in several générations produced men and
womeu distiujiuished by literary and identifie ability. She
was born in 1793, and she reeeived in her father's house an
éducation of more than comnion range. In 1820 she married
Sir. John Austin, then a barrister on the Xorfolk Circuit, and
came to réside next door to Mr. Beuthani and Mr. James Mill,
in Qucon Square, "Westminster. Althou»h that house could
boast of nono of the attractions of luxury, for the fortune of its
owners was extrenicly small, it soon collected within its walls
as rcmarkablc an assemblage of persons as ever met m a London
drawirig-room. There nii«ht be seeu dint and flitting figure
of thu past Mr. Bentham and his two disciples, James and
John Stuart Mill, the Grotes, the rising lawyers of that day
whose success lias justified the promise of their dawn, Bicker-
steth, Erle, Itomilly, and Senior and ail this wisdom and learn-
ing was énlîveûèd in later yeara by Mie wifc of Charles Bulier,
by {ho he»rfcy sallies of Sydney Smith, by tho polisfced éloquence
of Jeffrey, by the courteous ameuity of Lord Lanadowne, and by
the varied rcsourees of foreigu visitera wiio found a home by
Mrs. Austin's hearth.
1 Mrs. Austin never uspired to original litorary composition.
Except ta some of tho prefaces to her translations, ahe dis-
claimed ail right to address the public in her own person. She,
therefore,devoted thé singwlar power of her pen to reproduce
in English many of tho best contempomry works of German
and French literature. Her translations from the German,
more especially, were of the highest excellence, and among thèse
her version of Eanko's Pojjcs of Home lias been commended by
the best judges as deserving to retain a place in English historical
literature.
1 Much of Mrs. Austin's life was spent abroad, and not a
few of the most eminent persous in continental society enjoyed
her friendship. She had inhabited two German Universities
for thé prosecutionof her husband's stttdics, after he had quitted
the bar for a chair of jurisprudence in thé London University.
She had accorapanied him to Malta when he was sent as a
coninmsioner to that island. She remained for some years in
Paris, where her small salon had an intellectual stamp and
charm not inferior to that of her London circle. The révolution
of 1848 drove the Austins back to England; they established
themselves in the village of Weybridge, and calmly anticipated
the day when they should rest side by side in Weybridge
churchyard. Mrs. Austin, however, survived her hustend for
seveval years, and that interval was employed by her in accom-
plishing a task which to most women would have seemed hope-
less. The greater part of the Lectures delivered by Professer
Austin on the principles of jurisprudence had remained in
manuscript. His ill-health led him constantly to postpone the
task of preparing thom for the press. After his death his
widow, assisted by one or two légal friends on whoso judgment
she could rely, succeeded in completing the imperfect edifice
from the fragments of it that remained and we owe to Mrs.
Austin, already advanced in years, and struggling with a painful
disease, the production of a work on jurisprudence, which is
unquestionably the noblest monument that could be raised to
the memory of her husband.'

In pursuance of a bequest of Mrs. AuHtin's, the books

on jurisprudence (chiefly of German authors), which hâd
been preserved as thoso of her husband's which be had
chiefly valued and atudied, and many of which are filled
with observations and anafytical notes in his htmdwriting,
are now placed in the library of the luner Temple in a
supamte compartment. As these are the volumes whieh

.1
are chiefly denoted by the références in the cnsuing
Lectures, and as they are there sometimes referred to by
their pages, it is important to state the particular editions.

.5
A liât is accordingly here subjoined of the books forming
the collection so plaeed in the Inner Temple Library.

.1 Ko. of

.1
Vols.
Friedrich Carl von Savigny, Geschichte des romischea Rechts im

Bas Recht des Besitzes, Giessen, 1827

Mittelalter, Heidelberg, 1815-29 5

1814
1
System des heutigen romiseben Rechts (first volume only)
Berlin, 1840 1
Vom Boruf unsrer Zeit für Gesetzgebung und Rechtewis-
senscliuft, Heidelberg, 1
Translation of the last, by Abraham Hayward. Printed

1815
by Littlewood & Co., Old Bailcy, London (not for
sale) 1
Karl Friedrich Eichhom, Einleitungin das deutsche Privatrecht,
GûttingcB, 1825 1
Deutsche Staats- und Eechtsgeschichte, Giittingen, 1821-23 4
Gustavus Hugo, Jus Civile Ante Justinianeum, with prefaco,
Berlin, 2

.1
Lehrbuch der Geschichte des roraischen Rechts, Berlin,

.2
1826 1
Lehrbucheines civilistisclies Cursus 4 4 volumesof different
editions, viz. 6*« Band, 2tw Versuch Berlin, 1818; 2tw
Band, 4<* Ausgabe Berlin, 1819 5«' (sonst) Tter Band,
3tte Ausgabe; Berlin, 1820; erster Band, 7'* Ausgabe;
Berlin, 1823 4
Gaii Institutionum Commcntarii IV., ed. J. F. L. Goschen, Berlin,
1823. (Full of analytient notes by Mr. Austin) 1
A. F. J. Thibaut, Theorie der logischen Auslegung des romischen
Rechts, Altona, 1806 1

Rechts, Jena, 1817

Civilûtische Abhandlungcn, Heidelberg, 1814
System des Pandekten-Kcchts, Jena, 1828
..1
A. F. J. Thibaut, Versuche über cinzelne Theile der Theorie des

Dr. Ferdinand Mackeldey, Lehrbuch des heutigen romischen

2
1
2

Rechts, Giessen, 1827, two vols. (bounù in one) 2

 .3
.3
.1
Christian Friedrich Miihlenbrech,Beetrina Pandectarum,
1827
August Wilhelra Heffier Institutionem des romischon und
detitscben Civil-Procwises,Bonn, 1825 3
NQ.Of
Halte, VoIVf

.1
D. Christ. Gottlieb Haubold, Institutionum Juris Romani Privati
Mstorico-dogmaticarumLineamenta, Leipzig, 1826 1
Institutionum, et«., Epitome, Leipzig, 1821 1
Ernst Spangenberg, Einleitung in das Râmisch.Justinianiwho [
Bechtsbucb, Hanover, 1817 I
And. W. Cramer, De Verborum significatione Tituli Pandectarum
et Codicis cum variae lectionibus Apparatu, Kiliae, 1811 1
Heinrich Moritz Chalybiius, Historischo Entwickolung der specu-

1839
lativen Philosophie, von Kant bis Hegel, Dresden and
Leipzig,
Immanuel Kant, Kritik der reinen Vermmft, 7th edition, Leipzig,
1 «

1828. c
Prolegomena eu einer jeden kunftigen Metaphysik, die als

.1
Wissensehaft wird auftreten kbnnen, Kiga, 1783 1
Zum ewigen Frieden, Konigsberg, 1790 1

.1
Kritik der practischen Vemunft, 6th edition, Leipzig,
1827

1803
1
Die Metapbysik der Sitten, Kb'nigsberg, lst part, 1798, 2nd
part, 2

1803
F. Schleienmacher,Grundlinien einer Kritik der bisherigen Sitton-

.1
lehre, Berlin, 1
Jeremy Bentham, Introduction to the Principles of Morals and '•
Legislation, London, 1789 1
Constitutional Code for the use of ail Nations and all ~j

Governments professing Libéral Opinions, vol. L, London,

1830 1
j
Fragment on Government, Dublin, 1776
Draught of & New Plan for the Organisation of the Judicial E

Establishment in France, March, 1790 1

Traités de Législation civile et pénalo, publiés en Français

par l'auteur
John James Park, Contre-projet to the Humphreysian Code,
,3
par Et. Dumont, de Genève, d'après les manuscritsconfiés
3

London, 1828 1
Sir James Mackintosh, Dissertation on the Progress of Ethical 31
Philosophy, chiefly during the 17th and 18th centuries,
with Preface by Wm. Whewell, Edinburgh, 1830 1 j
James Mill, Essays on, 1. Govemment; 2. Jurisprudence; 3.
Liberty of the Press; 4. Prisons and Prison Discipline
3
5. Colonies; 6. Law of Nations 7. Education; London,

Oxford Street
printed (not for sale) by J. Innes, 61 Wells Street,
Friedrich List, Das nationale System der politischen Ookonomie,
1

Stuttgart and Tubingen, 1841 1 a

AUgemeines Landrecht für die Preussischen Staaten, Berlin, 1828 5
 1827
21 .1
der siimmtiichen kooiglich-Preussischen Lande, 15tb
September, 1783, Berlin, 1783

Staaten, 20th Decembcr, 1783, Berlin, 1784

So.ot
Allgèraeines Crimînal-Recht fur die Preuasisehen Ktaaten, Berlin,

Allgemeine Deposital-Ordnung fiir die Ober. und Untcr-Gerichte

AllgemeinoGerichts-Ordnung für die Preussischen Staaten, Berlin,

1822
AllgemeineHypotheken-Ordnung far die gesammten koniglichen

1820
.2
Instruction fiir die Ober- und Untergerichte xur Ausfiihrung der
konigliehen Verordnung vom 16Un Juni d. J. wegen
Ëinrichtung des Hypotheken-Wesens in dem mit den
Preussischen Staaten vereinigtcn Herzogthum Saclison,
Berlin,
Strafgesctzbuch fiir die horzoglich Holstein Oldenburgiscben
Lande, Oldenburg, 1814

(2nd vol. in two parts)

.1
J. and W. Beck, edition of Corpus Juris Civilis, Leipiâg, 1825-G
Joachim Hoppe, Conwientarii succinta ad Institutiones Justin-
ianeas, Frankfort and Leipzig, 173G
Vol».

2
1

.1
1
Ant. Matthaeus, De Criminibus ad xlvii. et xlviii. Dig. comment.
Vesaliae, 10722 1
J. Gottl. Hcineccius, lieeitntiones in elementa Juris Civilis
secundum ordinem Institutionum, Vratislaviae, 1789 1
Antiquitatum Eoraanarum Jurisprudentiam illustrantium
syntagma, éd. Haubold, Frankfort, 1822 1
John Reddie, Historical Notices of tho Roman Law, Edinburgh,
1826

1819.1

5.1
1
L. A. Warnkunig, Versuch einer Begrtindung des Rechts durch
eino Vernunftidee, Bonn, 1
Johann Wening, Ueber don Geist des Stndiums der Jurispriidcnz,
Landshut, 1814 1
l'Jduanl Puggaeus, édition of Thcodosiani Codicis Fragmenta,
Bonn, 1825.
Angelus Maius, Juris Romani AnteJustinianei Fragmenta Vati-
cana (e codice palimpsestocruta), Rome and Berlin, 1824 1
D. Christoph Martin, Lehrbuch des Teutschengemeinen Criminal-
Proccsses, Gôttingcn, 1820 1
Corpus Juris Fridericanum, erstes Buch. Von der Prozessord-
nung, Berlin, 1781 1
B. G. Niebubr and Eh. A. Brandis, Rhcinisches Musoum fiir
Philologie,Geschichte und griechisclie Philosophie,Bonn,
1827-8 2
F. C. von Savigny, C. F. Eichhorn, and T. F. L. Goschen, Zeit-
schrift fiir geschiehtlichte Rflclitswissenschaft, Berlin,
1815-23 5
€rco. Lnd. Boehmer, Principia Juris Canonici speciatim Juris
Ecclesiastici publici et privati quod per Germaniam
obtinet, Gottingen, 1802 1
 Paul
.1
1820.1
Gericht, Liindabut, Ï81Ï
Ko. or
J. Ansolm, Feuerbach, Betrachtiingoniiber das Gesclwottieu-VoU.
Lehrbttch de» geifteînen in Deutschhmd gttltigon peinliehon
t

Kt'chts, Gicssen,

Justiz-Einrichtungcn, Leipzig, 1819 .2.2

M. C F. W. GravelJ, Priifung der Gntnchten der kSnigï. Prouss.
Immediat-Justiz-Conimbsionam Rhoin über die dortigen

Luchvig Heinrich Jordan, Uobor die Billigkoit boy Entschoidung

dei- ReehtsfStle, Güttingen, 1804
1

1819..1
D. VineenaAugustWagner, Zeitsçhrift fQr flsterreichïschoRedite-
gelehrsamkeit und politische Gesetekunde, Wien, 1830

.1
(12thpart) 1
C. F. Rosshirt, Lohrbuch des Çriminalreehts, Heidelberg, 1821 1
C. J. A. Mitterraaier, Uobor die Gnimlfehler der Behandlung des
Criminalrechts in Lehr- und Strafgesetzbucherj), Bonn,
1
Grundriss zu Vorlesungcn iiber dus StrafVeifahren 1
Cesare Beccaria (Marcliese), Dei Delitti e delto Pene, London, 1801 1
A. R. Philippo du Trieu, Manuductio ad Logicam, London, 1 820 1
fcaac Watts, D.D., Logick, 9th edition, London, 1740 1
Arthur Schopenhauer, Die beiden Grundprobleme der Ethik,
Frankfott, 1841 1
Sir William Blackstoao, Commontaries on tho Laws of England,
15th edition, by Edward Christian, London, 1809 4
Anonymous, Remarks on Criminal Law, with a plan for an ira-
proved system, and Observations on tho Prévention of
Crime, London, Hamilton, Adams & Co., 1834 1

.1.3
A volume containing, 1. An article from the Edinburgh Review,'
1817, No. 57, entitled 'lientham on Codification j' 2.
An article from the samo Eeview, 1843, entitled 'Cen-
tralisation,' by Mr. Austin; 3. The pamphlet 'A Plea
for the Constitution,'mentioned in Mrs. Austin's proface
to thèse Lectures; 4. An article from tho Edinburgh

.1
Keview,' October 1863, Austin on Jurisprudence,'under.
stood to be by Mr. J. S. Mill 1
A copy of the former edition (by Mrs. Austin) of thèse Lectures 3
Raako's History of thé Popes,
1866
translated from the German by

.1
Sarah Austin, London, 3
Henry Roscoe, Digest of the Law of Evidence in Criminal Cases,
London, 1835 1
T. Ii Malthus, Essay on Population, 4th edition, London, 1807 2
Additions to the samo, London, 1817 1
The American's Guide, Philadelphie, 1813 1
A volume without a title-page, containing articles from a French
law review, thé first (which has been carefully noted on
the margin by Mr. Austin), being entitled Remarques
sur la définition et sur la classification des choses,' and
being a treatise suggestedby a work of M. Poncet, dated
about 1817 1
 - .1
N. Falcfe, Jurf»tlsëh& Eaeyklopiidte,Kfel, 1825
Cari von Kotteck and Cad Welcker, Staats-Jjexiko»,otier Ency-
klopiidie (1er Staatswissenschaften, Aitona, 1842
Kobert Edon, Juiisjmulontia Philologie», Oxford,

>f. Biret, Vocabulaire des cinq Codes, Paris, 1820

1744
..1
J. B. Siroy, Les cinq Code», avec notes et traités, Paris, 1819

..2
M. Camus and M Dupin, Lettres sur la profession d'Avocat et
So. of
VùlS.
1

1
1
1
1

bibliothèque choisie, Paris, 1818

(bound in 4 parts)
AL de Vattel, Droit des Gens, Lyon, 1802
..2
..3
J. A. Rogron, Code do Procédure civile expliqué, Paris, 1(<28

George Frédéric von Martens, Précis du Droit des Gens moderne

2

2
S

de l'Europe, fondé sur les traités et l'usage, Gcittingen,

1821 1
Conrad J. Alex. Baumbach, Einleitung in das Naturrecht, Leipzig,
1823 1

In thé following pages the notes which belonged to

the Author's work publlshed in bis lifetime are dis-
tinguishecl by letters thus w. The notes of the lute editor
ure generally marked by thé initiais S. A.' Those of the
présent editor by the initiais E. C.
 3]
CONTENTS
or
THE FIRST VOLUME.

Pbefack (liy Sarah Austin)

OtTMKEOF TUE CoVItSE OF LECTL'IttS
Page 1

THE PROVINCE OF JURISPRUDENCE DETERMINED.

AxALVit» or Levti'he» I.~ VI. 79

LECTURE I.
ThepioywKofthefollowmg attempt to determine the province of jurispm-
douce, itatcd or suggested.– The manntr of thé following attempt to
détermine the province of jurisprudence. Law: what, in moat coniprehen-
sive literal sensé.– Law of God.– Huinan Ijiws. Two classes: Ist. Iaws
set by political superiors 2ndly, Laws sot by men not political ««perfora.
Olijects iniproperly, but by close analogy, termed lawa.– The two last
plaçai in one class under the- name positive morality. Objcets meta-
phorioally termed laws.– Laws or rules, properly so called, arc a Bpecies
ofeommands.– The meaning of the terni tvmtnand. The mcanini; of
tho tenu duiy.~ The ternis command and duty are corrélative. Tlie
meaning of the term sanction.– To the existence of a coinmand,a dut)',
and a sanction, a violait motiro to compilante is not requisite. Rcu-anls
are not scindions. –The meaningof thé term ammand, bricily re-stated.–
Tho inséparable connection of the three tenns, command, duty, and
mnttim.~ The manner of that connection. lavis or rules distinguished
from commands which are oaimonal or jxirlicular.– The fleflnition of a
law or raie, properly so called.– The meaning of the corrélative terms
superior and inftrior.–hw!, (impropvrly so called) which are not corn.
tnandt.– Laws {properly so called) which may stem not imperative.–
Laws which are not commands, enumerated 88
LECTURE II.
The connection of tho second with thé first lecture.– Tlie Divine laws, or the
laws of God. Of the Divine laws, some are rcvealed, and others are uim-
nealed.– Sueh of the Divine laws as are reeeaUd.– Such of the Divine
laws as arc unreitakd. What is the index to such of thé Divine laws as
are unrevealcd 1– The hypothtset or théories which regard the nature of
 thaï Indux.– The t»ypothe»t«ortl»eoryof a maml uns», or fnnal? practitxtl
yrfaefjrf*oîaprueliattrauonf oîaeommonmiiK, ote ot«.– Tluïttiêory
or Uypothesiîofntittti/ A briersuniiiiaryof the tbvory <if utility, Tha
following exphuratiou» of tlmt suaiinai-y liriefty inirotliKixf.– Tho trno
kiukucy ofa humau action, anJ the Xxnelt.il of tlmt tendeiicy.– Accord ing
to thé theory of utility, God'» commanda are mostly rules.–lt iloea uot
follow from the theoty of utility, that evcry usefnl action » thé object of
Il Divine injuwition and wiy pernicieux action, the objcct of a Divine
prohibition.– A current amt specious objection to thé thvory of utility,
introduced and stnted.–Thu Iteo apt uuswcrs to thé lbrugoing objection
brieHy introduecd.– lUejtrst aii.wi-r to tho^forcgoing oUjectiu» statcii–
Tlio kcchU uiiswop to M» foregolng objection briofly iiitroituccd If our
comluctwere truly adjustcd to thé principle of puerai utility, our con<luct
would conform, for thé most |nrt, to ruta; rules wliicli einauat« froiu the
lMty, und to whieh the teiidciicics of hunian actions are tlie guide or
index.– Theory and praclke are ins«]>anibl<.s 11" our conduct werc- truly
adjusted to tho principle of general utility, our conduct would U' guided,
for tlie most Jiart, by sentiment) asxwmteil with rules; nilcs which ematmto
from the LMty, and to whieh tho tendenciesof hninan actions are the guide
or index.– If our conduct were truly adjustcd to the principlo of gênerai
utility, our couduct would conform, for thé most part, to Divine ntlt*,
ami would also \m guided, for tlw most part, by sentiments asaociatei.1 with
thoso rules. But, in aaomalous nnd excepted cases (of comparatively
rare occurrence), our comluctwould be fashionedàinctlj/ on thé priiicipk>

l'rielly resumed
of geueral utility, or guid«tl by a conjecture and comparisou of spteific or
parlicular conséquences.–The ««mii answer to the foregolng objection,
Page 103

LECTURE III.
Afology for iatroeiucing the principle of utility.– The connection of the third
with thé second lecture.– A second objwtion to thé theory of utility,
stated.– An auswer to that second objection, introduced.-An objection
to the foregoing answer, stated.-Theforegoing objection to thé foregoing
answer solved or extenuated.– Tlie second objection to thé theory of
utility, together with tho foregoing auswor to that second objection
briefly re-statol 122

LECTURE IV.
The con Motion of tho fourth with the third lecture. Tho second objection to
the theoryof utility, resmned.– A further answer to that xecond objection.
–Tlie hypothesisof a moral Muse, briefly introduced.– 'A moral sensé,"
'a common sensé,' 'a moral instinct,' 'a principe of reflection or con-
science,' 'a practical reason,' innate practical prlndples,' 'conimto
practical principtes,'etc. etc., are various expressionsfor oue sud thé eame
liyjiotliesis. The bypothcsb in question involves two timumptious. The
Krst of thé two assujnptions inrolvcd by thé hypothesis in i|iii'stion
stated in gênerai expressions. –Tlie foregoing statement of the first us-
smnption, exemplified and explained by an imaginary case.– The first uf
the two assumptions inrolved by the by|wtlie.sis in question, brietly
rc- stated in gênerai expressions. –The second of the two assumptions
involvecl by the hypothesû in question, briefly stated. As an index to
God'a commanda, a moral sense were hua fallible than tho principle of
gênerai utility But ia thore nny évidente to sustain the hypothesi* in
 <ine3tionî– Tho)»>i)Otlj<!»lsiU(tueâUoUkittspmv(.4 by the négative stato
of our coimiousness. Tba two carrent arguments in fwour of tho
hypothesis lu question, brlclly stated.– TU» fîrst argument in favour of
tlio hypothesi» in question,cxainined.– Thesccoud argumeut tu fuvour of
thii liypotlwsw in question, examlnetL– A brief ststeraent of the fact
wbereon the second argument in favour of tho hypothc-gis in question ii
founded.– Thu fact accord» cxaetly witli the- hypothesisor theory of uttlity.
–A brief statement of tho ititermediatohypothesis whicb U eompounded
of tlio hypotliesis of ntility ornl thu hypotliesis of a moral seuise.– The
divisionof positive law into law mlural and hiw positive,aud the division
of/«* civile Un» jus gtulivM and ju» emte, suppose or involve the intor-

Page
raediutehypothesis which ta compounded of the hyi»thcsisof utility uud
the hypotlicsis of a moral sensé. The foregoiiig ilis.|uisitioiison the index
to God's eominauds, dosed with ail endeavour to clear tho theory of
utility froui two curreut thougli grossi œisconcejrtions.– Tho two miseon-
esptions stetuil– Tho firrt misconception «xatnined.– The second rais-
conceptionexamined 140

LECTURE V.
Laws proper or proporly so called, and laws improper or improperly u> called.
Anulogy mid metaphor as osod in couimon parlance defined.– Law* im-
proper are of two kinds t. Laws elosely analogous to laws proper 2. 2,
Imvs nibtapliorical or figurative.– Division of laws proper, and of such
improper laws ai nre closcly analogous to the proper.– Distribution of
laws proper, and of such improper laws
os are closely analogous to the
proper, under three capital classes: l. The law of Ood, or thé laws of
God; 2. Positive law, or positive laws; 3. Positive morality, rules of
positive morality, or positive moral rules.– Digression to exploin thé
expressions positive Imo and positive moralUy. Explanation of thé
followingexpressions, vte. Kienee of jurisprudtnec and «faut of positive
mvmlily; science of eihies or cUonlology,science of législation and science
of ntorafa.– Meaning of tho epithet good or bad as applied to a human
law.– Mcauingofthecpithetgood as applied ta the law of God.– Tho
expression toi» of nature, or nalural law, bas two disparate meanings.
It signifies the law of Ood, or a i»rtion of positive law and positive
morality.– The connection of thé présent (the flfth) lecture with the first,
second, third, fourth, and sixth.– The essentiels of a law properly
so
called, together with certain conséquences whieh those essentials import
v– The lawsof GoJ, and positive laws, are laws properly called. –The
so
goneric characterof positive moral rules.– Of positive moral rules,
some
are laws proper, but otliers are laws improper. The positive moral rults,
which are laws properly se called, are communes.– lavm set by
men, as
private iieraous, in pursuanec of legal rights.– The positivemoral rules,
which are laws improperly so called, are laws set
or imposai by gemml
opinion.– A law set or imposed by gênerai ojiinion, is mcrely thé opinion
or sentiment of an indeterminatebody of persons in regard to a kind of
condnet.– A brief statement of thé analogy between a law proper and a
law set or iwposed by gênerai opinion.Distinction between determimte
a
and an iiultterminate body of single or individual persons.– Laws set by
'jaicral opinion, or opinions or sentiments of intUtertninale Indien, are the
only opinions or sentiments tliat have gotten thé name of laies. But
an
opinion or sentiment hcld or felt by an imlivMtui!, or by ail the members
of a certain aggregate, niay lie as closcly analogous to a law proper as the
opinion or sentiment of an indetenninato body.– The foregoing distribu-
 tivn ofluwiritropcr, and of stieh iiojjtopor tawi os tlto elosely aliolOgotM ti>
the proper, brietty recapUttlatal.– Cho. sanctions,proper omt tmproper, hy
which those laws «m Nspectively eulorecd j tho ilutio.t, nrojicr ami im-
(trojier, which thoso laws itspwtivrfyimpose anil the rlghts, proper ami
improper. which thoso law8 rtspvctivelycouler.– The law of (loti, ixisitive
law, bik! positive moratity, soiiietlmes coinçait, somctlmo» do nof coïncide,
and soinetimcs coujlkl,– 'ïï\a acts aud forbearauues, which, Hcconling to
thé theory of utllity, are objeets gf thé law of Qod.; and otlitr acts and
forbearanees, whieh, according to thé snme theory, ought to ha objects
rcspectiTi'ly of positiva morality imj law.– The foregoiug distribution of
lutes proper. and of such iui{irop«r law» as are dosely anologou* ta tho
l>ro[K'r, tallics, iu the main, with a divisiou of laws which la giveu iucl-
deutally by Locke in 1m Esaay on Human Underatandiug. Iaws meta.
phoricnl or figurative.– Tho commun und negative nature of laws of the
class.–Tho coininon and négative nature of laws nietaplioricalor figura-
tive, «hinvii by exumples.– Laws nietaphorical or tignmtive are often
blended and confouudod with laws impcriitirc und proper.– l'hysical or
uatural sanctions.– In strtetness, devlaratory law, laws repealiug laws,
ami laws of imperfect obligation (in thé senne of the Roman jurists),
ought tu be classed nspectivclywith laws, metaphorical or figurative,and

Page
nlles of positivemorality.– Note ou prevaitiug teudeiicy lst, to confound
positive law with the science of legislation, and positive morality with 4(8,
deontology: Examples from Hlackstune, Paky, the \rriters on iuter.
national lawv 2n<Uy, toeonfoand positivehwwith positive motattty, and
both with legislationnnd dcontology Ëxamples from the Roman jurists
and Lord MansfielJ 107

LECTURE VI.
The connectionof the sixth lecture with the tiret, second, tliird, fourtli, and
fit'tli.– Tho dktinguishing marks of sovereigntyand indépendant political
society.– Tlic relation of sovercignty and subjection.-Strictly speaking,
the sovereign portion of tho society, and not the society itself, is inde.
pendent, sovereign, or suprême– In order that a given society may form
a society political and independent, the two distlnguUhtng marks whieh
are mentioned above must unité.– A society indepondont but natural.–
Society formed by the intercourse of independent political societies. A
society political but subordinate.– A society not political, but forming a
limb or tnember of a societypoliticaland independent– The définition of
thé abatract term independent political socidy(inchuling tho definition of
the corrélative terni sovcrcignUj) cannot be rendered in expressions of
perfectly precise import, and la therefore a fallible test of specifie or
particular cases.– In otder that an independent society may form a
society political, it must not fall short of a numbe,- which cannot be
fixed with precision, but whieh may ho called considérable, or not ex.
tremely minute.– Certain of the définitions of the tenu sovcnii/nty, and
of the Implied or correlative term indtpemUnt poUtieal socùly, which
have been given by writers of celebrity.– Tho ensuiug portion of the
présent lecture is eoncerned with the following topics:– 1. The forms of
supreme government 2. The limita of sovereign power 3. The origin
of government, or tho origin of political socioty.– The forms of suprême
government.– Every supreme government is a monarchy (properly so
called), or an arblotraey(in the generie meauing of tho expression). In
other words, it is a government of «ne, or a government of a ntimljcr.
Of such distinctions between aristocracies as are founded on differences
betweon thé proportions whieli thé immber of the toverefg» My muy
bwtt? M thé uuiulwr of tho cummtmity.– Of mtc-li dfcrtiuctiui» tctwwn
aristocraties as are fomided. «itlifencea betweeu tht modes, «herein,
the sovereign utimber iimy sharn tho sovereigii power* Of siicli arùto-
cracies an are styknl limited monarchies. Variou» incttulligs of thé
t.
following terma:– Tho term '«overeign,' or 'Ht sovereign;' 2. The
term 'republie,' or 'eoroinonwcatth;'S.Thotcrm 'stute/or 'tfcstate;'
4. Tho termnation.' 01' thu exercise ol° sovereign porce» by a inouarch
or sovereign body, through politieul subordiuateg or delegatcsrcpresent-
Ing their sovereign author. Of thé distinction of sovereign, nul other
politieal (wwera iuto such as are leji-ilatim,and snch a» are œtcxtiet or
administrative. The true natures uf the coinniunitics or govcrniueut'i
wliich are styled by writcra on positive international law half tatereiyn
statea. The naturoof a o««/«ït'fc »<«<< or a suprême fédéral govermiwnt;
wtth the nature of a systtm uf eunfideratcd statu, or a ptrmanenl <:<m-
federaey of suprême gotxrntnenti.i:Uo limits of «overt-igu pomr.– The
esseotial differoliceof a positive law.– It followd from the essential dif-
férence of a positive law, and from the nature of sovercignty and
iudependent politieal society, that thé power of a monarch properly so
called, or the power of a sorereign number in its collegiateand sorercign
capacity, Is incapable of Itgal limitation. Attoinpts of sovereigns to
oblige themsclves, or to oblige the successors to their sovereign powers.
–Tho meaniugs of thé epitliet xtuconstitulional, as it is contrailistiii-
guished to the epithet illégal, and as it is applied to conduet of a
monarch, or to coaduct of a sovureign number in its collegiate and
sovereign capacity.– The uieaning of Hobbes's proposition, that 'no law
can be uujvst.Jivit or unjust, justice or injustice, ia a term of relative
and varyiug import.– Considered severally, tue members of a soyereign
body are in a state of subjectioii to the body, and may therefore lx>
legally bound, eveu as members of thé body, by laws of which it is thé
autlior.– Tho nature of politieal or civil liberty, together with the sup-
posed differenco betweeu free and despotic governments.– Why it bas
been doubted, that the power of a sovereign is incapable of legal limita-
tion. Tho proposition is asserted expressly by renowned political writers
of opposite parties or sects. A sovereign gorernmeut of one, or a
sovereign govemment of a number iu its collcgiate and sovereign
cajjacity, lias no légal rights (in thé proper acceptation of the term)
against Us mm sukjeet*. 'llight is might. 'Right' as meaning
'faculty,' and 'right' as meaning 'justice.'Kiglit' as îucaning
'faculty,' and 'right' as ineaniug 'law. From an appeannee of a
sovereign government heforc a tribunal of its own, we cannot Infer that
the governiiient lies under legal duties, or has legal rights against its
own subjects.– Though a sovereign government of one, or a sovereigu
govern nient of a number in its collegiatcand sovereign capacity, cannot
hâve legnl rights against its own subjects, it may have a legal right
against a subject or subjects of another sovereign government.– The
origin or causes of politieal governmentaud society.– The proper purjioso
or end of political governmentand society, or the purposeor end for which
they ought to exist. The position 'that every government continues
through the pcople's consent,' ami the i»sition 'that every government
arises through the people's cousent,' examined and explainml. The
hypothesia of the original comwnt or thé fundamental civil jaet.– The

Page
distinction of sovereign governments into governmeuts de jure and
governments de facto. –General statement of the province of jurispru-
dence as defined in the foregoing lectures 219
 ANÀLYSIS OF PERVADLVO NOTIONS.

LECTURE XII.
««capitulation. -Suturai and .nom! rights,
or rights wliich uwnly
«uictioued religiously or uiorally.-Idoa.s, the analysu ofarowhich U
inoviUiMy iuvotved in that of right. Obligations
or diities aro positive
or négative.– Forbeaniuces caimot bu atylwl with propriotyncffalh-c ter.
i-i<w. -Obligations are relative or atwoteto.-Kights imply
t/iinga, acts, and forbtarancts.– Pcrsons, imtural permiu,
or iictitious.– Meaniiig
of 'physit-al iierson,1 or 'jiereon' aiiu]«ly. 'l'craon' freijuentlysyiiouy.
mous with 'nttttus' or condition. '–Kietitigm or légal Rirons l'âge 343
LECTURE XIII.
Recapitulatloii.-Meaiiing of 'thing. '-Distinctions between tliings.– TWugs
slguifyiiig acts and tbrbc!iraiK-(fs.-Corpoix'aland incorirorwil tlungs.-
Distinctiou Iwtwecny«ra rermn and jura
ptnouamm brieBy introilucea 367

LECTURE XIV.
Pwons and tliings.– Pewons and tliitigs distinguistosd. Kvants. Events
are simple or compte! Import of 'facf and incident. '-Acts and for.
bcarances.– Act– Fortarancc– Introduction to the distinction between
ju» in «wi and jus in ptrmimn.– Distinction between jm in and
/iw inpersmuuR.– Illustrationsof the distinction betwcon/<Mt«rem and
rem
jus te persmiam.– Property.– Servitus.– Exiimpk-s ofrights mpersonam
lst. A right arising out of a tmtntel; 2ndly. A right foundod ou an
"'JUT 384
LECTURE XV.
Further illustrations of the distinction botween ju in
rem and jus ia j«<
noiiam Jua in rem restrictod by certain writers to ju» in
nin over or lie
Ikings.– Rights in rem over jwrsons.– A person who is thembjecl otjus
in nm is pUceil lie a position like ths position of a thiiig whieh is the
sul.jeet of a similar right. And may be styled (by analogy) ihing.–
a
Jus realiter personale.– Kights ût rem, witliout déterminât» subjects 381

LECTURE XVI.
l.
Purposeand order of the present lecture.– Communnature of rights.– Certain
définitions ofarightexainined 393

Import of • right' in are LECTURE XVII.

relative or absolut»; Absolut»
duties defined by exhaustive «numération. Order in whieh I shall
con-
sider absolute duties in the présent U<Awn.–$ttf.rtgatdiri3 dutie» nnd
duties tut ngarding man, regard pcrsons generally in respect of their
 remoto purpono.– Relative tluttes regard persons gencralfy in respect or
fliéîr reiuuia purpoiio. Patk» «owurtl» pontons genereHyare. indlrretïy,
diuties iovmtil» ueteriniuateperstons.Juit publtcuiu et privation.– Civil
injuries ami crimes.– Différence fatwcuu relative uud abvolute Juik-»,
etc.– Distinctiun» betwceii «bsolute Jiiiius l'age 400

LECTURE XVIII.
Hricf rrview of prcceiling lectures.– Obligation, iujury, and sanction imply
motive, will, intention, négligence, end ranima». Apology for iiujuir.y

4Q7
into 'iiiotivc-wiU,'etc.– ïlic will. Pominiou of thc will limited to
lwillly organs. -Dominion of the will limited to tome bodily organs.–
î
Dominion of thé will extemls uot to thé mirnl.– VoJitigus, wlmt Acts,
what I– Naines of act» comprise certain of their eousequencts. –Confusion
of will ami intention. –Motive and will.– Motives to volitions. Motives
to motives.– Why thé will lias attractetl m nmch attention nml been
tliought mysterious

LECTURE XIX.
Volitions and motives.Acta-Iutornai acts.Intentivu as regarding présent
acts, or the conséquences of présent acts. –Confusion of will ami intention.
-A conséquence of an act uwy not be intetulcd. An tntended couse,
quence of an act may be wished or noI.–Xnd if wûhed, it may be wishcd
as an end, or as a mean,– Conscqueuce of an act wished as an «nrf. Con-
currence of motive and intention. Exemplilications of the three foregoing
supi«sitions.– Of the first supposition. ~-Of the second supposition.–
Of tlie third supposition.– Forbearanct-sare intendod, but not willtsl 418

425
LECTURE XX.
Acts nre willeil ami intciuk-dcon<c({ucnces arc inkndcd. Forbcarances are
inUndtil. Motives to forbearauces. Forbearances distinguished froni
omissions. Ambïgaities of thé ternis forbearance and omission
commit and omit. Négligence. Heedle&iucss. Négligence and heej-
lessntss compared.–Rashness.–Négligence, heedlessuess, and rasl>nes.s,
likeiicd and distinguished.– Dolus.– Culpa.– Malice.– Dolus and culi>a.
Komimlaw

etc LECTURE XXI.

Intentions coupled with volitionsand arts. Présent intention to do a future
act, distingui.sliiHl from an act with a présent volition and intention.–
l'resent intention to do a future aot, what Distingnisliwlfrom a tiituplu
désire ut the object Présent intention to do a future act, ro-stated.
Confusion of will and intention.– Intending 11 future foibearanre. Au
intelidetl conse()uenctt of an inteinled future act, is uot always dt-sired.
Intentions to do future acts are certain or uncertain are mutured or
undigi'stcil.–A tmmUuin, or conil>assing.– Attcmpts. Intentionof Icgis-
lator, 435
 LECTURE XXII.
Dttty Injaty.– Saiwni,oi>OWi(»»thmis- objwxîonsiicss fà sanction.–
a

Pago«8
Sanction ond obligation distlnguishcil.–Obligation regards the future.–
Sanction» upou
8i1l1ctioll~o¡)erate tlioAatim.~ Au obligationto
operate uvou tJlo~i''e$.-Al1o¡'II/IIItio'' un'»flot
to luili Impossible.
itotIm¡lOS8lblc,
–An obligation to ttesire not possible.– Suppuseu eonilict ofdesiro and
trill.– Elfwit of obligation iu vxtinguUhingttesires wliicli ur«e to a brencli
«'«'y

LECTURE XXIII.
Physlcal compulsion or restraiiit distinguished from tint which in imported
by duty or obligation.– Obligations to siifler and not to suflur.– Passion
or sufEiring, wliat 1 is the ulliuiate sanction of every obligation. Suffer-
ing may bc inQieted withont physical couiimlsioii or rcstraint 452

LECTURE XXIV.
Immédiate and remote abjects of ilutios.– Forbratiinces, omissions,
or acts
which are ineonsistent with thé remote jmrjMiscs of dutii-s.– Iiiijiort of
thé cognate oxpressiot» wrong, gulit, imputability = breach of duty.–
Intention, négligence, heeiilessnew, or rashness, is of thc
vaeuw ol
'•jury, guilt, imputability, or breach of duty.– Bat is not of itself injury,
guilt, ctc-Bricf aualysis of ucgligenca and its mode»; of intention
ganliug thc preseut, and intention reganling tho future.– Wliether
w
intention, neither consuwmatenor followed by an attompt, could be nmde an
the ohjcct of a negative obligationI– Restrictionof 'guilt' 'culjia'
or to
Intention. négligence, hecdk-siiicss, or rashness, as the cause of action,
forbearanec, or omission.– Injury, etc. is tho contradictory of duty.–
Corpus délie ti.– Further remarks on thé import of the word 'dolws.1–
Auibiguityof 'Scliuldncr,"Reus,'ctc 457

LECTURE XXV,
Intentionor inadvertance is of tho essence of iiyury.–An «lisurdity in English
law from inattention to this priiici»le.-J/<>ra.-Rcsume thé principle,
that intention or inadvertance is of thc essence of injury.– Grounds of
exemption from liability, mostly roducibie to the principlo last stated.

faelo laws tletlueiblc- from thé sanieprinciple

1. Casus or accident.– 2. Ignorance or error.– The objection
to ex post
48g

LECTUBK XXVI.
Recapitulation,– Considération of thé exuroptions from liability resumed.– 3.
Infaucy and Insanity.– Digression on tiio dHRireutkinds of ;>r«ai()/i^,oH«
jurû.–4. Dninkenncss(in some Systems oflaw).– 5. Suddcnnud furious
anger (in some systems).-Anillogical distinction in Roman law hetvveen
delicts and iiuasi-dclicts.– Crounds of exemption not depeuding
foregoing principlo. 1. l'hysical compulsion.– 2. Extrême terror.– on the
The
so-called exemptions not proiœrly exemptions, but
cases tu which theidea
of obligation does not apply <gg
 LECTURE XXVH.

l'âge
Correction of statemoiii» in last lecture: Angcr, p. 496, cciifo–Stateinontas
|o iu.-<inislttvc! prescription, p. 499, o«fc.– Sanctions civil aiid crimiiwl.–
Public and Private wrongs.– Luws «vinotime»eauctioiml \>y imllitits.–
Vlcnrioiis jmtiishment. Varions mcnnlngs atiit i-tyniolugy of tko word
sanction 499
 PREFACE.'
(BY SARAH AUSTIN.)

IT seerns necessary that I should endeavour to justify tlie step

1 havc taken, in bringing before tho public writings of such
et
nature and value as those of my deceased husband. 1 liave also
to explain why 1 have detenniued to publiait them in thu incom-
plète and unfinished state in which lie left them. The latter
décision M'as, indeed, a necessary conséquence of the former
sinco 1 could hardly be guilty of the irreverence and
presump-
tioji of attempting to correct or alter what lie had written.
I respectfully offer thèse explanations to the few to whom
it is fit that any mention of such a man should be niatle and
1 beg them not to think me so careless of lus faîne
as to hâve
lightly and unadvisedly uudertaken to do what might lower the
réputation which (almost in spite of himself) lie has left among
them. To their judgment and candour 1 commend these im-
perfect romains. Whatever defects tiuy may nnd, let them be
assurai he would have found more and greater.
It is well known to ail who are interested in thé science
of Jurisprudence, that the volume of which the présent is a
republication bas for many years been out of print. From thé
time tins was known, camest and ilattering entrcaties that he
wouM publish a second édition reachcd him from various
quarters. They were sufficient to stimulate any vanity but his.
Unfortunatcly they came too late. The public, or that
small portion of it which interests itself in such subjects, did
not discover the deep and clear stream of légal science within
its reach, till its waters had been diverted into other channels,
or had disappeared altogether. In proportion as the dcmand
for the book became urgent, more years and
more occupations
l This iircfncc, enrling with tho divi- What follows tlie division on n, 28 ht-
«on on (i. 26, belonged to thé édition lougi.il to the odition of tho remaining
or tupnut îmblislied in 1801, of "Thu lectures, publbhed in 1803, formiag the-
province of Jurisprudence determined.' sequel to the volume published in 1 SCI.
 were interposed between the state of mind in which it was
wrhten, and that in which tbi» demain! fotmd him. Above aH,
the hope, thé fmbufttiou, the nrdoitr with which ho hiuï entered
upon Iiis cureer as n teacher of Jurisprudence, had been blighted
by indiifereuce and ueglect and, in « temper so little sanguine
as his, they could have uo second spring.
It was uot my intention to enter iuto thé particulars of a
life uf which there is little but disappointment and suflering to
relate, and whieh, from choiee as much as from necessity, was
passed in thé shade. Nothiug could be more répugnant to a
man of his proud huniitity and fastidious reserve than the sub-
mitting bis private life to the inspection of the public; nor would
it cousist with my révérence for him to ask for the admiration
(«ven if I were sure of obtaining it) of a world with which he
had so little in common.
But as, influenced by considerations which hâve appeared
to me, and to those of his friends best qualified to advise, con-
clusive, I have determined to republish the following volume,
and to publish the rest of the series of Lectures of which those
herein coutained form a part, it appears necessary to give some
explanation of the state in which he left them to tell why the
work which the Author meditated was never completed why
the portion already in print was so long and so obstinately
withheld from the public; and, lastly, what has determined me
to take upon myself the arduous task of preparing thèse materials
for the press. In order to do this, I must relate those passages
of his life which are immediately connected with thé course of
his studies and also, though with infinite pain, must touch
upon the qualities, cr the events, which paralysed his effoits for
the advancement of légal science and thé diffusion of important
truths.
If I dwell longer upon his personal character than may be
thought absolutely necessary to my purpose, my apology, or my
justification, will be found in the wortls of a writer who under-
stood and appreciated Iiitu
His personal character was, or ought to bave been, more
instructive in these days than his intellectual vigour. He lived
and died a poor man. He was little known and little appre-
ciated, nor did he seek for the rewards which society liod to
give but in ail that he said and did there was a dignity and
rnagnanimitywhich conveyed one of the most impressive lessons
that can be conceived as to the true nature and true sources of
greatness.'
 At ft very early âge Mr; Austin enîered the army, in whieh
he served for Itve years; a fact which would have na place
hère, but for the permanent traces it left in his character and
sentiments. Though ho quitted it for u profession for wliich
lii.s talents appeared more peculiarly to fit him, ho rutaiued to
the end of his life a stroug sympathy with, and respect for, the
military churacter, as he conceived it. The liigh and punctilious
sense of honour, the chivalrous tenderness for thé weak, thé
generous ardeur inixed with révérence for authority and dis-
cipline, the fraukiiess and loyalty, whieh were, he thought, thé
distiuguishing characteristics of a true soldier, were also his
own; perhaps even more pre-eminently, than the intellectual
gifts for which lie was so remarkable.
Mr. Austin was called to the Bar in 1818. If confidence
in his powers and prospects could have been given to so sensitive
and fastidious a mind by the testimouy and the predictions of
others, he would have entered on his career with an undoubting
and buoyant spirit; for every one of thé eminent lawyers in
whose several chambers ho studied, spoke of his talents and his
application as unequalled, and confidently predicted for him the
highest lionours of his profession.
But he was never sanguine. Even in thé days when hope
is most flattering, he never took a bright view of thé future
nor (let me hère add) did he ever attempt to excite brilliaut
anticipations in the person whom ho invited to share that future
with hiru. With admirable sincerity, from the very first, he
made her the confidante of his forebodings. Four years before
his marriage, he concluded a letter thus and may God,
above ail, strengtlien us to bear up under those privations and
disappointtnents with whieh it is but too probable we are
destined to contend S' The person to whom such language as
this was addressed lias, therefore, as little right as sbe lias in-
clination to complain of a destiny distinctly put before her and
deliberately acceptée!. Nor has she ever been able to imagine
one so consonant to her ambition, or so gratifying to lier pride,
as that whieh rendered her the sharer in his honuurable poverty.
I must bu permitted to say this, that he niay not be thought
to have disappointed expectations he never mised and that thé
effect of what 1 have to relate may not be cnfeebled by the-
notion that it is the qucrulous expression of personal disappoint-
ment. Whatever there may be of complaint in this brief
narrative, is excited by thé recollection of great qualities un-
 appiwciated, great powers which fotuid iio congeroal omploynient,
great ardottf for the good of miiuldurf, ehilfoi by indiflbrenee
ami ueglect by tho recolluctioii of tlie utruggha «ml pawgs of ait
ovcr-scrnputous and over-seiisîtivé spirit, viiiiily tryïng to estab-
lish, nlono ami unsustained, the claims of a science which he
duuined so important to mankind. Nor is the sorrow of an
iinmeasurable private loss so engi-ossiiig as uot to bo enhanced
by livrets at tlie loss sustained by the world.
It beeanie in no long titno «vident to une who watched hiin
with the keetiest anxiety, tlmt lie wuuld uot sueceed at the liai1.
His health was délicate ho was subject to fuvurish attacks whieh
left him in a state of extrême debility and prostration and as
these attacks were brought on by either physiculor moral causes,
nothing could be worse for hiiu than the hurry of practice, or
the close air aiid continuons excitemeiit of a court of law.
And if physically unfitted for the profession he had chosen,
lie was yet more disqualifiée! by the constitution of his mind.
Xervous and sensitive in tlie highest denrée, he was totally
deficient in readiness, in audacity, in self-complacency, and in
reliance un the supeiiority of whfch lie was conscious, but which
oppressed rother than animated him. He felt that the weapons
with which he was armed, though of the highest possible temper,
were inapplicable to the warfare in which he was engaged and
he graduaUy grew more and more self-exacting and self-distrust-
ing. He could do nothing rapidly or imperfectly; he could not
prevail upon liimself to regai-d any portion of his work as insig-
nificant; he employed a degree of thought and care out of ail
proportion to the nature and importanceof the occasion. Thèse
habits of mind were fatal to his success in business.
Indeed, even before his call to tho Bar, he had detected in
himself the germ of the peculiar disposition of mind which
disqualified him for keeping pace with the current of human
affaire. In a letter addressed to his future wife, dated 1817,
wlien he was still in the chambers of an Kquity Draftsman, he
wrote, 1 ahnost apprchend that the habit of drawing will in no
short time give me so exclusive and intolérant a taste (as far, 1
uiean, as relates to my own productions) for perspicuity nnd
précision, that I shall hardly venture on sending a letter of much
purpose,oven to you, uulcss it be laboured with the accuracy and
circumspectionwhich are requisite in a deed of conveyanee.'
Uut the habit of drawing did not create, though it might
develope, this tendency to exact from himself a degree of per-
fection incompatible with promptitude and dispatch. He was,
 «s he says, intolérant of iiny imperfection ànct so long as lie
coultt dbscry the sumllest errw or ambiguity ma phrase, lie
recast it ugain and again till his accurate mind eoukl no longer
stiggesfc an objection or a difficulty. This was not thé tempcr
whieh could accoimnodttto itself to tho iinporious demands of
business. After a vain struggle, in which his licaltli and spirits
sufferecl sevorely, lie gave up practice in the year 1825.
In the year 182G, the University of London (now U niversity
Collège) was established. From the charaeter and objecte of
this institution it appeared to hold out a hope, that not only
classes of persons, but branches of science, excluded from tlie
ancient universities, might find admittance and fostering in
this. Among thé sciences which it was proposed to teach, was
Jurisprudence, and Mr. Austin was chosen to fill that Chair.
As soon as he was appointed, he resolved to go to Gemiany, in
order to study on the spot what had been donc, and was doing,
by the great juriste of that country, for whoru he had already
conceived a profound admiration. He immediately set about
learning the language, and had already mado some progresa
before he left England. In the autumn of 1827, after visiting n
Heidelberg, he established hîiuself with his wife and cliild lit
Bonn, M'hich was then the résidence of Niebuhr, Brandis,
Schlegel, Arndt, Welcker, Mackeldey,Heffter, and other eminent
meu, from wliose society he received cqual pleasure and instruc-
tion. Mr. Austin secured thé assistance of a young jurist, who
had just entered on that stage of the professional career in
whieh men are permitted to teach, without holding any appoint-
ment. They are caîled Pritatdocentcn, and are a sort of tutors.
By reading German law-books with this gentleman, Mr. Austin,
while pui-suing his main object, speedily acquired the language
with that precision and conipleteness which lie canied into
everything he studied.
He also, as 1 h'ml from some slight memoranda, took great
pains to infornr himself thoroughly of the discipline and mode
of teaching in the German Universities. He often expressed
his earnest désire to carry home, for thé use of Knglaml, what-
ever were inost worthy of imitation in Genuany. He left Bonn
in the spring of 1828, inaster of the German language and of a
mimbcr of the greatest works which it contains. He always
looked back upon his tesidence there as one of the most agree-
able portions of his life. Ile and those belonging to him, w!io
were then the only English established at Bonn, were recei .ed
with cordiality by this distinguished society, and fourni there
 the qtialities most eonsonant to their tastes respect for know-
Iedge, tové of ait, fnieduui of thought, âud siiHpiieJty of habits.
Spite of the hopes, tho projects, ami the acquirameuts with
whicli he entered ujion his uew functious, it
was not without
iiiuch. regret and suiuo forebodings that lie quittée! life
n so fuit
of intervst ami so freu froin care, for the restraint» ami privations
which Lomlon imposes ou poor people, umt for the anxieties of
a laborious and untried career.
i
Yet overjthing promised well, excuptiug always his health,
which had suftered cxtremely from his nnxiety Ijeforu quitting
the Jiar, and was ouly partially rcstorod by the comparative
tranquillity of mtod wliich followetl his appointmeut, ami by
his salutary and agreeable résidence
on the Hhine.
His Lectures opened with a class which exceeded his
expectations. It iiieluded several of the meii who
are now
most enùtient in k\v, poli tics, or philosuphy. He was much
impressed and exdted by thu spectacle of this noble band of e

yoimg men, and lui felt with a sort of awu the responsibility
attaching to his office. He had the highest possible conception
of the importance of clear notions on the foundations of Law
and Morals to the welfare of thé human
race tho thought of
being the médium through which these
were to le conveyed
into so many of the minds destined to exorcise powerful
a
infliience in Englouti, filled him with anlour and euthusiasm.
As might be expected from his susceptible nature and délicate
conscience, these were not unmixed with anxiety too intense for
his bodily health.
Some notes, which 1 find in
a blauk leaf of the First
Lecture delivered at the London University,
are so strongly
imbued with his earnest and ardent dévotion to his work, that,
not without some hésitation, 1 resolve to give them exactly as
they stand. Even the broken sentences are characteristic, and,
to thoso who knew him, inexpressibly touching. To such, they
will vividly recall the man whose passionato love of truth and
c
knowledge is apparent even in thèse hasty woitls.
(
1J
Before wc separatt, 1 wish to
say a fcw wonls.
It U my [mrpfise to hold con vexations at the end of
c-very lecture.
[Mmntawx tu mysulf and to the gentlemen of
of extt-mpore lcctnre«.
my data– Advautmn»
rncowplett-ncsâ of written lectures, in ruipect of the ideax. Waste
of
labour in writinK j extempore lectures
can be aikpted at the moment t.»
the hearer (
Diiluess of written lectures :]
f therefo» winh, of «11 thing?, to fonn habit of lecturin»
a extempore
To thi», 1 am at present not compétent, but by dint of giriiig exphnwtions,
etc., I hope t may neijuire thé reqnisite facilityand composurc.
Auotfier athwatagc whieh will arise tïoin these discussions Errors m
plan (tntV in exécution wili W pointetl tntè ttml correcte»].
1 beg of yuu uot to hu restraiued by fui»; delicacy Fraukness is the
highest compUiueut.
etc.
I never myself acquiesce,
And this is perfectly consistent with admiration for genius Muiwtrous,
etc.
therefore, for a iiiuu,
1 therefore entrait you, as the greatest favour you enn do me, to di-inaud
explanations and ply me with objections turn me inside out. I ottglit
not to stand hère, unless, etc.
Can Ijc-ar eastigation without flitiching, coiuing from a frieruily luind.
From this collision, adviintages to both parties mo« ndvautageous tlmn
any written lecture.
Request them to ask questions relative to étudies.
I» short, juy requestn are, that you will ply me with questions, and
tliat yuu will attend rtgukriy.'
1 find in thé manuscript numerous passages marked v. v. whieh
lie evickmtly menât to expand or analyse externpoitineously.
He now appeared to have attained to a position above ail
others the best suited to him. His peculiar tastes and talents
fitted him for the business of a teacher. His power of
metliodising and expounding vas matchless; and he had a
natural and powerful eloquence (wheu he allowed himself to
give way to it), which was calculated to rivet the attention and
fix itself on the memory. This was far more striking in con-
versation than in his written lectures. As soon as he reduced
anything to writing, the severity of his taste and his habituai
resolution to sacrifice everything to eleanress and precision, led
him to rescind every word or expression that did not, in his
opinion, subserve thèse ends.
Perhaps no man was ever more eminently qualified to mise
extemporaneousdiscourso to the highest excellence, had he but
combined with his other singnlar qualifications that of easy
confidence and self-satisfaction. His voice was clear and Imr-
monious, and his elocution perfeet. Kobody ever heard him
talk without being powerfully struck with the vigour and
originality of his discourse, the variety and extent of his know-
ledge, and the scholarlike accuracy and singular appositeness of
his language, Classical thoughts aud tnrns of expression were
so familiar to him that they seemed innate and spontaneous.
'I think,' writes a friend to whom 1 have shown this poor
attempt to describe him, 'that you have hardly said enough
about his eloquence in conversation. But the truth is, that it
is impossible to describe thé manner in which one was carried
 awny and uttorly absorbed by his talk. One had troyelled 'in
un liour over such vast régions, and afc suoh an élévationAnd
then the extraordinary estent and exactness of Iris laeinoryî'
It is tnw that 1 shrink from the attempt to eonvey an idea of
bis éloquence iu commun discourse. It lives in the remem-
branee of a, few. His memory was most extraordinary, and
would hâve been a gift to dwell on with wonder, had it not
been so subordinato to bis higher faculties. He never made ]

any display of it and as it was always under tho coutrol of

his suvere love of trutli, his hearers were certain that he
hazarded uothing, and that his statements might be implicitly
relied on.
But those qualities which, above ail others, smooth thé road s
to success, wero not to be looked for in a character like his. c
l'roud, sensitive, trying everything by thé lofty standard lie f
bore within him, it was only to a very peculiar sort of encour-
agement that ho was accessible. The highest applause or J
admiration of ignorant millions would have failed to givo him c
the smallest satisfaction. The approbation of the few whose
judgment he respected, or the persuasion that his labours
tended to gênerai utility, were thé only stimulants by which ho
could be enabled to rise above his constitutional shyness and
reserve.
It soon became elear that ho was as far as ever from having r
found the modest, but tranquil and seeure position, in whieh lie <
might continue to labour for the advancement of the sublime
science of which he knew hiniself to be so consummate a
master. '1
!l
It was not to bo expected, it is never found, even in the
country where science is most ardently puimied for its own
sake,> that studies which have no direct bearing upon what is
called practical life, can, except under very peculiar circum-
stances, attract numerous audiences. Where, therefore, thore is
any serious intention that the few who addict themselves to such
studies should find compétent instructors, funds are provided for >
tlie maintenance of men who have obviously nothing to expect
from popular resort. Their position is perhaps not brilliant, but c

it is secure and honourable, and afibrds them lcisure for the

prosecution of their science. No such provision was, however, j
made for the Chair to which Mr. Austin had been elected; and
as jurisprudence fornicd no part of the nccessary or ordinary
studies of a barrister, his professorship became nearly an empty
titlc. r
|
| T» sP>tef' s»y» tJw ilhwtïious writer of a notifie of Mr.
Aiistin'a deatb, in tho 'Law Magazine,' 'of the brilliant com-
mencement of his carcer as & Profcssor, it soou beau»» évident
[ that this country would not aftbrd such a succession of students
V of jurisprudence os would suffice to maintain a Chair; and as
'' there was uo other provision for the teachers than tlie students'
fées, it followed uf necessity that no man could continue to hold
that office unless he had a private fortune, or curnbined some
k*
gainful occupation with 1m professorship. Mr. Austin, whu had
no fortune, and who regarded tlie study and exposition of his
science as more than sufficient to occupy lus whole life, and who
knew that it would never be in demand among3t that immense
majority of law students who regarded their profession only as
a ineaus of making money, found himself uuder thé necessity of
resigning his Chair.'2
Such was the and of his exertions in a cause to which he
had devoted himself with an ardour and singleuess of purpose
of which few men are cajjable. This was the real aud in-e-
mediabk calamity of bis life-the blow from which lie never
recovered. His failure at tho Bar was uothing,and would never
have been regretted by himself or those whocared for him.
That was not his vocation, nor had lie any peculiar aptitude for
it; and there was no want of able and successful hamsters.
There was no one to do tlie work he could have donc, as an
expounder of the philosophy of Law.
At the time he wrote his Lectures, constructed the Tables
(hereafter mentioned), and prepared this volume for the press,
1 cau affirm that hc had
no other thought, intention, or désire,
than to push his inquiries and discoveries in the science of law
as far, and to diffuse them as widely, as possible. It was from
no unsteadiness of purposo,no shrinking from labour, no distaste
to a life of comparative poverty and obscurity that he abandoned
the pursuit to which he had hoped to dévote his life. If there
had been found for him some quiet and humble nook in the
wide and rich domains of learning, it is my fini» conviction that
he would have gone on, slowly indeed, as the nature of his study
and his own nature rendered inévitable, and witli occasional
interruptions from illness, but with unbroken tenacity and zeal,
to the end of his life.
In June, 1832, he gave his last lecture. In that year he
pnblished thé volume, of whieh the présent is a reprint. So far
was he from anticipating for it any biïlliant success, that lie was
Law Magazine and Kevicw, for May 1S60.
nstonished itt elle readiness and litaraiity with which the late
Mi'. XTùrroy uudertook tlie publication v£ it and for years
afterwunh bis anxiety was extrême, lest it should hâve entailctl
liws upou that gentleman. When nt length, in auswer to
luy
iuquiries, Mr. Murmy preseuted to me the Inst remntning copy,
as a proof that our fears were groumlless, Mr. Austiu expressed
perfect satisfaction, ami something liko surprise, eveu nt this
very moderato success. Ho was fully aware of the uiipopulnrity
of the studies to which lie lmd devoted himself.
So fcw,' says hv, &tv thé sinec-re in'iuirer* who turn their attentiun to
these sciences, ami eo difflcult is it for the multitude to pereeive the worth
of tlu-ir laljoura, that the rnlvancenicut of tlic sciences thetusolvKS is Coin-
pnrutivetyslow wliilst the most pcrspiciioue of the trutlu with whieh tlit-y
are octusiomilly enriched, are eithur rvjccted by thé imuiy as wortlik-ej» or
pernicious pantdoxos, or win their laborinus way to gênerai assent through
a long and dubious struggle with esUblislicd nnd obstinate errors.'
It must be admitted that the réception given to lus book at
first was not encouraging. îfeither of the Reviews which pro-
fess to guide public opinion on surious subjects took the sliglitest
notice of it. Some eulogistic articles appeared in journals of
less general currency, but on the whole it tnay be said to have
been left to make its way by its own merits. It was only nt n
later period, and by slow degrees, that they were appreciated.
In the year 1833 Mr. Austin was appointed by Lord
Brougham, then Lord Chancellor, member of the Crîiuinal Law
Commission. Though this turned him from the pursuit to which
he had hoped to dedicate his life, and confineil his inquiries to
a narrower and less inviting field than that lie had marked out
for hirnself, lie entered upon it with the same conscieiitious
dévotion, and carried into it the same profound and comprehen-
sive views. But he soon perceived that they would be of small
avail to himself or to the. public. The powers granted to the
Commission did not authorise the fundamental roforms from
which alone he believed any good could corne and his opinions
as to the ground to be marked ont, and thé foundations to be
laid, before any satisfactory structure of criminal law could be
raised, differed widely from those of his colleagues. Ho had
little confidence in the effîeacy of Commissions for constructive
purposes. He said to me, If they would give mo two hundred
a year for two years, I would shut myself up in a garret, and nt
the end of that time I would prodnee a complete map of the
whole field of Crime, nnd a draft of a Criminal Code. Then
let them appoint a Commission to pull it in pièces.' He used
to corne home from every meeting of the Commissiondisheartened
f
j bjuI agitftteil, and to express lus répugnance Ut reewviiig the
f public Jnoney for work ftoni whieh ho thonght the publie «"©uld
7
dérive little or no advantage. Some bltmed and Wotted shwt»
>; which 1 hâve found, bear painful und afïecting marks of Ihe
straggle that was goîng on in bis mind, between his own ïofty
sense of clignity nnd duty, and those more ordinary notions whieh
subordinate public to privnte obligations. 1 have nlso fuund
the commencement of a project of a Criruiiml Code drawn up ut
>
that time.
About tho same time, he had arrived at the conviction that,
as a teacher of Jurisprudence, he had nothing to hope. The
insufficiency of the légal éducation of the country had fur some
time attracted the attention of tho more enlightened part of the
profession; and it was at length detennined, by the Society of
the Inner Temple, that some attempt should be made to teach
the principles and history of jurisprudence. Among the most
oarnest promoters of this scheme was Mr. Austin's friend, Mr.
Biekersteth, afterwards Lord Lan.-dale. In the year 1834, Mr.
Austin was accordingly engaged to deliver a course of lectures
on jurisprudence at the Inner Temple. Had this appointment
been made under différent conditions, it was one whieh he would
have preferred to any other, however distinguished or however
lucrative. Unfortunately, it was not of a kind to give him the
security and confidence he wanted. He was invited to under-
take the discouraging task of trying to establish a new order of
thiugs, without the certain, though distant, prospect which usually
cheers the pioneer in such an enterprise. His appointment coukl
only be regarded as an experiment. This uncertainty weighed
upou him from thé first. He was, as 1 hâve said, disqualified
by nature from ail work of a passing and temporary sort and
in order to labour with courage and unimation, ho needed to see
before him a long period of persistent study, and security from
harassing anxiety. His precarious health and depressed spirits
rcquired every possible support; nnd he was but too easily dis-
heartened at what lie thought the want of confidence in the
scheme, or in him, evinced in a merely tentative appointment.
It was also clear that the same causes which rendered the
appointment to a Chair of Jurisprudence abortive at the London
University, were in operation (perhaps to a still greater extent)
in the Inns of Court. The demand for anything like scientific
lejjal éducation had to he created. The eminent lawyers vho
had adorned the English bar and bench (of whose great faculties
no one had a higlier admiration than Mr. Aiistin) had been
formed by a totally différait process and tho yonng nien
entering on the profession were, for thé most part, profounCIy
indiffèrent to any studies but those which had chabled their
prwlt'cessors to attttin to places of honour and protit. Thus
depressect by fiuluwj unaustnined by syuiputhy in hitt lofty and
beuevolcnt aspirations, or by recognition of his value as a
teneher; agitatcd by conflicting duties, and harassed by anxiety
about tho meaua of subsistence, it is no wonder that his health
became sensibly worse. The severe foverish attacks to which
he luul always been subject, beenrae more and more fréquent and
violent; ami often, after propariug a lecture with great care and
intense application, he was compelled, on the day wlien it should
have been delivered, to send messengers round to the gentlemen
of his clnss, to aimouneo his inability to attend. He soon saw
the iiiutility of struggling agaiust such obstacles. He resolved
to abandon a conflict in whieh ho had met with nothing but
defeat, and to seek an obscure but trunquil retreat on thé
Continent, where he might live upon thu very small means at
his disposai.
He quitted England with a strong feeling of the disadvan-
tage at which a man like hiwself, devoted exclusively to truth
and to the permanent good of mankind, stood, in a country
where worldly success is not only tho reward, but the test of
merit and where, unless hc advances in certain beaten tracks,
he arrives at nothing, except neglect and a sort of contemptuous
wonder. He felt this keenly, and said to the one person to
whom lie ever talked freely of himself, 1 was born out of time
and place. I ought to hâve been a schoolman of the twelfth
century or a Gennan professer.' ïho position of such illustri-
ous and revered teachers as Hugo and Savigny seemed to him
the most enviable in tho world. The pecuniary inferiority of
such a position, compared with the profits attending the practice
of law in this country, was not a considération to which his
rnind could easily descend.
He had been settled at Boulogne about a year and a half,
when a proposai was made to him by the Colonial Office,
through his much esteemed and faithful friend Sir James
Stephen, to go to Malta as Royal Commissioner, to inquire into
the nature and extent of the grievances of which the natives of
that island complained. He acceptée! an appointment for which
he was indeed peculiarly fitted. Justice and humanity were
parts of his nature, and were fosterod by reason and by study.
He had no syrnpathy with the insolence of a dominant race, and
l he W89 not likely to view with indulgence, violations of the
| conditions under which Englund had aecopted Ihe voluntary
f cession of Malta by its hilmbitaiits. On tlie other hand, hn
[ sagaeity, knowledge, and strict sensé of justice renderal him
inaccessible to fiwitastic sehemes or gruuudta» eomplaiiit».
j Aided by his able and acconiplished colleague Air. (now Sir)
George Cornewall Lewis, lie rendered to the island services
which attracted little attention in England, but are remeinberal
i with lively and affectionate gratitude in Malta.
He had the satisfaction of seeing every measure he reeom-
raended adopted by the Colonial Office; and he always looked
back with great satisfaction to his connection with two men for
whom ho entertainud so sincère a respect as Lord Glenelg and
Sir James Stephen. But hère another disappointraent awaited
him. After the refonn of the tariff (which Sir James long after
called, the most successful législative experiment he had
seen
in his time'), and of various parts of the administration of the
island, Mr. Lewis having been recalled to England to préside
't over the Poor Law Board, Mr. Austin was preparing to enter
upon his more peculiar province, légal and judicial refonn.
Lord Gleuelg, however, was no longer in oflice, and the Com-
mission was suddenly brought to a close by his successor. Xo
reason was assigned, nor was Mr. Austin's abrupt disniissal
accompanied with a single word of recognition of his services.
It reniained for thé Maltese to acknowledge them.3
It is indeed but too probable that the state of his health
would have incapacitated him for thé work he prqjeeted. But
he frequently said to me, that if, as he presumed, thé Colonial
Office wished to put an end to the expense of the Commission,
he would have continued to live in thé island in a private and
humble manner, till he had introduced something like order
into the heterogeneous mass of laws bequeathed by the successive
masters of Malta. It was, however, fortunate that lie was not
permitted to attempt a task to whieh his strength was so
inadéquate.
In giving this short account of his troubled life and ljaftled
designs, my object has only beeu to show what were the
3 \Sueh was tlio mail,' says a Malta the iuliaUwiits of tlùs islaml arg greatly
journal, in ail article aimoundtig ltis ailvaiiccd in the st-ali- of civilisation,Ixrtli
d«itli, to wliom tlio Jliiltc-si; must ev«r l»litically and Bodally, ainl rcuilcntl
fi'i'l gratc-l'ul for tlii-irjmproveil coiulitiou more cnentially llritWi in civil jjolity
tltrynow nml andtno;t
as a jn-uple,mjoy for tlio iiwny tlc
privilcj(es
ofsall for and institutions, liy thé meas>un.sadojitwt
they now enjoy j and most of hU for thé on tlic- reconiinunclationof thé CoiuiaU-
lik'rty of tlui press umler whieh y» «ru
now \rriting. t cannot Iw UUputcd that
»ion iirewli.il over |jy Mr. Austiti.'
«ircunistances by which h» was force» l ont of the traek on
whieh he had entered, and in which his whole mîmi and soul
were engaged and why it wws that he seemed to abandon tho
science to which he had devoted his siugulor powers with so
inuth ardour aud inteusity.
It was this very ardour and iuteiisity, this eutire absorption
iu his subject, which rendered it impossible to hiru to résume,
at any given moment, trains of thougkt fi-om whieh his nùnd
had beeu foreibly diverted. It belonged to the nature of his
mind to grapple with a question with ditticulty, alniost witit
reluctance. It seemed as if he had a sort of drend of tho
labour und tension to which, when it had once taken hold on
him, it would inevitably subject him. He was frequently urged
to Write on niatters whieh he had studied with au earuestuess
second only to that which he had devoted tu his owu peculiar
science, such as Philosophy, Politieal Economy, aud Political
Science «jenerally. He usually evadecl these applications but
to the person with whom he had no reserves, he used to say,
'I 1 cannot work so; I can do uothiug in a perfunctory manner.'
He knew perfectly his strength and lus weakness. He could
work out a subject requiring the utmost stretch of the human
faeulties, with a clearness and completeness that have rarely
been equalled. But he had no mental agility. When he gave
himself up to an inquiry, it mastered him like an ovunvhelming
passion. Even as early as the year 1810, he spoke to me, in a
letter, of the difficulty he found in turning his faculties from
any object whereon they hâve been long and intently employed,
to any other object.' And for the same reason, when his mind
had once loosened its grasp of a subject, it could with difficulty
recover its hold.
At the time when a second edition of his book was first
detnanded, he was, as I hâve said, occupied in the business of
the public, to which it was with him a matter of conscience to
consecrate his undivided attention. To this renson for delay
was now added another. His huait h had gradually declined,
under the pressure of labour and anxiety. After his return
from Malta, in 1838, he was so much worse, that in 1840 his
medical friends exhorted him to try the wateis of Carlsbad,
with very small hope, as they afterwards confessed, of seeing
him again. From those wouder-working waters however he
received so much benefit that he determined to return to them,
and the summers of 1841, 1842, and 1843 were spent there.
In the varied and interesting society assembled in that place, he
 ronde thé Bequnmfanee of many eininent persons, from whom lie
engerly songht for information on the condition of their soveral
countries. Tho intervening winters were pleusantly and profit-
ably passed at Drcsden and Herliu. fil the latter capital he
fourni diqu emineut in every bnuich of science, to souie of whom
ho had long looked up as the great masters of his own, espeei-
ally Iierr von Savigny. l'olitical questions were then agitated
with great warmth and acrimouy in Prussia. Mr. Austin
studied them with his usunl industry aud impartiality aud
several men who were theuuelves engoged iu the discussions
of the day, were so struck with thc cleamess and justness of
his views, that they urged hiin to write on the affairs of their
couutry. I have found memoranda whieh show that at one
time he contemplated some work of the kind. It was at
Dresden that he wrote, for the Edinburçjh Keview,' his answer
to Dr. List's violent attack on the doctrine of Free Trade.
In 1844 he removed to Paris, attracted thither by the
society and friendship of some of the distinguished men who
were then thé able expositors of science, or the eloquent
advocates of free institutions. Shortly after, he was elected
by the Institute a comsponding uember of the Moral and
Political Class; an honour for whieh he was wholly unpre-
pared, unaccustomed as he was to any public recognition of his
merits. 1 shall borrow the words of an illustrious friend, to
describo the impression he left on some of the highest minds of
Fronce 1 could add many such testimonies, but that of M.
Guizot is sufflcient. C'était un des hommes les plus distingués,
un des esprits les plus rares, et un des cœurs les plus nobles que
j'ai connus. Quel dommage, qu'il n'ait pas su employer tout ce
qu'il avait, et montrer tout ce qu'il valait
In that year another earnest appeal was made to him to
publish a second édition of The Province of Jurisprudence.'
Letters from friends, and even from strangers, amved, lament-
ing the impossibility of getting a copy, and setting forth the
constantly increasing réputation of thé book. But thèse flatter-
ing représentations,whieh perhaps at an earlier period would
hâve spurred him on to fresh exertions, seemed to give him
little pleasure, and he rarely alluded to them. They had now
to encounter thé reluctnnce I hâve spoken of, to résume long-
disused labour, labour too with whieh a crowd of painful
recollections were associated.
To give a more reprint of thé book would hâve been easy
enough, and it is what any one else so encouraged would
 probably have don»; but Mr. Austin had discovered dofecta
in it which had eseaped thé criticism of others and with that
fastidious toste and scrupulous conscience which it was impos-
sible to satisfy, he ret'used to repubiish whnt nppeared ta him
imperfection».
Tliat ho had long meditated a book emhrncing a far wider
fiuld, I well knew; but 1 foared that this great work would
îwver be acconiph'sbed, nnd would havo gladly compounded for »
somuthing fat less perfect than his conceptions. But I saw
that nothîng coidd shake his resolution, nnd 1 never wiffingly
adverted to tho subject. Whenever it was mentioned, he said,
that the book must be entirely recast and rewritteu, and that
there must be at least nnothor volume. His opinion of the
:|
necessity of an entiro refonte of his book aro.se, in great measure, ,j
froia the conviction, which had continually been gaining strength h r
in his mind, that until thé ethical notions of men were more
clear and consistent, no considérable improvemeut could bu
hoped for in légal or political science, nor, consequently, in
légal or political institutions.
The subjoined prospectus or ndvertisement sufficiently proves
that he had seriously resolved to execute the great work he had
planned. 1 have found but one copy of it, nor have 1 been able
to hear of the existence of another. 1 cannot h'nd that it
attracted any attention. ,j

The Prinàjilet and Relut iums of Jurispruthme and Ethies. By John

Ausiix, Es* of the Inner Tunqilt, liarrister-at-Lau:.
An Outline of a Course of Lectures un General Jurisprudence,preceded 0
by au uttuinjit to détermine the province of the science, was publishcd by
thé author in 1832. By the sale of the entire édition, and by the cuntuuied
demniul for the book, he is cncounigoil to umlertakc- a work conceniiug the
«âme subject, but going more pru fourni ly iutu tlte reluteil eubject of Ethies.
Tlie matter in so vtvit, and the task of digestin^ and condensingit eo diflicult,
that a considérable timu must nccesstirily ulnp.s<: befurc the intended treatise
will be ready fur publication.
A concise and unequi vocal title fur thé intended treatise is not affordtd >
by established knguago. Positive law (or /«*), positive morality (or «i«s), ?
to^other with the principles whieh form the text of both, are the inseparably- t
conuected parts of a vaet organic whole. To uxpluiu their eevt-rul uutua-s, >'
and présent them with their coiumon rehttions, is tlie purpoïé of thé cssiy un a
which the autlior U employed. But positive tnondity (as conueived in tlie »
whole of its extent) has Imrdly ac'juireil u distinguishtng namc though one
important branch of it lias become the subject of a science, and been styled
by récent writers the poytivu law of nations. For tlie vanouslv conceived
aitd much di.sputed principles which form the measure or test of positive law
ami morality, cstablishcd Iftiiguage luis no naine which will mark them with. tj

out ambiguity. As reluted to punitive law (the appropriatesubject of Juris-

|4
ri prudence),they are etyled thé principes of législation. As teintai positive
to
|
4
mon»WtyjtI»»y«r8«tyle<Jmo«l*oj'etijie*ibutasoitlierof thèse ntuneswilt
sighify positive raorality, as well us thé standard to whîeh it «igLt to
foriu, there. h no curnut expnsiisioufor thé jaiueipk* i» «juwtion which eut. will
j dénote thetn adequately «ml distinctly. He (uuthor) luui tliwight of
| fitiing thé ioteudud esauy, the principe»and relations of law, moral* «nd en-
i etMes meaulug by law, powfw law by moral», yo*««w moral» nnd by
V ethies, the principes which are the test of both. But in
of the
diflkulties whieh he lias just irtated, ho preferred the conséquence
uion.- eoncist- and uot
more wjuivocal tillo whieh stamb ut the head of thé jnufejrt notice
|
•;
J-'or ix-asons to appear hereafter, tlic work will be divided into
two. parts.
The flrst will bo givcu tu Qoneral Jurisprudence ami in )m exposition uf
that scieuw the autlior will descend into thé détail which
was imlieattd by
the above-iuentioned outlinc, as deeply m consist with the liiuits
may
nnigned to an institutional treatise. The second part will be given
Ethics. Nu separate deiiartment will Le giveu to positive raomls but, tu
so
far a* they arc iraplicated with jurisprudence aud ethics, they will be
noticed in the departments allotted to those sutjects.

Ho announced tho same intention in letter to the

a present
Chief Justice of the Coinuion Pleas, the companion of his eorly
studies, the beloved and faithful frieud of every period of his
life. Itwas only the other day that Sir William Erlo found
the following fragment of this letter, which he lias had the
kindness to permit me to print. Uuliappily,the part containing
tho date is lost. It begins with a broken sentence, which
wust
relate to one of the many applications made to him for second
a
édition probably they were preceded by
some such words as-
[ IVhat Mr. Murray tuggtstt m]la mère reprint of it but, if he would
give me sufficient time (two years or so;, I would do
my k-st ta produce
Eometliing bett«r.
I ehall now set to work in good earnest; and if
my unlucky stars
will allow me a little peace, I hope I «hall turn out something «î
considérable utility.
1 1 iutend to show thé relations of positive morality and law
(mis an<l
ju»), and of both, to their eommon standard test to show that thtre
or
are principles and distinctions eommon to ail Systems of law (or that law i*
thé mibject of an abstract science) to show thé possibility and conditions
of coilincation j to uxhibit a short «cheme of bwly of law arnmged in
a a
natural order und tu sliow that thé English Ljiw, in sj.ite of its
great
peculiarities, might be made to conforni to that order nnich
moi-u closelv
than is iiimgined.
The questions involvtd in this sch*me rjv so nunwrous and diffieult,
tliat what I shall produce will be very iinjrerfect. I think, liowcver, that
thé subject is one whieh will neresaarily attract attention beforo
muny years
are over and I believe that my suggestions will Le of considérable* uV- tu
those who, under huppier auspices, will pursuu the iiif|uiry.
'Thcre are points upon which I sliall Mk jimr advice.
Yuun most truly,
· 1 John Ausiix.'
 He had ftnally establisheU himself ia Para, wlien thu
Révolution of 1848 once more npnmted bim. Ho had watetwtl
with intense inteest ami anxioty the opproach of tlw storm >
which was tu overthrow all rugular government in France and
it wftï from oarnest observation of what passed in thnfc country,
that he becnme confinned in his opinion of tlie difficulty, if not
the iiajKissibjlity, of reconstructiiig a soeiety which lias ouce been
completely shattered. Tlils opinion, together with his ardont
(ind ilisinterarted love of his country, found utterance in tlte 1

pamphlet which lie published in 1859.

f(
Ho rumnined for some months in l'aris after the Revolution,
watching the course of things. As he became more and more
convinced that permanent tranquillity was not to be looked for
in France, and that life there would be ineessantly trouhled and c

euibittered by uncertainty and nlarra, he resigned himself to a c

serious peeuuiary loss, and returned to England, determined to
seek tranquillity in a small retreat in the country. He took a
cottage at Weybridge, in Surrey, near enough to Loudon for
convenienee, and for occnsional visit» from bis only ehild, and
far enough to euable him tu enjoy the retirement he coveted.
Here he entered upon the last and hnppiest period of hLs
life the only portion during which he was free from carking
cares aud ever- recurring disappointments. The battle of life
was not only over, but had hardly left a scar. He had neither
vanity nor ambition, nor any desires beyond what his small
ineume suilked to satisfy. He had no regrets or repinings at r
lus own poverty and ubscurity, contrasted with the suecesses of
other men. He was insatiable in the pursuit of knowledge and I

truth fur their own sake; and during the long daily vvalks,
which were almost tho sole récréation he coveted or enjoyed,
his mind was constantly kept in a state of serene élévation nnd
harmony by the aspects of nature,– which ho contemplated
with ever-increasing delight, and described in his own félicitons
and pietnresque langiiage, and by méditation on the suhlitnest
thèmes that can occupy the mind of mari. He wanted nu
s
excitementand no audience. Though he welcomed the occa-
sionnl visîts of his friends with affectionate cordiality, and t

delighted them by the vigour and clmnn of his conversation, lie

t
never expressed the smallest desire for society. He was content
to pour out the treasures of his knowledge, wisdom, and genins,
to the companion whose life was (to use the expression of one
who knew him well) 'enfolded in his.'
f
Thus passed twelve years of retirement, rarely interrupted,
 ami ivaver uniBterestiug or wearisoma His healtb was greatly
I ittipïaved. The place lie had ehosen and his mode of life suite!
l him, Tho simplicity of his teste» and habit» wouW hâve m*-
;ï lierai a more showy and luxurious way of living disagreeable
il and oppressive to hhn. Yet none of the smnll pleasurc* or
• humble comforts provided for hiin ever escuped his grateful
;' notice. Ha loved to be surroundcd by homely and familial1
i object.% nnd nothiug plusised him su much in his ganlen as tJie
& Aovfuva lie had gatheml iu hi» «hildhoud. ïlrings new or rare
were unattraetive, if not distastuful, to his constant and libéral
] nature. He Imd a dtsinterustcd Imtrcd of oxpeuse, and of pre-
-î tension, and, thougli very gencrous, and (juitu indiflurent to gain,
he was habitually frugal, and xeapected frugality in otlit-rs, as
;| the gunrdian of niany virtues.
One regret mingled with thé deep thankfulness with which
this comparative freedom froru pain and care was ngardcd by
those who loved him he showed no inclination to tlevote thèse
years of improved health and tranquil leisure to thé work he
had so b:ig ago projected. But eve:i this rej^t, poignant as it
wns, gradually subsided under thé tmiiquillising influence of his
serene contentinent. It is no wondur that thé person most
sensible of the immense resources nud powers of his mind, and
; most deeply interested in seeing them appreciated, could not
résolve to urge him to retuvn to long-disused lalwirs. Suflerinji,
from ill-health and from other causes, had pursued him, nlmost
; without interraission, throughout thé early and uiiddle part of
hi.9 Hie nnd now that he had found comparative case of body
and mind, famé, or even usefulness (su long and arduntly eoveted
for him), faded into nothing, compnred to thèse inestimable bless-
in«s. ïhe calm evening that followed on so cloudy and stormy
a day, was too precious to be riskod for the réputation to which
he was so indiffèrent, or for the advantage of a world to which
he owed so lîttle.
But his genutous solicitude for his country diil what nothing
else could, and his last effort was proin]>te<i by Usnuvoleuce and
patriotism.
He was, in his solitude, a deeply -interested oUserver of
political events. Ile viewed with gR-at anxiety and disapproba-
tion thé various schcnies of parliarnentaiy refbrni bronght forward
during the later yoars of his life, and l'elt deeply the sevem bl<>w
they gave to the respect he wished to feel for eiuinent public
men.
l'rofoundly convinced as he was of the scarcity of great
ability, ami of the still greater scareity of a disiuterested love of
trath, it may easity 1)6 imagined that he régarded with sort of
horror aU schemes for ptncing the business of législation in the
liands of large bodies of îaeii. He iiud folluwud step by step p '
the progress of the great minds by which Systems of law had
beeu, through âges, slowly and painfully elaboratud and thu
project of submitting these highest produets of the huiunu iutel-
leet, or the* diiiicult problems they deal with, to the judgment
and thu handling of uneducated masses, seelned to hiui a return
towards barbarism. Ile, least of all men, was likely to be
dazzled or nttractud by wenltli or rank but ho valtmd them on
public grounds, as providing for their possessors the liighest sort
of éducation, and the leisure and opportunity to apply that
éducation to tho geueral culture of the human miucl, espccially 1

to the difficult sciences of législation and govemment. The

idea of popular legislation was to him as alai-ming as it was
absurd and it was precisely on account of the disastrous cou-
séquences which he was certain must rcsult from it to the people
themselves, that lie felt indignant at the uses made of their
ignorance, and the uninanly affectation of déférence to their
wislles, by those whose duty it is to eulighten and guide them.
Long and aceurate observation of other countries, and intercourse
with their publie men, had taught him the full value of tlie
institutions of this country, and the importance of the habit of
obédience to law; and he was too ardent and sincère a patriot
to see these iiupurilled without the deepest émotion. The work
of Lord Grey, which appeared in thé midst of the discussions on
reform, excited his warm and respectful admiration; and when
it was suggested to him that he should revicw it, he iminediately
conscnted. Tho pamphlet publisheâ under the title of A Plea
for the Constitution,' was origiually written for a quarterly
journal but being thought unsuitable, it was published sepa-
rately. Its success far exceeded his very modest expectations,
and gave him the satisfaction of thiuking that he had contributed
something to the defeat of permeious projects. This was the
only reward he desired.
From the time that he abnndoned the struggle with the
world to which lie was at once so unequal and so sttperior, all
the bittemess excited in him by the chilling indifférence with
which his noble and disinterested efforts had been ruueived,
subsided. His estiraate of meu was low, and his solicitude for
their approbation wag consequently small. But while lie kept
aloof from them, his sympathy with their sufferiiigs, and his
1 anxiety for their ùnprovement, never abated. For himself, he
| coveted notlw'ug they l'wd'to give and he avaited the judgœent
| of another tribunal witli Immility,but with, a sereuity which le-
i]
came more perfect in proportion as the time for his appearing
before it drew nigh.
4 If élévation above ail the low desires cuid poor ambitions
i which chain the soûl to eorth, if a life uutainted by a single
1 unjust or ungenerous action or thonght, a single concession to
U worldly or selfish objecta, a single attempt tu stiile or to disguise
;î truth, eould justify a sereue anticipation of thé world into which
nono of thèse things can enter, he might be penuitted to
:j feel it.

Having, as 1 hope, made intelligible to that portion of the

public, capable of syuipathy with a character like îlr. Austin's,
what were the causes which disabled him--or disinclined him-
from entering afresh on the labour of reconstntctingand greatly
enlarging his book, and of knitting up ail the threads which
years and events, care and awkness, had tangled or broken, it
only remains fur ine to say what are the ruaterials he bas left
what the motives that hâve induced me to give them to the
world; and how it is that 1 have found myself in a manner
compelled to undertake the arrangement of them for thé press.
I have sometimes doubted whether it was consistent with
publish.
my obédience to him to publish what he had refused to
1 have questioned myself strictly, whether, in devoting the rest
of my life to an occupation which seems in some degree to con-
tinue my intercourse with him, I was not rather indulging my-
self than fulfilling my duty to him. There have been times,
too, when, in the uittorness of my heart, 1 have determined that
I would bury with me every vestige of his disinterested and un-
regarded labours for the good of mankind. But calmer thoughts
have led me to the conclusion, that 1 ought not to suffer the
fruit of so much toil and of so great a mind to perish that wliat
his own severe and fastidious judgment rejected as imperfect,
has a substantial value which no defect of form or arrangement
can destroy and that the benefits which he would have con-
ferred on his country and on mankind, may yet ilow through
devious and indirect channels. I persuade myself that if bis
noble and benevolent spirit can receive pleasure from anything
ilone on earth, it is from the knowledge that his labours are of
use to those who, under happier auspices, pursue the innuiry
into subjects of such paramount importance to human happiness.
 Having tfws eome tu the conclusion tliafc some or the manu-
scripte he left oilglit to bu givt'ii tu ïltê public, the uext question
was in what foriii, ami by whom ?1 My first thought wtts tu
look about for an editor, tu whom 1 might coufidu tho rédaction
of tlie wholo leaving to him entire discrétion as to the watter
and form of the publication. But it did not appuar that any y
such person could be lbund, or was likely to be foiuid. A great
portion of the manuscript wus in so imperfeet and fragmentary
il statc, that it was clear that the whole must Lu recast aud te-
written l>y auy editor who nspirod to produee a readable book,
from whieh lie eoultl dérive réputation or profit. I was alarmed
at the thought of the changes the work might umlergo in this
proeess. It was to be feared that any editor who had not the
self-forgi'tting dévotion of a Dumont, would be more sensible of
his respoiisibility townrds the publie than of that towards his l
author. There are grcat peculiarities in Mr. Austin's style-
not one of which was adopted without mature thouglit. He l

never had the slightest klea of reuderiiig his subject popular or

easy, He cleniandcd from his hearers or readera the full force
of their attention and as he knew how lax and flitting the
attention of most men is apt to be, he adopted every expédient
for fixing or recalling it. He shrnnk from no répétitions that
he thought necessary to keep a subject steadily and distinctly
before the ntind, and he «vailed himself of all typographieal helps
for the sarne purpose. Knowin" this, 1 have disregarded the
advice of some of those to whom I am most bound, and most
disposed, to defer, in retaining thé munerous italics with which
his book is, in their opinion, defurmed. Future editors may, if
they will, remove this eyesore. They will not bc bouud by the
déférence which must govern nie.
It will not be supposai that 1 think it necessary to call in
any testhnony to tlie value of the niaterials I have to producu.
Iîut those whose estitnate of them is the highest, niay very |:1'
justly think they ought to bave bcen put into more compétent
hands.s, This was my own opinion; and it was not without
';J1
umcli anxious delilieration, or without cousulting those of Mr.
Austin's friends \i\xm whose judgnient and solicitude for his
famé he would, I knew, hâve had the greatest rcliance, that 1
determined on the course I hâve pursued The opinion and
the advice which I received from ail was essentially the same
that aU the Lectures should be published, 'with only
such revision as may remove needless répétitions;' and that,
considering the confused nnd fraginentary state of much of
1 the nmiuiseagit, thé safest édite* would he thé perso»
f inost deeply interestecl itt the attthor's réputation, and most
ri likely to bestow patient and reverential cave on uvery relit
left by him.
f 1 need not repeat the terms in whieh Mr. Austin's friends
encouraged me to undertake the task of putting titese prcrious
riittterials in order, nor the cffers of ad vice und assistance which
detenuined me to venture upon it. One of thein, wlio spoke
>• with the autliority of a lifeloug friendship, said, afUrt1 Wkiug
:j
over a mass of detached and half-legible pnpers, It
will be a
great and difflcult laljour but if you do not do it, it will uever
y! be donc.' This decided me.
I have gatliered some courage from the thought that forty
;i year.? of tlie most intiinate communion could not hâve left me
!! èntirely without tlie muons of following trains of thought which
î. constantly occupied the mind whcnco my own drew light and
:i
truth, tis from a living fountain of guessing at half-expressed
meaning3, or of decipheriug words illegiblu to others. Uuring
•» ail thèse yeavs lie had eondeseemletl to aecept such small nssist-
anee as I could render; and even to read and talk to mu on
the
subjeets which engrossed his mind, and which were, for that
; reason, profouudly interesting to me.
Having determined on the course to be pursued, tlie first
':i
thing to lie doue was obviously to republish the volume already

'' in print, which lias been long and uagerly demanded. Thé
Author's Preface explains the matter of which titis volume crm-
sists, and his purpose in publishing it. I have altered nothing,
except the position of thé Outliue, which is now placed at the
beginning, instead of at thé end of thé book. I have inseited
all the scattered memoranda 1 liave been able to nnd, relating to
altérations and additions which he meditated. Some of tliem
are taken from a smnll papcr marked Inserenda.' Ail thèse
>; things are manifestly mère suggestions for his own use- indi-
cations of matter which he intended to introducu or tu work
'' out. They are inserted, chieiiy as proofs of the thought he had
given to a more ample exposition of jurisprudence and the allied
sciences; but also, not without a hope that some of them may
serve as landmarks for the guidance of future explorers of thé
way he intended to follow.
The volume now republished inchules the first ten of the
Lectures read at the London University; which, though
divided into that number for delivery, were (to use tins outhor's
\"u. 1S81. S«c note, li. 1. ami Ailvertiseraentto thts édition.
expression),
by hin> to »fx.
to obédience to the affînity of tho topics,' retlucetl
Therô reniftin, impritited, al] thé rest of the Lectures given
ftt thé Londoii Univéreity. Thèse 1 propose to print exaetly as
he left thein. I shall alter nothing, and shall only make the
omissions suggested above. This course is, 1 think, fully
justified by the opinions already cited. There is also thé short
Course, delivered at the Inner Temple. But as this necessarily
weiit in great measuro over ground which had bcen traversed in
thu earlier Courses, it does not appear to thé friends I hâve
cousulted that it will afford matter for a separate volume. It
is thought that it will be expédient to coUate these with the
earlier and far more uumerous Lectures, and to insort, as notes
or appendix, any matter winch is not found in those. The state
of the rnanuscript seems to show that the author meant to
incorpornto tbem with the former; or rather, to employ both in
the construction of the great work he meditated.
When Mr. Austin was preparing his lectures at the London
University he drew out a set of Tables, which ho had printecl
for distribution to the gentlemen of his class. They
wero never
published nor sold, and were consequently unknown to the
public. Nor were they ever completed. Between Tables L,
IL, and VIII., IX., there is a chasm, never now to be iillecl.
But lamentably incomplète as they are, they are pronounced
by one eminent lawyer to be perhaps the most extraordinary
production of his mind and, by ail who hâve studied thein,
are thought to afford evidence of an astonishing originality of
conception, oxtent of learning and force of reasoning. Each
Table is accompanied by explanatory notes of great length. I
am not without some faint hope that hints for the construction
of some of thé missing Tables may be found among the various
scattered notes which exist.*5
The nature and object of these Tables are described by the
author in his opening Lecture, in thé following words. Alter
stating the causes which reudered an opening Lecture a useless
ceremony in his case, he concludes thus
find it utterly Impossible to give you the faintest notion of my
intendod Course. Xor is it necessary that I should.
1 have been lmsily employed in prcpnring «mail work whieh will
a
luiawcr thu purpose Letter. It consista of a Set of Tables, in which I have
exhibited the Arrangement intended by thé Roman Lawyers in their
11Thèse tables and notes were printed contnined in thé second volumo of the
in the last of the volumes of thèse Lco iiresent édition.– R. C.
tares, j.ublishcd In 18C3, and aru now
 ÏNttitutetOtEtemectatyTKatieea.AndthNAtmngementMeompaKd
With varioua othet~ whictt httM <finM b<!e)mdept<id in CmtM, Of pMpo~ct
by WritoK on JMF:!<pM<tene< Tu these Tabte~ 1 have (tppended notes, in
whieh 1 hâve ehdeavouMd h) nhow thé n)<M<«~ of that Arrang<;ment, aud
3 to explain thé import of thé distinction. upon whieh it turn~
From theNi Tables amt from thé Notée which bave been apt~nded
to thent, thuse whu thtty do )Me thé hon'jur of nttending my CiaM, wiH
coHect a better idea ot' my générât subjectand de-ogn than from anything
j that I couM utter heM.
Thèse Tabtes are nettrty, though
not completely, printed o<r. And 1
ho~ they will appear shurtty. 1 have bemt w'~ktng day (Uid ni~ht in
~) urder that 1 m!(;ht hâve them ready tjy thé opetdhg of tny L':<;tur<:s but
1 hâve beeu obliged to stru~e with so MMtty iutncate question!, and to
{1 make refcMxeesto go j~rcat a MU)nb<:r of bau){ft, that I fuuuf! it impo~iMe
to complete them in titue.
'} Thé paiM whieh 1 have taken t'~ !{et thon ready must MrYe as my
j' excuse for thé prefent !a)fM appearanee.
i With au object in view whieh 1 thought important ï eould not afford
to expend my labour and time upon a merc formtttity.'
( Last!y, 1 find a consideraMe mass of papers on CodiSca-
i tion an Essay on Interprétation thé Excursus on Analogy,'
j referrecl to at thé begiouing of Lecture V. in thé present
volutne and thé commencement of a project of a Crinunat
Code, to whieh 1 have already referred.
Such are thé materials hboriousiy brought together and
marvellously wrought, whieh lie broken and scattered before me.
j The noblest designs, the highest faculties, the most unwearied
industry, were employed upou thetn–in vain. What would
have been thé structure reaKd out of them, had the Master
been enabled to exoeuto the plan he had conceived, is now left
to melanchoiy conjecture.
SAHAH AUSTIX.
~<Hy< !Mt.

In thé preface to thé Second Edition of thé 'Province of

Jurisprudence determined,' published two years ago, 1 stated
what were the manuscripts remaining in my possession, in
what condition they were left by Mr. Austin, and what were
my intentions with regard to them. Since that tinie, I have
been constantly occupied in preparing them for thé press, and
1 now give them to thé worM under those conditions of mcom*
pleteness which 1 announced as ine\-itable.
It is unnecessary for me to repeat thé reasons which deter-
mincd me to undertake so arduous a work or to apologise for
the imperfect manner in whieh it is accomplished. 1 am now
more than ever convinced that (however obvious thé objections
tu it) tins was thé ottty Mie twd pmeticttNe mode of preserving
thèse atMittishett but precious m(tteri:ttg in perfeet geuuiheaess
aud ilitogrity,
1 have not attetnpted to a!ter thé form of the Lectures,
nor
to disguisc the breaks and chasms in them.
lu thé Prct'aee to the iirst votutne (p. 24), 1 spoke of rny
intention of coitatutK thc Course delivered Ht thé Inner Temple
with thé ear!ier and more numerous lectures ~iven at thé London
UtuvMity, aMt! inscrtm~ M notes or appendix, any mittter not
i'uuud in thèse.' Fortuttutety, thé task of selection and adapta-
tion was nut left to me. On a ncarer examination, I found that
thé auttior had markod with his own hand the parts of thé Inner
Tetnp!o Course which were to )je added to, or substituted for,
passes in thé earlier lectures, tn seventt places he had even
eut out considérable portions from the latter, leaving a référence
to thé passages in the former which he intended to put in their
place. 1 had therefure only to confonn to plan which, in this
a
case, and 1 helieve iu this a!one, was clearly and precisely marked
out. The Lectures, as now printed, are, in faet, thé two Courses,
consolidated by hhnself.

A few typographical details seem to rcquire notice.

There are sorne passages in thé manuscript through which
thé author had drawn a !ig!tt pencil line; not, 1
am sure,
si~niiyin~ that they were to be entirely rejected (for what he
rneant to be erasures are too complète to admit of a doubt), but
that they were reserved for furttier considération, or were to be
transferred to sotno otiter place. Thèse passages 1 have genera!!y
inserted, distinguishing thon by brackcts.
Thé références to books, which arc extronely numerous, 1
itave verined in every case, with thé rare exception of such
as
were not withi)) rny rcach. In some cases, where 1 hâve seen
ttiat ~fr. Austin h~t entphaticaily rnarkett thé passage referred
tu, or had commented upon it in the tnargin of thé book, I have
quoted it. Perhaps this has been donc rathertooïree!y; but
thé space so occupied is not gréât, thé books at-e not in every-
body's hauds, and 1 thought it might bc convenient to thé readet-
to sco thé précise passage to which the author rcferred. Where-
ever any words in theso quotations arc printed in itahcs, those
wor(h are underHned in the book.
With regard to thé use of italics, capital letters, and other
typographica! distinctions, 1 am fuHy aware that there is
a
want of uniformity and consistency and if, with my présent
cxperbMMe, 1 had to begtn my work «gaitt, thero are severa!
thing!) whick 1 ohoutd do otherwise. But thé tuass of
was so gréât, thé subjects treated of so diuieuît, aud thé tf~k of
arrangiug them so formidable, that it seemed as if a thorough
and minute examination of their contents, and a mature déli-
beration on thé détails of their ammgement, would defer their
publication almost iudciiMitcty. A still mot'e Ut~utit motive
arose fmm t!M cunseiousuess that my owu tilue for work cauHot
be long, and is extre!ne!y precarious and thé thuught that 1
shouM leave these romains tu a very uueertain fute, inade tiie
dotenuiue to secure thé most ituportaut pail: of them from thc
chance of destruction, with as little delay as possible; a, deter-
mination in which 1 was streMgtheued by thuse of My husband's
t'riends who take thé warmest interest iu thé advancement of
thé science, and iu thé famé of thé writer.
Thé duties imposed on the guardians of a gréât reputation
have beeu the sut~jcet of much discussion, and, to myself, of
!nu(;h painfui deUbemtion. The <mly conclusion 1 eould arrive
at is this :–Wherc writer bas attached gréât value to fbnu,
and bas rcgarded his writings as works of art where any con-
sidemble portion of his reputation rests u])on his genius aud
skill as an artist, it seems an act of injustice to his memory to
pubtish anything which had not undergone thé last and highest
polish of his own hand.
But where thé great ahn of a, writer bas been to correct
pernicious errors, to throw Ught upon obscure trutlts, to dis-
seminate new idens which he believed to be of thé highest cun-
cernment to mankind where thé labour he bestowed on style
was bestowed solety with a view of cxpressing his thoughts wit!t
thé greatcst possible clearness and précision; where thé depth,
gravity, and originatity of thé matter have a value far beyond
that of any conceivable perfection of form, thé materials he had
accumulated with purposes so far trauscendingany personal ones,
ought not, however unnuished, to be consigned to oMivion.
In subjecting whnt is most dear and vénérable to me in the
worid to so sévère au ordeal, 1 would not be understood to be
indiSerent to form. But 1 have trustcd conMent!y to qualitics
which no defects of fonn can destroy or greatly disguiso. More-
over, thèse defects do not extend to what, in a seientinc work,
is of suprême importance; namely, <!)Tf<KytmeM<. It will be
apparent to thé reader that, upon whatever new inquiry hc
eutered, Mr. Austin's invariab!e method of proceeding was, first
to détermine precisely its lituits, and then to lay down in thé
 !Mf3t ftecurate manner the plan o{ arrangetaeut ta bo pursued
through thcwhotG course of thé investigaMon. And thetsaFe
the clearest indications in thé maxuscripts t!iemsetvcs that this
proliminary portion af his task was, in every case, most carefully
and laboriously exoouted. Unfortunatoty, in many instaHces,
thé execution vas carried uo further he novor filled up thé
outline he had sketched with so masterty a Itand. T!te notes
on CnmiNa! Law aud those of CodincatioH, for exampto, are in
so rough and imperfect a state, that I should net have veutured to
publish them, had 1 Mot been assured that they would, as models
of arrangement, be of the uhnost value to future inquu-ers.
It seeuM hardjy necessary to repeat (yet perttaps 1 caunot
repeat too often), that thb book shows not wbat thé author had
dono, but what he inteHded to do, and (iu some degrec) what he
was capable of doing. 1 have therefbre allowed various indiea.
tiens of his mtentions to reniain. 1 havo also preserved thé
traces of thé qu<Mt!oningswhich continua!!y suggested themselves ')
to lus penetrating and sincère miud and witli which he was
careful to qualiiy and limit his assa-tiom, so long as the shadow t
of a doubt remained. AU these are characteristio of thé spirit
in which ho pursued science. To seem to know, or to leap to
prompt and facile conclusions, was impossible to him. To an'ive
at knowledge by ways thé most laborious, the most mortnying {

to vanity, and thé most irritating to impatience, was the course

which thé rectitude of his nature irresistibly impeMed him to
Mlow.
1 had also a double motive in showing how many passages i,~
s
were reserved for reconsideration. Thèse very marks of doubt, f
while they provo thé caution with which Iec worked, and thé j
process of investigation which was for ever going on in his
nnud, may perhaps suggest similar caution, and excite to similar i
mental contention in those who are to M!ow him. Every one l,
of these doubts, pointing to further research and further reilec-
tion, may lead to thé discovery of new truths or to thé solution
of unsotved proMems. Such resutts would hâve been far more
precious to him than any conceivaMo addition to his fume as
a writer.
In the Preface to thé first volume, 1 venturcd to print a few
disjointed sentences which appeared to me to throw hght on thé
c!iaracter of thé man, and on thé nature and aims of his teaehing.
1 have since found more notes of thé
samc kind and, brokcn
as they are, 1 give them, as showing still more clearly in what
spirit aud with what views lie entered upon the duties of an
 offtce so. uew to thé eoMtry and to hintself as that of Professor
ofJufisprud~Mce.
What ï~ctMM* of tbi~ kind M)~tt to Le.
Oreat defects of thosewhieh 1 shatt actually deliver: particutartyasi
tu t)to n~thod and fityte t–havin); thou~ht it bottât to )jMU (M. Eu- tu 1
could) an extensive and aecurate knowtedge of my nubjeet t))an–etc.
The re!ieareh, neee~sary fur thh, extt'emety oxt'')t<iv<'i–tttiuuU htt\'<:
gone on for ever.–New !!M<MMi;f,–(HtM!M )md (tcbiJity).
In the course of a fcH' years, xhoM be aMe to prottucu Koncthinn tu'~h:
worttihem'in~.
j ShaU b<! obtiged to omit tuueh of what 1 had intended to Mtubfact-.
'.j Thereiouoneof thé detnils which will not need as tnueh inustt'itt!o)t a-i
the principal heads. (Lujft Ha!t:'t) iihMtratMt.) And if 1 d<c~)td<;d far
into thé detait, th'i Lecture!! woutd be endiMs. I must themfure eontmt
j myseif with a geueral outline, descendit~ hère aud ti~fM )Kto thc datait, so
J ofteu as it :)! })<!eu)iartytnt';K:stmg and itMpot-hUtt.
i< It M neee.'iiary to r~'cuHcct that thé tenus, circumIoentioMs, etc., used
'{ in theM Lectures (so fm' at new) are merely exp!anatot}'. In apph'ini:
any actual ey~tem, thé tenn:) of that fy~tem )n<Mt be obsen'cd. Su of its
t arru)tt;etue)tts, etc., which are connected w!th ita tern))!.
Thé prittciptes of OettemI JurMprudenee will not coincide with any
j actual syston, but arc Uttended to heitttat<: thé aequi!Htio)t of any, <utd to
"how their defeet'
In thé ordinary bmineM of !ife, thew eyatems tnu!t, of course, bt-
applied as they are.
ReconeiHitti'm of divorce betweett Phitosophy and Practicc.
Wilt thank my heareM to attend at thé conchtsiott of eveiy Lcetutt-,
and to ply me with questions and dcmands for exptanatiot. This witi )t0t
onty enable me to c!eat' up obscurities, but to produce nmch of which 1
hâve read, and upon which 1 have thought, but whieh in sotitary eontpoMtion
escapes the recollection.
A)<o to critieiœ with utMpanng ~verity fur it is on!]' by this that 1
s
can ever team to aeeomtnottate tay future Lectures to thé wants of ."tudents.
¡ Ua-s of this friendty iutereourse, or amtca <-oM«<)'o pat'ticu]arty t"
youn~ men writinf;. Ko titne, that 1 shall not be wi)ii!~ to ~i\'c. ~~y
heart in thé aubject ttor will anythin); be di.agn'eaUe,but thé chi))i))f:
.r indifférence which 1 cannot he)p anticipatiM);'
It will ~asily be understood that
hâve ncvcr entcrtained
1
tite project of rendering such a book acceptable to any but )ttt;n
seriousty intcrestcd in thé gréât questions of Law and Mora!s
which lie at thé fbundation of human soeiety. To thé discrim-
inatiug, and therefore indulgent, judgmGnt of that narrow public
which is constantty tending townt'ds thé ends my husband
pursued, and throu~h wjtctn his labour. (which to him ~eemed
barren) may hereafter be rendered fruitfu!, 1 tutmbty and
earnest!y commend it.
1 nmst add, with gratitude, that my labour hast'eett cheered
by an ever-increasing expression of interest in it, from men
cminent in Jurisprudence, and in thé moral sciences gcnt-rally,
ht thi9 and othor cotmtncs ;–straagers to at! but thé mind aud
chMaotet' oï thé :mthor t~ diapîàyed ill hia puMbhed bock. l
They tmve cxhortcd me n"t to suf!er myself to bu deterred by
want of compteteuess, or by defects of sty!c, from giviHg to the
wor!d (my, thé sHghtest, iMtittMttKMts of Mr. AMStm'a opiniotts
ou thc subjects tu which hc had dovoted hunsetf,' or of ttm
mcthod of iuqtut'y and an'a))ge!nent. Such exhortations comittg
from men whose voica ia authoritativc, it seemed tny duty tu )
obey.
I am indebted to several gentlemen fur encouragenMHt,
couuset, nnd assistance especinlly, 1 hâve to acknowledge thé
nn'atunUe and perseveriu~ aid 1 hâve received from fricnds of
:\l1'. Austin,
~h-. fouiitl
Austin, who fouud titne,
time, in thé
the tnidst their0\11
midst of their own pressin~
pressing
avocations, to attend to my doubts aud diificutties. Their
sanction was pecuUarty important, since they Imd been among t
thé most nssiduous and attentive hearers of Mr. Austin's Lectures,
and were acqnaintcd with his tnodes of thinking and expression. i
Without such a sanction, 1 should hardly have dared to publish
tuatter iu which, irom thé state of the mauuscnpts,sotUM exercisu
of discrétion was inévitable.
It would be impertinent to at!ect to regard thé care they
have bestowed on thé work in its passage through thé press, as
an obligation conferred on me. What they have donc ha'} been
donc out of révérence for thé rnemory of thé author, and xeal
for thé advaneemfnt of his science. Nor should 1 venture to
make any public acknowted~ment of it, did it not appear to me
ueeessary for my own justification, and for tho satisfaction of J
thé reader.
8ARAH AUSTIX. i
W'!I¿rM!I~, ~i7,
f~~y-K~, A(1I"il, 18'¡3.
IS'M. {
 OUTUNE OF THE COURSE 0F LECTURES.
'Uum j'otMttm attud aj.funt, jun~onsuiti enutiti, prudentes, ben'-
ttnimati, conférant capita privntim, cfj~iK'Mt'jU': 'te juM coniitituendu, ut
red'tant certius quatu nune pos~t ie hthûr pritrtuttere pfiuciputuituetot'itati.'
–LEtnMTi!.

t! [ïn the orifnnft! cttitinn of Thé Pmvioce of JurxpnKtfnce (tf'tcrmine't,'

puMished in t832, thé foUowing pt~at~ i.< )M<;rted in thé Pret'tn.'e.
In 1831 1 pnblished an Outline of my Course: Which
outline, carefully corrected nud sMucwhat enlarged, 1 appeud to
thé followinc, trcatise. For tho foUowing treatise is a detached
'.j
portion of thé Course Aud uukss thé di.squisitious composing
thé trcatise be vK-wcd with their relations to thé subjeet aud
scope of the Course, and thé arrangement which 1 ~i\ to thé
¡ subject, their pertinence and importance can hard!y be seen
completely. To ligitten te thé reader thé labour of catching thé
1 arrangement, 1 hâve p!aeed, at thé end of thé Outline, an
Abstract of thc Outiine itself.
Ai) thé Outline relates not M<!y tu thf OMtttfr of thé on~inat V<~M)))e,
j! but tu thé entire Cou)~ it hm bct'tt tti~ug)tt iut\-i~Uf tu prcHx, ut.<tca'.) of
)'i aMXindingit.–S.A.]
]

f.j
M
.f PRELIMtXARY EXI'LAXATtOXS.
I. shall detenuine the province of Junsprudcnce.
1
II. Havin~ deten))ined thé pt'uviueû of Jurisprudence, 1
shall distinguish genemi jurisprudence, or thé philosophy of
positive law, frnni what inay he styled particular jurisprudence,
or thé science of partieular law, that is tosay, the science of
any such system of positive law as Mow actually obtains, or once
actually obtained, in a specittcaHy determined nation, or speei-
fically determiued nations.
<
t-~t
'thé
2v<Of ail the totMi~ eit~Mtonit whteh 1 have htmed !h my mind,
thé pMtfMophy of ptMitw !ftw mdic~tet the mott tignifteent!y< ha Mtb}<wt
tttt4 Mope of my Comse. 1 htn'e LorroweJ thé expMMfon &-um u, treatMc
ttud
by Uun«, it œtubmted pt-~eMM' of Jnrtsprudenee m the Utuvemity of Got-
tn'gL'n, tunt the author uf au excellent history of thé Romon Law. AhhoMgh ·
thé treati&i m question M e)ntitt<:tt thé hw uf natute,' !t ta nut concefued
with the bw of nature itt thé ustml meanins of the term. In thé tan~ua~
of thc author, it h <;uuct;nM(! with thu htw of MittMM w (t ~/tt<c~Aj/ of
y<«t'<('M ~«w.* But thùu~h t)tii) hMt exprfiiifiutt M huppity ehosen, thu mbjeet
t
and scope ef thtt trottise are conecived indi~tînctty. Geneml JMrMpfudencc, (
<r thé philosophy of ~itivc hnv, M MfndMd and eonfounded, frum thé t
bfgittniHg tu thM fttd ut' thu book, with the purtiou o[ deoutoto~y or ethies,
which is styled thc science of legistattou. Xttw geMmt jut'isprudunee, or
thc phHosuphy or positive taw, it) twt coucemed 'tireetly with thé science of
legisiatioth It !.< couccrtMd directty with prineiptes M)d distinetiou which
an: common to vurious syateuM of particuhu' aud pwith'e taw attd which [
each ofthoM Vttt-iutM Bystems inevitabty involves, k'tit be ~-orthy ofpmi.
or Mtuuu, or let it accon.t or not witli an aMUM~d meMuro or test. Or
(ehaot~n~ thé phrMf) ijetMrat jurisprMdfnce,or the phitMophy of positive
law, M concerMed with iaw as it )tfce9Mrity «, Nthet than with law a;! it
oK~tt to bc; with htw as it mufit be, << good or M, rather thuu with hnv
)
a-~ it tnust be, t~ << be ;/oof<.
Thé xubject and scupe of général jurisprudence, M contradistingnished
to partieuhrjurMprmtenec,are well expre.e<t hy HohhM in that departtuent
of hi. ~<~('«</K«t which !)! eoncerne<.t with civil (or RMitive) taws. By civit
laws (sftya he), 1 understand thé taw!! that tuen tm therefore bound to
observe, becatMe tliey n)'<: member~, not of thi;' or ttMtt comn)onwe<t!th in
partieutat', but of a commonweatth. For thé knowMge of particular laws
belon~eth to theut that proft: thc stndy of thé )a.ws of their avérât
countrie. but thé km'ivtcd~e of civil laws in ~ncN), to any man. Thé
ancient law of Rome waa cat)ed their "civil !uw from thé word <'t~)'<<M,
which signifies a cotnntonweaith And thosa countriM whieh, having been
under thé RfnMtt empire, attd ~overned by that taw, stiit retain such part
thereof a-i they think fit, cait that part thc <:t'H< iftw," to di.tingui.sh it i
t'rom the Mt of their own civil taw~. But tbat i~ not it 1 inteod to speak
of. My desij;n is tu show, !M< <fAa< M <«? /tere or<A<M, but tt'A«< M~tK~ As
Ptato, At'iiitottc, Cieero, and divers uthem hâve donc, without tuking upon
thetn thé prufes-'iion of thé !itudy of thé !:tW.*
Having distin~uished ~encrai t'rom partieutar jurisprudence,
1 shaM show that thé study of the former is a nocessary or ¡
usefui preparative to thé study of thé science of legistutioH." 1
sliall also endeavour to show, that thé study or général juris-
pt'udeuce m!~ht précède or aeeompany with advantage thé study
of partieuiar Systems of positive law.
tl
?)(<Expoundinst)te principes attd 'tittinction! whieh are thé appro-
priate Matterof~enemt jurisprudence, I shall prewat thon abstracte'I or i'
Ttte nmtttr cohtaitt~t iu thé aLov.: addrcss hitttMtftothé suhject of ;~t<.itt<
section of tho Outline (lots not appe~r jaritipru~teMep. Thé sobjtict hefe r<:t'<:rr<-d
tob':furt!Mr<t<:v<!)ojtettiut)ie<:n!)uin){ to wt)!, howcYer, be found more ettittr~d
tectnre. T'he <)i'!<inct!onuppears to )M upon ))< M essay entitM On thé Stu'ty
<MW)«"), ttud thé <t)tt)t&r, m thé iectare &t' Jut-t!))trM')et)m,' prixted towan)!) thé
marked Xt! itntnettMtety proeeeds to enj or thé secon) vohttne.–K. C.
detaohed &<?) every particular syatem. But when mett a pr!neip!e or dis. t<)
ttaeUon, (M s~ (tbottncted or det«ehe<t, may Ment tf B~ ~emp!Mcstton, 1 ·
shaM also ~n~eavourto preeent it with oae or both of the forma where!n it
respectivaly appe<us un thé two partieutar whieh 1 have etudied
with some accurney: namely, thé Roman Law and the Law of Engtand.

III. Having determined the province of jurisprudeRce, and L;

distinguished gênerai from particular jurisprudence, I shall
analyse certain notions which Meet us at every step, &.<! we
trav<'I through the science of taw. Of these lending notions, or
thèse leading expressions, the most important and rematkabte
are thé following
rerson and Thing. Fact or Event, and Incident. Act,
Forbearance, and Omission.
Legal Duty, relative or absolute. Lcgal Right. Legal
Rights in MM, with their corresponding Cj~cM; and Legal
Rights in ~cr~Kam, with their corresponding Obligations. Legal
Privilège. I'ermission (by the Sovereign or State), and Political
or Civil Liberty.
Detict or Injury, civil or criininal.
C'M~pf< (in thé largest sense of thé tenu), or Thé Grounds

or Causes of /M~M<<i!cM~ a notion invoh'ing the notions of

Wish or Desire, of Wish as Motive, and of Wish as Wil! of
Intention, of Negligence, of Heediessness, aud of T<imerity or
Eashness. Ttie grounds or causes of JVb)t./N~K~<<Mt:
Infancy, Insanity, ~yKo?'aK<«: ~:c~ .~?t<M'<u!<«: ~<o'M, Casus or
c.
Mishap, ~M or CotnpuMon.
Sanction, civil or crimina!.

~e(<Thouj,h every right implies a eorresponding duty, every duty

does not impty a corretiponding riKht. 1 therefore distin~uish duties into
retative nnd absolute. A t'eIativM duty is ituptied by right tf which t!mt
duty utuwer~ Au absolute duty dues not answer, or is not implied by, nu
aMwenug ri~ht.t.
Persons are capable of taking nghh, and are <t!so capaMe of incumng
duties. But a perMn, not unfKquentty, is mcrety the M<<ef< of a right
whieh K~ides in <fM<Ao' penon, and avaiti) anain.-t fAt'f(< peMott)!. And
considered as thé subject of a t'ight, and of thé corMpundiNj.; duty, a person
is neither invested «'t'~ a right, nor mbject fo a duty. Considered its thé
<ubject of a right, and of the corresponding duty, a permn occupiez a posi-
tion anatogotM to that of a thing. Such, for exampte, is thé position of
thé servant or apprentiee, in respect of thé master's right to thé <en'ant or
apprenticc, against thind periione or i-traogw.
Things are <«&)'«<< of tightii, and are abo M~tth of the duties to whieh
those rights correspond. But, setting a~ide a fiction which 1 sha)l <tate and
explain in my !ectures, thinga aM incapableof taking rights, and are also
incapaNe of incurring duties.
 Having determined the province of Jurisprudence, dstin'
guiattett générât flom particular Jurisprudence, and analysed
certain notions which porvade the science of taw, 1 shtt!! teave
that merely prefatory, though necessary or inévitable matter,
ttnd s!mU proeeed, in due order, to the various dapartmeats and
sub-departtnents under which 1 armure or distribute tho body
or bulk of my subject.
Now the principle of my main division, aud thé basis of
the main depMtmcuts which result from that main division,
may be found in the fbilowing considerntions.
First Subject to slight correctives, the essontial diSërence
of a positive law (or thé difference that severs it from a law
which is not a positive law) may be put in the following
manner. Every positive law, or every law simply and strictly
so called, is set by a sovereign individual or a sovereign body of
individuals, to a person or persons in a state of subjection to
its author. But some positive laws are set by thé sovereign
tmm~'a<e~ whilst others are set ~M~t'a~/y by subordinate
political superiors, or by privatc persons in pursua.nce of lega!1 j
rights. In consequence of which differences between their
M~M~'<~c authors, laws are said to emanate from different
S<WCM or ~M<K<<K&
SecoucUy: A law may begin or end in different MO~M,
whether it be set irnmediatelyby tho sovereign one or number,
or by a party in a state of subjection to thé sovereign.
Thirdiy Independently of thé différences between their
sources, and between tho modes in which they begin and end,
laws are calculated or intended to accomplish different ~iMyoMS,
and are also convetsant about different M~c~.
Being set or cstablished by different ~MMe<K<:<e N«<AM's,
beginning and ending in different Mo~M, being calculated or
intended to accomplish diffcrcnt ~Kyp<M<s, and being conversant j
about different <K~c~, law may be viewed from two distinct <
aspects, aud may also be aptly distributed under thé two main j
departments which are sketched or indicated botow.
In the first of those main departments, law will be considered
with reference to its ~MM'eM, and with référence to the MOf<M in
which it begins and ends. In the second of those main depart-
ments, law will be considered with reference to its purposes, and )j
with reference to the SM~c<N about which it is conversant.
LAW COKSIBEBEH WITH NE~aESCE TO ÏTS ,N9<MK?~
AX& WtTM REFERËSCK TO THE MOD~ M WHtCH IT
BEGÏN8 A~D E~P8.
L A law or rule m~y b& set tMNMf~c/y by the sovereign,
or by a party in a state of subjection to thé sovereig!t.
r. Hence
the distinction between wW/<cK and K~M~t'~M law, as thé terms
are frequently used in treatises by modem civilians, or by
writers on gcnend jurisprudence. And hence thé equiv~ent
distinction between jK'om«~ and M!!p?-oMMA/~ law,
as the
tcra)8 are frequently used iu thé same treatises. As thé terms
are frequently used in those treatises, <<~<~M law, or promulged
law, is law of which thé sovercign is thé immédiate author
whitst «?nM'«<'K law, or M~cmM~ law, is law which flows
immediately from some subordinate source.
The two distinctions, as taken in that sensé, will be
ex-
pounded m thé lectures: whcMiu I shaU explain thé widely
different sensés which often are annexed to thé terms.
Il. Whether it be set MKmco'M~ by thé sovereign one or
number, or by some politieal superior in a state of subjection to
thé sovereign, a law or rule may be set or established in either
of two modes: uamely, in the ~-opo'/y legislative mode (or m
the way of direct iegislation), or in thé tM~'opc~ Jegislative
mode (or in thé way of~'K~'CM~ législation).
A law established in thé properly legislative mode is set by
its author or maker as a law. The direct or proper
purpose of
its author or maker is the establishment of thé law which is
made.–A rule established in thé improperly législative mode is
assumed by its author or maker as thé ground of
a judicial
décision. Thé direct or proper purpose is thé décision of
a
case, and not thé establishment of the rule whieh is assumed
and applied to thé case. Thé author or maker of thé rule
Icgistates <M~Mf~cWy~/M~,and not <Mp~?'~ ~M/«~.
As 1 have intimated above, thé sovereign one
or number,
or any political superior in a state of subjection to the sovereign
may legislate in either of thèse modes. For example: The
Roman Empeiors or Princes, during the Lower Empire,
were
avowedly, as well as substantiaUy, Mtwc~K in thé Roman
WorM and yet they established laws by thé f/c<M which
they gave judicially, as well as by thé edicial CMM~K~MM whicJ)
they made in their legislative character. And,
on the othor
hand, thé Roman Praetora, who were properly SK~<-<;< judges,
established laws in the way of direct legislation by thé edicts
which they p~Mished ou their accession to office. The M<<« <~
~<te~<w tnatto by thé Engtish Gom'ts, are atao examples of Inw&
eattthlished in the législative mode by <i!<~o!Mta~' poUtical
superiors.
Inasmuch na ita true esaentiitls are frequently tnisconceived;
1 shall endeavour to analyxe aceurately thé distinction which 1
Itave now suggested: namely law made <t'c«y, or in tho
properly legislative manner and law made ~K~'cta~y, or in thé
w&y of tMpfope!' legislation.
Httvin{; stated thé cssential dinerences of thé two kinds of
law, 1 shall briefly compare their respectivefmerits and defects,
aud then briefly consider thé retated question of cofM/tca~'oM.
III. Every positive law, or rule of positive law, exists a~
a!«;A by thé pleasure of thé sovereign. As M«'/t, it is made
immediately by tho sovei-eiga, or by u party in a state of
subjection to thé sovereign, in one of the two modes which are
indicated by thé foregoing article. As MM~, it flows from oue
or another of those sources.
But by thé classieal Kontan jurists, by Sir William Black-
stone, and by numerous other writers on particutar or gênera!
jurisprudence,thé OMfMMK.; of laws, or the Mo<tMs to their estab-
lishment, arc frequentlyconfounded with their NMM'c~ or~bKK<a!'HA
Thé following examples will show thé nature of the error to
which 1 have now adverted.
Thé prevalenco of a custom amongst thé governed, may
determine thé sovereign, or some political superior in a state of
subjection to the sovereign, to transmute thé custom into positive
law. Respect for a law-writer whose works have gotten reputa-
tion, may détermine thé !egislator or judge to adopt his opinions,
or to turu thé spéculative conclusions of a private man into
actually binding rules. Thé prevaleuce of a pmetice amongst
private practitioners of thé law, may détermine thé legistator or
judge to impart tho force of law to tho practice which they
observe spontaneousty.–Xow till thé tegislator or judge impress
them with thé character of law, thé custom is nothing more
than a rule of positive moraHty; tiie conclusions are thé spécu-
lative conclusions of a private or unauthorised writer; and thé
practice is thé spontaneous practice of private practitioners.
But thé classical Roman jurists, Sir William BIackstone, and a
h<Mt of other writers, fancy that a rule of law made by judicial
decision on a pre-existing custom, exists as yc~M~ law, apart
from thé legislator or judge, by thé institution of the private
persons who observed it in its customary state. And thé
 classical Roman juriste have the aame or a like conçoit with
regMt! to thé nttes of law whtch are iH~htoned by judicial
décision on thé coaclusions or practiees of private writers or
practitioners. They asuribe their existence <M ~w to the
aothorityof the writers or practitioners, nnd not to thé sovereign,
or the représentatives of the soveroign, who clothed them with
tho légal sanction.
With a view to t!tese conceits, and to otIieM equaHy absurd.
1 aha!! ex&Htine the natures of tho Mtowing kinds of law.
1. Law fashioned by judicial décision upon pre-existing
custom: or (borrowing thé tnngnage of the dassical Roman
q jurists) y<M M«M'~«a eoM~t~MM.
1
2. Law fashioned by judicial décision upon opinions and
¡ practices of private or unauthorised lawyers or (borrowing
thé tanguage of the classical Rotnan jurists) ~M ~i<~cK<t&M
<'M/OM'<M?H.
¡ Examining customary law, or law Mo?'î&!M <-wt~K<MM, 1
shall advert to the essential differencesbetween gencral customary
]awa, and such customary laws as are local or partieu!ar or
¡ (speaking more properly) between thé customary laws which thé
tribunnls know yK~i'n'~y, and thé customary laws which thé
tribunats will not notice, untes!! their existence be ~M~.
1 IV. ~<!<M?<!< &:M', as thé term i;s comntonly understood by
modem writers upon jurisprudence, Ims two disparate meaniNgs.
It signifies thé law of God, or a portion of positive law and
positive moratity.
¡ The law natura], which is parce! of law positive, is analogous
to law N<Mt&!M <XMM<t<M<KNt,and to law ~n<~<:K<<&!M COM~M!'<Mm.
For natural law, considered as a portion of positive, is positive
law fashioned by the tegislator or judge on pre-existing Jaw of
another description namety, on thé law of God truly or errone-
ously apprehended or on rules of positive morauty which are
not pecunar to any nation or âge, but obtain, or are thought to
obtain, in aU nations and ages.
Accordingly, from law Mto~~ e<MM<t<M<MM, and law ~x-
f~~<M coM:pMt'<!MK, 1 shaU pass, by an ohvious and easy
transition, to thé law natural which is parcel of law positive.
Handung tite topic, 1 shall show thé analogy borne by that
natural law to law m<M')'&!M to?M<t<M/!<m and law ~)'M~eN<<&M
Mm~o.!t<KM. Canvassing the same topie, 1 shall show that thé
supposition of a K<:<MM~ law (considered as a portion of positive
law and morality) involves thé intermediate hypothesis which is
compounded of the theory of utility and the hypothesis of a
 mond sensé: that, assnming tho pure hypcthesis of a morat
sensé, or assuming thé pure theory of gênerai utility, tho distitte-
tion of human rules into natttraî and positive, were utterly
senseless, or utterly purposetess.
With a view to my subséquent outlinu of the~M ~w<o!t!tN<,
1 shall give an lustorical sketch of the y:M <ycK<M~, as it waa
understood by thé earlier Roman lawyers. Tlie y!<s yeKh'Mm of
thé earlier Koman lawyers, 1 attall distinguish from thé ~M
Ka~<M< or j~<~ ~<'n~tKw, w!nch tunkes so cunspicnous a figure
in thé van of thé Institutes and Paudects. 1 shall show that
the~ ~eM~Mm of the earlier Roman lawyers is peculiar to thé
Hotmm law whikt thé !atter is equh'atent to w<<<~<!< <a«', as
thé term is cotumouly understood by modern writers upon juris-
prudence. 1 sllall show that thé /)M ~M:<tMNt of thé earlier
Roman lawyers was a purely ~'ac~ea~ notion that it arose from
the peculiar t'elations borne by thé C~'&s ~em<t to her dépendent
allies and subject provinces. 1 shaM show that tho lutter is a
purely spM!<~<<tt'< notion: that it was stolen by thé jurists
styled (7«~s!<t~ and by them imported into tho Roman Law,
from certain muddy hypothèses of certain Greek philosopher:
touchiug thé measure or test of positive law and morality.
V. From thé yfM mon&t<s <:MM<<<M<«m, tho ~M ~<~?!<M
com~OM<«m, the tta~tM'o!~ ~c of modem writers upon juris-
prudence, and thé équivalent y<M ~Mt<<MM of tho jurists styled
<(!&Mt-a< 1 shall pass to thé distinction between law of domestic
growth and /<t«' o~/M't't'~ o!)M/: thé so called 'jus <'c<'fp<MKt.'
For hère nlso, the sources or fbuntains of laws are commonly
confounded with their occasions, or with thé motives to their
establishment. As oKatM~ tK </te Ma~'o~ MAerM'n is twetM~,
thé so called y<M tw~KM is not of foreign origina!, but is law
of domestic manufacture or domestic growth. As oKmmK~ in
the nation w7<<M'eM! il is ~'ec<'M'<'<?, it is law fasitioned by thé
tribunats of that nation on law of a (brcign and independent
community. For example Thé Roman Law, as t< obtains in
6'c~naMy, is not hw emanating from Roman tawgivers. It is
law made by German lawgivers, but moutded by its German
authors on a Roman original or mode).
l'assing from tho y!<-s wc<p<M!K, 1 shall advert to ttto positive
law, closety analogous to the ~M )'<'<<!<m, which is iashioned
by judicial décision on positive international moraJity.
VI. jE~M~y sometimes signifies a species of <<t)M. But, as
used in any of thé significations which are oftener and more
properly annexed to it, it is not thé name of a, species of law,
 thé latter 9igmncati(Ht9,th<~ which ia most remarkaMc,
Of
X
XXVH!-
and which îshau therefora explain with some particuhrity, 3XXX!X
thus.M~ often signifies the <tK~<
may be stated brio~y
~M~o)'<MK, or ~M< which is thé basis of the spurious inter-
prétation styled e&~oMtM.
As signiiying a specics of law, thé tenu cgM~ is conftDed
exclusively to Roman and English jurisprudence. The law,
moreover, of whic!t it is thé name in the lauguage uf English
jurisprudence, widely differs froin thé law which it signifies in
thé languago of thé Roman. Consequentty, its import is not
involved by thé principles of général jurisprudence, but lies in
thé particular histories of those particu!ar systems. But since
this talk of ~Kt~ has obscured the ?'<!<tOK«~ of law, and since
an attempt should be made to dispe! that thick obscurity, 1
shttU here digress, for a time, from thé région of philosophicat
or gênerai, to thé peculiar and narrower provinces of Roman
and English jurisprudence. Having sketched an historicat
outline of thé y!M ~o~K~ (which is intimately connected
with thé yM ycK<M<M, as this last was understood by the carlier
Roman h\vyers), 1 sliall briefly compare thé <'<~K!<y dispensed Ly
the Roman PtœtoM with thé c~Mt'~ adtuinistered by thé Engnsh
ChanceDors. From which brief comparison it will amply appear,
that the distinction of positive law into ~p and <~M!<~ (or /M
civile and y<M ~K'<if<onKm) arose in thé Roman, and also in thé
English nation, from circumstanees purely anomalous, or peculiar
to tlie particular community. And from whieh brief comparison
it will also amply appear, that thé distinction is utterly sense-
less, when tried by gênera! principles, and is one prolific source
of thé needless and vicions complexness which disgmces the
systems of jurisprudence wherein the distinction obtains.
VII. From the sources of law, and thé modes wherein it
begins, I shall tum to thé modes wherein it is abrogated, or
wherein it otherwise ends.

LAW CONSIDERED WITH REFERENCE TO ITS PU'BM.SRS',

AND WITH REFERENCE TO THE .SM~~CM ABOUT WHICH
IT IS CONVERSANT.
I. There are ceftaiti and ~«<t'M, with certam e~<!et'<K' l.Ecr. X
and incapacities to take rights and incur duties, by which ~'<MM,
as subjects of law, at'e vanousty detenMtned to certain c~<M~
'nte rights, dutics, capacities, or iucapacities, which determme
a given persou to tmy of thèse classés, conatHuta a eo!t<H<M!t or
<t<<t~ which t!te potBpn oceupMs, M- with whieh thé person is
invested.
One and thé same person may belong to mamy of these
classes, or may occupy, or be invested with, many conditions or
~<M. For cxample One and thé Mme person, at one and
the same time, may be son, husband, (ather, gnaKtian, advocate
or trader, member of n sovereign Humber, and taiNister of that
sovel'eign body. And various a<<~M~, or vurious conditions, may
th~ meet or unité, in one aud thé samo person, in infinitely
various ways.
Thé rights, duties, capacities and incapacities, whereof con.
ditions or ~a<<M are respectively constituted or composed, are the
approprinte matter of thé dopartment of law which commonly
u named thé Zf<w <~ T~~MM ~'«.<! ~K0(7 ad T~MOKM ~<tM<*<.
Less ambiguousty and more significantly, that department of
law taight be styled thé Law of ~a<M.' For though thé term
~fMpK<[ is properly syuonymous with thé term ~<<!<<M, such is not
its usual and more.commodioussigttiiic&tion. Taken with ita
usual and more commodious signification, it denotes AoMO or
man (including woman and chiid), or it denotes an aggregate or
collection of men. Taken with its usual and more commodious
signification, it does not denote a s<a<<M with which a man is
invested. j
Thé department, then, of law which is styled thé Law of
Persons, ia conversant about ~«<tM or conditions or (expressing
the same thing in another form) it is conversant about ~'sMM
(meaning men) as bearing or invested with ~ef~MM (meaning
~!M or conditions).
The department of law which is opposed to the Law of
Persons, is commonly named thé Law of ?%tN~ dia gKO~ ad
J!M ~er<:K<<. Thé explanation of whieh name needs a disquisi-
tion too long for thé present outline.7
The Law of Things is conversant about matter which may
be described briefly in the following manner
It is conversant about rights and duties, capacities and
incapacities, as a~Mte~ from the rights and duties, capacities
and incapacities, whereof conditions or a<<t<<M are respectively
constituted or composed: or (ehanging the expression) it is
conversant about rights and duties, capacities and ineapacities,
1
r The explanat3onto be ineerted from Rochts, voi. ü. i. ot aeq. (StS.note
'"rheexphmti<<nt<tbeta<e)rte<tf)'omRecht9,ve).it.p.i.et<eq. (liS. noto t!,
J~tture XL. SeeThihaut, "Vermche bythoAMher.) )'
iiber einzetne Theile der Theorie des
 in so fàrastheyaMM~ constituent or component éléments of ï
<~<<wa or conditions. It i<t stso conversant about persons, in s&
far as they are investod with, or in sa far as they are aubjeet
to, thé rights and dutics, capacities and incapacities, with which
it is occupied or concorned.–ït is conversant about acts, for-
bearances, and things, in so far as they are objects and subjects
of rights and duties, and in su far as they are not considered in
thé Law of Peisons for aets, forbearances, and thîugs, are so
far considère in thé Law of Persona, a~ they are o~eets and
sub}ects of thé rights and duties with whieh the Law of Persons
is occupied or concerned. It is also conversant about persons
as sx~ee~ of rights and duties, in so far as they are not con-
sidered front that aspect in thé Law of Persons or <S'<a<M.
II. Considered with référence to its dînèrent purposes, and
with reference to thé different subjects about w!uch it is con-
versant, law may be divided in various ways, But of a!l thé
main divisions which it will admit, thé least inconvénient is the
aucient division, thé import whereof 1 have now attempted to
suggest. Consideted with reference to its purposes and sut~ects,
law will thorefbre be divided, in thé course which 1 intenil,
into Law of ~%t~< and Law of ~'Mif:& In the institutional
or elementary writings of thé classical Roman jurists, who were
thé authors or inventors of this celcbrated division, thé Law of
Persous preceded thé Law of Things. But for varions reasons,
to which 1 shall advert immediately, 1 begin with thé Law of
Things, and conclude with thé Law of Persons.
But before 1 consider thé Law of Things, or thé Law of
Persons, 1 shall state and i!!ustmto the import and uses of this
ancient and celebmted division. And in order to that end, 1
shaU proceed in the following manner :-1. 1 shall try to denne
or deterniine thé notion of s<<!<!M or condition for that essential
or necessary notion is the basis or principle of the division.
2. 1 shall show that the division is merely arbitrary, aithough
it is more commodious than other divisions, and although the
notion which is itt basis or principle, is essential or necessary.
3. 1 shall show thé uses of thé division and shaU contrast it
with other divisions which have been, or might be, adopted. 4.
1 shall state thé import of thé division, as it was conceived by
its authors, thé classical Roman junsts, in their institutional or
elementary writings. 1 shaH show that their arrangement of
the Roman Law oftcn departs from thé notion which is the
basis of the division in question, and on which thé who!e of
their arrangement ultimately rests. Ilore especially, 1 shaU
show that tho matter of~M <M<<omMM,which they ptaced on
!ia<t with jt~wKo'nM~ <wMNt, shouM not be put utto a
department distinct from the two last, but ought to bo dis-
tributcd under both that thé main division of !aw ought to be
twofold only, Law of Things and Law of Persons and that tho
classical Roman jurists therefore Mt into thé entH' of co-M'f~<!«<-
certain .9pecies with thé ~aent of which they are tMCtnbers.
5. The dtvisiott of law into Law of Thiugs and Persons, is
obscured by thé cotteiseness and ambi~uity of thé !an~naga
whereiu it is commotJy expressed. Of that obscurity t shall
endeavour to clear it. 6. 1 shall show that Hackstone and
others, probably misted by that couciseness and ambiguity, have
misapprehended gfossiy thé true import of thé division, and
have turned t!mt elliptical and dubious langttage into arrant
jargon.
From thé attempt which 1 have made above to suggest thé
import of thé division, it may be infen-ed that the Law of Things
is coucerned with principles or rules which commonly are more
gênerai, or more abstract, tlian thé prinoiples or ndes contained
in thé Law of Persons that thé principles or rules with which
thé former is concerned, commonty sin, by reason of that greater
generaîity, through excess or defect: and that thé narrower
princip!es or rules contained in the latter, commonly modify the
larger prineiples or rules about which thé former is conversant.
Xow since a modification is not to be understood, if that which
is modified be not foreknown, thé Law of Things should not
follow, but should procede the Law of Persons. For which
reason, with various other reasons to be stated in thé lectures,
1 consider the two departments in that order.
The division in question, like most attempts at scientinc
arrangement, is far from attaining perfect distinctness. Its two
compartments frequently blend, or frequently run into one
another. Consequentty, as 1 travel through the Law of Things,
1 shall often be compelled to touch, by a somewhat inconvénient
anticipation, upon a portion of the Law of Persons.

A'o<<In hii! AtKttyoM of thé Law,' which aboumts with meute and
jttdiciom remarks, it i;! fitated expre~iy by Sir Matthew Hale, that the Law
of Th!n~ should précède thé Law of PeMons. He Myt that t))e etudeut
shonid ta~tt with the jus <WKBt fur tlie j)M ~MrMnorMttt eonhuns matter
proper for thé study of une that ix well acquainted with thé J<M reruni.'
It is worthy cf temar! that the order rccûtnmendedby Hâte M thé order
of thé PntMian Code. Thé admiraMe Suare~, under whoM 6Ut'e)'iKtendence
the Code was compiled, aMigns thé Mtowi))~ reason for his ptctcfunce of
that order to the method of thé Ch~ieat Jurists
 ReNeeting on thé <!epartment~ of law Mhtch «? ~M thé Law <tf Pe~
)ietM and thé L<tW uf Thi<!t!~ wë t.haU Bnd tMt thé two depaetHMata are
n)Mt<t<~ty rehte<t that cach eonhtHM nMMoM whMt !t ()! ttM~eaty wc shauM
ktMW, ~t~K we caft htiow corrtictty tht ttpprMpfinte mb~ct of tim (jthur.
But am;h t~t' thèse p)'a«'ejyHC~<n<t<ttM )n~ coutataed by t!tf I<ttw ~f Thi)~
aM far more KUtnerotM and far more woi~hty th«)t Mteh of thesM ptxXM'
MMc<ttA( us ure contaitMtt by thé L<m' of P~~tM. For whet'e thé ffubject of
either :9 )!np))Mt'!<! with that f'f th~' other, thé fbrtuet' i. (:ot)))ao))!y <:ou-
eerMed with Mute more genend rule, whieh by Kason of it~jp'<iat«r xeneratity,
)tin)t through <:xceNt or 'tet'ect: whiitit thé lutter M commotdy coieeme')
with Mue less HeMemt division, by whieh that rule is prun~t of it~ exe';0ft!,
ot by which its dtteet.'t are suppticd.'

t)A<* t~f illi~iUO.

I. There are facts or events from which rights and duties
anse, which are légat causes or antécédents of rights and duties,
or of which rights and duties are légal effects or conséquences.
There are also facts or events which extinguish rights and duties,
or on which rights and duties terminate or cease.
The events which are causes of rights and duties, may bo
t divideu in thé following manner namely, into acts, forbeamnces,
and omissions, which are violations of rights or duties and events
j which are M«< violations of rights or duties.
1
Acts, forbearances, and omissions, whieh are violations of
rights or duties, are styled <t'<K/t<WM, or o~fMM.
Hights and duties whieh are consequences of delicts, are
~<M<MK<K~ (or préventive) and MN:e~M<~ (or reparative). In
1
other words, thé ends or purposes for which they are conferred
and imposed, are two: to prevent violations of rights and
duties winch are not consequences of delicts ~<'on< to cure
i the cvils, or repair the miscbieis, which such violations engender.
Eiglits and duties not arisiug from delicts, may be distin-
guished from rights and duties which are consequences of delicts,
by thé name of ~'ma~ (or principal). Rights and duties arising
from delicts, may bo distinguished from rights and duties which
are «o< consequences of delicts, by thé name of .s<MM<«HMM~(or
secondary).
My main division of thé matter of thé Law of Things, rests
upou thé basis or principle at which I hâve now pointcd
namely, thé distinction of rights and of duties (relative and
absolute), into ~ma~ and s<M:<:<tOMM: Accordingly, 1 dis-
tribute thé matter of thé I<aw of Things under two capital
departments.-1. Pn~Mt~ rights, with ~NMt'y relative duties.
2. <SHt<;<t'<Htm~ rights, with sattc~'CMtM~ duties (relative and
 absoînte): .&&'<:? or t~'Mftes (which are causes or antécédente
~j2.
X~Y
&0; of
Of sanotioning rights <md duties) included.
oi
II. The basis of my main division of t!t8 matter of thé Law
of Things, with tho two capital departments under which I
distribute that matter, 1 hâve now stated or suggested. Many
of tha sub.departments into whieh those capital departments
immediately sever, rest upon a principle of division which 1
shall expound in my preliminary lectures, but which 1 nmy
indicate eotamodiousiy at Ute present point of my outtiHe.
Tlie principle consists of ttn extensive and important dis-
tinction, for w!nclt, cwMeM' ~:<A </<e wAo~ o/' ils extent f<K(/
tm~c~Kce, we are indebted to thé penetmtmg acuteness of tho
classical Roman jurists, and to that ~ood sense, or rectitude of
mind, which commonly guided their acuteness to true aud useful
resuit!}. Every student of law who aspires to master its prin-
ciples, should seize the distinction in question adequately as well
as clearly; and should not be sntisfied with catching it, as it
obtains hère or there. For thé difference whereon it rests, nins
through every deparhnent of every system of jnrispntdence
althou~h, in our own system, thé différence is far from being
o!'MOK% and although it is impossible to express it, sufficiently
and concisely at once, without a resort to terms which are
unknown to thé English Law, and whieh may appear uncouth
and ridiculous to a merely English tawyer.
The distinction in question is a distinction which obtains
between M~/t~ and which therefore obtains, by necessary
implication, between thé ~«<tM ~K<M~ answering to rights. Jt
may be stated thus
Every right, be it primary or sanetioning, resHes in a persou
or persons detenninate or certain meaning by a person deter-
minate, a person determined specifically. And it avails against
a person or persons (or answers to a relative duty incumbent on
a person or persons) other than thé person or persons in whom
it résides.
But though every right )'eM'<An in a person or persons deter-
minate, a right may HM<!7 against a person or persons determinate,
or against the world at large. In other words, thé duty implied
by the right, or to which the right corresponds, may lie exclu-
sively on a person or persons determinate, or it may lie upon
persons generally and indeterminately.
Duties answering to rights which avail agamst the world at
large, are M~tM that is to say, duties to./M- Of duties
answering to rights which avail against persons determinate,
sonie are négative, but others, and most, are ~e~ that ta to
say, (tatie~ to <Jo or ~~N~N!.
A right availing against thé world at large is defined by
Grotiusand others, thus; ,/MCK~<M~o?<ae <'w~<<t!j sine 7'<~c<;t
ad certam~rwKOt~t & right avaihng oxctasivety against a person
or persons determinate, thua /<!<-«/~ ~ef~onae competens in
certam j~MOKaM.
By most of the modern CivUMns, thottgh not by thé Roman
lAwyots, riglita M-aiUMg against tto wortd nt large are named
/«M Mt )'<;?; nghts availing against persons dctprnunate,y!<a
<? ~<'?'~K<îwt, oryKf<t M ~MM«:Mt tM'/sm. And by thèse dtHerent
names of rights <M )'<;Mt and rights <M j9e?'~MMm, 1 distinguish
rights of thé former front rights of thé latter description.–My
reasons for adopting them in préférence to others, I shall assign
in my lectures: wherein 1 shall endeavour to clear them of
obscurity, and shall contrast them with the équivalent names of
thé Roman Lawyers.
Thé relative duties answering to rights w Mm, might be
distinguished con.veaientty from duties of thé opposite e!as9, by
thé appropriate name of offices: thé relative duties answering
to rights irt ~<'MM!c:M, by thé appropriate name of oM~f<<o?M.
?)(<In thf ~Ttting~ of the H'~mn LawyM~, thé t(:mt oMt~ffa M
never oppUed to a Juty whieh uuswcM tu a ri};ht ~t ~m. But, winc~ they
hâve )M UMUte «pptopriatt tu a right o~xfMtxtm, they
u~e thé tenn cK~n'o
to denote a ny/t< of thé chtiH, af! well M to dt-nute thé <!tf<~which the n~ht
imptiM. ~u tx Mm or~KM w fcnt, they style ~mtttt'ttm dominia (with
or
thé hr);er meamaf; of th); t<-r))() attd to ~nn'tX'a (with that
more cxtenwe
meaning), they op~«!j)<M tM ~MMtam, hy thé name of<iMty«i«Mt<

To exemplify thé leading distinction which 1 have stated in

générât expressions, 1 advert (with thé brevity which the limita
of an outline command) to thé right of property or ownership, and
to rights arising from contracts.–T!te proprietor or owner of a
given subject bas a right in MM.' since thé relative duty
answering to his right is a duty incumbent upon persons
~'MM;~ aK~ tw~o-mux! to forbear frotn ait sueh acts as
would hinder !u.! deaung witli thé subject agreeaMy to thé lawful
puriMses for which his right exists. But if 1 sing!y, or 1 and
you jointly, bc obliged by bond or covenant to pay a sum of
money, or not to exercise a caUing within conventional limits,
the right of thé obligée or covenantee is a right in ~<:)'soK<ïM).'
thé relative duty answering to his right being an obligation to
do or to forbear, which lies exclasively on
a person or persons
f~<<rmtK«~
 111.With the lielp of what 1 liave ptomisod, 1 can now
indicate tho method or otdet wheteiu î treat ot eonsidor thé
matter of the Law of Things. That method may be sttggested
thus:1.
The matter of the Law of Things, 1 arrange or distribute
Muder two capital departments..
t
Tlie subjects of thé first of those capital departments are
~M'MtMM-~ riglits, witit ~K'tMN~ relative duties wltich 1 arrange
or distribute uuder four sub-departments.–1. Kights in t'e~t as
existiitg~[t- se, or as not combiaed with rights in ~o'~Mam. 2.
Mghts in ~-aMMMt as uxistiug ~f!' ?, or na not combined with
t'ights in fMh 3. Such of thé coM&~<MM~ of righb; w <-<'M aud
rights in ~OK<t?M as are particular and compamtivelysimple.
4. Such ~K~<')'st'<t'<'j of riglits and duties (or sucit complex aggre.
gâtes of rights and duties) as arise by universal succession.
~:M<'<WKM~ riglits (ail of which are rights <? ~(.VMK«M),
MK<'<cKtKy duties (some of which are relative, but others of a

which are absolute), together with <MM~ or <?~:<W<s (whieh are

causes or antécédents of sanctioning rights and duties), are thé
subjects of the second of thé capital departments undor which
1 arrange or distribute thé matter of tl)e Law of Things.
But before 1 proceed to those capital departments, 1 shall
distribute ?7tM: as subjects of rights and duties, uuder their
various classes. And before 1 proceed to those capital depart-
ments, 1 sliall remark generally upon Per~o~, as seibjects of rights r

and duties upo: ~ie~ and ~Mt'~aKCM, as «6/'<'e~ of rights and

duties and upon J~«'<-s or Events, as c«!<&s of rights and duties,
or as &~<tK~)<M/t.<M~ rights and duties.

~'t/MfM'y .A~, !<<A ~~MM~ )'~t!<<pe J9t<<-&

Kights <? as existing ~o' se, or as not
)'<:m,
combined with rights in ~w?tKM.
Thé following is thé matter of this sub-department, and
tlie following is thé order in which that matter will be treated.
I. As thé reader may infer from a foregoing part of my
outline, and as 1 shall show completely in my preliminary
lectures, thé expression in MM, when annexcd to thé term ~/<<,
does not denote that thé right in question is <! ~< <w<')' «
<A!'?)~. Instead of indicating thé nature of thé subject, it points
at the compass of thé conrelating duty. It denotes that thé
relative duty lies upon persons generally, and is not excluaively
incumbent upon a person or persons (leterriiinate. In other Il
words, it dénotes that thé right in question aM~a a~M~ thé
tc<M'Ma<&t~<e.
Accordingly, some rights w <'e~ are rigbts over ~<~
others are rights over ~M!< whiist othurs have KC subjects
(posons or things) over or t~ which we can say they exist, or
in which we can say they adhere.-For example Property in
a horse, property in a quantity of corn, or property iu, or a right
of way through a field, is a right w ~M over or tf a ~~y,
a right w ~Mt inhering in a </tM: or a right Mt MMt w!iereuf
the subject is a ~<Thé right of thé master, against third
parties, to his slave, servant, or apprentice, is a right in MM over
or to a jp<~MW. It is a right residing in one person, and inhering
in another person as its subject.–Thé right styled a monopoly,
is a right in )'ea~ which bas no subject. There is no spécifie
subject (person or thing) over or to which the right exista, or in
which the right inheres. Thé o~ctMm or common duty to which
the right corresponds, is a duty lying on thé worM at latge, to
forbear from selling commodities of a given description or class
but it is not a duty lying on the world at large, to forbear &oui
acts regarding determinately a specifically determined subject.
A man's right or interest in his reputation or good name, with
a multitude of rights which 1 am compelled to pass in silence,
would also be found, on analysis, to avail against thé world at
large, and yet to be wanting in persons and things which it were
possible to style t))eir subjects.
1 shall therefore distinguish rights w )'tm (their answerhig
relative duties being implied) with refereuce to dinerences be-
tween their subjects, or hetween thé aspects of the forbearances
which may be styled their objects. As distinguished with référ-
ence to those dinerences, tlioy will fall (as 1 have intinMted
already) into three classes.–1. Rights in Mm of which thé
subjects are things, or of which thé abjects are such forbearances
as determinately regard specifically determined things. 2. Rights
Mt yent of which the subjects are persons, or of which thé objects

are such forbearances as determinately regard specifically deter-

nnned persons. 3. Rights in rem without specifie subjects, or
of which thé objects are such forbearances as have no specifie
regard to specitic things or persons.
II. By différent rights in )'eMt over things or persons, thé
different persons in whom they respectivelyréside are empowered
to derive from their respective subjects different quantities of
uses or services. Or (changing the expression) the different
persons in whom they respectively reside, are empowered to use
 or deat with their respeotivtt subjects ht <!iNefoh<: degrees or to
digèrent extents. Or (changing thé expression aga,m) ttMd!8br- i:

ent persons in whom they respectively reside, are empowered to

turn or apply their respective subjects to ends or purposes mole ]
or less numeroua.–Aud such différences obta.in betweeu Mck
rigttts, independentty of differences between their respective
durations, or thé respective quantities of time during which
they are calculated to last.
Of such diHerences between such rights, thé principal or
leading one is this.–1. By virtue of some of such rights, thé
eutitted persous, or thé persons m whom they reside, may use
or deal witti thé subjects of thé rights to an extent which is
incapable of exact circumscriptioB,although it is not unMmited.
Or (changing thé expression) thé entitled persous may apply
thé subjects to purposes, thé number and classes of which cannot
be dcnued precisely,although such purposes are uot unrestricted.
For exampte Thé proprietor or owner is empowered to tuni or
apply thé subject of his property or ownership, to uses or pur-
poses which are not absolutely uniimited, but which arc incapable
of exact circumscription with regard to class or number. The j
right of thé owner, in respect of thé purposes to which ho may J
turn t!~o subject, is only limited, generally and vaguely, by au
thé rights of ail other persons, and by aU thé duties (absolute
as well as relative) incumbent on himself. He may not use
his own so that he injure another, or so that hc violate a duty
(relative or absolute) to which ho himself is subject. But he
may tum or apply his own to every use or purpose which is
not iuconsistent wit!i that gênerai and vague restriction.-2.
By virtue of other of such rights thé entitled persons, or thé
persons in whom they réside, may lnerely use or deat with their
subjeets, to an oxtent exactly circumscribed (at least in one
direction). Or (changing thé expression) they may meroly tum
them to purposes denned in respect of number, or, at least, in
respect of class. For example: Ho who has a right of way 1

through !aud owned by another, may merely turn thé land to

purposes of a certain class, or to purposes of dctermined classes.
,1

He may cross it in thé iashions settled by thé graut or pncscrip-

tion, but those are the only purposes to which he may turn it
tawfuUy.
A right belonging to the first-mentioned kind, may be styled
<&mMM'<Mt, jp~<y, or oM'!Mt' with thé sense wherein ~<M)MMtOM
is opposed to ~fp:'<<M or e<MeM<:K<. As contradistinguistied to a
right belonging to thé Ërst-mentioned kind, a right belonging to
the last-mentioned kind may be noted by one on another of the
tast-mehtiôned namcs.–Z~mMuoM, ~'cpt! or ~)Mt< ? a
name liable to objection. For, first, it !nay import that the
right in question is a right of unmeasured duratiox, as well as
ind!eate thé indoSuite extent of thé purposes to which thé
entiticd person may tum the su~Lject. SecoutUy: It ofteu
signifies ~'ope~, witli thé meaning wheMin ~-<~f~y n distin-
guished from thé << <~ ~oss~~MOK to wiuch 1 shall advert
betow. Thii'dty .Z~wtt'M:, with one of its meanings, is exactly
coextensive with y!M m<t, and applies to ev~ry t'ight which
is not~M Mt~wHam.–For varions reasons whioh 1 shaïï pro-
ducG iu my lectures, a right belonging to thé last-mentioned
kind is not denoted adequately by thé '~?'<tM' of thé Homan,
or by thé casèrent of thé English law.–But in spite of thé
numerous ambiguities which encumber these several terms, 1
think them less iaeomModious than the newly devised names
by whieh it were possible to distinguish thé rights of thé two
kinds. For newly devised namcs, however sigtUMeaut aud
determinate, commouly need as frequent cxpl&uation as thé
ambiguous but established expressions which they were intended
to supptant. And newly devised names are opeu to a great
inconvenieuce from whieh established though atubiguous expias-
sions are completely exempt. They arc open to that undisceraing,
yet overwhetmhtg ridicule, which is poured upou innovations
in speecit by tite formidnHe coufedemcy of fools: who being
incapable of clear and discriminating appréhension, cannot per-
ceive thé difficulties whieh tite names were devised to obviatc,
though they know that their ears are tingliug with novel and
grating sounds.
With thé help of what I imvc prenused, 1 can now indicate
thé principal umtters which 1 shall pass in review at this point
of my Course.–1. 1 shall consider in a général manner such
distinctions between nghts </t <'t~ as are founded on dinerences
between the degrees wherein tlie entitled persons may use or
deal with thé subjects. 2. 1 shall consider particuhuly that
leading distinction of thé kind, which may Le tnarked wit)) thé
opposed expressions ~c'MMMWK t~ ~t/'i'i/iM, or ûM'<<c/< f</i~ c~<-
M!M< understanding the expression <~)<t!MM, or o~t«-.i/n~, as
indicating merely thé indefinite extent of thé purposes to which
thé eutitted person may turn thé subject of thé right. 3. 1
shah consider thé varions Mw~ of dominion or ownurship, and
shall advort to the varions <MM of servitude or ea~emeats.
4. AIthough t!tey are incapable of exact circumscription, thé
purposea to whiett tho owner may tnm thc snbject of his owner-
shtp, tu'~ Rot M~tttpt ffotu restrtcHuus. Thé ubiiqho tunmicr
wh~roin thé t't'strictioni! arc st't, 1 ahaM attcutpt to exphin au
ttttcutpt which will h'ad tue tu consider gfneraUy, the actuat
ttttd pufstbto tttodeit of </t;/Ktt'<t</ ri.i{hts aud duties, with tÎM
i~proaeh tu comptetcuMs :uid corrcctncss whereof thé proccss
admits.
111. Whethcr t!tHy be t-i~hts to spfeitic subj~ets, or rights
without such sut'jects nud witHtcvcr tje thc purpu~s t" which
ttie cutitled perdus mny turn thch' sut'jt'cts t'i~hts ~t M//f tire
distm~uhhaUu by dif)'et'ent;s )jctw~ti the quautities ot' time
dut'in~ which t!n'y arc catculated te )u.st.
As distii~uishaUc t'y din'erencc.t betweeti theit' respective
dumttons, t'i~hts </t nw will bu cuttsidercd i)t thc foMowiug
ot'dft-Hights i'M /<< <u'c ri~hts oi' unihnitcd, or rights of
!i)ttit';d dumtiou. Hvury ri};ht ut' un!itt)it~t dm'itti'jn, is at~u a
rt~ht ")' mmtbit.~m'fd dm-atiun t!tat i.s to sny, a rigttt fjf witich
thé duratiou is nut <-xa(;tty deiinGd. Hnt uf n~hts of lituited
dutftttott, some :n'c ti~)tts ut' utnueasurcd 'turatton, whitst othet'
are ri~hts <jf a duratiun exaetty d~tined or mmsured. For
cxatapk Ait c.<tatG in feu .simple, or property i)t a pcr.s"nat
chfttt~t, i.<! n right ot' uniinutcd, and thuretorc of mnnMtStu-ed
dumii'))). Au ('.statu fur )ii'e, is a ri~ht of un«teasured, but
Hnutcd duration. T)~ interest cn-atcd by :( kasu f'jr a ~in'n
mmtbt.-r uf ye:n'.<, i.-j a right ut' a dunttioa ~nitcd aud nn-asurud.
–Acc')t'din.~h', 1 shall distntgui-h rights f<f untnnitfd, front
ri~hts oi' Ihoitcd dumno)t and 1 shall distin~ui~h rights uf
linutcd, into ri~ht-i of unmeasurcd, and rights f~f tneasurcd
durât iou.
t~itt'~rcnf-c~ butw';e)t thu du~'t-n. wh'ci]) tiM Gutiticd persons
tnay ust; or dt'id with the su)'jcct.-i, aru rctated tu difK'rtjnœs
bctwc<;n t)~ 'hu'atiuns "f thc rt~hts. 'i')tc sevo-a] rciations
bctw<;cn thosc rcspo'tive dif~-r<;nM:s i shaU cndeavuur to cxptai)).
IV. Wtictht;r thuy be ri:))ts tu .«pûeific subj<;cts, or ri~hts
without sueh subj'j';t.s; w)mtcv(;r h~ th' porposcstttwhif'hthe
t-ntitttj't persun.s may turn thfir subjcct.s and w)tatuver bt; thé
quantitics 'f nmu dnrin~ whh;h th''y arf (:a!<:u)!tt(:d tu Jast;
ri~ht-; << )''w are di'itin~uishabjfj ).y thu t'fUowin~ ditturcnccs.
Of rights )M /«, s"me arc prest-nt or Y(.ted otin.'rs arc
future, conti)tt;<;nt,or tut-r~Iy i)t<i')at<V~.st.udt'mh~ e.'i.s~ntiath'
(tiffur t'rom ~nu another, a.-i Wt:tl as from ri~hts whieit are cou-
tin~nt. For in sf'me cases of Yf'stfd ri~ht.s, ttie party entiticd.
or thc patty in whout it rcsidcs, may cx~rcisu thé ri.~ht prtifiGntiy.
 But in other cases of vestcd right, tho exercise ol' thé right is
preseatty suspotuled by thu pr~~i~nee <tf au tn~tMM- and preier-
abî~ right.–And whethcr a right le vested or conttuge<it,it
tnay lie liable to end, ou thé happening of a givcn event, heibre
the Ittpse of its possibk dumtton.
Upon thèse diÛM'mtCti- !md thc distinctions t'csnitu)~ f~ni
theso dif!freuce9, 1 shaU tuuctt bn~tïy iu this .sub-d(!p:mtm<nt:
po.stponin~ a tfu'ger exphmttti~n to that subsMtjuent point uf my
CouM~, at which. 1 shiUi c~usHkr thc trust-substtmH'jns tmd
cutaits of the .Homa!i und English Law.
V." 1 shttU considur thé various events front which ngJtts
<? t-fM nrise, with thc varions events by wtuch they are ex-
tit~tusttcd: l'Gsm'viti~.howcvet-, im exact accMtttt oi'~w~~<t'oM,
uutil 1 shaU hâve du!y anatyscd thé /A< fj/Mf-'M~M.
VI. If ott(; persou exercise n right r~.si'U!)~ iu a'Mthcr
pfrson, but without auth'jt-ity ûtjm thé luttct-, nnd without
fmthot-ity ftout tl~
thruugh whom thé tattet- is cntitifd, t)K'
ionutit' ac~uit-G.s, )<y his UHauthorised or «</<-<$< exurcisc, thé
fmomduus right which M stylcd th<i <-)'(< o/o~&sMit.
T)tis genGtfd description of thé t-ight ot' possession must,
however, be taken with thé foltowing Junitation.Thc pers'm
who posscsses ad\'ersc)y, M' who exurciscs thu rigilt of auothcr
withuut thu rc'piisitc authority, df'us not acquirn thcreby tiic
right ftf possession, in cas'; his adverse possession h~an t<, or
arose througit any of thé ttteans which i'aU withitt the name uf
Ct'O/OtM'.
Thé i~/<< f/~MM-MM~ must bc dtstinguished ft'om thé <<<

ffr thé )'

<MHMtM~, or (changinj.fthe piu'a.e) from t!te )'<y/;< ~M'M;
'j/Mf.Mt'/fy, or thé /'t~/<~ ~«<M<.M, is a propet'ty or
intégrant part of the <'<<< ~o.Mi~M itse!f, and atso of
nutnerous rights wliieh widdy difler from thé tatter. In other
words, thc right of possessing, considered gencraHy, may arise
irom any of varions tittes or causes but the peculiar ri~ht of
possessing which is styled the ri}.)t of possession, i.-i a rii;ht of
posscssing that arises exclusivety from the tact of an adverse
possession.
AIthough it ari~< fmm actual possession, thé ri~ht f~ /-<Mt
which is styled thé right <;f possession, tnust a!so be distinguished
fmm thé rights t~ M~ which arise frotn of;L'upation or occ-upaney.
Fot thé fact of possessing which is styted occupation or occu-

It i.t ih thé course of thu dt~'etojt- hreak o)! &'f LM-ture t.VUt, on't thc
xxnt <jf thi.s tit'th hca~ of thé .sub-d'p.ut. o)j~<;[v<ttMtts therc pia.).–ti. C.
)n<:nt hcM treattd of, that thf tM.-turt.-i
pancy, consista in the possession of a something that 13 t'M
?«?«& Bu~ tho fact of possessiug which givcs tho right of
possession, consists m thé adverse exercise, by thé person who
acquires thé ri~ht, of a right residing in another.
Consettuently, thé ioUowing description of thé right of
possession ha& all the exactnes;; which accords with extrême ]
brevity.–It is that right to possess (or to use or exorcise a
right) which springs from thé tact of an adverse possession not ]

begintung through violence. <

As against ail but the person whose right is oxercised

adversely, thé person who aequires the right of possession is
clothed with thé very right which lie affects to exercise. And
as against thé person whose right is exercised adversety, he may
acquire thé very right which he affects to exercise through thé
title, or mode of acquisition, styled ~o'~i'o~. Or (adopting
a current but inadequate phrase) thé right of possession ripens,
by prescription, iuto thé right of dominion or property.
y«~Thé right of possession iitrictty attd properly so cu))e<t, or the
right of p<MStMf!tt)M considett:d tts a <K&~aM<tt-< right, is a right that arises
exctusivety frotn the filet of an advera' po~fMion. But the tenn nyAt of
~oMf~'oM i!i o'~t unfrequ<!))t)yemptoycd with un extremely large eigoiHeation.
Takinf; tiM tcrm with this very extensive <nMniMK, thé riijht of possession
arises from an actuel poMfMiun, wh'ithcr thé aetu:d poMMMon be attveMe or
not. Fur example It is said that thé ~omt'HM in netuni posession, has «
right f'f pos~Miou which «nses ffom that ttetuat poMe~ion, and which is
comptetety indepen'tent nf his ri~ht of dominion. But (M I shall xhow in t
my lectures) thc right of poM<sMun cunsidered a3 a fM~axfiM right, is a
right that arises exduxh'ety front thc faet of an adv~'Me poMt~ion thé M
called right of poMessioh which ariMs fï'ont an aetuat posseMinn not adverse,
being <t ~rop~rty of <tMoi/t<)' right, or Lcing a)t M~araMt pa)'< </ NHof/M)' ny/t~.
For exnt))p!e It if abourd to a.cribe to thé ~eM)('«M in pOMeMio)), a right of
pos.MMion indepettdent of his right of dominion for if thf 'h))n'M)MaetuaUy
poMCM, it M M <~Mt)'M)M that he actually poMt-~ea. As 1 shall show in my
tectar); thé t<'mt r)~/t< <)~/<eM<~teM acquired thé large Mgninattion to whith
I have adverted above, in conscqnenct: of an f-xtensif'n of such ~o<'«M!or~
r<t)t<~t'< as in their origin were appropriât''to parties inve~ted with thé Hght
of poMession strictly and properly M called. Ti~se po.<«:sory remédies,
though originally appropriate to such parties, wcre aftenvatth extended to
any pos~esfOMwho had been wrongfu))ydisturbed in their aetuat posee~ion~.
In thé Rouan Law, for emntph',a certain t'Mftf~M'f (<;h).]y Matogous to an t
tx'tt'Mt <i/t;«'<HKM~) WM originatty appropriate to partie. itn'Mted with thé
right of po.Me.MiMi strictly and properly so called. Hnt it was extended to
the <f<tM)'Mtu who had !'een wrot)ght))yevicted from hi? act'Mtl posse.ion. '1

For by reMfting to an interdict grounded on his actuul po<MeMion, iniitcad

of resorting to an action grounded on hi.< right of dotninion,he avoided thé
inconvénient neeeMity of proving his riglit of donunion, and had tnercty to ~f

demonatrate hit actuat po:session at thé tinie of thé wrongfu! éviction just
as a party who ii! !.t:i.'ed or <-ntit)ed in fée, recovet". through un action of
ejectment, from an éjecter without title, by merely proviog his actuat
p<MMMhm at thé time of the wrongfut e}eetmeot. And <inee thé <!emMHM
fMowfe<t by th~ intefdiet, 6tt Ktctety p~vtt)!! Mt aeM«t pM'x'Miott, h~ ?.
eoveted, Mt a certain œnse, throngh his right of posiesiHonmerety. But yet
it were tb~urd t&aCt'm that ho hmt a~y M~ht ut ~<i«;M!M~ M)d<tpMtd<*)Hty
of hh right of dotnHuon or to liken thé n~ht of p'M.'eMit~ wbtch h purcel
or the right of JMuuuon, to thé aMbtittmth'e n);ht ff pM~Ming w)ti<;i< Grises
solely or exctmMvetyfront thé fnct of ttn adverix* poM~Miox.–Thé above-
ntMMtiu(te<t extension ~t' jMS!!t's'~t'y retnedit", ha!) rendered the right of
posiieMtoti one of the darkejtt ofthc topics whieh thé )!cie))ee ~fjm'ispt'udettee
présenta. But there is not intrimieatty any Kmarhabte dHneutty in thé
right of poMeMion which M strictly utid ptoperly fu cMtted that if to My,
which anifes sotety or exclusively from thé f«et of utt nd\'eri:e possession,
and which is the hMta of acquisition by «MCH~'oM, and oi' other acquisition
by ~<'<c)-ty<<oM.
At this point of my Course, 1 shall therefore proceed in thé
foUowing manner.
1 shall analyse the anomalous and perplexed right which
is styled the right of possession. Performing the analysis, 1

~'bM t~
shttU happily be ttbie to borrow from a eetebrated treatise by
entitled 2)M ~c/<< f~ ~M~ or De Jure Po~f~-
«OKM: of aH books upon law, thé most consummate and
tnasterly; and of all books which 1 pretend to know accurate!y,
thé least alloyed with error and itnperi'ection.
Having analyscd thé right of possession, 1 sliall turn to thé
title, or thé mode of acquisition, whcrein the right of possession
is a necessary ingrédient namely, «~«'f~ and other ~'a.M'Mp.
<t'(~t. 1 shaU consider generally the nature of thé title and
shall advert to thé respective peculiarities of thé Hmnan and
EngUsh Law, in regard to the terrns or conditions whereon thé
title is attowed.–If 1 find it possible or prudent to touch that
extensive subject, 1 shall proceed from title by pnescription to
thé connected subject of !'<M~'<!<iOM.
Rights in as existing ~<~ se, or as not
~K'MOtM~
combined with rights Mt MM.
Rights ~MMMMNt, including thé obligations which answer
to rights in ~)'MH</Nt, arise from faets or events of three distinct
natures namely, from tM)<)'«t' from gM~t-eûM~o! and from
dclicts,
The only rights in ~?'MKCM: whieh bclong to this sub-
department, are such as anse from contraets and quasi-contracts.
Such as arise from delicts, helong to thé second of the capital
departtnents under whieh 1 arrange or distribute the matter of
the Law of Things.
~'etf.–Perceiv!)~ that rit;hta ex ff~f~o were generally rights Oty<)'<t)M<tBt,
but not adverting to thé importance of marking their <f!!tc<t'cH)'))y charaeter,
thé cït)mM Roh)!t)t jtu'i<t: iu the!r {nstituttomi or clementary wrtthtg~
atNms~t them wtttt t'!i;ht9 t~ cMttmctM Mtd ~<«M M <:«M<n«;<tt.' wMt t'~ht~
whMt i~fo !t! t'<hti) My~-KHtftMt,but af not hottomptt, lîke n~ht. ex fMtefo,
in inMn!Ttcnt'! of other ri~hts. Au<t ht-iicM xmch uf the ob<etu'!ty whhh
itmig~ uvcr thu ImtitHtt.'ft uf <h';ir i)t)!ti)t"t, th'; Etu}'t'r'«.'Ju'-titUim.
Thé mitttor uf t!u.s suL-partnicnt wi!t Le trcatcd in t]ie
Mlowin~ ordcr.
1. 1 shall (te)iM or dftcnutHe thé :ncauin~s of certain !ead-
ing expres-~iona vix. l'mntisc l'oitieitatiou Convcuti'n or
Agi-cement Pact C'ontract (~uasi-Cotitraet.
II. Httvin~ 'kftMt'd themfaui))~ of those Icading cxpres-
siotM, 1 shall consider particutaHy tho unturo of ''M<«< I
shall distingnish coutract.s pwpct'Iy su called i'rMu certain facts
or fVftits whieh tire stytcd cotttracts, httt w!)ich virtuany are
nlieuations or cuuvcyances. 1 shall distritjuto contracts under
their varmus cta.sscs expoundin~ thé distinctions (with tnauy
other distinction.) betweett unilatéral and bUat~rat, prmcipal and
aeccssoty, nounnatë itnd htuominntc contracts. Kxpotmdit)~ ttns
last distinction, 1 shaU show wltat is !Hf:mt hy thé ''ASfKcf, and
what by thtj a<v;Wc/<~ of a ccntract. 1 s!taH notice thc suictu-
nities or ibnuatitiM which are essentiat to thc vatidity of certain
contracts aud, thereupon, I shalt analyse thé ?'(f<M«:/t' ot' thc
doctrine of c««.;iWt/'<f<<M<.i). I''inal!y, 1 shall tt'rn to thé (.t-nt.'s
whereon, ur to tlle tHodes wherein, tlie ri~hts and oUigations
arisi))~ froru contracts, csase or are extin~ui.shed.
111. Front contracts, 1 shfd! procMed tu ~«~-<-t'M</)'f«- that
is to say, facts or ovent:! winch arc ncither coutracti; uor delicts
but which, inasmuch as they cngender ri~hts u< ~<.i'M)<«« aud
oMigations, ttre, in that respect, M/iM/o~M t" contracts. 1 shaH
notice thé fréquent confusion of merely quasi-contracts with con-
tracts which propcrty are such, althf'u.th they are tacit or intp!ied.
1 shaH show t))at qnasi-eontraet. are anaio~ous to thc faneied
contracts from whieh sp~culators on ~overmnent hâve derived
thé duties of thé govemcd and 1 sliall show thé causes ot' thé
tendcney to imagine or fei~n contracts, for thé purpose of ex-
plainin~ thé ori~in of duties w!ticti ematiat'j inon othcr sources.
1 sha)l advert to! the classes of quasi-contracts and to thé events
whereo!), or thé modes wherein, thé ri~hts and oUigationswhich
they gcnerate, cease or are extiuguis)ted.
Such of tite <'6M(&«)«<t'c/<~of rights Ht tYM and rights
itt ~<:)'M<()/t as are particular and comparativety
simple.
Though ~M M t'fM, ot'y<M Mt ~~OK«M, may exist separatcly,
or uncombmcd with thc ot!ter, both iuay vest «Mf ««' iu one
and th<t Mmtf party: <~ (c)(atH!n ~hf <'x)HfssMM) au ttv'mt
which mveats a party with M ri~ht </< t'<< '-tf <« ~<?'.«'M«i'M, «)ay
invst thc satue pnrty with a ri~ht M ~<?'.wy<MM "r <'< r<7~. As
exmupte'} of such events, t moy mMtHou tttM M~wi~ MtHMcIy,
a eottveyauee with a covcnftut f'-n' tttiu l6 /«//?</«''« ur )uwt~tt~e,
(iX))i'Ms or tacit ft sak cotn~Iet-ed by d~livury, with a wananty,
express or tacit, for title or scmtdness. ~nd, as ï shaU s)tuw iu
my lectures, niimy a titct or cY'cat whidt i~ stykd simply n <n-
tttK't, is prop~rty H cuutptex cvut cotupoundcd of a cfjuvcynnce
and a contract, ttud iinpat'tit~ !'?t'~ ~<<« a ri~ht M MM and ~(
~<')'<0!i<<).
Such of thu eotnbinationsoi'ri~hts i'M )'~M and '</t ~fM!«M
as are partieular and touiparativetysimple, are thé tnatter uf this
sub-departUMttt. W)tat 1 Htmu by their ~«)-/K'Af< or mther
ti~ir ~<~i</«~ eotnbination. as di.sth~uishMt fr~m t)te !<M<'i'()~
a~'egates which are thc tnatter ~f t))'- uext sutt-departnieut,
would scarc-ely admit (<f t/xphmittMU within ttie thnits of au 'jut-
tine. ïh wdbi' m au expitmatifu of my meaninK, i inu~t cxplaiti
thé distinction Letweot sin~uhu' aud uuiver.<<tl .-iucces<(~rs, «r suc-
ces.'<ion /'<(' s:M.«/ and succession ~fi' MM~ ~<7f<~</< ncariy thé
must pcrptexcd of thc ntany intricatf ktn'ts with witie!) thc
sc~ucc fjf )a.w tt-ies the p~ti~cf 'jf its stud~ut.

Such«M''t'e?'~<<.«jf ri~hts and dutiu.'i('uc)t coni-

pkx a~M-nates of rights an<) dutie~ as arise by
univtit'sut sueecssi'n.
Thc matter ui' this sub-dt-partuiL'nt will bc treated in thc
M)"wi))K 'jrdcr.
I. Titc comph'x n~re~atfii of }'<< and ~)~<'<.<, whieh (;~n)-
nMn!y arc !):uucd by modern Civiiiaus,'u))i\'cr.<itatf.s~M,' will
be distin~ti.shed from thé a~rc~atcs or eot!t.'L-ti")tsuf //< «t~, whtL'h
cot)t)Mon]y are nnmed t'y thn ~autt; Civitian~. tnnvt.-r.-itates.<«<
sivu ~'<c<t.They will a!so bc disti)~uisht:d fr"ta thf- eomplex
and fictitious ~«-<M (m- the t:o!!cctivc budic.-i of individua! <a'
p!)ysi(;al pursona~, whieh arc nanMd by thé Jtoman LitwyeM,
KMH'f!'&<7t<<! or <'<<~M, n:td by thc Kn~hsh Lawyf). t.<«~i.!
~-t-~(<<Thé u))ivt;rsiti'~s of ri~hts and duti~ whieh are thc
tttattfr "f this su)j.departjnent, will at!«.' be distin~uished fron)
~M or conditions. For thf a~gr~.ttM of ri~hts aud dutx;
capacities and incapacitics, which arc stytcd .<~M or eMtditioHs,
arc, for thé tnost part,y«)'M KM!r<M!<
IL Since aU thé universities of )-i"hts and dutit:.s, whieh arc
 the matter of this sHMepartmcnt, ar!sa by ~niveraal succession,
thé distinction betweea siuguhr and ùnîvwsal wccesso~, or
succession rei M'K~M/w aud succession ~o' M~fM'M'~m, wi]I be
stated and exphuned. As t have already remarked, that knotty
distinction wouU scarcely admit of exptanatiun wit!nn thé limits
of an outline, But thé following examptea Ut~y suggest to tho
reHecting reader, thé chameter of suecessors t(M<MM!'M<;M,
witti thé nature of tho «Mttw~<<M to which such successors
succeed.–Tite executor or admhustmtorof a te~tator or intestate,
with thé gonemt assignée of a bankrupt or insolvent, are universul
successors. And, iu respect of specialty debts due fMM the
ancestor 01' devisor, thé heir or devisee, gênera! or particular,
succceds ~t?' )<M~'<'M:7<!<<;M.–Tite aggregato of rights aud obtiga-
tious w!ue)i devolves from thé testator or intestate to thé exécuter
or administrator, with that whieh passes from thé bankrupt or
insolvent to thé général assignée of his estato and effects, are
universities of rights and duties. And sincc «// thé obligations
of a given class, which were due from thé ancestor or deviser,
attach ai OHM upon thé heir or devisec, that mass of obligationa
fulls within thé notion ofa~<~M ~MtM~<f<
foi' every~<?'M <fKMM'<fM bears one or both of thé following
characters. Fh-st Where a MKti'<TM'<<MywMarises by universal
succession, rights residing in, or obligations incumbent upon, a
person or persons, pass «Kc «'~M to another persun or persons,
and paas <M ~'Mt!'c and not ~T <~<'c!tM. In other words, they
pass or devolve f<< o/:<;f or ~f/Af)', and they pass or devo!ve as
belonging to their ~'tKf~ or and not as determinett by their
.!pcc<<' or tM~t!;iW<M<natures. Second!y Wimtever be its origin,
a xK!<<a y«)'M, so far as it consists of rights, is of itself (or
considered as abstracted from its component partieuJars), thé
subject of a right in <-<'?. The party invested with a «K~w~'<M
y«?'M, bas a right in thé aggregate availing against thé world at
large, even though ail thé rights which are constituent éléments
of thé aggregate, be merely rights <'M ~cMMMM,or avaiting against
persons determinate.–1 shaU show in my lectures, that every
~<<)M or condition which is not purely bnrthensome, bears thé
last of thèse marks, and therefore is ~«-M «Kt~j'o' 1 shaU
also explain in my lectures, why thé right )'<M over a y«<'M
<~MMM!'<fM (considered as abstracted from its component partieu-
!ars) stands out conspicuous!y in thé Roman Law, and is far
less obvions in thé Engtish.
Thé legatee of a specifie thing, the aliénée of a specifie
thing by transfer t!t<<:r ~t't'os, or thé assignée of a given bond
 or other contmct, ara stK~M/ar successors, or sueeessom
MK~K~
HI. From t!;o generic uatut'e of «~tM~<ft<M ~'K! <md thé
peculinr nature of such of them as arise by universa! succession,
t shaH proceed to sttch of thèse last as are thé matter of this
su~department. Now «Mtt'c~<«<M y~~ which devoh'e to
universal successors, and which are thé matter of this sub-
department, are of two Mnds: 1. ~«t-<'M~«~yKn'<! devoh'ing
ftom thé (/<!<K~ as such 2. MtMW~<<«<(~ ~M~ ()evo!vtH~ from
thé ~'MK~, or devolving from thé dead, but not from thé dead as
such. And those two kinds 1 shall consider in that order.
Universal successors succeeding to thé dead as such, take f<&
<K<M<a<o or M' <M~Mw<<o. Accordingty, 1 shall explain universal
succession f<& !'K<c.!<<t/c, and uoiv<rs:d suceessiou ex ~amc~f.
And to exemplify my explanation of thé distinction, 1 shall
compare thé characters of thé Roman /<
/<<<Nt!M, of thé
English a<<Mi:'?tM<~M' and M&~ o/' A-i'M, and of thé English /«t!
of thé Eotnan A<f.s <<am<'K~«~M~, of thé Engiish M<'c!<<or and
t'e~MOtt'~ /~<<<;e, and of thé Engtish </<:pMce général or particaia)'.

A'o<<By thé English ]awytM, fM< rights (property in thi!Jf.< real, or

t'<*a! property) are dii-tinguished from ~t)-j<M)«< ri~hts (property in thin~
ye!-<Mtf<<, or ~MOM<!< prop~rty). ThMe two ct:t.Me9 of rii;hta Ltcn't at M
many points, that thé diMerence between thon cannnt he deStriLed correctty
in ~neriK a)nt cuneife exprei'siuui!. A correct ttûscription t)f t): ttif!re'nc<;
between thé two da.MM of ri~i)t' wouM involve a t~tupttM def-cription of
thé e~'eMt or Mrioui! rights whicit bctong to those (;!as~.< K'specth-f-)y. Of
thé generic and concise descriptions whictt thé diOeroMe in quMtiott will
take, thé foHowing, 1 inc!it)<! to beneve, is thé Jeitst Ktnote ft-oni thé truth.
Reat t'ights (property in thing:! rea), or rea! property) are rights which are
tn/«n<«Me.' which (w)teK' they are tm)Mtni!<iUc to reprcseatative~) devoh'e
no tM~«<o to /«(')-<. PeMooul n~ht-'i (property in thinga pcrfonat, or per-
<ona! property) are nghts whieh are Mot tH7ttf)'<((th.' which (where they are
transtmssibtc to repretentatives) devoh'e ab <!t<<~a<<) to (<(!mMM<)'o<oM (or
MM< of Mx). Thé difterence, therefore, between rea! and pt~onat rights,
mainty consists in this. According to the English law, succeMiott n~
t)t<<~<!<o i4 of two deMt'iptiuns namcly, succession by ~M (strictly and
technicatty M ea)ted), and suece~ion by o<!mt'M~<M!to)'.< (or HM< <~ /;m).
Rights devo!in}{ a& )'))<M<a(o to sueceMors of thé fermer deecriptiott, are
!'<«< rights devoh'ing ;<& to suecessors of the latter description,
t)!<<~(a<o
are pfMMta~It wcre eMy to demoMtratf, that thé divieMn of rights into
fM< and p<)-~ta< (or thé division of property into t-f«< and ~ttwM<) does
not qnadrate with thé division of thittg. into thi))~s oxt'Mt'MMeand thinjM
tM<M;<at~<: It wcre also easy to denmnstMte, that it does not quattrate with
o
the division of thin~ into thing~ tf/t<~ <t)'< «f~t! t<nK)'< and thin~
«-AM/t <t)-<: )tof. As 1 have renMr!<ed atready, thé diviMon of property into
r«<< and ~M0))«f, is not susceptible of précise generic description. He
who woutd know precifiety thc meanin)! of thé division ia <tUMtion, mu'-t
ntaster aU thé detaib whieh each of its compartments embrace$. Or
 (chsng!ng' the expre~ion)the vtu'iuus 'tetïtik whM) cahh "f iheompiuttnnit.
cmb!<ce!t,<t«'nutcf')tne<:tëdby!K'ntntnoneharnet<')'or property.tmt form
il h<tp, mÈtH~Uy !hcnthtito, "f
itctt-n'~t-ucuHtt p)iHn:M!<M-.<Tht-i m-t!ttt':)'.<
<t!.<tnn-ttun )x'tWM')t ntt) m') ;'<*t'j'M);tt pt~pffty, whi'h ia tn'«r)y thc !aT).!e"t
ut' thc 'ti"tin':ti'w< that t)M Lnv of Hu~taud cf~ntain", i;! 0))<; priJifit: fuMt'ct'
~t' thé Utuividkd tMtncmy ut' ttui ny.~tct)), <tt«t 'tf it:t ttMttotth'iit t-uuftMo))
amt obscnrity. T" thc tAscnee nf t)ti'! <)i<ti)n;tioit (it c:)U"<' "f cutn~tcxttc'-s,
'ti~rdet', au') dat'ktK. whict) mm~ht );ut thc cxth'pitti")t ut' thf <ti!.ti)t<:tiuu
< au tht'rou~hty cur'-), thf ~t'Mttt-r cump.tetttt.-s'i uf th' Hoomn .y~m, with
it-! ~tf:!(tff "ytttntutn' :w) <;)MH')t'<, itr~ muinh- hu;)tttMb)u. ThMc i' not,
))t'tf<;<), itt ttM Huma!i juri~rudcnct:, tlie br'ity umt hat'ttiuuy uf )mrûi,
witft thé cuuN.~ucnt hn;h)ity tmd cft'tttiuty, which are M.~cntiat tu u f-Vt-t'-Hi
<jf htw th:tt WGt'M wurthy of th'; i)r'~titut<l muttt- n ."ystfm of )aw that
wcrM tmty a ~ni~t: ui' comhn:t, «tut xot a -naff iu thé way «f thé )):u'ti<;f
tjuun') tu obset-vu it') ~tvi~i~h- But, thi< )totwith)!tan')it)~, the Hutxau
Law (toain)y <h)'ot)~h thc ab'-encc of th'; <ti'-ti)t<'ti'~)t bt'Hv'-<')t n-at nm)
pcM~tiat ;)t'uperty) i.') it~otty atid ptdpabty .<u~<;t'i')r. cun.sidt-red a-i a tty.itttu
ot' whu! tu thé Law ~t' Knn):mJ. TMrnin~ h'~n thé .'ttnty of thc Et)~)).<h
to th'; ."ttu)y of thc Munta)t J.:tw, ynu escape tr'~o thf f)))['h'c of chao< au't
()arktiL"<, tu a wurtd whi';)t .~etuii bv t'umpan.i'.tn, thé M~ion ut' Mtter aud
ti~ht.
Titë tli.-tim.ti'.m uf thé Ht~ti.-h tawyt't~, Lt-:wn-n }-Ht< ao't ~f~Ka' rit:ht'
i< p)-utia)- tu thf .y'.tcttH of positive )aw whi<:h ar~ )nait)h' bottoncd in
t'ctt'Mit~titmiot~. A.<t!n'L-tate~a)t'('a(ty, ttn-M )~t in th'' R")nan
f.aw th<- faitttMt trace of it. A'or')i)<g t" t)~' H'~man Law, n~ht'i dcv'h'e
<t~ <'«;<-<«<« M~ea~ty tu o unif~t'm funt fotu-t'cnt -ch'')u' It i.< true that
ri~:ht< !H' t)i'ti))~ui.<hf) )jy tau~t ';t' thc MoJfttt Ch'itiaxs, htt') ~t<)'<t )va!m
Mnd~M)'«/o'«")a~«; «))'tth!tt t)m '(i~inctioti ot )'i~ht< intujK'ït t'm~tft «nd
~'Kn< ~«'t'fft'o, "))tai)t'i incvery .y.tou uf pKrtt'uhu' au't positive taw, which
is an uthct ur derivativc ut' thc K'~tUim. Hut thc t)i.<ti)tctiun ot' ttie motk-m
L'h'itiani-, bcm't'cnJ<t )-['«?< an't ~')ti'f< ~t)'0f«t~«, i." c~tth'a!ent t'~ th<:
'H'-tit~ttutt, )tMn)c )<y thc NttfM Civitian. bctM'ccn J«)'« t'M f'(M nud Jfi'ft ut
~'t<««M; and it i~a)'-on)uh'a)'-t<ttu t)tc dMtihcti~n,ttta'tc Ly thc Hutnatt
Jjwyct'9, betWc'-tt <~)iti'MM< (M'it!) t))c )a)-ct' «K-attit~ ")' thc tcrtn; aUtt
«Mt'f<<t'<~tA ~<«< rt~ht~- .'in th~ )-cn<c of thc Kn~ti.'h J~awyct-') '.ompri.')-
t'i~ht." whieh at'c ~t'~it«; ~< wct) a'! ] i~'hts which urc rca~ (in thé "n.sc bf
thc tmxtct-h (,'i\-i)iax.~ MtJ ~t~')«;f< ri~hta (in thc .u.-c ut thc f"t'ttK-t')
C!;nipt'i*<: ri,;ht< whicff att:)' a'! Wc)) a.< ri~ht~- which arc ~<'<'j)«<~ (in thc
fc)). ut' thc htttc)' Th<:()!tfcrcn''<: hctM'ccn ;«< an') ~tM'!)!«i t-i};ht.< ~M thc
tcnn.' !H'<- un(tct.<tuu't hy thf ttxntcrn CiYi)i!t<t.~ ii) c-sentia) or nt-cc.ary.
tt i-n)).< throt~h th': E))'j)h)t Law,just a- it pct-vadcsthc ]<"hM)t: atthott~h
tt i< oL-cm'f-') m thc EM~H.'h, Ly thc txuttitu'h: "f want'jtt 'ti-tiuctiun'i
wtuch ttarkcu an') 'tct~m thc '-y.tctn. But thc 'Httcr'-nc': ))ctw;cn ftu<
Lri~ un'h.'r.-t') hythc Hu~)i.-h Lawvt'ra)
a)t<)~t~K<t<ri~))t<(a.th<tcr)n-:ar''
i" purcty a':<;i')cnta).
An't .iMc thi.< ttifr~Mtce is purc)y Kt'ch~nta), it i'' nut inv'twt by
KOtcl-id jtu-Hpnutcncc ~]n-t-:d JMt-i.-pnt'tcncc, or ti)'; phit'K'~phy of
f.)t-
po.-Hive taw, i.~ conccrmd with pt-incipic-t and di.'tinctioni! whith arc
c.'sctttiat or ne~ry. A~c"r~])t~]y, 1 .-ha)) ton';)) )tp"t< t))c ~if)ch-ncc in a
m''rc)y i)tei<)cnta) ntunncr,Mm) tncrcty t" Htu.-tntt'- pritr'ip!cs au't ']i.-i!iuctiun.<
which thc scfjjM "t'~OK-r.djuri.pru'tcncc pr"pe!-)y t-tnbMCt-f.
Succussion to thé subjcct of a .~(')/t'c, or other ~~«.'<~«'
tcgacy, is succession f<t ~t'H~/<t' and it theretort! bctougs lo~icaHy
to eue or anothor of thé tht'ee fot'egoing sub-dcpprtHteats. But
smee auch succession, ttithou~h it Le singttiar, < succession <'x-
<M<<tMMt<«, it cou!d uot b(t cotMidet'ed, under any of tttose sub-
departtueut.?,without an inconvénient anticipation of thé doctrine
of testaments. Aceordin~ty, suceessioM to thé suliject of a
specifie, or other pttrtieuhtr !egacy, wiM Le eonsidered at t)ns
point of tins sub-departmeut.–Fora .suuihu' rhason, thé c?<<«;7-
and ~'iM~K~t<t~t'<'M of thé Kn~tish aud Roonu !:tW, wi!) be
post{~o)ted to thé santé ~int. Aecofti)~ to th~ ]<otn~H htw, tttM
persou w)to takM virtuatly by a trust-substitution, is iitways. in
effeet, ~icK'~oy' ~<<~<7'M.' but thé ~Mt/cc< of a trust-substitution
is either n y«<'t.<! «Mtvo't7<M or a M-t M'/<~«/«. AeeottHng to thé
same systctn, tivery trust-substitution is created by tGstatnentary
disposition. Attd, accorfUn~ to thc Law or Enginnd, an entait
is created by testament or will, as well n< by act </f~<' yo'o~. 1
therctbre shaiï fixd it expédient to postpone substitutions aud
entaits, nntil J shaH I]ave passed in review thé nature of aytn'M
«K<MT.!i'<fM,and of succession, unive~al and sin~ular, &<; ~«/«!
/< H~MMec~, and undo' th'' eartier EMpfrors, evet'y dis-
position suspendin~ thé vestinn of its subject, and attuo.st every
disposition restrainin~ ttte power of' aliénation, was prohibited
by thé Hotnan Law :u)d sueh dispositions of thé kind as it
aftcrwards allowed, were created exc!usivc!y by testament or
codi' and in thé eh'cuitous and absurd manner uf a ~</)/<-
)/«'w«M. Con.uquenUy, ns succession M' ~<<H<tM~ witt tead nte
to entai!s, so will entait. comtHet me to thé nature «f ~'<f.~
titat i.s to say, tu thé nature of trusts in ~'m'ra!, as we!I as tu
the~/«/ti'-f<~<;M«Kf< which arc pecutiar to thé Ifoman Law, and to
thé uses and trusts (an offset of those j'Mtt-<'oMM<&y<)which are
pecunar to the Law of Kn~and.
Havin~ treated of universal suceessors succeedin~ to the
<A'M/ as sueh, 1 shall treat of universai sm'cessors sueceedin~ tu
tho ~< «r suceeedin~ to thé dead, Lut not to thé (letit as
suc]). And treatin~ f't' universat suceessors of tit"se ~neric
chamcters, 1 shall consider partieuhu'ty t)~' sueee-ion
«K!M~-('<f~<Mt ~Y)tich obtains in cases of ~M'j/i'~fy and of thc
conséquent cM~t'e ~H<<M.
A't.<c.–In this !!ub-d<-ptu-t)))ent f.f thé Latv ut' T)ti)),;=, 1 .haU cftn.idc-
uxh'Mt's.d !Su'c<)un!M it '<btain'<~)'<n;My. Jn f<th(:rwf<nb,1 ~ta)! co)t!-i')(-r
H))i\'(;r"at succt'.Mt")) a)<:<t<t':t<jd h~tn pcrson-, iu .-c iar as ptra.'n. :trf: iuve-itcd
with etatit-q
witli t'onditiu)).
(tf eüliditi~)IIg.
~<«<M.! tir
In eothe ei~e! "f uuit'cfid succM-~i~)), th<- Mecc~wn i.< thé Mos~u~hce
ofcct'titiu <h<<tu <r conditions, <'r M])))f<sei' tlie ~rc-t-xi!.tt-n''<;uf'rtain ~a<s
or cooditions Ht~) in f'ther <-)Mc.< of uxivcMa) eu<;<:(-shj)), e'-ttah) jmtties
 tire investetl With conditions, in conséquente of the saece.tftion itw~ At)
~xamptee ôfutMverMtt MecemoM, thé eftect or cause of eonditioht, ï tKtdttef
thé M!owin~ easeit from thé Ronum and Ën~Mh Law ti~nety, UtUvettat
«uece&don, ab ttt<<!<<<t<eor M: <«<<MMM<«,to thé t'ighta tHMt oMijpttioM!* of a
/T«~m«M.' tmivermt succeMion, by thé adopting futher, to thé rights and
oMigatiùM uf au Htra~<<<'<< Ma tuuvermt tiuccesMon, by tha geneMt
assignées or trustées, to the rigbts and oM)~(tio))!) of ait tn'Mh'fnt <a~.
For t)tt-ou~' a distinction built on a't CMential diffMrcMce, but carried to
nMtUfsft tenj~h and breediug nMMUess comptexneM, the hw of En~taud,
a)Kt of othor modern nations, severs the insolvency of tmdeM front othtr
insolvency, and rnuke:) it the subject of a pceutiar syst(:m of rules.
New where univeMid succession h the eff~t or cause of conditions, it
ou~tt to be exc!ud<i(t from thé Law of Thin~, and truated with thé con-
ditions from which it etnanatM, or of which it is thé fountain or iipring.
But in spito of that exclusion, thé consideration of thé univeMat auc-
cession whieh is matter for thé Lttw of Thit)gs, itivolves large anticipations
from thé Law of Persons. For exampte Succession «4 t'M<M<M<ocannot be
expiained compktely, without an exptanation of consanguinity, or of cog-
nation (~)m f«<t'<M'<) whitat coneansuittity cannot bt; exptained compietety,
without a targe anticipation from thé law of marrittj.{< or a lonj} référence
forward to thé <<«<«< of husband and wife. Wearini; thé pfcuUar fomi
which it takes in thé Roman I~aw, succe.'i.Mon ab t'!)<«(t)<" eannot be exp!ained
completely, without an exp!anation of cognation (~MM ~(t'orf), of thé
relation styled it~ation, and also of that cognatiun whieh u contradistin-
Sui.Aed to agnation, and which therefore diirers front eognation (in thé
iarger meaning of the term). But Hnce thé relation styled agnation results
from thé patria poff~M, the considération of thé Hotnan itucces.'iion at
tM<<t<o<o, involves a double référence to thé Law of PeMons namety, a
référence to thé ~a<M or conditions of ~xf<f)- et /Mt'M /<tnt<<)'M, ai) well as to
thé ~<t<<M or conditions of ttusband and wife.
As 1 sltall show in my lectures, that portion of the Law of Things
which is concerned wittt univer~at succession, is more impticated than any
other with thé Law of Persons or Statua. If, indeed, it were cto~ty
anatysed, tlie wtK.te of titat portion of thé Law of Things might he found to
consist of matter beion~inx to~cally to the Law of Persons, but interpolated
in thé Law of Things, for thé saké of comtnndious exposition.
As 1 treat of universat succeMion to intestates, testatoM, and inaolvents,
another implication of thé parts of my subject will compel me to draw
ttpon thé second of those two capital departments under which 1 arrange
or distribute thé matter of thé Law of Things. For rights and obtigations
arising from delicts devolve or pass, in company with others, to thé universat
succeMors, or gf:"erat représentatives, of intestates, testators, and insolvents.

~MC~'OK!'?~ JB~/t~, <M'<A MUC~'MH~ Z)«~'M ()'t/<!<(t'C f<Kfj! N&M<M~)

J~~M~S or .~i/t<n'< (icAM/t «M <'f<«~t~ M' «M~n~K~ of ~<K('<M?t-
ing ~A~ and </K<t<'&) tKC/!«M.
This is thé second of thé capital depMtments under which
1 arrange or distribute thé matter of thé Law of Things.
liefore 1 proceed to thé sub-departments under which 1
distribute thé subjects of this second capital department, 1 shall
distinguish delicts into civil Mt/K)'M and cnM~ or (what is thé
same pMcesa stated m dinerent expressions) 1 sha!I distinguis!t
therigMsouddutî~wMchKreeSectaof ctMY<Mi<;ts,frMM thé
duties, and other conséquences, which are effects of cttNtt'Ka~.
Having expounded thé nature of thé distinction between
civil and. onnuaal delicts, 1 shall distribute thé sub)eets of
thia second capital department. under twosub.departments.–
1. Rights and duties arising from civil ~t/'<{n't& 2. Duties, and
other consequences, arisittg from eWMtta.

JUghts and duties arismg from c:M7 :<M'M.

The matter of this sub-department will be treated in thé
following order.
L Civil injuries will be classed and described with refer-
ence to thé rights and duties whereof they are respectively
infringements.
II. Hights arising from civil delicts are genernlly hghts
~t ~r~KHM! that is to say, rights availing against persons
certain, or rigitts answering to duties incumbent on determinate
persons.
T)te rights arising from civil delicts, including thé relative
duties answering to those rights, 1 distribute under two depart-
ments each of which two departments iinmediately severs into
various sub-departments.
Ttte division of those into those two departments,
rests upon a principle of division which may be stated thus
namely, thé difterence between thé natures of thé rights and
duties whereof civil delicts are respectively infrittgonents.
Aceordingly, rights arising from civil delicts whieh are infringe-
ments of rights )'eM, are the subjects of thé first department.
Hights arising from civil delicts whieh are infring~ments of
rights tM ~<:?-~(M!K)~, are the subjects of the second department.
Thé varions sub-departmcnts into which those two depart-
ments inunediately sever, rest upon a principle of division
which may be stated thus namely, thé respective differ-
cnces between thé immédiate purposes which thé rights and
duties arising from civil delicts are respective!y calculated to
accomplis!).
A'eff.–In thé tanguage of thé Roman Ltw, thé term <~<x- as applied

Rlul arc
fmd not co)<))nM)!y lit
to civil iti}ttrtt:.<, ij cùttUMû!t!y HtuitcJ te civil utjurie.'i which arc ini'ringe-
ments uf rights t')t y<Mt. Violations of rights t)t ~MMmm, or breachc~ <.tf
contracti! and quasi-contractt,ntc not co))t)H't)Iy sty)~ ~t'<'< ~r tMjxft'af,
are iicit COIIIIIIOIII)'c'Mtsi))fret! asa aliectilizir
peculiur or aPIJruprintl!
apprupriatu 'tf~artMent.
In thc Institutes of Gaïua, as weti M in tho~e of Ju~tmian, they are con-
.lel'artmcnt.
 sMcrett wKh tontmeta tm<t qttaot-contMtcM, N' w!th thé p~Mttfy H~hta
ji«!<'Mt)htMttttwhMhdMy<u~utft'iat!f)ttttttb.
lu fh'- fang'tt~' "f < K"th t~nt' (hcfe mitMitf-'tty boot~'itig th"
hu~ut~t; uf the Huttiatt), tht: tt:rm '<<<:< fo faï m th<: tft'ttt i< t)M~oy<d
t'y HttMtt'')' Lttwyt-r.") wat.<u thnitf't tuMivil ihjMrifs whi<h. arc hthitt~fttt'int)
ofri~hti't'MrnM. HMtnc'ti'iitt'yttctiut) at\- n"t ut'f~'quf-ntty tti.~tiu~ui'.hMtt
iatu tt<:tiuu.< M A'<fe~ im.t netion.-i M <«ff«c;K. Thtt htmer i(t' t'<'nM<ti'd ut'
!njuric< w))i';)t iU'f inft'iu~nn'ntsof fi,,ttt.< <« ft-xt thé tattt;r ttK rctuediat of
brt.'uchfi <f <htM<;t' :tm) ut' Ltt'aehc~ ~t' 'jua.st-cotttn'ct'). Sm;h, at )t'Mt, i.<
thé tMtMn; of th(i di~tiuction tH <:oM<:civf4att~ stattid ~fuernUy. Th<i VtttMU')
'/):Ma. uf :tiut)< ))iH'inn )~u jnm'h (;o!)f~un<)';<), t)~' fur')))~ ~nfMt state-
nn:nt ut' thf nittur'' "r fu<t'w«~t uf UtM Ji-.tmcUu)), )'nt"t LM tf~n with
tnttu'-t'uus ~na)iti':ntiun<. Fm' t-xmn~h-: l)i <Y~<, ).tneUy .-u cuttu), t)t~
~y, au') tht' ~'unn-t ut' thé
i;MUt:t':t) i~uc ).i M'~ M<;ti"t) )!) propt'rty M fo~
that i< tu i.;ty, thé );rmm't i$ p~~jo-ly a <~<'c< (i)t thé nfUTowcr
uf th'- iH;tiuu
tii~niti<;ati"tt ut' th': h-t'))) t" which 1 hâve îtow adverted). But, thi.< not-
with.<t!UKtin~, th<; actiutt i'i f)'e<tuent)y brou~ht f'u hreaches of contratt-,
tm't ou )jtf:n'ht"' «f <;tmsi-e~ntr:n;t.<TttM <art(ne)tt uf thc I'!tt{;ti.<h Law
whidt rctittL-s tu n~ht-'i «f actiott, i.<! sigoaUy irnpre.~cd with thé di.~mchfu)
chiu~cter of thf ~<t<;)n n:tnn;ty, a want uf Lt~ad tUt't prM';ij;'i pnuciptM
aud '~f )a~ '-h-ar, aud cotnpicnuu') di~titK-t)~)~.
lu thc )a)~ttMt; of t)tK Mutuan Law, th<: t<-tm (Mt'cf ha." anothcr and a
Inl"I'nmattitt~
larg~r lJcÎllg
II1callill;)j<:inn co.cxtcnsive
co.extl!usive witft thetenu
with tttc tCrltl <'<«fj/, audsit;uifyh)}!
tR~iir~, tttttl 8i~l1if}'illg
«My vi"t«ti"tt et' ««~ ti~ht CE Uttty. Thi~ i< thé Mtefunn~ with which
1 <;))t[))'y thé tcrm, untf.~ 1 ouptuy H cxpt'cMity with it.< nat't~Wt:t
i't~uiticatiun.
Aj.trecaHy to thc principics of division which 1 ])ave stated
or su~<tcd abovf, thf t-i~ht.s arisin~ f't'otn civil delicts, including
thc t~tativf dutim answcrit)~ to those rights, wiH t'e di.stributed
uudGt- tifu two depat't)tK')tt.s, nud thé van'jus sub-duparttncnts,
whieh aru skctchcd 'jr indicatud betow.
1. Hi.t;hts iUtsi)~ frofn civil dcticts \vhieh nre infnnKentpnts
uf ri~hts <;t <'< are thc snbjticts of thc fn-st dc'pat'tnMttt whieh
til-it dcparttt~ut i)tnn<jdiittt;ty st-vcfs into thc four t'uUowing
sub-dcpartrncttts.
if thf usul- of a ri~ht <? )'tf bc pruvfutcd ur hindcred
~'tjit: and thé préventive can.-u 0)' hindmnce can he remov~d
f.'r abat<-d, the party injui~d by the prcvcntiou or
hindratu-e,
rnay Lu ~t~<-<~ to thc abiiity of excreisin.u: thé right freely.
Jti~hts tu su'h rc-~turation arc of two kinds. S<j)ne, nnd tunst,
arc ti~ht.s ot' ft'<«~M but othets arf ext;rci.-cd exim-judiciaUv,
aud arc matt~r for ~M~<«<<uM. A ri~ht of action to obtain
possession of a house, or to procure thc abatoaent of a nuisance
which hinder;! the user of thu house, is a ri~ht of thé former
kind. A ri~ht of reeapturimj: without resortin~ t'~ action, is it
ri~)tt of thé tatter kind. liights tu sue)) re.stomtion, whieh
mi~ht be sty)cd si~nifieuntty aud shorth', ri~ht.-i of <;ui~ttt<<««f.'
are ttte su)'jeets of thé tir.st sub-department.
 If a vMftte~ ng!tt in rem ho vtrhM!!y antuhHatcd Ly Utc
injury, ttte ouïy MtUcdy uf wîuctt thc cas~ wi!! ad~H M ~<M.
7<Tc~'oK to ttM injure' party. Whern a p)-e\'entto)t or JundraHCtj
oj~posed thé user of a ri~ht, hus t~~n withdrawu,
or bas
othenvisu cea.wd, s~tisfuctiMi to thé htjured ~i-ty f~r t<M
pnst
p~veutiM) or hindnmec ia thé apt or t~ipropuatc ~-tnefty.
And, ~cncmny, tt~ «pt or appropnate rouedy for ~M< dt;!ict
n
is i~tisMMt or eotuponsatiMt to thu injm'bd party for the
damage or itteonvenience witich th~ party has sunc~d tlirungh
or in MnsequMtM ot' t)te on~nc'I{!ghts to s«~M,
pecuniary M- other, are thé subj~cts of thé MCMid .sub.depart-
tuent.
If the us'T of a ri~iit «< ~M Le pi-cvented or itindercd
~-t.<< tttc party iujm'ud hy th~ preventiott, or hindrancu, lias
eommuuly & ri~lit to 6«<«c<oM for dama.~ or iuu~nvt-uicncc,
as well as a ri~ht of !'M<<Y<«~ to thé ahi)ity ot' ft'ce cxcrti.-c._
Hights of HH~<c«<t'c/ f.'f<;))Li:i<d with rigitts to A«~;«- aru
thu sut)j<et~ ot' th~ t!nrd su)j.dcparHnem.
W!tfM un oHuncu is n~rMiy incipicut or hupeudu~, tli&
oft'fuce Hmy be stayed or prcvcntfd. For examp~: FoKiMu
di.spo-cs.siott is prGVcnmd, nud wast<: is preventcd
f.r stuyûti, hy
an intenJiet or iujuuctiott: ur if 1 bf threatt-ned with an ittsttttft
a.ssautt, 1 hmy prt-vcnt thc approactun~ injury Ly Mp~Hit~ ttic
as.sai!ant.–Hi~))t" of pr~-cntu~ <.r .stayi))K, judic-iaUy or
uxtm.
judit;iaHy,imp~udit~ or indpiuttt o~-ne~ a~uost ri:Jtts ;?
fi~ ~f,
~'tïlt,
are thé subjcets of thu fourth sub-d~partmeut.
2. Ifi~hta arMh)~ fron civil ')e]i<:ts wJtich
arc infrin~tat-nt.s
of ri~ht~ «; /~<~<<, arc thesul-jt-c-ts of thé .-M-ond d'part)t~nt
whicii secotitl dcparttm'nt ihnnt-diat(;!y severs into thé thruc
M!owin~! snb-departtf)t:nt.s.–Fir.-t Hi~hts uf compt-ltin~ judiei-

as arisc from contracts aud ttua-'i-onUttcts: t.

a'!y or '-xtm-judiciath-, thé A~t/f~(«'f<;<« ot' .su~h obligations
A ii"ht f<f

or <i.
co)npcnin~p(.rfM-)i)anct;Ly«~i'~<<r stti! Ari~ht t'~
jor t)f(.'
an <f'c<
pur;)ost- of pr~vcntin~ the obti~.r or dd.tur
from evadinK thc futtihm.-nt "f thc o)')i~tion A ri~ht of
<<')«:t' or </</tM<~);, by thc n-ditor 0- oh)i~(-, nf a thi))-
or
pf-r.-ion which Lt-lot~s to thé oL)i:r or dft.tor, hut on whidi th~
")'Hg<f or cr-ditor bas .:xp~ndc-d mon'-y
or labour.–Sccondh'
l!i~hts of "htainin~ .~<<t'.<t'<'w. in !ieu of s])c<;iin- pM-fonnan~
wttc)'t; "Hi.u'cs ur ch;dnor.- are content with contj'cn.satioti,
or
whcrc sp(;(;i))c pL-rforman<;c i. not pos.-iibk-, or wh~rc specinc
performanet; would not Le advanta.cou.s to crcditoM,
or woujd
t)c MlowMd by prépondérant h~ûnvenicnL-~
to oUigo~ or
 l'
debtom.–ThhtHy Bight~ of obtainmg specinc performance in
pM'~withsatisEitctionoreotïipeumfîonforttieMsidae.
A't)<e.IheMa!taH<umlyaetheprincipte~wheK'm6p<:<;iOep<!rforamMe
i!) rntionnllycotupetkd.
ffpMMiCe performance, und
Thc caprices of tlie EngHah Law with r<f;<tr<t to
with rej.jfn'd to thé cuaoccted tnatter of reewty
w fpKt'f, 1 <h:dl try tu fxphtiu hbtot'iMtty.
TraveHing through thé rights which arise from civil injuries,
1 shaU uote thé respective appUcabitity of those various remédies
to thé various case!} of injury pMviousty c!assed aud described.
III. Having elassed and described civil injuries, and treated
of thé rights and duties whicit civil injuries engender, 1 ahaU
considerthé MOf~ wherein thosc rights are exercised,and wherein
those dutics are enforced. In other words, 1 shall consider civil
~OK(<KM'.
Now thé pursuit of rigllts of a'c<oM, with thé conduct of thé
incidental ~'HfM, are thé principal !natter of that department
of jurisprudence. The consideraticn of which matter will
involve a considération of thé foUowing principal, and of many
subordintite, topics
Thé functions of judges and other ministers of justice.
,[
The )'<!<<otM/<: of thé process styled ~cM(h't<y, with thé con-
nected ~«MM/c of judicial cM'~fKce.
Judicial decisioas, with their necessary or more usual con-
comitants uamely, Thé ~~<e<f<~<o~ or t'cM~fKc~i'o~ of statute
law, or law establislied in thé properly législative mode Thé
~)MK/)'<u' ~'OKM c/' Mxi'Xf/~M (not unfrequently confounded witli
thé interprétation of statute law) tlu'ougit which a rule toade by
judicial législation, is gathered from thé décision or décisions
whereby it was established TIiG f<«'n<<o!t of thé law, be it
statute law or a rule made judiciaUy, to the fact, case, or .~tcn~
'~MMM/M, which a.waits the solution of thé tribunal.
The judgments, decrees, or judicial commands, whieh are con-
sequent on judicial décisions. Appeals. Execution of judgtnents.
Judgments considered as Mtc~s o/' (tf~<t'Mt: tliat is to
sav, not merely as instruments by which rights of action are
enforced, but as causes of ulteri'jr rights: f.
as causes of liens,
r
c
c

l'.

,1

jt

«r tacit mortgages, given to plaintif!'s on lands or moveables of .f

défendants. M
Such judgmeuts or decrees as virtually are mère solemnities
adjected to conveyances or coutracts. The expianation of which
sotemnities will involve au cxptanation of thé distinction between
t'«~«M~~ and f«H<<'M<«'Mjurisdictton.
~'o'<A right whieh arisM fn))u a judgntent i< often distinct fmn) the )j
Hght of MtMon which M pusned to jttdgment and exeeutfou. ArMng
ttttMetty &ont th~ ~x~mrnt, it artxea not from tha ~(r~ whieh ta thé
M thé right of action, as ftom oM<& (~ «c~tMtYtmt. Co~eqtMMty, rights cause
of thc.ttmd oHght :? ttrietn~ to tw eta.Med with rights whieh 1 style
~-MtM~ that h to My, with rights which do Mt ariM fMtt deHets
ft~nee~, But thé ehMHKg them with ptittMMy rights or
w-ere followed by this
tneonMnietKe that the writer were unaMe to expiait) titem m Mtiiitaetary
&
tnanner, un]') ho antiopotMft thu doctrine of injuries, of rights ariMog from
tojune~ aud of civil pMeeduM.
Aa eeMain rights arMug from jument shouM ih stnctneM b<: placed
under a foregoing )tM(), to should 'thc fuuetton.! of judges Mut other
n):nMt<!K of justice' bc placed under
a Mtowing natut;)y, thé Law of
Periion*. But if this matter, w~ich lopeaHy Monf;9 to that Mtowi)~ head,
were not antieiptttcd und~r the p~Ott, thé expoHtiott of civil procédure
would be ineotMptete.
Whoever read~ nnd Kneets on thé arrangement of
a <MpM ~(rM, must
perçoive that it cannot be constructed with logical D~our. The memLeM
or parts of thé arrangement being extremety ntnaerouo, and their eommou
matter tjeitt~ an orgattic whote, they can hautty Le opposed completely. In
other words, the arrangement of a oM-p)Mj'Kt-Mcan hardty be conatrueted,
that none of ib metubern shall eontain tnatter which lopcaHy m
betongs to
another. If the principles of thé ~-arious dmsiûM conceived and
were
expreMed clearly, if thé dupartment! resulting front the divMiun-!
«MttngMMhedbrondly, and if thé were
neeeMiti'y departure. front thé prinoplea
were marked conspicuousty,the arrangement w&utd tuake thé appfooc/t to
!og:<a.t compteteneM and eorrectnes~ whieh M all that its stubboru and
reluctant matter will pennit us to aKOMplhh.

Duties, and other conséquences, arising from

M'tNtM.
This is thé second sub-department of thé second of thé
capital departments under which 1 arrange or distribute the
matter of thé Law of Things.
Thé matter of this sub-department will be treated in the
following order.
I. Duties are relative or ab.so!ute. A relative duty is
implied by a right to whieh that duty answers. An absolute
duty does not answer, or is not implied by, an answering right.
As an example of an absolute duty, 1 may tnention duty
a
to forbear from cruetty to any of thé lower 'animais. For a
necessary élément of a ri~ht (implying or answfrmg thé duty)
is wanting. There is no ~<'MOK, iudividual or eomplox, towards
or in respect of whom thé duty is to be observed.
1 have adduced thé foregoing example of
an absolute duty,
on account of its extMne shupticity, and of thé brevity with
which it may be suggested. But, as 1 shaU show in
my
preliminary lectures, absotute duties are very numerous, and
many of them are very important. As I sliall also show in tny
ptetinuamy lecture~ titere are threa cases wherein a duty ia
absolute, or whœem it aasweïeth Mt to att aasweriag right;i
wnerein it answers to nothiag which we could call a )~K, un!ess
wc gave to the term sa large and vague a meaning, that thé terni
would dénote, in effect just nothing at ail. The three casea
may be stated briefly, in thé following manner.–Thé duty is
absolute, m case tliere te no person, individual or complex,
towards or in respect of whom the duty is to be observed. The
duty !s absolute, in case the persons, towards or in respect of
whom thé duty is to be observed, be MKce~Mt or Mt<&<<~MMa<e.
The duty is absolute, in case the only person, towards or in
respect of whom thé duty is to be observed, be the mMtftyeA, or
~M'ere~Tt M?<m~?', ruling thé given community.
Now absolute duties, like relative duties, are primary or
aanctioaing that is to say, not arising from inj)iries, or arising
from injuries. Again Primary rights, with the primary ~<t<M
duties which respectively answer to those rights, are thé only
subjects of thé capital department to which 1 havM given the
title of '~nma?'yrights and duties.' But primary HMK<< duties
ought to be placcd somewhero. And though thé present sub-
department be a member of thé capital department to which 1
have given the title of *MKc<!<MtîMjy rights and duties,' primary
absolute duties may be placed commodiouslyhère. For infringe-
ments of duties primary and absolute, belong to the class of
delicts which are styled e~M«M.
Aceordingly, 1 shall hère interpolate a -description of thé
primary absolute duties whieh are not appropriate subjects for
thé Law of Persons. As 1 have already remarked, such inter-
polations of foreign matter cannot bo avoided aiways.
II. Having interpolated a brief description of primary
absolute duties, 1 shaiï class and describe <vtM:M (be they
breaches of primary absolute, or of primary relative duties), with
référence to the rights aud duties whereof they are respectively
infringements.
III. Having classed and described crimes, 1 shall briefly
touch upon t!~e duties (ail such duties being absolute) which
arise from crimes. 1 shall also notice briefly those consequences
of crimes which are styled, strictly and properly, p«?!MAm<'H<&
IV. 1 shall advert to CM'mtKa/ procedure, with what may bc
called, by a strict application of thé name, ~M< In other
words, 1 shall advert to thé modes wheroin crimes are pursued
to punishment, with the precautions which may be taken to
prevent them.
 LAWOFPEBSONS.
Having made ail. attempt at a previous point of
my Course,
to détermine the notion of ~<
or condition, 1 shall enter the
dapattment of t&w whieh is styled the Law of Persons, with
an
attempt to distributo ~a<<M or conditions under certain principal
and suboi'dinate dasses.
Accordingly, 1 shall divide conditions into ~w<!<e and
Fo~'<;a<I shall divide private conditions into ~<~M (or
~CMtOMtM~) and ~/eM:o?M/Certain conditions nearly related
to the domestic, 1 shall place with thé latter styling thé
former, by reason of the analogy through which they
are so
related, gMa~oM~M conditions.-Certain conditions which
will not bend to my arrangemeat, 1 shall place
on a line with
private and political conditions, and shall style anoNM/o!~
or
MtMC<~<MK'PM&
My arrangement, therefore, of ~<M or conditions will stand
thus
1 shall distributo conditions under three principal classes:
1. ~<t'<!<e conditions: 2. ~~M'~ conditions: 3. ~M<MM/MMor
M~Mce~MMMconditions. And 1 shall distribute private condi-
tions uuder two subordinate classes: 1..DoM~t'e (or~<-o?MM!'<-a~
and gMH~H<M conditions 2. A-<~<Mt«~ conditions.
JVo«.–A<:eorttmgto the jurists of ancient Rome, and the juriste
thé modem nations whose law M Maoned on thé Roman,tothe eaMtttI of
leading division of the entirM c~tMjMn~ is thé division of~M into ~xM~MM or
and yrK-a<«M. In other words, positive hw (considered with référence to
its dtifeKnt purpoaM and .utjj<~) M divided Ly those jurists, at thé
of the division, into p«M<e axd ~-t't-<!<< out~t
Now thé namc yKMt'e lato haf! two prittei~t M~iSeationii of which
Mgntïicattons M hu-ge aud Vitgue the other, strict and deBnite.one
Taken with it.< large and vague ~i~itication, thé wilt ap]Jy indif.
ferentty (as 1 shall show in my lectures) to hw of oame
evf-rv d~artment. Thé
VMiott! writ<;K, therefot-e, who take it with t)mt signification, détermine
the province of public law in various and inconsi-nt
wavs. Accordinr
to sotue, thé province of puUic law comprises potitica! conditions, to"ether
with civil procédure, acd thé law which i.' iityied crimitt.d that i.<
thé depiu'tntent of hw whieh is eoucerned with emuM; with thé to Mv,
dutie-s
arising fron) crimes with thé pttni~hmenta annexcd to crimM and with
cnnunal procédure and préventive pulice. Acconting tu otherf, thé
vince of pubtic htw embracca crintinal law, but exdudes civil pt-ocedure pru.
Aeeordtng to otheK, its province rejects both. Whiht otheK (conf~ndin~
postttve law and positive m'jratity) ext<nd its province the M-ealled ]aw
of nations, M well as to civil pracedm-e and tu thé Jaw to
wbieh is 6tv)ed
cnmma). But in one thing nll of them A)! of thent di~tribute
agrée.
thé enttte e<~MM~<n't under two principal and contMdistinguMhed depart-
ments namety, j)M yxMttMBt and J)M ~nM<M)x. And, conMquenth-,ail of
thcm contMdhtinguMt thf!f M.ca!ted ~MMtf f«!f to the two p)'{he!pa! and
opp0!!ed dcpttrtment.t of thefr Bn.<-a)!edpttM<f< f<tw.' naoMty~ Thë Law of
PeMoMt M)d Thé Law of Tttht~ New, tM t tihtdi <)MW !)< my teetur<
tbit <Mt<tM<* tttviMon and «frangetnent of the fwptMjKfH ia erMMOM and
pre~tant with error: springin~ front n perptexed apprehetmion of the end<
or purpow-t ut htw,<md tendiug to genetate tt like apptahenHon in the
hetpteM and bewitdered stlulelrt. As 1 ahaU sitow ataf, every departtnent
uf )aw, viewe(t'fMm a certain Mpoct, may lie styted private whit~t evory
d'rtm<'nt of ttw, vicwed ft'o<u attothet- aspect, May be t!ty!fd puMic. As
1 shitU show htrthcr, ptfMt'c h«p and ~ncat<; f«)c are tMUMM whiett fhoutd be
bamthtid thé Kten<;e for since <i<n:h will appty iudtit'erentt): to every
dfportment of law, tMtthet' can be used convettietttty to the purpo'iM of
s)t;"ify!"t{ any. As 1 shaU tthow, taoreovfr, the entire ce~MM ~MrM ought
to )M dividett, at thé ouffet, tuto Litw of Things aud Law of Pet-~ns
whibt ttM only portion of law that eau be styicd yttMt'c ~<c with a eertnm
or detennitutte meanin}!, ought oot to be MnttadMtingtu.'ihedto thé Law
of Thin~ and Persons, but ought to be iM<;rttd ita thé Law of PerMns, as
one of its tuab~ or nK'tub<;M.
Tahcn ~tth its strict and detinitc B)g)u<tMtiou, the Mme yM6<t'c ~M is
eonttMd to that portion of taw which ).t cottMerned with political condi-
tions. Aceordin~h', 1 tuku thu nantM with that its dct<:ntnHatc tncanin,
aud 1 dt'em that portion of !aw, a rnember of thé Law of Pfrsoni!. But,
to obviate a CMM of miseonception, 1 style that portion of taw, Thé Law
of PuHtica! .S'f«<tM, or th'i Litw of Pot!tiea! CotiditioM !'uppMi!i)iuj.; t!n.-
ambi~Mous nat))M of yKMfc and ynt'«<< law, a)un~ with that grmmdie~
division of thé co~<M j'K)'« whieh tho."<' opposod names are commonty
emptoyed to si~ttity. For, as 1 hâve iothnated aboyé, thé Law of PoHticat
&'<a<tH, like every other portion of the entire c~iM ~Kr~, tnij;ht be ftyled
with perfect propricty, public or private public, when viewed fro!u a
certain Mpoet private, witeh viewed from anothcr.
In rejecting thc dm!ion of !aw into public und private, iu rejcMtin~
the MtnM by which thé division if si~nified, and in c)a.<sing politicnl
tonditions with condition. of other natures, 1 am justified by thé gréât
authonty of our own adtni)ab!<i Haie, as well aa by the co~tnt reasons
wherMon 1 shatt in'ii'-t in rny tecture; In his Anatyi.i< of th<; Law of

condition)! (or r<:)ation.<') whieh he )-tyl<:sNor

Hu~!and (or Mther of thé Law of En~hmd, exeepti))~ thé eritninal part of
it), he c)a:<it) potitical conditions (or 'potiticat rotations') with the privait!
(;an 1 discover
in any noot: of his treatise thé stightest tntce of thé perp!exed appréhension
whieh i:i thé source or thé division of )aw itttf~ public and private. Even
in advertin~ to crinfina! delicts, wherc it wa.~ most )ike)y tttat he wouM
faH into thc error, lie avoids it. UnHke his imitator, IMackiitune, who
caHi! them ~«Mt'; wr<m~, he i-ty!es thon fn'M«'Mt<< wron~, or M)o<t(T /w)'
~fM the Crox'H.' hittite preciseiy by thé ta.-it expr'&.ion thé ba.-ii) of thé
divMon wr'~ng:! into civil injurier and crime; We ecafcety can e.<ti)nate
of
cotnptcteiy thé "ri~ina!ity and depth of his Anatyi-i.s, uide. we c&mpurt:
it e!(Kt!y with thé institutes of Ouius or Justinian, and unte!) we took
vigilnutly for thé in~trnetive but brief hint< whieh abound in every part
of it. Thé otdy i.'rM'i Mii-tnkea that 1 hâve found in hi. ntMterty uuttine
are hiii Kh'rin~ and stniM~h mi.<tmn.ationof 'JtM ptMwofKMt<< ftrM))),' und
his piacinf; under thé departtoent a~.<i,;ned to thé t<a<)M of per'=o)M, certain
rights of per?ont whieh lie styles their «~~t!~ rights, Seein~ that «H
right.~ are rights of peKon. and Meinj.; that thin~ are tnerety ~«<«:<< of
 h dear that thé geMuine meaningof 'j<M peMonarum et renun'
rjght!), it
h Mt very happtty Mndeted by 'n~~ of p&rsons and thtnge.' And M (o
(t<w<x<e (co)Mtnonty denominated <Mt«f«< or tKtt~e) rights, they are not
matter for the Law nf .atm, hnt belong pre.emtnenttyand confspicKOttsty

Hubiitantiftt. Un!)ke the itoitator HtaekfftMie, with )'

to tho eontradiiitin~uitfheddepartfnent. But, in justice tf thi;* (;reat nnd
ex<:f lient. pMton, 1 mtMt add that thé tonner mistake M verbat rather tban
his of persons
o))(t things,' Hith: stii~es, for the most part, the ~cnutna meaning of thé
distinction, thcugh he thickens t))<! fb~eunty of the obKure phr!H('< ty
whieh the tncduMi Ch'HiatM ustMUy tixpMM it.–tu rejecting the divi~iou
of huv mto pubtie tuid private, md m c)<MiHnt! pfttttiMtL w!th other condi-
tiu)M, Hâte, 1 betieve, ).< orisina], an't neat-iy sin~ular. In un <'M~(~<f<«
hy Mck, :t profc.Mt'r «f law at KM, it ia MiJ that thé authbM of thu
Danhh Code, with those of thé nimi-'h writer~ who tr'at )aw tfy'itoxatieuny,
obsen't, in this ruspeet, the at')-a)tj~'ment ob<erve<i by Haie. But in a)t thu
treatiiM by Cûntincntal Juri.tt.t which hav<! Mt~tt ttn'ter my inspectiott,
taw is <)ivi<)ed into pubUe and private, though the province of pnbtic taw
is variouiity 'tetenumed and deMribcd.
It is true that Sir Wi])iam mackftùne a)'o !t-ject~ that divi.<i«)), and
ab" CMtMdcM thé taw which b cuncerned with political conditions u
Momber of the Law of PersoM. But the m<;th'jd obscrved by mackstom'
in hiii far too cetebmted ConnMntariMf),is n etavii-h and btunderin}; cupy
of thé very itnperfect method which Haie detineatM roughJy in hii! fsh~t-t
nnd untini~hed Anatysis. Front thc out~et tu thé end of!)). Con)nn:ntarie.<,
hc btindty adt'pt'i thf mi.<tak<i of hii! rude and compendious mode!, miMin,;
!nvariab!y, with a nice and mrpn'm)~ infetieity, the pre~nant but obscure
su~ef!tion.< whn:h it proffered to hi'! atk-ntion, and which woutd hav''
ftHided a difternin;: and inventive writer to an arran~emtnt compamtivdy
just. Xeither in the {{encra! conception, nor in the détail of his book, ii)
there a sinute particte 'jf ori~infd nnd di.-cri)ninatin}; thounht. He had
t'fad ):omewhat (thou~h far !c.~ than if. cot)tm"nly bciievt-d) but he had
swatiowtd tht; tnattcr of his r.-adin; without choicû and withc'nt rumina-
tion. He owcd thé poputarity of his book to a pattry but tnectuat artifice,
and to a poor, fiUperneiat ment. Hf tmekied to thé fini-stcr intere.cts and
to the mischievous prejudi~'sof power and Le Hattered thé ov<:rwecnins
coneeit "f thtir national or peeuiiar institutions, which then was devoutty
entertained by thc body of the En~)i.'=h ptf'pte, thouf:h now it is happi!y
Yani~hiuf; befure thé advancementof reaMn. And to thif! pidtry but effect-
uât artince he addcd thé aHnrenKnt of a <ty!e which M ntted to tiekte thé
eevere and tnafeulinf t:Mte. For
car, though it never or rarely satisuc. :t
that rhetoneat aud pmttting maBne:' of his is nut thé manm-r whieh ~uited
the mattcr in hand. It M not thé tnanney of tito~c ~a.Mie)d Roman jurist.
who are atways models of exprt'Mion, though their nteanin~ be never M
fautty. It ditfer!! from their nnaffeeted, yet apt and nervoui! style, as the
tawdry and <!t)M9y drets of a n)iHiner'< dot), from the gracefu! and imp<<!in~
nakednM!! of a Grecian statue.
Having distributed ~«<)M or conditions under thé principal
and subordinate classes mentioned above, 1 shall consider them
particutarly in the foUowing order and manner.
I. 1 shaM review domestic and quasi-domestio conditions
describing thé righta and dutics, capacities and incapacities, of
which they are constituted or composed and aiso describing thé
 éventa by which persons are invested with thêta, or are divested
oî thetN.Of these conditiotts the foHowing are thé priacipftî
namely.The conditiûMs of Husband and Wife of Parent and
Child of Master and Slave of Master and Servant ofPersoas
who by reason of their age, or by reason of their sex, or by
reason of infirmity arising from disease, requira, or are thought
to require, an extraordinary measuro of protection and restraint.
Having reviewed domestic and quasi-domestio conditions,
in the manner which 1 have now suggested, 1 shaU review
pwfessional conditions (thc other leading class of private
conditions), in a sinalar manner. 1',
II. Having reviewed private conditions, in thé manner
suggcsted above, 1 shaU review, in a similar manner, political
conditions: that is to say, thé ~«<!M or conditions of subor-
dinate political superiors. Of thé classes of persons bearing
political conditions, thc following are thé most remarkable.
1. Judges and other ministers of justice. 2. Persons whose
principal and appropriate duty is the défonce of the community
against foreign enemies. 3. Persons invested with rights to col-
lect and distribute thé revenue of the state. 4. Persous com'
missioned by thé state to instruct its subjects in religion,science,
or art. 5. Persons commissioned by thé state to minister
to thé relief of calamity t.y. overseers of thé poor. C. Persons
connnissioned by thé state to construct or uphold works which
require, or are thought to require, its special attention and in-
terference f.roads, canals, aqueducts, sewers, embankments.
A~<<Btifore 1 dismiss the matter of the present article, 1 will f~uest
the attention of thé reade'' to thé Mtowing explanatory Mtg~Mtions.
t. The monurch property M called, or thé Mvereign nmntjer in ib) col.
tegiate an't sovereign ca~city, is not investeft with a <(<t<M (in thé ptoper
acceptationûf thé term). A tfa<)u i~ composed or eonetihtted of ~<i< rights
and duth;9, and of capaciticsand iu'apacitits tu take and incur them. Xow,
sinee they are merety ct-eatuKS of thé positive law of thé community, and
since that positive law M mere!y a tMature of thé eeverei~t, ive cannot
aseribe euch rights and duties to thé monarch or sovereign body. We may
say that tho eoyerei~n haa poM'<M. Wu may say that thé Mvereign i)a<
righta conferted by thé Law of Gud that thé sot-eteigti hafi rights conferred
by positive moratity that thé soverei~t h subject to duties eet by thé
Law of God that thé covereign is Sttbjett to duties whieh positive morality
imposer Xay, a eovereif~ government may have a tegal ri~ht against a
6ubje';t or aubjech of anotiter Mverei~t government. But it cannot bu
bound by te~al duties, and cannot have lega! rights agaiMt its own subjects.
Con%qu(:nt!y, a Mvcreign government of one, or a eovereign govemment
of a num)x!t' in its coUegiate and sovereign eapaeity, is not inve~ted with a
~«<)M (in tlie proper acceptation of thé term): or it is not inveated with a
<t<!<tM (in thé proper acceptation of the term) derived from the positive taw
of it.') own political community.
 For thé mt% howover, of shortness, but net w!<ihoat impMpriety, we
my thttt the MteN~ttbeau & <f«t)M eompo~d Mn~tiMted ot ~tMf&
And, by reetson of thé intintate eonneetion of thttt improper <M<<M with thé
tMtM (properly so called) of tmbordinate potiHcat supenoM, 1 stMtU consHer
tko powera of the monarch, or thé powers of the suvereign number in its
cottegiate and sovereign capacity, with thé rights and duties of thé sub-
orduMte potitieat superiom to whom portions of those powers are delegated
or committed in trust. Or, mther, 1 shall eoneMer thé powers of thé
sovereign, at thé present point of my CouMe, in M far M tho eMentiab of
the matter may not have been treated adequatelyin my preUnMna)-)'lecture
on aovcreignty and independentpotiticat society.
Z. The law of political conditions, or public law (with thé strict and
detiNite me<uuug), is frequently divided into <OM~«)t<wM<(< and <«!mwM<fa<tt'<
In a country governed by H monarch, eonetitutional law M extremely
simple for it merely determinM thé por~n who shaU bear the (MvereiHnty.
In a country governed by a number, constitutionat law is more compter
for it determines the persons, or thé dMses of thé persons who shaU bear
the Mvereign powers and it determinea, ntOMover, thé mode wherein those
peMom shall share those powers.–In a country govemed by a monareh,
eonstitutional law M positive moraJtty merely In a country govemed by
a number, it may eoMiet of positive moNtity, or of a compound of positive
morality and positive law.
Administrativelaw detemines the ends and modes to and in whieh the
Mvetei!~ poweM shati be exereieed attaU be exercited directly by thé
monareh or sovereign number, or ohaH be exercised directly by the aub-
ordinate politica! superiors to whom portions of those powers are delegated
orcommitted in trust.
Thé two departments, therefore, of conetitational and administrative
law, do Mot quadrate exactly with the two departmentsof law which regard
respectively thé <<<t<~ of thé sovereign, and the varions<<a<tMof subordinate
ponticat superion. Though thé nghts and dutiM of the latter are corn.
prised by administrative law, and are not comprised by constitutionat law,
administrative !aw comprises the powef! of the Mvereign, in so far as they
are exercised direetty by the monarch or Mvereign number.
In so far as the powers of the sovereign are detegated to poHtieat
sobordinates, administrative law is positive law, whether thé country be
govenred by a monarch, or by a sovereign number. In so far as thé
severeign powers are exercised by the sovereipt directly, administrativec
law, in a country governed by a monatch, is positive motatity mereiy In
a country govcrned by a nnmber, it may consist of positive moratity, or of
a compoond of positive moratity and positive law.
3. It is somewhat dimcult to describe thé boundary by whieh thé
conditions of poUtieat subordinates are severed fMm thé conditions of
private persons. The rights and duties of political subordinates, and thé
rights and duties of private persons, are créatures of a common author
Mtnety, thé tioveKiKn or state. And if we examine the purposes to which
their rigbts and duties are conferred and imposed by thé soveMign, we shidt
nttd that thé pur[)oses of thé rights and duties which thé sovereign confers
and imposes on pnvate jM-rsons, often coincide with the putposes of those
which the soverei~ confers and imposes on subordinatepolitical mperiors.
AMorttingty, the conditions of parent and guardian (with thé aMwering
conditions of child and ward) are not unfrequentty tKated by wtiters on
jorisprmtenee, as portions of public law. For exampte The patria ~<«<<M
 aad the Mef<t oftne Ronmn L<nv are trotted thn~ in h" mMtwty
(~ .P<m<!<~e<t-~e&(<by Thibaut Heidetiberg who, for tjeaetMtins
aeuteneM, Kttitode ofjmtRtnent,depth of teamin~, and vijMHr and eteganee
of exposition, may be ptaee.t, by thé sMe or Von Savignv, at thé head of
:tU nvinx CiviHitM.
At the eurtiest p(n-t of my Cou~e that will admit thé subject con-
venient!y, 1 shall try to diittin~UMh pnHtMttt front privatu tMnditiot)!), to
detenuitM the p~viuef of public ~w (with tho .'triet M)'t fMnite mMning):
or
un ttttetupt whieh wiU t(i:nt tue to exiuuiM thé (.-urtent Jh'Mon iftw into
~ttMt'otat )tt)d jus prt't-a<MBt; and which will kaf) me to exptuiM thé
mutMMU<nmdttM}MMtMM'K)t)'!t)(tt<MhMt to thé two exp~mion! 1 wonM
brxtty retMark lit pre~nt, that 1 met-ety tucatt by prn'H«'
pcMMM, peMons
tiot politi<;nt that is ta say, po-~uf! not invMttJ with political cuM'Utions
or ptMons bcat-h)K putiticat ~)ntitiuM, but u'A eunoidered in thoie (.-har.
aeter. or Mt vh'wed front that fMpeet. 1 iutcnd not to intimatt; by thé
tenM pi't't-«~, that private or not political, am) puMie or political persons,
are ttietinguMhabte by (tinertneoi! between thé uttitnate pM~MM fur which
their rights an'! <)uti<;s atf re<pettiv<y conferred and itnpo.ed.
111. Havin~ reviewed privute and political conditions, in
thé manner suggested aLove, 1 shalt Mview nnonmious or
tuiscellaneous conditions in a similar !nannt:r.–As examples of
suoh conditions, 1 adduee thé Mtowing: name!y, the conditions
of Alicns thé conditionsof Persons incapable of rights by
i-eason
of their reli~ious opinions thé conditions of Persons incapable of
rights by reason of their crimes.
A"e<<In any department of thé Law of Persoos a.~i~ed to a gt\-en
condition, thé ri~hti) a)td duties composing thé given cunditibn, wouM
naturatty be arranged (in a <wpMjt«-f<') agreeabty to the orJer or meth~)
obsen'ej in thé Law of Things. For CMmpte AMfeeabty to the onler nr
method which 1 hâve tMineated above, thé rights and duties composins
thé given condition, wonM naturaUy be divide.1 at thé outeet, into primary
and fanctionin); those printar)' riglits am! duties being divided again, into
ri~hb t'tt <-<nt, ri~ht~ t'a personam, tonbinations of riglits w
f<M and ri){hts
in jMMMMMt, and m on. And in any department of thé Law of Personi!
a&*i~ed to a given condition, thé cuustitaent éléments of thé given
con-
dition would natutatlybe treated with perpétuai référence to thé principles
and rules expounded in the Law of Thing.

To thé series of lectures Lrieny delineated above, I shall add

a concise summary of thé positive moral rutes which are sty!ed
hy recent writers, thé positive law of nations, or positive inter-
national law eonehtding therewith my review of positive /«?,
as conceived with ib relations to ~oM<M'e M~~y, and to that
f~MM /«M which is thé ultimate test of Loth.

1have dmwn and puUished thé foregoing explanatory

Outline with two purposes with thé purpose of su~gestiag to
stnmgem the subject and scopeof myCoome, and with the
purposë of eHabtittg my Ctass to Mtow my Course eaaUy.
To the members of my Ctass thé outlihe, 1 thiuk, will be
usefut. Many of the numerous topics upon which tt touches
will be troated m dm Com'se s!i};htly aud <Mectivdy. ~ut,
having t!tose tapies before thern in tt connected aud orclerly
series, they may easily fill th« chasjns which 1 shall iuevitab!y
leave, with apt conclusions of their own. And every demand
for explanatiott that thé outline may suggest tu any of them,
1 shall ghdly answer and sat~fy to thé best of my knowledge
aad abihty.
For thé numerous faults of my intcuded Course, 1 shall
not apologisG.
Such au exposition of my subject as would satisfy my own
wishes, would fill, at thu !cast, a hundred aud twenty lectures.
It would fill, at thé least, a hundred and twenty lectures, thongh
every lecture of thé sénés occupied an hour in thé delivery, and
were packed as closely as possible with strictly pertinent matter.
Aiid, as compétent and candid judges will readily perceive
and admit, a good exposition of the subject which 1 have under-
taken to treat, were scarcely thé forced product of a violent aud
short effort. It were rather thé tardy fruit of large and careful
research, and of obstinate and sustained méditation. After a
few répétitions, my Course may satisfy my hearers, and may
abnost satisfy mysetf. But, until 1 shaU have traversed my
ground again and again, it will abound with fautts which 1 fairly
style inévitable, and for which 1 conudentiy claim a large and
liberal construction.
Jonx Au:STtX.
 AN ABSTRACT OF THE FOREGOING OUTLINE.

PRELIMINARY EXPIRATIONS.
LEcr.I-Y! Tho province of Jurisprudence determined.
1
Gênera! jurisprudence distinguished from particular.
~~y.
XXVII
Analyses of certain notions which pervade the science of law.
J

LAW CONSIDERED WITH REFERENCE TO ITS .SOC~CJM, '1

~1
AND WITH REFERENCE TO THE ~OJMN IN WHICH IT
BEGINS AND ENDS.
~i~«~, or promulged law and M~cn~eM, or Nnpromulged
law.
Law made directly, or in thé properly legislative manner;
and law made judicially, or in the way of improper législation.
––Codification.
Law, the occasions of which, or the motives to the establish-
ment of which, are frequently mistaken or confounded for or
with its sources viz.
</<M m<M~&M~ <'o?M<t<M<K)!t;or law fashioned by judicial
decision upon pre'existing custom:
</<M ~«~eK<t&)M coNtpo~MM
or law fashioned by judicial
decision upon opinions and practices of private or un-
authorised lawyers
The )M<:M'<~ /<!? of modem writers upon jurisprudence,
with the equivalent ~M naturale, yM ~MMM, or jus
naturale et y~MMH, of the classical Koman jurists
<7<M y<ee~<MMt; or law fashioned by judicial décision
upon
law of a foreign and independent nation
Law fashioned by judicial décision upon positive inter-
national morality.
Distinction of positive law into <<c and equity, or~M civile
and ~!M jM'O~MttKM.
Modes in which law is abrogated, or in which it otherwise «
ends.
 LAW CON8ÏDEBE& WITK REFERENCE TO 1TS F~~ONS~
AND WïTH BEFERENCB TO THE ~MMECïS ABOUT
WHIOS ET IS CONVERSANT.
Division of Law into Law of Things and Law of Persons.
Principle or basis of that Division, and of thé two départ'
ments which result from it.

LAW OF THING8.
Division of rights, and of duties (relative and absolute) into
primary and sanctioaiog.
Principle or basis of that division, and of thé two départ.
ment.') which result from it.
Principle or basis of many of the sub-departments into
which those two departments immcdiateJysever: namely.The
distinction of rights and of relative duties, into rights in )'<-?!
with their answering <~M'M, and rights w ~c~oMa~ with their
answering oM~a<MM~
Method or order wherem the matter of the Law of Thinga
will be treated in the intended lectures.
Preliminary remarks on things and persons, as subjects of
rights and duties on acts and forbearances, as objects of rights
and duties: and on facts and events, as causes of rights and
duties, or as extinguishing rights and duties.
J°nN:< .Rty~, Wi!<A ~n~M~ M~<M'<! 2)«<MS.
Rights in MM as existing ~e!' & or as not combined with o
rights tM ~MMMMm. °'
Rights w p~wM~ as existing ~Mr se, or as not combined
with rights tK. yoK. S'
Such of thé <'<MKMM«<M?M of rights w MM and rights in m
~wnaM as are particular and comparativeiy simple.
Such !<tMWM'<tM of rights and duties (or such complex a!
aggregatcs of rights and duties) as arise by universal succession.
fS~M'<MMMM~ Jï~A<% !M'<A M!M:<MMt: ~K<t~ (f~M'e
at~xife).
(M~
Delicts distinguished into civil injuries and crimes: or
rights and duties which are enects of civil delicts, distinguished
from duties, and other conséquences,which are effects of cnminal.
Rights and duties arising ~'om civil injuries.
Duties, and other consequences arising from crimes.
[j'<t<crp0<0:<<'a' f<<MM'Jp<MM ~JM~MM!~ <Me ~&S.]
 Ï~AW OFPERSOm
Distribution of ~«<M or conditions undcr certain principal
aud subordinate classes.
Diviitioti of taw into ~M~x' nttd yn<'a<<.

Eeview of privtttc coudittOHa.

Ecview of pulitical coHditMns.
The <!<«<)M ur c'juJitmu (itt)prut)et'ty ~û called) of the monareh or
fuv<'t<'i~tt nutxber.
Division uf thc htw which KgNrdi! political contUttoni!, intu tMt-
~t<M<tCt«!~ and a<!))HKt~M<tt'<.
Bouudat-y which MveM p'~itied fMtn pt-ivttte conditions.

Ecview of anomatous or misceHaneous conditions.

The K~peetiv arritn~ementi! of th"M Bets of right~ and duties
which t').-sp<!ctive)y compose or constitutu the «:vemt etatus or
conditions.
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 ZFCTM~ES <W t/ZSPBPDEYC'S.

PROVINCE OF JURISPRUDENCE
DETERMINED*

4.
LAW8 proper, or properly so called, are commands; laws whieh
are not commands, are laws improper or improperly so called.
Laws properly so called, with laws improperly so called, may be
aptly divided into the fonr following kinds.
1. Thé divine laws, or thé laws of God: that is to say, thé
laws which are set by God to bis human creatures.
2. Positive laws that is to say, laws which are simply and
strictly so called, and whieh form the appropnate matter of
general and particular jurisprudence.
3. Positive morality, rules of positive morality, or positive
tnoral ruies.
4. Laws mctaphorical or figurative, or merely metaphoncal
or ngnrative.
Thé divine laws and positive laws are !aws properly so
called.-Of positive moral rules, some arc laws properly so
called, but others are laws improper. Thé positive moral rules
which are laws improperly so called, may be styled laws or rules
set or imposed by opinion: for they are merely opinions or
sentiments held or feit by men in regard to human conduct.
A law set by opinion and a law imperative and proper are allied
by analogy merely; although thé analog~' by which they are
Thé <tuthor'< pt-efaec to thé origine! tfterwarthpuMisheJ by him in a treettis':
utitiot) of the wor)< undef thi:! titte states under the tttte of' Thé Provinceof Jnris.
that ont of thé lectures onpi)M)ty de. ))ntdence dettrminej;' «ud thé ttMttixe
Ih'ered by Mf. Austin, at thé UtfiveMity so paMif!he<t being divMcd accordiae to
of ïtondon, the firiit ten werc direeted to[«M, ond not by thé bours of re<dmg,
towards disttngttuhing positive law (thé was comprised in six lectures. TheM
npproprixte matter of jurispntdenee), pub)i<hM! tecturM, with alterations eon'
front vanotM objecta with which it is tined to a few Mge~, chieny made in
connectcti by ttatmbhmee, and front Mcorttitnce with hter memomndm of the
vano<MotheroHe<;tstowhich it is allied autttor, are tho six )cctH)'ei< whieh im-
by a)Mtogy. ThMe ten lectures were MedMtety hère M!ow.–R.C.
allied is strong 01' elpss.–I~ws motophorieat or ngurative, or
merely metaphonetti or ngumtivo, are !ftws impMperïy so caUed.
A law ntctapitorical or ngurative ami a law imperative and
which
proper are allied by analogy meroly and thé analogy by
tbey are alliett ia stendeE or ïemote.
Consequeutly,positive laws (the appropriate matter of juris-
prudence) are related in the way of resemblance, or by close or
remote analogies, to thé following abjects. 1. In the wa.y of
ïesemblimce,they are relatod to the laws of God. 2. In tha
rules of positive
way of resemblance, they are related to thoso
morality which are laws properly so called And by a close
of positive
or strong analogy, they are related to thoso rules
morality which are laws set by opimou. 3. By a remote or
slender analogy, they are related to laws metaphorica!, or laws
merely tnetaphoncat. t
The principal purpose or scope of the six ensuing lectures,
is to distinguish positive laws (the appropriait! matter of juris-
prudence) from thé objects now enumetated objects with which
they are connected by tics of resembhmce and anatogy with
which they are further connected by the common naine of
laws and with which, thereibre, they often are blended and
confounded. Ajtd, since such is the principal purposo of thé
six ensuing lectures, 1 style them, eonsidered as a whole, thé
province of jurisprudence detennined.' For, since such is their c

principal purpose, they affect to describe thé boundary which

the régions lying on
severs tlie province of jurisprudence from
its confines. 1
Thé way which 1 take in order to the accomplishment of
that purpose, may be stated shortly thus.
I. 1 detennino the essence or nature which is common to
ail laws that are laws properly so called In other words, 1
détermine thé essence or nature of a law imperative and proper.
II. 1 détermine thé respective chamcters of thé four several
kinds into which laws may be aptly divided Or (changing thé
phrase) 1 deterntine the appropriate marks by which laws of
each kind are distinguished from laws of thé others.
And here 1 remark, by the by, that, cxaminmg thé respect-
ive chamcters of those four sevcral kinds, t found thé following
the order wherein 1 could explain thon bcst First, thé char-
God; secondiy.thc
acters or distinguisinng marks of thé laws of
characters or distinguishing marks of positive moral rules;
thirdly, thé characters or distinguishing marks of laws meta- 2

phorical or figurative; fourthly and lastly, the characters or c

 distinguishingmarks of positive law, M* Iftwa simpty and atrictîy A
so cftited.
By determining the essence or nature of a law imperativf
and proper, and by determining the respectivu characters of
those four severnl kinds, 1 detennine positively and negatively
the appropriate matter of jurisprudence. 1 determine positively
what that tuatter M and 1 distinguish it frotn various objects
which nro vanousty rclated tu it, and with winch it uot uu-
frequently is Uendcd M)d cottfoMH'tMt. 1 show moreover its
aNmties wit!i those various related objects a0)t)itics that ought
to bc conceived as preci~ely and cleurly as may be, inasmuch as
there are numerous portions of the )'a/<'o):a/<: of positive law to
which they are the only or principal key.

Having suggested the principal purpose of the following

treatise, 1 now will indicate the topics with whieh it is citieny
concerned, and also thé order wherein it presents them to the
reader.

I. In thé ~M< of the six lectures which immediate!y follow,

1 state the essentials of a law or rule (taken with the targest
signification that can be given to the term properly). In other
words, 1 détermine the essence or nature which is common to
ail Jaws that are !aws properly so called.
Determiningthe essence or nature of a law imperativo and
proper, 1 détermineimplicitly thé essence or nature of a command;
and 1 distinguish such commands as are laws or ndes from such
commanda as are merely occasional or partieiiliir. Determining
the nature of a command, 1 fix thé meanings of thé terms which
the term command impties name!y, sanction' or enforee-
ment of obedience duty or obHgation superior and
inferior.'
II. (a) In thé beginning of thé ~coH~ lecture, 1 brieuy
detemine thé charaeters or marks by which thé laws of God are
distinguished from other taws.
In the beginning of thé same lecture, 1 brieny divide the
laws, and thé other commands of the Deity, into two kinds
the revealed or express, and thé unrevealed or tacit.
Having brieHy distinguishedhis reveated from his unrevealed
commands, 1 pass to thc nature of thé signs or index through
which thé latter are manifested to Man. Now, eonceming the
nature of the index to the tacit commands of thé Deity. there
are thtee thwries or thrce hypothèses First, the pure hypothesis
or theoryof gênera! uti!ity; seeondty.the pure hypothesis or
tucury of & moi'tti sensc; thirdiy.n hypotttesis or theory «uxed
or eompounded of t!te others. And with tt statemenf nnd
exp!anation of thé three hypothèses or théories, thé greater
purtitMt of the a<'f:OK~ lecture, and thé whoto of th<~ ~M<! and
~K?'~t lectures, are exelusively or ehieny oeeupied.
That exposition of thé three hypothèses or théories, mav
seein sotaewhat impft'tmeut tu thc suhject and seope of tny
I
(.'uursf. But in a chaiu of systutuatical Icetuma concerued with
the <'«<«M«/t' ot' jurisprudence, such nu exposition is nccessory
liuk.
Of thé principles au'l distinctions invo!vcd by t!te t'H<<oH<<:
of jurisprudence, or of thc principles and distinctions oecurring
in t)m writin~s of jurists, there arc Mimy w))ielt could not be
cxpounded eorroctty and ciGarly, if the thrue hypothèses or
théories had uot beeu cxpouttded previousty. For example
l'ositive law and rnomlity arc distin~ui.shed by tuodurn jurists
iuto law natuNt and law positive that is to say, into positive
law and tuorality fa.stnoned on thc law of God, nnd positive I~w
and niorality of purely human origin. And this distinction of
!aw aud momlity into law natural and law positive, nearly
tallies with a distinction which runs through the Pandects and
Institutes, and which was takcn by the compilers from thé
jurists who are styted ctassieal.' Hy thé jurists w)to are styled
classical (and of excerpts from w!iosu writings tlie l'andects
are mainly contposed), yf« c«-<7~ is distinguished from yt<s ~M<i'«//<,
orytM <Mtiftt«)« ~tM<('MM<. l''or (say they) a portion of thé positive
hw which obtains in a particular nation, is peculiar to that
community Aud, bein~ pecuHar tu that community, it nmy bu
styled ~<M ett'<7<, or yM< ~t'MM <~t' cn'<~<M. But, besides
suc!) portions of positive law as are respeetively poeuliar to
particular nations or states, there are rules of positive law which
obtain in fdt nations, and rules of positive tnorahty which aH
mankind observe: And since thèse légal ruies obtain in aH
nations, and since thèse moral rules arc observed by aU man-
kind, they may be styled the y«~ MHKtKNt ~<n<tMM, or the coH:-
M!<M<! MMH!<)« /<M)!t'MMM; /!M. New thèse universat ru!es, being Il

uttiversal rules, cnnnot lie purc!y or shnpiy of ituman invention

and position. They rather are made by men on !aws comin~
from God, or from the intelligent and rntional Xatui~ which
is thé soul and thé j~uide of the universe. They are not so
properly laws of human device and institution, as divine or t
uatural Ia.w3 elothed with humau sanctions. But the légal and i
moral ruies whictt are pecutiar tu particHiM nattot~, are pore!y
or simply of human invention amt position, Inasmtteh they
as
(U.'(t partml Mut ttansie~ and not uni versa! and enduring, they
hanUy are fashioncd by their Imman authors
on divine or
natural modets;–New, without a previous knowledgeofthe three
hy~)otheses in question, the worth of tho two distinctions to
which 1 have briefly alluded, cannot be known corMettv, and
cannot bc estimated truly. Assutning tlie pure hypothcsh of a
moral Muse, ot- assuming thé put'<' hypothèse ci' gpnpKt! utHity,
those distinctions are absurd, or are purposelcss and idie subtiities.
But, assuming thé itypothesis compounded of thé others, those
distinctions are signincant, and arc also of considerab!e moment.
Besides, thé divine law is tiie measure or test of positive
law and momlity or (changing thé phrase) law and tnorality,
in so far as they arc what they o~ to be, conform, or are not
répugnant, to the law of God. Consequentty, an an-important
object of the science of ethics (or, borrowin~ thé language of
Benthatn, thé science of deontology') is to détermine thé nature
of the index to the tacit contmands of the Deity, or the nature
of thé signs or proofs through which those commands may be
known.–1 mean by thé science of ethics' (or by thé science
of deontology'),the science of law and morality as they respect-
ively OM~/<< to be or (changing the phrase), the science of law
and morality as they respectively a<M.!< be if <~< M~i/o?'?M tu
~<'u' MM~o't or test. T])at department of thé science of ethics,
which is concerned especially with positive law as it ought to
be, is styled the science of législation that department of the
science of ethics, which is concerned especiaUy with positive
mondity as it ought tu be, has hardiy gotten a name periectiy
appropriate and distinctive.–Now, though thé science of légis-
lation (or of positive law as it omy~ to be) is not the science of
jurisprudence (or of positive law as it M), still thé sciences
are
connected by numerous and indissoluble ties. Since, then, thé
nature of the index to the tacit command of thé Deity is an
ail-important object of thé science of législation, it is a fit and
important object of the hindred science of jurisprudence.
Thero are certain current and important misconeeptions of
the theory of général utility: Therc are certain objections resting
on those misconceptions, whicli frequently arc urged against it
Thete arc also considérable difficulties witli which it really is
embanassed. Labouring to rectify those misconceptions, to
answer those objections, and to solve or extenuate tliose difil-
culties, 1 probably dwell upon thé theor~' somewhat longer than
1 oaght. De&pty convineed of its truth and importance, and
thereforc earnestty intent on commendiag it to thé mîmb of
others, ï probably wander into ethicat dis~uisitions whieh are
not precisely iu keeping with the subject and scope of tny
Course. If 1 nut guilty of this doparturc irout tho subject and
scope of my Course, the absorbing interest of tha purpose wluch
Ifad!) me ft'om my proper path, will excuse, to induigent readei's,
my oiftince against ri~uMus logic.
II. (b) At the begiMMiHg of the ~/<'A lecture, 1 distribute
laws or rules under two classes First, laws properly so caUed,
with such improper laws as are closely anatogous to thé proper;
secondiy, those improper laws which are romotely anatogous to
the proper, aud which 1 style, therefore, laws metaphoricnl or
iigurative.–1 also distribute hws proper, with such improper
laws as are closely aaalogous to the proper, undm' threc classes
uamely, the laws properly so called wluch 1 style the laws of
God; tho laws properly so called which 1 style positive )aws
and t!te laws properly so called, with the laws improperly so
called, which 1 style positive morality or positive moral rules.-
1 assign moreover my reasons for marMng thoso several classes
with those respective names.
Having determined, in preceding lectures, the charaeters or
distinguishiug marks of the divine laws, 1 determine, in thé fifth
lecture, the characters or distinguishing marks of positive moral
rules that is to say, such of thé !aws or ru!es set by men to
men as are nut armed with legtd sauctious or such of those
laws or rules as are not positive laws, or are aot appropriate
matter for genernl or particular jurisprudence.Havingdeter-
mined thé distinguishing marks of positive moral rules, 1
détermine thé respective charaeters of their two dissimitar kinds
uamely, thé positive moral ru!es which are laws imperative and
proper, and the positive moral rules which are laws set by
opinion.
The divine law, positive law, and positive morality, are
mutually rclated in various ways. To iHustrate their nmtual
relations, 1 advert, in thé nfth lecture, to tlie cases wherein thev
agrée, wherein they disagree without conflicting, and wlierein
they disagree and conflict.
1 show, in thé same lecture, that my distribution of laws
pmper, and of such improper laws as are closely analogous to
thé proper, tallies, in the main, with a division of laws which
is giveu incidentully by Locke in his Essay on Human
Uuderstanding.
 II. At the end of the sama lecture, 1 détermine the
(<t)
chatKcteta or distingtusMNg marks of laws metaphoncat or
figurative. And I shuw that laws which aïe merely laws
through metaphors, are blended and confouHded, by writers of
celebrity, with laws imperative and proper.
II. (d) în the ~'<e<A and /<M< lecture, 1 determine the
characters of laws positive: that is to say, laws which are
simply and strictly so called, and which form the appropriate
matter of gênerai and particutat' jurisprudence.
Determiuing thé charactera of positive laws, 1 détermine
implicitly the notion of sovereignty, with the implied or cor-
relative notion of independent political society. For the
essential difference of a positive law (or tho diHerence that
severs it from a law which is not a positive law) may be stated
generally in thé following manner. Every positive law or
every law simply and strictly so called, is set by a sovereigu
person, or a sovereign body of persons, to a member or members
of thé independent political society wherein that person or body
is sovereign or suprême. Or (changing thé phrase) it is set by
a monarch, or sovereign number, to a persoa or persons in a
state of subjection to its author.
To elucidate thé nature of sovereignty, and of thé independ-
ent political society that sovereignty implies, 1 examine various
topics which I an-ange under the following heads. First, thé
possible forms or shapes of supreme political government;
secondiy, tho limits, real or imaginary, of suprême political
power; thirdly, the origin or causes of political government
and society. Examining those varions topics, 1 complète my
description of the limit or boundary by which positive law is
severed from positive morality. For 1 distinguish them at
certain points whereat they secmingly blend, or whereat thé
line which divHes them is not easily perceptible.
The essential difference of a positive law (or the difference
that severs it from a law which is not a positive law) may be
stated generally as 1 have stated it above. But thé foregoing
général statement of that essential difference is open to certain
correctives. And with n. brief allusion to those correctives, 1
close the sixth and last lecture.
 LECTURKÏ.
THE Mtfttter of jurisprudence is positive !aw law, simply and
strietly ao caited: or law set by political superiora to po!iticat
)
inibriurs. But positive law (or !aw, simply and strictly so
ca!!ed) is often confounded with objects to which it is related
by )'<~cwM«?!c< and with ob)eets to which it is M!atcd in the
way of aK«~;y with ubjects whick ate «~ sigHiHed,
and ~M~ff~tT/y, by the large and vague expression
p)-<
To
obviate tiie diUtcuJties spriHging front that confusion, I be~in
my projeeted Course with determining ttte province of juris-
prudence, or with distinguishiug the matter of jurisprudence
from those various retated objects tryiug to define the subject
of which t mteud to treat, before 1 endeavour to analyse its
uumerous and couplieated parts.
A !aw, in the most gênera! and comprehensive acceptation
in which the term, in its liteml !ueaning, is eMployed, may be
said to bu a rule laid dowtt for the guidance of an intelligent
being by an inteUigent being having power over hi)n. Under
this definition are included, and withuut itupropriety, several
species. It is nHeessary to denne accurately tite line of démarc-
ation which séparâtes these species front one another, as !nuc!t
tnistiness and intricacy bas been infused intu the science of
jurisprudence by their being confounded or not elearly distin-
gttisiied. In thc contprehensive sense above indicated, or in
thé largest meaning whieh it has, without extension by jnetaphor
or anatogy, the term /<:? embraces the following objeets:–
Laws set by God to his human créatures, and laws set by men
to mon.
Tite who!e or a portion of thé laws set by God to men is
freouently styled the law of nature, or natural law being, in
truth, the only natural law of which it is possiMe to speak
without a metaphor, or without a Mending of objects which
ought to bo distinguishe(t broadly. But, rejecting the appellation
Law of Nature as ambiguous and misleading, 1 name those laws
or n~es, as considered collectively or in a mass, thc JKnM<: ~w,
or t!~e /f<!p n/' God.
I~aws set by men to men are of two !eading or principal
classes: classes which are often blended, aithough thoy dinër
extremely and which, for that reason, should bo severed
precisely, aud opposed distinctly and conspicuously.
Of thé laws or rules set by men to men, some are established
by ~t<M<~ superiors, suvereigu and 8ub}ect by persot~ exer-
cising supretnc and subordinatft yaraitMe~ ht independent
nutiotts, or independejtt political soeieties. The aggregute of
thé rules thus ettablished, or sotne nggregate iorming a portion
of that nggregate, is the appropriate matter of jurisprudence,
général or particu!ar. To the aggregate of the rules thus
established, or to some aggregate furming a portion of that
aggregatu, tho term /««', as used shuply and strict!)', is exclu-
Mvely applied. But, as contFadiaUH~oished to Mft<«M<< law, or
to thé law of M«~<?-< (meauing, hy thosc expressions, thé law of
God), the aggre~ate of the ru!es, estaUi.shed by political
SHperiors, is frequently styied ~M<7<M law, or ]aw exi.stin~
~i'<MM. As contradistinK'ushed to the rules which 1 style
~M!7<<: mo?v< and ou whie]t 1 shaH toueh immediatety, the
aggregate of the rules, established by political superiors, May
also be marked coutmodiousiy with thé name of ~Mt~'t'e /«)'
For the saké, then, of getting n name brief and distinctive at
onep, and agreeably to fréquent usage, 1 style that aggregate of
ruies, or auy portion of that ag~re~ate, ~)M!< ~«c: though
rules, whieh are K~< established by politietd superiors, are also
~<M, or exist ~<M!'<OM, if they be rules or laws, in the
proper signification of thé tenu.
Though Msx' of thé !aws or ruies, which are set by nien to
men, are estabUsIted by political superiors, ~/«'/A are )«/' estab-
Iis))ed by political superiors, or are ?!o< estabtished by poHticat
superiors, in that capacity or character.
Ctosely ana!ogous to humau laws of this second class, are
a set of objects frcquentty but 't~)'~<y tenned /p.s, being
rtues set and enforecd by MfM (/p<K<Mt, that is, by thé opinions
or sentiments held or felt by an indeterminate body of men in
regard to human conduet. Instances of such a use of tlie term
~<w are thé expressions–' Thé !aw of honour Thé law set
by fashion and rntes of this species constitute much of what
is usually termed International law.'
Thé aggregate of human laws properly so called belonging
to the second of thé classes above mentioned,with thé aggre~ate
of objectstH!)< but by ~ow '<H<f~ tcrmed laws, 1 p!ace
together in a common class, and dénote them by thé tenn
~<:M MO!V!<y. Thé name M)o~<y severs then) from ~o.<<'e
/<c, while thé epithet yo~fn' disjf'ins them from the /<!tc c/'
CoA And to the end of obviating confusion, it is nccessary
"r expedient that they ~oxM be disjoined from the latter by
that distinguishing epithet. For thé name MOMtMy (or mo<'f!<!),
 whon atMMMag unquatified or atone, denotea mdMbrmtt~ either
of tha following oh)ect9t aatncly, posMv~ momHty<t«<M, or
without regant to its nierits and t~ositive morality CM wc«M
if it eoufohned to the !aw of Gôd, and were, tborefbre, deserv-
ing of <M'<~<!<tW.
Besides the various sorts of ruks which are ineluded in the
literal acceptation of the tenn law, and those which are by a
close and striking analogy, though improperly, termed laws,
there are nuruerous applications of tho tertu law, which l'est
upou a sieuder anniogy and are taerety metap!torical or itguitt-
tive. Suoh i.'i the case wheu we talk of ~!M observed by thé
lower nuimals; of AtiM regulatittg thé growth or decay of
vegetables; of laws determiuiHg tlie movemonts of inanimate
bodies or masses. for whcre <H<t~<'M<- is not, or where it is
too bouuded to take the name of w~pK, and, therefore, is too
bouuded to conceive the purpose of a law, there M not thé w!
which law can work on, or which duty can incite or restrain.
Yet through thcse nusapplications of a name, flagrant as thé
metaphor is, bas thé field of jurisprudence and morals been
delu~ed with muddy spéculation.
Having suggestcd thé ~o~oM of my attempt to determine
the province of jurisprudence to distinguish positive law, thé
appropriate matter of jurisprudence, from the various objecta to
which it M related by resemblance,and to which it is related,
nearly or rcmoteîy, by a strong or siender analogy 1 shaM now
state thé essentials of s ~op or )'M/e (taken with the largest signi-
fication which can be givcn to thé terni ~?'~).
Every ~f or )'K/c (taken with tho largcst signification which
can be given to the terrn ~o~y) is a MMMaM~. Or, rather,
laws or rules, properly so called, are a ~<;<< of commauds.
Now, since the tenn comMO'K~ comprises the terni ~M', thé
first is thé snnpter as well as thé larger of thé two. But, simple
as it is, it admits of explanation. And, since it is thé /'<y to
thé sciences of jurisprudence and morals, its meaning should
be anatysed with précision.
Accordingly, 1 shall endeavour, in thé first instance, to
analyze the meaning of 'fOMtM«K~ an analysis which, 1 fear,
will task the patience of my hearers, but which they will bear
with cheerfulness, or, at least, with résignation, if they consider
the difficulty of performing it. The éléments of a science are
precisely thé parts of it which are explained least easi!y. Terms
that are the largest, and, therefore, the simplest of a series, are
without équivalent expressions into which we can resolve them
<'<MM'M~. And when we endeavour to <~Ke them, or to trans-
late them into ferma which we suppose ara bettet' understood, we
are ibrced upon awkward and tedious ch'cmniocutions.
If you express or intimate a wish that 1 shall do or forbear
froni some act, and if you will visitL tae with au evil iu case 1
comply not with your wish, the f.<~MVM!'<~t or M~'m<!<MK of your
\vish is a c(/M<m«!M/. A commaud is distinguished from other
significations of désire, uot by the style in whicit the desiM is
signiHed, but by the power aud the purpose of the party cont.
maudin~ to intiict an evil or pain in case thu desire be disre-
~arded. If you cannot or will not hami me in case 1 comply
not with your wisb, thé expression of your wish is not a corn-
mand, although you utter your wish in imperative phrase. Ii'
you are able and willing to harta me iu case 1 comply not with
your wish, the expression of your wish amounts to a command,
although you are prompted by a spirit of courtesy to utter it in
the shape of a request. P/cs erant, sed ~<M <'<M:<r<~Mt no?t
~c~<'< Sucit is thé language of Tacitus, wiien spcaking of a
petition by thé soldiery to a son and lieutenant of Vespasian.
A eonnnand, then, is a si~))ification of désire. But a cotn-
mand is distinguistied from other significations of desire by this
peculiarity that thé party to whom it is directed is liable to
e~dl from the other, in case he comply not with thé desire.
Being liable to evil from you if 1 comply not with a wish i
whieh you signify, 1 am &f!<M<< or oM~/KJ! by your command,or 1 i
lie under a f~<<.y to obey it. If, in spite of t!tat evil in prospect,
1 comply not with the wish which you signify, 1 am said to
disobey your command, or to violate thé duty which it imposes.
C'ummand and duty are, therefore, corrélative terms the
meaning denoted by each being implied or supposed by thé â
other. Or (changing the expression) wherever a duty lies, a
command bas been signined and whenever a command is
signified, a duty is imposed.
Concisely expressed, the meaning of thé corrélative expres-
sions is this. He who will intlict an evil in case his desire be
disregarded, utters a command by expressing or intimating his
desire He who is liable to thé evil in case he disregard the
désire, is bound or oMiged by thé command.
The evil which will probably be incurred in case a command i
be disobeyed or (to use an équivalentexpression) in case a duty be
<
broken, is frequently called a .MK<'<«Mt, or an <:K/bfMM~ o&~t- c~
MMe. Or (varying the phrase) the command or the duty is said
to be MMc<MK< or CK/WM~ by the chance of incurring thé evil.
 Considored as thua abst~cted from thé eommMtd and the
duty which it ehforce~r thé evit to be tncurfed hy disubedienea
is frequeutly sty!ed a y«MM?/«H~. But, as pmushments, strietjy
«o caued, are ollly a f/fM! of sanction. the tcnn is too narrow to
cxpMM the Mteaning ade'tH(ttety.. J
t
1 observe that Dr. Ptdoy, ill his anatysis of the tenn oMM/f<-
~i, hty.? tuuch strass upon the Wu/t~M oi' the ntottvc to corn- )
ptiauce. in so far nii 1 ettn ~athct' ft meaning from tus tocse
t
aud iucomijtcat statement, his til~nh~ appears to Le this:
that uule'is tlie motive to cotnpiiimce bc ~<~K< or Mt~Mw, t)M
expression or iuthmttion ot' it wish is not <'MMMM/«~,nor does tho
party to wi~m it is dimcted lie under ft ~M<~ to regard it.
If he tncftns, by a i'M/(< motive, a motive opemting with (
t
certainty, lus propositiou i.s mauifestty i'aisc. Thé greater thé
evil to be incurred in case tlie wisti Le dMrc~artted, and thé 1

greater ttte chance of incun-m~ it on timt same event, thé greater,

no doubt, is thu <7<ftM<'f t)t:tt thu wish will Mo< be disi-egarded.
])ut uo conceivabie motive will e«-<<ti'K/y détermine to compliancc,
or no couceivabie ntotive will reuder obedieuce iuevitable. If
Pa!ey's proposition ho true, in thé sensé which 1 hâve now
ascribed to it, commands and duties are simply impossibte. Or,
redncing his proposition to absurdity by a conséquence as mani-
festly i'a)se, commands and duties are possible, but arc never
disobeyed or brokcn.
If he nicans by a )'i'o<'eK< motive, an evil which inspires fear,
his meaning is simply this that the party bound by a command
is bound by the prospect of an evil. For that which is not
teared is not apprehended as an evil; or (changing the stmpe
uf the expression) is uot an evil in prospect.
Thé truth is, that the magnitude of the eventual evil, and
the magnitude of the chance of incurring it, are forcign to the
matter in question. The greater thé eventual evil, and tha
greater the chance of incurring it, the greater is thé efncacy of
the command, and the greater is the strength of tho obligation c

Or (substituting expressions exactiy équivalent), thé greater is

i
the cAftMCf. that the command will be obeycd, and that the duty
will not be broken. Hut where there is the smaUest chance of
incurring the smaUest evil, tlie expression of a wish amounts to
a eommand, and, therefore, imposes a duty. Tho sanction, if you
wiU, is feeble or insufncient but still there is a sanction, and,
therefore, a duty and a command.
Hy some celebrated writers (hy Locke, Bentham, and, 1 think,
Paley), thé term «<Me<MM, or <;K/M'c<:M<:M< (if «M~Kf, is applied
 ta conditionat good a~ wd! tf eotKHUonat evil: to
reward as
well as to punishtnent. But, with s!t my habituât vcttpratîon.
for the names of Lockn and BenthMH, t thiuk thatr thi% ex~nsion
of the term is prenant with confusion and pcrpicxity.
Hewards are, indisputaMy, Mf~'M to comp!y wir!< thé wishes
of uthors. But to talk of commands and dnties as .M/it'o?!t'(/ or
c/t/ct'ee~ by rewards, or to talk of rewards as 't;<~ or t'oK.s'f<K-
ing to obedience, is surety a wide depftrture from the c~taHishcd
tHeaniug of the tfnMa.
If ~OK cxpressed a <tesu'e that 7 should render a service, and
if you proHëred a reward as the motive or inducement to renderl'
it, yo!f would scarcely Le said to <-MKm<M~ the service, nor should
I, in ordiMary language, be oM~/t~ to render it. Ix or'Hnnry
language, ~«M woutd ~'oM<s<: me a reward, on condition of my
rendering thé service, whiist 7 might bo ut«<«< or ~tMKf«~«/ to
render it by the hope of obtaining the reward.

some act, an eventual t'

Again If te law hold ont a ?'<'M'<u'~ as an induceMeut to do
is cortferred, and not an t/M<~«/K
imposed, upon those who shall aet nceortti)t~!y Thc ~Kp~vf~'r''
part of tlie law being addressed or direeted to thé party whom
it requires to !'t'K~c~' the rewat~t.
In short, 1 aru dctcnuined or inelined to comp!y witit the
wish of another, by the fear of disadvantage or evil. 1 am a!so
dctermined or inclined tu comply with thé wi.sh of another, by
the hope of advantage or good.1. But it is on]y by the chance
of incurring f! that 1 am &«:<?!<< or oM~M~ t" compHanee. Itt
is only by conditiona! c! that duties are .M?<c<i'</Mf<~ or f~/b<'M<
It is the power and the purpose of inOieting eventual ci-il, and
not the power and the purpose of imparting eventual .~<'<~ wilieh
gives to the expression of a wish thé name of a c</MMf<H<
If we put )'c«'o?'~ into the import of thé terni MKc()' we
must engage in a. toitsome stmggle with the enrrent of ordinary
speech and shall often s!ide unconsciousiy, notwithstandingour
efforts to the contrary, into the narmwer and customary meaning.
It appears, then, front what bas been premised, ti~at thé ideas T
or notions comprehended by thé term f~tM'~?;~ are thé fol!nwing.
1. A wish or desire conceived by a rational being, that anotjier m
rational beins shall do or forbear. 2. An evit to proeeed from
thé former, and to be incurred by the latter, in case the latter
comply not with thé wish. 3. An expression or intimation of
the wish by words or other signs.
It also appears from what bas been premised, that <MHM!«M' T)
~«~, and MM/t'OK arc inseparably eonneeted terms thnt eaeh
 embrace9 thé sameMeas aa tho others, though each dénotes those
Meaa in a pecùtiar enter or seriez
A wish conceived by
one, and cxpressed or intimated to
another, with an evil to be inttieted and incurred in tho
wish be disrega~ed,' Mo signified directiy aad indirecttycase
by each
of the three expressions. Each M the name of tho
same complex
notion.
But whon 1 am talking (H)'<'<-</y of the expression intima-
or
tion ut' the wish, 1 cmploy the t~rm comMtNKd' The expression
or intimation of thé wish being presented ~'otKmcK~ to my
hearer; whi!st the evil to be incurred, with tho chance of
incurring it, are kept (if 1 may so express tayself) in the back-
ground of my pieture.
When 1 am tatking (~-ft-<~ of the chance of incurring the
evil, or (cimnging the expression) of the liability obnoxiousness
or
to the evil, 1 employ thé term (/«~, or the terni oM~a<;M~ The
tmbiHty or obnoxiousness to thé evil being put foremost, and the
rest of the complex notion being signified implicitly.
When 1 am taïking ~i!M~M<t~ of thé evil itself, 1 emplov
the term MKe<<oK, or a term of the like import Tho evil be
to
incurred bein~ signitied directiy; whilst thé obnoxiousness
to
that evil, with the expression or intimation of the wish,
indicated indircct!y or oMiqudy. are
To those who are familiar with thé language of logicians
(!angt)age unriva:!ed for brevity, distinctness, and prcciJon), 1
can express my meaning accurately in a hreath.–Eadt of thé
three terms <t~</?< thé same notion; but each ~Ko<< dinbrent
a
part of that notion, and cMMo~ thé residue.
Commands are of two species. Some aro ~w.!
others have not acquired an appropriate
~<
or The
name, nor does language
afford an expression which will mark them brieny and precisely.
1 must, therefore, note them
as well as 1 can by thé ambiguous
and inexpressive name of'eccfMiMM!~ or~WMM/<!t' comman~s.'
Tho tenn ~M or f!</M being not unfrequentty applied
to
Dccasionat or particular commands, it is hardiy possible to describe
t line of separation which shall consist in every respect with
MtabHshed forma of speech. But the distinction between laws
tnd particular commands may, 1 think, be stated in the follow-
ing manner.
By every command, thé party to whota it is directed is
)Migcd to do or to forbear.
Now where it obliges ~MM~y to acts or forbearances of
~<Ms, a command is
a
a law or rule. But where it obliges to a
t ~e~eact or iorboarance, or to .acts or forbearancM wMeh it
determmës~M~aZ~otM~~M~~eoMmandMoeeasi~
or partnutar. In other wprds, a daso or descriptum of acts is
determined by a Ittw or rule, and nets of that da.~ or description
are onjoined or iorbidden gênera! )y. But where command is
occasional or particular, the act or acts, winch thé conmtand
enjoins or forbids, aro assigned or determined by their spécifie
or individual natures as well as by t!)c class or description to
which they bclong.
statcmeut which 1 hâve givell in abstract expressiuns
1 wiU uow endeavour to illustrate by apt exaBiptes.
If you cotmnand your servaut to go on a given errand,
or
Mo< to lcave your house ou a givcn evenin~, to me such
or at
an hour on such a morning, or tu rise at thttt hour durin~ thé
next week or tuonth, the command is occasioMtt or particular.
For th(i aet or nets enjoined or forbiddeu are speeially det~rmined
or assigned.
But if you command him <M!~ to rise at that hour,
or to
rise at that hour «~M~, or to rise at that huur <~ /<H-~)- M-tA;M,
it may be said, with propriety, that you !ay down a rK/e for thé
guidance of your servant's conduct. l'or
nu spécifie act i.
assigned by the connnand, but the command obliges him geneMlIy
to acts of a detcrmined class.
If a régiment be ordered to attack or défend a post, to
or
quel! a riot, or to march from their présent quarteM, titc eomnmnd
is occasional or particutar. But an order to exercise daih' till
further o~ers shall be given would be caUed a y<'K< order, and
M~/t< be called a <'«~<
If rarliament prohibited simply the exportation of
con),
either for a given period or indefinitely, it would estab!i.si) law
a
or rute a ~mf/ or .?)'< of acts being detcrmined by thé comMand
and acts of that kind or sort being ~<y forbidden. But an
order issued by ParJiament to meet an impending scarcity, and
stopping the exportation of corn ~(~~ <!M<~Mt~-<, woutd
not abe law or rule, though issued by thé sovercign tegislature.
Thé oi-der regarding exclusively a specineft quantity of
corn, thé
négative acts or furbearances, enjoined by thé commaud, would
be determined specincaHy or indh-idually by the dctenninate
nature of their subject.
As issued by a sovereign législature, and
as wearing the
form of a law, thé order which 1 have
now hnagined wou!d
probably be called a law. And hence thé dimeulty of dmwing
a distinct boundary betweeu laws and occasional commands.
 Agftht An net whiett is not an on~nco, according to the
ëxbtmg htw, movës ttie aovel'eign to dispicasuro: a&d, t!nmgh
thé ttuthors ot' the aet are legatiy innocent or unof!ending, the
sovt'reign commauds that t)tey shatt be punished. As eujoining
M spécifie punishment m
that spécifie ca~u, and a& uot eujoining
gettcndty ucts or torbeat'ances ot' a class, the oïder uttered by
the sovereign is not a law or rule.
Whethcr such ~n ot~or woutd bu M/</ a law, seems to
dépend upf'n cit'emnsta)tce~ whieh m'o purely imintttenal: im-
matet-iat, that is, wittt ruftifence to thé ptfsent purposu, t)toug)i
nmtel'iat with référence to others. If made by a sovereign
ttSMtnbly deliberatcly, aud with thé fonns ot' législation, it wouîd
pt'obabh' be catled a law. If uttered by an ttbsotute tnonarch,
without délibération or ceremony, it wouîd scarcely be con-
foundedwith «ets of !pgis!ation, and wouîd bo stylcd an arbitifu'y
command. Yet, on eitber of these suppositions, its nature wouid
be thé s.tme. It wouîd not be a law or rule, but an occasional
or particutar command of tite soverei~n One or Xumber.
To eonctude with an example whieh best illustrâtes thé dis-
tinction, and whieh showi! thé importance of the distinction
most coMspicuousty,y«~<cM/ cfM?<tHK<~ are connnonly occasional
or particular, although thé commands winch thcy are catculated
to enforce are commonly laws or rutes.
For instance, thé tawgiver cotnmands that thieves shall be
han~d. A specifie theft and a speciM thief being given, thé
jud~e counnands that the thief shall lie hanged, agreeaMy to
the comatand of thé tawgiver.
Now the lawgiver détermines a class or description of acts i
prohibitsacts of the class generally and indcnnitdy; and com-
mands, with the like generality, that punishment shall follow
transgression. TJte command of thé iawgiver is, therefore, a law
or rule. But thé eommand of thé judge is occasional or parti-
cular. For ite orders a spécifie punishment, as the conséquence
of a spécifie onenee.

According to the line of séparation whieh 1 have now

attemptcd to 'tescribe, a law and a particular command are dis-
tinguished thus.–Acts or forbearances of a <«? are enjoiued
~t?M!'(!</ by the former. Acts ~frMi'MCt~ sp<ct~ca//y, are enjoined
or forbidden by the latter.
A difterent line of séparation bas been drawn by HIackstone
and others. According to BIackstone and others, a law anct a
particular command are distinguished in the following manner.–
 A !aw obtige9 ~c~ctf!~ thé Miembers uf thé given cottmuuMty,
taw (tbitges ~oM!'a~ pet'SMts of & gtv~t da~. À particuIttF
w
s.
command obliges ft 6w<~c person, or persous whjom it
detei'minM
<y«~~«a~.
That Iawi< and part.icuhn' conuattnds are not to be distin-
guishcd titus, will appeai' on a tfioment's t-cfteetiutt.
l'or,~<, cominfUtds which oblige ~tMt-HHy thé meuibers of
the ~ivMi comtBUMty, M- eo!HMj(t)t<)s wiftch obi~e geucratJv
persutis
of giveu dusses, aM ttot alw~ys hws 01- ruie.f.
Thus, iu the case airefnty supposcd; thnt in whieh tlie
sovereigu commands that aU corn actually shipped for expurtn-
tion bt} stoppa attd detfuned thé comnMnd i.3 obligatory
upon
the wholo conttttunity, but as it oUiges them o'dy to set <ji'
a
act.s itidividuitHy assigned, it is not a iaw. Ag:tin,
suppose thé
soverciga to issue M)t order, enforeed by pcnahies, for
a gene-
rai mourning, on occasion of a pubHc ea)amity. Xow, though
it is addressed to thé connnmuty ut large, the order is searejly
a rule, in the usual acceptation of the tenu. For, though it
oUigea gcHcraJIy thé m~mbers of thé CHtire eomBMUMtv, it
obliges to acts w!)ich it assigns speci(iea!!y, instead of oMiging
generally to acts or forbearances of a class. If the soverei~
commauded that Mf~- shuuM bc thé dress of his subjcct.s, his
comtnand would amount to a law. But if lie couunanded them
to wear it on a specified occasion, his command would bc tuerely
particntar.
And, .w<M<f/, a command whieh obliges exclusively
person.
individually detenuined, may atnouut, notwithstanding, to law
a
or rule.
For exatnpio, A father may set a )-!</<; to his c))i)d chUdr~
or
a guardian, to his u'ard a master, to his siave or ser\'ant. And
certain of God's /«it'~ werc as binding on thé tirst
man, as they
are binding at this hom- on thé miltions who hâve sprung from
his loins.
Most, indeed, of thé laws which are established by poiitica!
superiors, or most of the ]aws which are simpty and strictly
so
called, oblige generalty tlie monbers of the political connnunity,
or ob!ige genemny persons of a class. To frame a systeni of
duties for every iudividual of the eommuuity, were situply im-
possible and if it were possible, it were utterJy useless. J~ost
of thé laws established by political superiors are, thereibre,
ytM~ in a twoMd tnanner as cnjoiniug or iorbidding generatly
acts of kinds or sorts; and as binding the whote community, or,
at teast, whote classes of its members.
 But if we suppose that Paruantent créâtes and gmnts sut
oMee, and that Paruament Mnds thé grantce tu services of a
given description, wc suppose a taw estaMished by political1
superiors, and yet exchtsivcty Muding a speciM or detenninate
peMon.
Laws estabhshed by political superiors, and exclusively
binding specified or dctet-minatG persons, are styled, in thé
lan~ua~e of the Homan jurists, ~<'t'<!<7<<yK<. TItough that, indeed,
is a nanM which will hardty dénote them distiuct)y for, Hka
most of thc Icading tft'm!} in actuat systons of law, it i.
not the name of a definito class of objecta, but of a heap of
hetero~eueous objucts.~
It appears, from what bas been premis~d, that a law,
properly 83 called, may ho defined in tho following tnanner.
A law is a command which obliges a person or persons.
But, as contmdistinguished or opposed to fut occasional or
particular eomttmnd, a taw is a command which obliges a person
or persons, aud obliges ~<'Kn'«/ to nets or forbearauces of a class.
In language more poputar but less distinct and précise, a
law is a command which obliges n person or persons to a <?«!'?
of conduct.
Laws and other commands are said to proceed frotn ~<:)'tû?'s,
and to bind or oMige ~t/)'«'M. 1 will, therefore, analyzc thé
meaning of those correlative expressions and will try to strip
them of a certain ntystery, by whieh that simple meaning r
appears to be obscured.
<S'i<po'o< is often synonymous with ~w~fKce or Mct~-
A'Kft'. We talk of superiors in rank of superiors in weaith
of superiors in virtue: eontparing certain persons with certain
other persons; and meaning that tite tonner précède or exect
tite latter in rank, in weaith, or in virtue.
But, taken with thé meaning wherein 1 hère undcrstand
it, t))e terni ~<:< signities M!y/i< the power of afiecting
others with evil or pain, and of forcing them, through fear of
that ovi!, to fashion their conduct to onc's wishes,
For example, God is emphaticatty tlie -M~'iM' of ~tan.
m ~f~-t't'Kht )H~rf]y i'n'
(') Whcro Mt].th<'rt'foM,)!!Y~'t't't7<MM. [nrMpect
))o<tf! a <)uty, it exchtitivtyaHi~s <t
'tc- ofth''()Mtyitu)").t'~tMrrc!~<))tdin{{
t<:rmi))!)t''tjMr.<on<;r]wr"M< Hntwh<-r<: tot)t<')-i);ht<'uHf';rrt:~),th<'hwn't!:u\k
a;ti-'t't7<<tM<'ot)f<'r!!ari!;)'t.tth<' (~x'mtty the )MOu))):r~ uf <h<: ~tirc coM-
fiift't conten'ct «M<7< w<at'tH< </« t~fM munit;
«< /'<~<, thé law is ~ftrt/'T/utmas YK'wctt Thut!ihttn''x[)tfti)t)KtrtiMhr)y<tttt
from !t CMrtain iMpcet, but M tho « y; Il
sub.'i<(uent p'ftMt of tny Courut*, when
f«< /OM' M VMwett from tmothtr ftsp<t. t<;ot))<id<:rt)"it)<'t;uliatf))attnreofiio-
tu re'iMct nf thé r)!;ht cooffrre~,thé )aweaUrnt ~/fH;tY<yMt, or «f so'catM ~m~
tiettuivety regard.') a determinate person, ~t)<
 For his power of af~t'nt; us with pain, !Utd «f fot'd)~ us t'.
comply witH tus wH!, h Mut~tmk'd and r~istip~;
To ft !it)):tt-d GxtfHt, thé "o~rci~t Ou~
ut- Xutubsr t. th'
snpurior of thc subjcct or citixcn thu urn~r, ut' thf .~tav~
o
.~t-vaut: thf MM)-, of thf (.'hHd.
lu short, whocv~' eim «M~ nHott~r to .ot))}<)\- with hi?
wishc. i.s thé ~«~-< ut' t)int «th<ir, so ta!- M th~ n)~i)tn- n.-a<Jt<
Thé party who is obttoxi~ns tu th<' impctuiiug evil, tjcit)~. tfnt
tu
stmx' cxtent, thc ~(/t'<-w<
Tftu tni~ht or supt-n-jnty oi' (:o.), is Mitnptc absout-
ot-
But i)t nH ur tutjst casM of hmnfn) sttpt.-riority, thf; rt'hui'jn
u)
'iup<-yi<tr an.) hticrior, and ti)c t-t-httiftn of ittffrior and
.<up<-n<'r.
are ru(.-ipr.je!t). <Jr (dm))~n~ thc cxj<t-ession) thé j~n-ty \ho ).-
tho supet'i.jt- liS viewud frotu ouc aspect, M thc intmior
as vicwff)
t't'Mtt a))')t))(.'t'.
F'u' fxampie, To au indefinitt. thougti Hmit~d
extcnt, t!tt-
monat'<:)t is thé supt-t'io)' of thf ~ov.-rncd: iiis
powcr );<;m~
cotntuouiy sufticicut to cnforee eo)ttp!iattce with iiis will. ]{u:
th~ ~ovH-ttMt, coliccth'ciy 01- in mass,
in'<- &t.~< thé ~<)Dewt- f)
thc monarch: who i-! ch'-c);ed in thé ahu.t; of hi.s tui~ht ).]n<
t<'ar ofexf-itin:{ thpir au~-t-, aud ot')-ousi))K to activa- rc-si<tam.
thc tui~ht witic)i shuaLt-t-s iu th(; ntuttitud~
A menther of a .sovo-ci~u assetnhty is t))e .-upct-io)- of thf'
.judge t!K' ju.).i.;e buin~ bound by thc !a\ which ].r.~eds
from
that soverei~u body. But, in his chamctL-r of c-itixcti subjcct.
ot-
hc M thé infct-ior of thf jud.w: thc jud.~ 'it~ tiM t))i)tistM' ~i
thé )aw, and annfd with thf {mwcr of t'nforen).~ it.
.<t7y
~M<</
It appears, th~n, that thé term
and ~/«-/<~) i.% impli~d by th)' to-tn '«/
(like tir.. t<-)i]]-.

.sttpenority is thé po\t.r of enfbrcin! c..tnp)ianc" wit]) wi.sh

a
Fot
aud thc expression ot- iuth.iatiou of a wi.sh, with tite
powcr and
thc purposc of euforcii)~ it, an.- t)~ con.stitm'ut (.-Icnx.nts of
a
eom)uand.
'Titat ~«Mouanatu froM.<K~t< i.i.thM-fibn.a)) identicat
proposition. For the t.tcauing which it afTect.s to impart i.s
containcd itt its .subj~:t.
If 1 tnark th(j pceu!iar .sûturf of a ;iv<)) !aw, or if f toark
thf pcL-utiar source of !aw~ of a ~ivcn (_a< it i-; po~ibfc that ï
a)n sayhtK soMethin-~ whic-h may instmet thc. ht-a:-r. ]:ut to
aitu-m of iaws univcrsaHy titai th.'y tiow fr.,t.)
at!t)-t)t of !aws univfrsa]!y that <~)-<
.!M~. ,< or to
are bound tu obc\
thcnt,' i.s th'; )n<'t'Mt tauto].~y and trifting.
Likc most of thu !cadin.j; tur).)- ill thb .<:ciMMus of hui-
I
prndfttco ftnd moFab, the term ~<~ M extreB!9!y amMgMOHtt.
Tahen wHh the hrgpst signMt'ation which mn t'c givcn to thc
term properly, ~;M ntf speeies of ''CMN'~K~. Hnt thé term
is itnpropct'iy appiicd to varions objets which Jmvu nothin~ of
t!m imperati\'eeh:u'!K:ter: toobjectswhi~h. arcx~ commauds;
(
and which, thctftm-p, arf Mo< Jaws, pr~pei-ty so cnHed.
AccartUngty, thc propositiott 'th~t ht\vs a)'ut:"mt))tt)~)' must
))t.' taken with tituitatiou;
various tncttnhtgs ut' thc tcrnt /f'
Or, mther, we must (H~tut~ui.tt thu
atld tnnst n'stnct thu
proposttton to that ciass of ubjccts whictt is unjbmeed by titc 1

tar~st si~tnftMttiun thitt ctUt bc ~iv~tt to thé tM'))i property.

t hâve ah'ca'tv iudieatfft, and shati ]ter<;aftcr tnM'o fully
dcscribc, the ubjeets itnpfopcrty tcnned laws, which are /«~
wHhm tiie provincM of jurisprudence (bcing either rules uaforcud
by opinion au'.t doscty anaiogous to taws propurly so caUed, or
bcinn laws so caH<;d by a metaphorical application of thc terni r

mm'dy). Thcrc an' 'jthcr objcets imprfjpcr!y tcntte't laws (not

c
being commauds) which yet may properly bu inctuded witinn
thc pruvjnec of jurisprudence. Thes~ 1 shall enduavour tu
particularise
1. Aets ou the part of tc~istatures to f.!y/f«'M positive !aw,
can scarcely be caHed laws, ill the proper si~nificatiun of thé
temt. Working no change i~~ the actunt duties of the governed,
but sitnpiy dcfiann; wi'at thoso duties «)' thuy pr';p<-r!y are t

acts of <<<t/y~f</<t by h'~i.siative authority. Or, to bun'ow an

-1

expression from thé writers on t))e Homan Law, they are act.-i of
~<(~< interprétation. r

j}ut, tliis notwithstandin~, they are frequently styled laws

tM<«'y laws, or dedaratory statuttis. They !ttu.st, therefore,
be noted a.s t'orntin}! an exception tu thu proposition that taws
am a f-pecies of counnand.s.'
R often, indecd, happons (as 1 shaU show in tlie proper
place), that kws dectaratory in xame arc hxpemtive in effuct
Le~i"!ativc, like judiciat interprétation, bein~ frcquent!y deecp-
ti\-c and establishin~ new law, under ~ui.se of expouudin~ t)tu
old.
2. Laws to rcpeal !aw.s, and to relcasc ffom cxistit~ duties,
must a)so bc exeepted fron thé pro]<osition that laws are a
1

spcf-i' of command. in so far as they reteasc from duties

imposed by f-xistin~ laws, titey ate n'~t conmand.s, but r<j\-oca-
tion~ of cotnnmnds. Th';y authofixe or perout thé parties, to
whont tho rftpeat extends. to do or to forbear front act:) which
thev werc cotamanded to forbear frotn or to d~. Aiid, considered
 with t'f~art! t<~ ~< theh' !)nm<<te or direct pnrp~c, they
ar~
often !mnMft~<'?w~t't' ~i" or, uium bt-~fty audm~-M
p~p~ty,
/'f?'m<.MMM.
Ï:tn~ttjty and itt.tii-L-cdy, iud~d. p<t)))i.~iv.' !aw< :u-< otu.-n
or aiways itup~rativM. Fur th~ piatics i-~a~d i'rutt) ttuUcs <ov
restM'(.'d t~ tibcrtie.s 'u' rixhts and (huit; ausweriu~ thu. ri~!tts
.Uf, thctt.'t'~rf, (.'rcat~'t o)- t't.-vh't't).
J~t [)t: is a tunttur whK-.h 1 .h:t!I (.-ximmu.' wit)t <<f-U)~
witcu tau.dyxc t)~ Mprc-i«ns't~d ri~ht,' 'j~tmi~io)t Ly Uic
suvcrcinn <'t- st!(tc,' and
ch-it f.r p~ijucat litjfttv.'
ht~fH't~t. htw.s, or htw.~ ut' imp~et oblination, tnust
aiso bf <;xcGptt:d fr-jto thc pt~p<j::itiuft that htws
arc a spfcit.
of cmmnattds.'
Ah ituj~rfuct !aw (with t~ .nse wltct~in tim tM-m is n-d
by thé J:'j)nan jm-ists) is a Jaw whk-h wants a MiK-ti'j)), and
whi(.-h, then'i'or~, is nut Liuditt~. A taw du<)at'i))~ that .(.-rt:tih
a'ts arc critnM, but amtcxt!). u~ pu)ti.huK-)tt t'; thé eù))n))i..<ifjft
ot' a':ts o)' th" c]a.M, is thc .shupkst. and ntust aLviuus Mam;
Th"ugh thé auth'jf of au iuq~'r~t law .si~ttifiM.s dcsiru, lui
a
ntanit).-st..i )t" p'u~osc of enforcit)~ L-u))))'!iat)(.'M with thc d.-sh'e.
J:ut where tht-re js not a ].ur]"jsc ui' (.-nfurcin~ cottq'Hauc' with
thc désire, thc (..xprcssioti ')' a dfsit~ is n<.t a cotumaud. <;ot)S(;-
~ucutty, au intperibet !aw is uut so ~r'.}~-r!y a law, a< couusc),
'jr ('xhortati'.tt, addt-s<?ed by n -upfrif'r t~ infc-tiors.
Kxatupt~ of hitj~rf~ct ]aw.< art- cit~ hy t]~ ];u)nau juri-its.
Hut with us in Ku~taud, htws p!-<jf~.s.sed)y itupc~tive a~' aiwav.
(I htiHevu) pt;rt't.et or oUi~ttory. 'h'-)-f thc En~Iish it.~i.~atu'r.-
aii'ucts to conntmnd, thf Kn~ish trit.antfd.s nut uurcas~naLh'
pr~smuf that t)n.' k~i.statart; nxaet. ob(.-di<-)iC-G. And, if hf)
.spt-dfie saneti'j)) bu annûxed t<j a ~i\-t;n taw, .sauftiun is .snj.jth'd
a
by thu courts of justice, t~rL-eab!y tu a ~t~nd tuaxint whi'~
"btaius in cases of thf )<ind.
Thc impm-t'cct Jaw: of whicit 1 am h'.w speakin~,
an' !aw-
whic)) art; in)),rfcet; in thé -icn~ "f ~« 7.~M"«; ~K<-< that li
t" .say, !aw.s which spt.-ak t]tc dt;ih". <.f p.'HtiHd sup~ri~r.s, but
wilif-it thcir autitu! (by '.v<'r.i~]~
~r d(-i~)) )ta\-).- n.t provi.h.-d

~<<,
with sattetiox. ~lauy '~f thc writt-r-. on
raUt-d
M"and (m tht- <.u
hav- anucxud adittt-n.-ittmt.-anin~tf. t)~
tc'tia t'h~f~/i~. S)x;akii)~uf imperf't.'t ~bti~atiuus, th<'y CtjmnK)h]v
meaudmiL-iwhi'ban; «~/t.f/; dtttL- intpf~-d bye~mhtahd.-
"f t!"d, ur (h)tics i)ap~t;<) by p~iti\ )n~)-atity, a.s f.'outri)di.<-
tiu~ui.stted tu duti~-i itupo-tjd by positive )aw. An itttpof'-ct
ùb!~ati(.n, in thc ~nse <f thc liutuan jnri.<ts,i. .xaetl\ (.-tjui\'a!<-))t
 t~ !t" oMi~ttiutt ttt fd!. t'or thé ttit'm <M~e< deuMtcs simple
tltttt ttn' Ittw Wtthtt th') fMm'ti~n Mppt-~prittt~t'~ hnvs of the kmd.
An impctfuct uUigatiou, in tlie other ittcauu's t-I'c nxprcssimt,
is :t n'U~uus or it tttON) obligation. t'hu tcnn <M/~<y:f-/ does
uot dcnote that thc htw impntin~ thé dttty want~ thé approprhttf
smtction. Tt <)~!tot~ t)Mt thé tow im~sitt~ thé duty M 7«~ ft
!)tw estab!i.tht;d Ly a pu))t.i''td .<u}~n~r tttitt it Wtntts t)iat ~.</c<7,
(U- that snrcr or more (;og<*nt sanction, which is hnpai'ted by t)n-
sovct'ei~n ùr sttHo.
t )jftM\'c' that 1 hn\'c u'.)W Mview'd att tttc ctasst's of ohjfct~,
to whieh thu tfna /<)«'< is impru~crty app)icd. The taws
(itn))t'<j{)t'r!y caUctt) wJtie); hâve hen' !a.~tty enun)cmtcd, iu'p
(1 think) thé only J~ws which :n'<j tlut c'jnuuands, and which vd
nmy bc propcrty inctudcd withm th< {)t'o\-iue(j of jut'i.<-})t'ndcucu.
Dut though tliuse, with ttic -iu caH'd laws .ut by opinion nnd
th'~ ')'jeet:i tnutaphori'~any tprnu.'J Ittws, iu'f the onty taws w))i'-)t
/«/ am uut cf'tantaud.s. th~'f aru eurtaitt ht\vs (pro~criy .o
(.'at!cd) which may ?<<; n~t itnpcmtivf. Aec<i)'<t!)t~)y, will
tnt'~in tt t'w t'umtH'ko npon btws of tht!; dubif~u~ chameter.
L Ttterc arc !a\s, it nmy Le ~aidt, w)tic)t </t«'~ cn'ute
7'< Ahd, Sfeiug timt ('v~'n' eouunaud unposf.s K 'y, taw.
of titis nature iu'e not uapoath't'.
Hut, as I hav; tutimatcd ulremly, and shall show com))!f;t'']y
ttcrMtftcf, titt'ru an: )n) laws M«'(7// <rfath)~ ?'<< TJtGh! :n'"
!aws, it istruc.which M'7.j/ch;ate'<'f.s; datins not c~n'etatt))~
with corrctatin.n t-i~hts. and w))if.')t, t))crcfoi'e may le styh'd "&M/
]~tt <ci'y !aw, ruany ('uttfm'rin;j' a ri~ht, i)n]<"scs uxj'rc~ty "r
taeitly a )'<<)< duty, ~r a dnty cut-n-tatu);~ with thé n~)tt. It'
it spm'it'y t)t<' KMcdy to )'e ~ivu, in case t)te ri~ht .sha!! ))<'
infrin~ud, it itaposM thu rutativ'; duty cx}'t'M.s)y. If thé reme'ty
to Le ~iv~u Le not spucifk'd, it n't'L't's taeitly tu pre-cxistin~ !aw,
:md c!uthcs thu right \v)tic)t it purputt.s to cruatc with a t'Ottcdy
})r')\'idt.'d Ly that iaw. Kv~ry )aw, rca))y cf'ttfct-t'i))~ a n~ht,
is,thf:rcf'jt'e, impt'Mtivu: :< itupt-nnivt'.as if its f<n!y ])tu'))"su
were thé creatiott of a duty, or as if thc rf)ati\'f ftaty. whi'Jt
it inevita)'Iy itap'Mes, Wfre mercty a)'sr')utt'.
Thé mcanin~i of titc t<;r)a <'< an' varioui; and ]K'rp!cxf;d
takoi with its propcr tacatti)~, it coutprisc.s ideas wfn~h tu''
ttumcrou. and cf)tnp!icatt;d; and thc SMHt])inK att'I fxtcnsi\
anaiysia, witich thf tf'rm, th'-refot'e, r'~quirc-i, woutd occopy n)0)'
r<ta thau coutd ).'e ~iv~n to it io the pr<;sent tcctui'c. lt i-.
not, how<ur, ncces.sary t!tat thu aua)y.is shuu)d be p''rf'u'tUfd
ht;re. 1 purpose, it) my 'ar)i';r i).'<tut' to dctt;rt))i))<; thc )')'
 vinee at' jnrisprudeaeô; ot- t<~ dMtiM~ttbb thé hws e~abt~hed
by po!it!c:tl Mtptit'tors, from the ViU-ioH.t taws, projet- «nd intpropM',
with which thcy arc. ircquentiy confound~d. And thi.~ 1 )nay
accomptish cxactty <nough, without a nieu inquiry into thé
impart of thu tcnn /-<
Accordin~ tu au opinion whieh t must notice f'Mc<'(/tM<(t/
hère, thongii tllc subj~ct to whieh it n.atcs wit! Le tr~ittcd
~< het'eaft<;r, nM/(,M<fu-.</ ~««'.s ))tU'it
proposition that hws itt-c a sp(.'ci<< ~f <om))timds.'
bc cxpect(;!t from tite

i:y txany of the fn)n)i)-M)-.s ot' eu~totnat-y laws (and, ~i.~iaHy,

<f tttch' Uei'tnat) :t<huit'crs), thcy Hro thou~ht to oUi~f k-gfdh'
(iudt-punduutjyof t)ic .~ver~igu <jr statc;, &.««'.« tjtc citixens
or
.uhjects ))nvn obsct'v~d ur kcpt thejit. AgrccftDy tu this "pini")i,
t)~y are not the ewt~/v~ of thc scvo-ci~u or statc, a!thoug)t tjj~
sûvcrtiij.:)) ~r statc !uay abotish t)ie)n at p!ca.snn. A:~rcua).iy te
thi.-) opiniati, thuy are positive law (or hw, strictty
so <-ai!e(!).
masutuctt ft." they arc en)bi-e(;d t.y t))~ courts oi' justice !!ut,
t)mt notwitfi.stituding, thfy cxist ~.<.<7<'i'' /(;;<- by t))~ spot).
tnneous aftopti"u or tlie ,{0\-ctm:J, auJ uot Ly jjosition or
estaLti.htnent ott thé part of poUti~'al superioM. L'on.se'jucntiy,
cu.stotuary taws, consid~ret) us positive !:t\v, arc not eoM))t:un)s.
Au(), con.sc<ptcnt!y, custo;nary )aws, consi~rcd
as positive hw,
arc uot )aws o)' ruit.'s properly -;o caHc'.).
An opinion Ic.<s tny.stfriou. but sntitcwhat nHi~d to t]n.~ i~
not unconxnouly )t<j)d by the advcr- party by tht- party whicit
is strongty oppo-cd to eustohMu-y htw, and to aU taw Xtitdt.-
.judicii!]!y, or in thé way of judicial k'~i.-)atiou. Accotith)~ t~
the hut~r ophtiot), a!) jud~c-madu law, or ai! judgu-madc ]a\v
cstab!ished Ly .MA/t./ judge.s, is pure!y thc crf-aturM or t)t(- jud~i.i
t'y whom it i-! Mta)))h))ed intntfdi:ttM!y. To impute it to thc
<overci}ïn I~istaturf. or to suppo.s<; that it speaks thé wil! of thé
.ovcrci~n t~i.sJature, is oue of the foo]is)i or knavi.sh ~f<'<
with whieh !awyt;r.<, in cvcry at;c and natio)), hav~ perptcxm)
and darkt-n'jd thc sitnpL-st and (.-)c:ut"it truths.
1 think it will
a])pt'ar, on a moment' rctieetion, that ca'h
"f thu~' opinions is ~n-otmdlL"i that eustomary law is ~.f~
in the ];ropcr si~nineatiou ot' the term and that aU jud~c-ntadc
<'<
]aw is thc crcuturc of t)n' sovcrci~n
or state.
At its ori~in, a custom is a ru!u of condm't which the
.uovcrntid oh.servc spont.mcousiy, or not in pursuancc of !aw
a
<ft by a po)itieat superior. Thé eustom is transmut':d into
j'ositivc !aw, w])cn it is adopta! as suc)) by tlie courts ofjnstic'
and wt)en thc judiciid deci'.ion'i fasitioncd up~)n it are cnforced
bythe )MW6T of thé suttf. t~n beft*K' it i~ a'b~ted by thé
eotn't~, ttnd etothed with th<? h't =nwtMf!, it M mcrnty a. mif

"f p~itiv !tM'!()ny H ru!f ~em-r~Hy 't'Vt'd by tho citrixeut

or sut'ieets but derivix.n thé ")t!y force, whic!t tt ean )"' :Mid
to posse~s, front t!te ancrai dis:t{~prot'ation f:t)!i!t~ ')n tho~e who
tMh.~)'t'SS tt.
y"w wh'H .in't~'s tran'-nmt' a (.-ust'mi into a hi~at t'ulf 1:

tuak~ u k'~at rule ttot sn~'stc't t'y L'ustom), t!tc Ic~f)! m)''
which thcy cstnhthh is e.?r:thH'!hf't by t)M' <v'K !(";i"httu~
)

A subontinatc or suhjcct ju')~; is )u~K-!y i mmistur. Thu

pot'ti'm of thu sovelvinn f~wct' whieh lies ftt his 'U;,positi"u is
tUfr~ty d~~atcd. Tin' rule, \v)n<;h h<' tnakes dct'ivc their If~at
t'.n'eu ir"m tmtttunty i;i\'fn by the statt.- un nuthotity which the
.statc muy t.-cnft'r Gx~-ssty, Lut which it commouly nnpnrfi i)t
the way of acq'tif.sccucc. F'o', siucc t)te statu may tfver.sc t)t<i E

rules which hc makus, and y~t ~naits him to c'nforeu thetn by

tt~ p'jwft' of thé potitical cunnounity, its su\'ct-Gt~n wiU that
itis rules shaH oLtaitt its !aw is d~n-ty cviuccd by its conduet,
though not hy its expt'<"?'! dcchration.
The adtnit'cM of uu.st'~u:n'y law tovc to trick out th~-ir id"t
with Mystcri'~us and impo-iio~ attnLutcs. ~ut tu tix'sc wh"
ca)t sec thé diHcn;UM between positive law and momiity,
there
is uothiug of tnyst<;n' abuut it. Considered as rules of positive
tuomlity, custoutarytaw.s tn-isf ft'om t!)c consent 'jf t!)e ~o\'Mt'uud,
and not from thc po.sitiou of estaMishnMnt of political supcriors. t
But, considered as nMKtl rules turnfd into positive law. eustotn.
ary I~tWi are MtaUi.sh'id t'y thf state: cstablished by thé state d
dircctiy, when the customs at'u promu~ed in its statutcs;
estabtished by thé state circuitousiy, wt)ea th).: custon~ are
adupted by its tribuua!s.
Thé opinion uf ttte party which abhors judgc-madc taws,
sprints fr"m their itia~lequate conception of thé nature of
c'~nmand.
Like other significations "f désire, a <;Mn)nand is exprès-! or
tacit. If the de.sire be .i~itied by <«)-< (writtett ft- sp"ken), thé
t;"))Uuand is exprès- If thé désir*' bt- '.i~niHed by cr'nduct 'rby
any si~ns of de.sire whieh ar'' w"r<s), thé 'Otonand is taeil. )
Xow when cn.stouts are turned into je~at ruies by deci.si"n-:
of suhjeet jud~e. t)te le~at ru!es which ettter' from t]ie cnstoms
ore <«';<'< (i'jtmoand.sof thé sovcn'i~n )e~is!amre. The statc,
whi';h i.s able to abo)ish, permit~ its ministers t'
cnforee them
and it, therefore, si~nifie.-i its pteasure, t'y that its vohmtary
acquieseetice, that they shaH serve as a !aw to thé governed.'
4 My prcscut pm'jw~ is Htcrety thi. ta pt'~vu th~t. th~
positivf tttw ~yh'ft <M~~<~ (aud !<ti pMtth'K iitw tna')''
jndt'itdtyj M cstitUiiihed hy tim ~ntu dircetty m dt'cuimusiy,
imd, t)tGt'cf(j)'e, is <Hf/A/-«/f<'<. t mu htr frotu '!i';])Uth)~, Uiitt !aw
nM<te jufiteiftity (or itt thé w~y <tf itnpMpm- h~ishttiM)) und !aw
tufutt' hy statut'' (or ht thf pt~pct-Iy It'~Mhttive nKtttiter; af'
di<ti))~uis)m't by W(.'i~)tty diitft'MM~s. t shull itt<jtin'e, iu fntm't-
tcctures, what tim.sc di))'frt;n''cs:))'c; !t))d w!ty subj~ct jud~
wh« ure pro{)C~y hum~tets ~i ttt« htw, ha vu c'~mm'uty "hto~tt
with thé .'<ovf)'ni~!t in thé busiufss of makiuK it.
assuutu, thfu, t)mt thu oniy hnv.s wttich (u-< u'~t irnpemth't',
and which be)'n~ to thc su)'j~ct-)u!ttte[' oi' jm'ispt'udeuc~, ure t)t(;
t'ottowu)~1. J~'dat'atut'y !aws, or taws exphtinin~ t!ic impott
ot' existhig positive law. 2. Laws ftbro~i.ti))~ or rcpcalin~
existing positive taw. N. Itnperfect !aws, or !aws of ituperteet
obti~ation (with thc sense whet'ein thé cxprussioti M used by
thu Huntan jm'ists~.
But thé spftf; occupied in t)ic scieucc by thcte hnpt'opd
kwit t.~ Mmparatively han~w M)d insi~ttiftcattt..Aec~)it~ty,
although 1 sh'tH take t)ictu into acconut, s" 'jften a.s r~fet' t"
them directiy, 1 shaU throw them uut of aceount ou oth';r occa'
sions. Or (citan~it~ thu exptfssio))) 1 shalt H)uit thu term /f<M'
to laws which ure impffative, uuless 1 cxtcud it expres-'ity t"
laws which arc uot.

LJ-;CTLI:EII.
Ix )ny first lecture, 1 stat~d or sug~e.sted thé purpose aud thé
mann'T of tny attcmpt to dutertuim' thc pmviuce oi jm'i.s-
pt'udeuec: to distinguish positive !aw, tlie appntpriMc nMttet' 'f
jurisprudettee, fmtn thf various objocts to which it is re!:tt.t:d )n'
resouUance, and to which it is t-cttttcd, netU'ty or ronotch', bv
a stt'ong or stcudt'r anido~y.
In puMuaucu of that purposc, and agreeaUy to that tuaxner,
f stat<'d the essentials of a !nw or rule (tnkt'H with thc !:n'c'<t
sigttificatiott whictt eau be ~iven to t!te term ~-<)/")-).
J,
In pursuancti ot'that purpose.attd a~reMhh' to th.tt tnaun'n,
1 proceud to di.stit)~nis!t hnvs set t'y ut"u to n~tt from
Hivinc laws which aru thu ultimate t''st of ituman.
th'
Thé Oh-ixe taws, or t))6 taws "f Cod, arc htws .<et Ly Cod
to his htnnfUt ereature.s. As 1 h:t\'c iuthitatcd nit'cady, and
shalt .show more fu!!y hett.-af[<'r, thcy arc !aw. or ruics,
so (;alh'd.
~<
 As tHstmguMKid from duties u~posed by huH~n !aws,
ttMtt~ MHpeaett by tha t~ivhte ~tWt MKty b& euttett M/~MW
~K<t'e&
As distin~uished fron viotations uf duties iinposed by
huntaM Iftws, vtotatMBs of retigiotH (httie:! ttrc styted ~<a.
As dist.iHguishe<t from sanctions anuexed tu inunatt Iawi',
thé sanctions annexed tu tho Divine taws may bo eitHud ~7<~<c<<
MM<<07M. Tht'y consist of thé cvits, or pains, which we ntay
su&et' hore or herettfter, by thé imtMmUate a.ppointtueMt. ot C!oJ,
aud o.s '««.«t/tt'M of brenki))~ !)is «.nnutttttdtufnts.
Of thc Uivine !nw, or thé Ittws of Cod, some Hre )'()'ff(/t</
or promuigtid, and othcrs are twn t'<-«/'< Such of thc taws of
<;rod us are uurevcated are not unfrequently deuoted by thé
t'otlowhtguMnesor phrases: thé Jawof nature;' 'naturat taw;'i'
titc !aw tuanifested tu man by thé light of natttre or reasun
thé iaws, prccepts, or dictâtes of uatural religion.'
Thc /-ttw<A. !aw of (~od, aud thc portion of thé !aw of C!od
which is «/<)-f~'c«/«/, arc toatiifHstfd tu )ue)) iu différent ways, "r
by dtiterettt Mis of si~tM.
With regant to thé !aws wh!ch God is pteased to M'«~, the
way wlterein they are ntanifested is easity conceived. They aK'
'.<M-! counuandii portions of thé «'M''< of Cod cotnnmnds
<i~ui(ied to inen throu~)) thé médium of humau langua~e an't
uttered by (!od directty, or by servante whom he seuds tu
announee thern.
Such of tt)G Divine Iaw.s as arc MMft'MfM are laws set hy
(~od to his human créatures, but not throu~h thé médium of
huMfHt language, or not expres.'ily.
Thèse are thé o))]y Jaws which he bas set to that portion of
mankind who are excluded from t)<e îi~itt of I!evetation.
Thèse )aws are bindit)~ upou us (who hâve acccss to the
truths uf Révélation), in so far as th': revt'aled law bas teft our
<[uties undctermined. For, thou~h his express déclarations are
thé clearest évidence of his will, we tnust !ook for ntany of ti)e
'tuties, which (~od bas imposed upMt us, to thé nmrk.s or signs
"f his pjea.-iure which are styied thé /< /'«/'<< t'. l'aley and
"ther divines hâve proved beyond a (toubt, that it was not thé
purpose of I!evelati"n tu disclose thé «'M<; of those duties.
Sf))n(j we could not know, without thé he)p of I{e\'f!ation; and
thèse thé reveaied !aw bas stated distinctty and precisety. Thé
rest wu juay know, if we will, by thc light of nature or reaso))
and thèse thé revea!ed !aw .supposes or nssumes. It pa.~s
thetu ovcr in silence, or with a brief nnd incidentat notice.
 But if Gu(! httAgiwH tM t~ws which h<t bas not~yettled or
~ton)Mtgctt, h<w shaM we htrow them ? What
«tt* thosë Stgtis ot'
hMpIeasure,\dueh we styte the ~< </ ~f~ ttiid oppose,
by that ii~urative phrase, to express deciitratiou:, of tus wiU ?

Thé hypothèses or théories which attetnpt tu reso!ve this

question, nmy Le reduced, 1 think, te tw~.

Accot'diMg to Mne of them, there nre hnmttn nctions which

(tH UM))kiud itpprove, huttmn actions which aU ttfen disapp~vc
and thèse univcy.-ial sentiments arise ut thé th'~t~tt of titose
Metions, sp'~nta)teon.s!y,instantjy, and inevitably. Hciug Cf~nm<jn
tf) a!I tnaukind, imd insfipfu'aUe ifuta thé thon~hts of those
actions, thèse .sentiMieuts a('e marks M' si~Mt «f thé Diviue pica-
sure. They are pruot's that tJte actions which excite them are
enjoined or ibrLidden by tho Deity.
Thé rectitude or pravity of human eonduet, or its agreetnent
or disa~reonent with the Jaw.-i of God, is in.stantly infen-cd
tr'mt thèse sentiments, with~nt thc pos~ibitity of mistake. Jtc
itas resolved that uur hap);iuess shaU dépend on our keeping hi-,
t.-onnHandment. and it manifest!y con.si.sts with his tnanifest
wisdottt and ~ood)tes-=, that we should know them promptiy and
cc-rtaitily. Aceordingly, hc hn.~ not eorniuitted us to thé ~"id-
anee uf our s)ow aud falHote /-t'<M«<t. Jte ha.-i wisely endowed
us with /«7f'/t~, which warn us at every step aud pur.<UG us,
with their importunate reproaehes, wheti we wander frutu thu
path uf our dutics.
TItese simple or in.crutaUe fee]in~ t)a\'c bcen compan'd
to those whieit we dérive frotn thé outward sensés, and hâve
been referred to a peculiar faeulty c-aHed thé MM-'<< ~/t-w;
tt~ough, adniitting that thé feeling.s exist, and art- proofs of thé
t'ivine pieasure, 1 am unable to diseover t.]fe analo~y whieit
"u~ge~ted thé contparison and thé uante. Thé objeets or
appearattees whi'-h proper)y are pereeivcd thron~h the sensés,
are perceived immediately, or withuut an infert;nec of thé
understandin~. Aecordin~ to thé hypothesi!; which 1 hâve
brietty stated or su~ested, there is ahvay.s an infeMnee of thé
u[)derstandin.n, thou~h thé inference is short aud inevitabh.
Fron) fee!in;~s wiiich arisu witjtin us whett wu think uf certain
actions, we infcr that those actions are enjoined or forbiddeu by
ti<e Deity.
Thc hypotiiesis, however, of a MM'f</ x'-iis' is expressed in
other ways.
 Th(.'l:t\vaofC:"d,towhichfh< f~'titt~infthfitXtcx.Mt.'
tft< M'
ehoM'tfm.
Mut ttHtMft~M(.!y UBttH.tt MMft/t' ~'<«'<!«.tJ ~~M&(<M
.«f~ ;«/ ,-t;<t; or ttn'yarc sai't to writtcn on our ht'art-,
)))'
by th< nn;~r of their ~'at Author, in broad and indfHbh'

C'fMMw -s«(w (t)K' )n" yichHnn and accommodatitt; ot

phnis~'s) ha.s bucu m'juld~d aud tittud to thc purpt~c «f expt'<s<-
itt~ t)K< hyputht'xis in '{m'stion. tu MÏÏ thfit' <)t;cisi"ns on thf
mcdttidu ut- pm\'ky ui' cuttdnct (i~ ~t'~UMUt. oï di~i~emcut.
with t)~ unt'cvfd'd taw),numkmd arc .Siti') to dctcrnuncd by
r</MM<w .««.«;: this sattu.' ''<M;M<~<t -st~.w )t)L'!H)U)~,itt thi't instance,
thé simple or insct'utitbte sumitufnt'! which 1 imyc endeavourud
to des'nbe. i
Consi<)''t'ud us att'ctiu~ t)m .sou), whun thf man tinnks
c'spceiatty of /<M fi'< e'~nttu<t, t))e«e .entiutents, fedin~), or
~nioti'jns, are frcqucntty .stytcd his <«/<.?'« «f.
AeeM'diu~ tu t)f othfr ut' thc adverse t!)c<M-ius or hypothèses,
ttn' taws oi' Cud, which arn not reveated or promue' tnust hc
~thcrcd Ly mau from thé ~oodmis:t of Uod, aud fmut ttM
tcndcneiM uf huinan actions. lu othcr wonts, thc bcnfvotfnct.'
ut' (!od, with ttt<' princij'tt' of genfrat utility, is our onty index
or ~uide to his unrcveat';d taw.
Uod designs thu happtuns.s uf aH his scntieut créature' r
Sottte htuuau actions forward that buucvolent purpose, or thcir
teudcncies are Lcuetieeut or us~t'ul. Othcr hunmu actions arc
adverse to that purpose, or ttteir tendent: are tuischievous or
pcndcious. Un; fortner, a~ prfjrnoting hi.-s purpose, Cod )tas t
"njoined. Tite latter. a'i oppo'!<~d to his purpose, God ha';
forbidden. Ile )ias giveu us thé i'acuhy of observing; of re-
mouberin~; ofreasonin~: and,bydulyapplyu)gthosefacu!ties,
wo tnay co)!eet thé ten'tencitM of our actiotts. Knowing thf
tendencies of our actions, and knowing his benevolent purpose,
we know his tacit command-
Such is a brief .-iummary of this cciehrated theory. 1 shouH
wander to a measurctuss distance front thc inain purpose of tny t
n'
tectures, if 1 .stattid idt thc cxptattatio)~ wit)) whi<;h that
summary nmst be ruccivftt. ilut, to obviait; thé principal
mi.sconceptions to which thf; theory is obnoxiou.'i, 1 ~iH subjoin ~i:

as many of thost' explanations a.-i )ny pm'j'osc and !i)nits will

adn)it.
Th(i theoty is this.Jnasmuch a-i thé ~oodncss of God i-
bonndtess and itapartia), ))'* designs the ~reatcst happine~s of ait
ttis scntiMnt creattues he wilts that t)tc ag~regate of thuir
oHJf'ytnottts &ha!t fmd no tMitrcr )imit' thmt thttt wM~h M Hteytt-
!tMy set ta it by thetr &t)itt; atnt trtr['crfppt nntnn?. Fronr th'

from tho tendcnci~s of Jtumau

~tt'
.}U;(tba.btM ciRiCtX Of OUr {tctiutt.~ U)t tt)M
étions
tKtpptHh.~ ~f tt!t,
ut- tu incrca.s'' or diminwh
that ag~M.'g:ttc, \vc may infer thc h\v.<! whidt ))c has ~v~-tt, but.
!(.<< ït'~t cxpfcssMd m' r<c!t)etL
Now thc ~«<~<cy uf it ttuuKin actiou (:t'< it.s t<;n')<;tt':y is thu~
mn.(Grstoo<t) M thé wh'jtc of its t~'t~cy thé sma uf hs pntbitb~
<;MtBeqnMtce9, tM f)U' as tJ~y nrf' i))tt"~taMt M' tH!<t<fi!t! th<* t
smu of its rcnMjtu aud coHttt<iKtt, as wc!i us uf ils dir~t
e~n.settuences.m su far as auyof it'i consc~uhnefis ntayinfhK'tK-e
thc geuemi happine.?:}.
Tt-yin~ to c'jih-'ct its tcndcncy (as its tendency is thus utid~i--
stood), we must nut considcr t)te action as if it werf Aw/~ and
;'<M!i/f<<M/, but must look at thé c/«.M of actions to whieh it
beloogs. Tim pt-obnb!c ~a'~ consequotecs of doiu~ that singtu
act, of forbcaring from tit~t sin~tc act, or of omittin~ that sinulc
act, nt'u uot t!tu objeet. of t)(e inquiry. Thé question to )~
sotved M thit :–If acts of thé c/fM~ ~wrp .~K<'?'< donc, m-
~'7<t~'«~ fortjot-ue or omittcd, what would be thé probaMu f;it'f<;t
nu t)te genemt happiness or good ¡
Considured by itself, a misc)nevou.s act may scptri tu be useful
or harmiess. Cottsidered hy itscif, a uscfui act tnay scem tu b~
pernicious.
For exaaipic. If n pool' Man stcal a handfui from thé heap
of his ricli neigtibour, thé act, considet'ed by it.<e!f, is harndp'
or positively good. Ont! mnn'.s [u-opcrty is assua~ed with thc
superf!uous weattit of anot!ter.
But suppose that thefts wcre ~neral (or that the u'icfu!
ri~ht of property were opeu tu fréquent invasions), aud ntark
the resuit.
Without sccarity for propcrty, there wm-c no induccment t"
suve. Wit)wut )mbitual savin;; on thu p.nt of propri''t<'r-.
thcre were no accumulation of éditai. Without accumuhttion
of capital, there were no fund ~r the paymGttt of wi~es, no
division of tabour, no elaboratu aud cost!y ntachin~s thm'~ wf-r''
none of thosc he!ps to labour which au~incnt its produetiv-
power, and, therefore, mu!tip!y thé enjoyntcnt'! of evcry indi-
vidual in the cornmunity. J''rc(tU(int invasions of propcrty
wouid bring thé rich to pov<-rty and, what wcre u grcater evi!,
w<udd ag~ravate thc poverty of thé pour.
If a sin~te and insu!atcd theft St-Mijt to b<; !iarm!e.ss or ~ood.1.
thé fattaeious appcarancc tncrdy arides frotu this that the vast
tH~nty nf th"së who Mf temptod t~ st~! absttMt):~'<tht mvtM.ion~
o~ p~perty; KHtt ths (t~rhnoHt ? spcKt'ity, whtch thé et!<{
pt0thn:ed by <t Mugis thoi't, wm-bt~H~d tnnt cMK'.<Mt!ed by thé
mass of weahh, thé accumutatiuu of w!tich is prudueed by
gênera! seeurity.
A~ptitt If i évade thé payment of a. tax ituposed by !t good
~oventuiftit, thti eit'eets ùf thé tuiscttMvous i'orbefu'fmef!
Np<'c</<c

!U'(t indisputHbty ttscfu!. F«r thc moncy witich t unduiy w!t!)-

huld M ~uvcttMttt tu wysetf; und, wKt~Hftt Wtttt t'ht* bntk "f
t)te public t'evenue, is a quantity too stnitH tu Le tnissed. But
thu )'<~uhu' ptymeut of taxes is necfssttt'y to thc existence of thc
'ovct'umMtt. Aud I, and thé rest '~f thé cumomuity, cnj(~y thé
security M'tiK'h it ~h'es, because t)t<j payment ot' taxes i.s Kn'c)y
m'mtcd.
In thé cases nuw supposed, thé act m- on)i.sst0)t is ~ood,
cottsidered as siu~h: or iusulated but, considered with the rest
~'t' it~ class, i.t evit. lu othcr ca.scs, au act or onusaion is uvil,
''un.'ddprcd as single or insutated but, eMtsidercd wit)) th<: rest
'~f h~ etas", i9 t;(Md. <
Fur exittnptc, A punishtuent, as a soHtary fact, is au uvi!
thé paiu int!i<;t'd un thé criminal bt;iug ad'd to thc tuisc-hict'
~f ttif crituc. J}ut, eonsidered as part ot' :t System, M puni.~h-
)nent is u<ei'u[ or bcneticent. Hy a 'kx~n or score of jjunish-
Ment- thun.<an')s of cruaes arc prfventfd. ~Vith thc sufterit)~
';t' thé ~uilty i'ew, thé security ut' thé tuany is purchased. ~y
thé luppiu~ of a p<:ceaut nt~tther, thé hody is saved iront decay.
It, theret'ure, i.-i true gGueraUy (tbr thé proposition adtnits of
.'xceptiom), t)<at, to détermine thé truc tcndency of an act,
t'orbearanee, or omission, we must re.~otve thé foHowin~ question.
–What woutd be thé probabtc e)!'eet on thé général happiaes.s
~r ~oud, it'Mtf7f«' acts, forbearances.or omission. were ~encrât
or fréquent ?
Such is thé <t~ to which we must usually resort, if we
would try ttie true <<;M<~t<-y of an aet, forbearance, or omission
MeaninK, by thé true /t</<:K' of an aet, forbearanee, or otnission.
thé sum of its prohab)e eitects on tho genend happiness or gocd,
~r its a~reement or disagreement wittt thé principle of ~enerfd
utility.
t!ut, if this be thé ordinary test for tryiï)~ the tendeneies nf
aeti"n' and if thé tendencies f'f actions bo tho index to the wi)t
~f Go't, it fo))ows that most tjf his commands are gênent! or
uni\ ersat. Thé useful acts which he enjoins, and thé pernicieux
acts whieh he prohibits, he enjoins or prohibits, for the mo<.t ')
 !W~ Hot sît~ty,. tM by citées: uot by comtmwb which aro
t~ttMuï&f, ot- dn~cfett MMHttMtift e<t~; but by hwt
which !tre ancrai, (nnt (MuuMidy mitcxiblu. or rntf'~
tôt' ~X!Utip!e. Certaitt aet.<! arc pcmicious, cottsidered
as a
chMs or (in otJMf wor<)s) thé t')-fqt)ent K-petition of thé let
wft-o attvcrsc to tho ~u<~a! ))t(pttin< thou~h, in this
that instimcc, thc act nt~ht t).tul w t.arhttcss. I-'m-HtO-or
Sttc)t id-c thu tnutivcs or induccntaot.s to tim f.mt))issiot)
&f
nets of tho elass, UM).t, UM~s. wa w~t-e (tot«r)nim'd tu f~t-tM~mne"
by t!M fcftt- of pnuishtt~ot, thcy t<< b<- frequotHy c.j)unutt<).
Xow, if wc contbine t)tMG f/«~< with thc wi.~tfjnt nod ~oodut-s-
ot' God, we tuust infur that !.<' furt.ids snc)t acts. mtd' jbrhid.<
thutt) «-M««< M.<.<~«M. f,, thé tcttth,
or tho hundi-cdth case,
tite net )ni.a:ht hc u.-ieftti m tho xinc,
or thc uinety and nme,
thé act wou!d bc pcrttk-ious. H' t)tn act })'urn.itted
were or
to!ti)'un-<t iu thc Ktru and :mo)))!)).jus case, thé motiva
tu fori~ar
:n t))e otiters wou).) bc Wt..a)~und or destruycd. ht t)m hmi-v
and tmautt of Hutton, it is itar-t t.~ di.sth~uish jn.stty. l'o
~-asp
at.ptesent cujoyu~tt, aud tu tum fr&tu p~etit HnoMtn~ h
the Itat.ituat htctinatiuu of us aU. And thus, thro~h thé

our witts,
cutbt-actid
w<j shou)d
by thé rule.
frequently tlie
weakunss fjf om' jud~nent.s, and thc ttfore dangerons iniinuity
exception to
of
(..a<L'.s

Con-sequentty, wftere acts, t;<.ns:()c)~d as c)a.<s,

a aru usct'u)
or ]wrnieious, wc tunst conctude that )tf eujoins or forbids thon.
and by a )-!<~ which pro:t)~y i.s initexiDe..
8uch, 1 say, is thé concht.sio)) at w!tich
we tuust arrm-, tt
-sup))o.i)~ that thé i'~ar or puttishtnext be m'CGMat-y to incita
or rustmin.
For thu tundcney ci' an act i.s oxe thh~: the utility of
enjoinin~ or forhiftdin~ it is another thin~. Therc c]a.ses
of u.~ful act.s, which it wcre usdMs to en.juin atv cla-~es of ]'!i
tnischicvous acts, which it werc usctess to prohihit. Sanctions
were suporftuous. Wc are suOicMnth' prôneto thc useful, and )'"
!iuft)cie))t!y avo-se ft-om thé nusehievou.s act.s, wititout
thé
motivM which ar'j preseotfd to thé will by law~ivur. ~fotivt-.s !i
a
't«<t<}-«< or spontaucr.us (or motives o~o' that. titose whieh
':reatcd hy iojunetions and prohibitions) i)t))x-) us to action an;
i).
t)M onc case, and ho!d furbearanec in
us to thé other. In thL-
bn~oa~e of Mr. Loc)~ Thé tuischievon;! omi~ion or actiou
wou!d hrin~ down evits upon us, winch
or consequcHCM; and whieh, as H<~f~
its ~<<«/ pr..dK(.-ts
inconveniencM, (~)at(;
M-Mo«< « /«)<
 Xow, if th~ measufc or t~t whic!t 1 haLve ëhucttvouteota
tMtttbtia bc thé ottttHttt-y tMCtt~M~ <n- t~~ fftt- tt'ytHg thc t~MtëncM't
<tf ~ur a~ious~ thé most cuu'em. mut Sfe'tou~ of t!)e objections,
which !'t'e 'itade tu thf theory of utiiity, is founded ht [

mistake, attd H open to triumphant r<'tnt«tion.

Thé UtfOt-y. ~f it a!w<ty) yuttMmbfn"), i< this
Om' muth'fs tu 'jboy thf taws whi~ti t-tod bas ~t\'eu us, :n'c
{):u-:nuuttnt to aH others. For tho tmnsicnt picasutt.'s whtctt we
i

Mttv itHtUch, m- t~e tmnsMttt. ptum winch w~ ma.y

shmi, Ly
vi-jtatini; thu dutifs whtctt ttK'y intpûse, M'u nothmg :)t com- t
pan.s'jtt with thé pams by whi<h t)tuse dutics M-e sanctioued.
Thé ~r~atest possiLk happitu.'s'} of fdt his St'tittent crcaturt's,
h thc purpose and ntt~ct of those htws. For the betMVuh-ocG
by whic)t they wcK pt'utnptcd, aud tlu' wisdunt with which they (

were planned, equat the ndght which unf"t'<;es thum.

Hut, smjin~ that auch is th''h- purposu, they ctubraetj- thé <

<f~t ûf our conduct so far, th.tt is, ft.'i our cunduet may pt'
tuotu or obstruct that purpose~ tmd so fat' as iojunctions aud1
ptohihttMtts are MCMaat'y to coMeet. um' d~u'ei*.
In su fiu- as thé laws of f!od ai-c c!ear!y ""d indi.sputabty
revcalcd, wu are bound tu guide our couduct by thé plain tueau-
iu~ of their tf)-u); In so far as they are not reveated, wu tnust

duct on that .</« /f<

rcsort tu anottu'r ~uide ua!ne!y, thé probable eHect of ouf con-
or which is thé objeet of thu
I~ivino Lawgiver )h aU his laws and coouuatKhncut'}.
lu eaeh of thcse cases ttte .~«<w of our duties is tlie satne
thou~h t)te ~'w/~ by whicit we hoow them are différent. Ti)e )

principle of ~uemi utitity is thé <~< tu tnany of thèse duties

but thepritieipleof général utilityis not their./c«K/f«'M or .~<<.
t'or duties or «bh~ation-i arise from eonunands and sauetions.
And eommands, it ia iuanifest, procecd not fron abstractions,
but front living and rational bein~s.
Admit thèse premises, and thé foHowing conclusion is in-
évitable.rite t't'~t- of our conduct should bc guided by thé L

pnneiptti of utiiity, in so far as thé conduct to be pursued !MS t

uot be~n determiued t'y Ke\-c]ati'n. For, to eonfonu to thé t

principte or nmxhn with w)tich a hw coineides, is equivatcnt tu
ubeyin~ that !aw.
Such is t)te theor)' which 1 hâve repeated in various forms,
and, t f.-ar, at tcdious !ct~th. in M-der that my youn~er )tearers
uii~ht (;f))tcei\'e it with due tUstinctne-;}.
Thc f un-ent and specious objection to which T hâve advertcd,
)nav be stated thus
:.t
PtM~HL'M and pain (or ~ad aud Mit) :u'e mseparaUy coH-
n~ct<Mt. Kvct'y ~t0~mv& act, ~n4 ~Vt~y t'wb';(t)'<tttf ~f wnistiott.
f') folhwed by hHtu';<.Untf!yor tcmot.e~ du-ueUy oc <;oi-
hth-r.dty, to our.sctvc?! or tu ouf fcH'tw-ercaturM.
Cons<m<))t!y, if w<* stt'tpc otn' comiHpt .;))!}t!y to thc pritt-
ctpk uf ~cttt't-.t! utiUty, Mv'fry c~cti'~ which Wf make t"'twccu

t'"H~\vinij{tr<M'<"M. /<
J'~htn ut- furbcarht{{ ftutn im act will b(j }~<<:d''d Ly t.h~
Wc~)(!()I<;onjecttu'Gthf'f")i.sfqufnc6.s
ut dm .n:t, aud itt~u thu cotMMtUcttCtjS (tf t.hb fut-~anmcu. ~'<M-
thf.~ oro thc 'ornputi))~ ~tcotcnt.-i of tjtttt ~<A</<<, whi')),
ttCcot-'Hng tu our ~ttidiog pt'iucipic, wc fu'u tjf~und to makc.
tS*Mo/t'y Wc simH cDmpfu-c th'j conscqucttces <jt' thé act with
tlie conscqtK'tiees ")'
thé i'ot-hGamnce, and <ktertuin<' thc set ~i'
eon<(;qucnces which ~n'c.s thé &<«' of adviUtta~c whicit
yifU.t the hn~er rMiduu of pro)jfth)<; good, or fadoptin~ a
j din'ct'unt, titott~h exactty c~uivatcut MXpru'ssiun) wltich k'uvc'j
thé stntdtcr residuc oi' pt~bitbtc cvi).
Xow let us suppose that we actuaHy tricll th!s procès~,
,t Lefum we arrived ut our te.'iflves. A)td Utftt let Ha mark the
ith.sm'd and tnisctticvou.~ cHucts which wou!d {nc\tabty f'jH'jw
our attempt~.
Ceucrany spcakin! the period fdtcwed for dG]ihMmtion is
brief: and to Jcn~thcrt du!tber:ttioh Lcyoud that !itnit<d period,
i-! <'<~tiva!ent to forLciu'anee of otnis-jiutt. Cu)).su<)ucut!y, if we
perfonned tins ctabomtu process cotn;'tetely and confcttv, we
shou!d "fteo dffcat its purpose. Wc shoujd ahstaiu front aetion
atto~thur, though utility t'equirbd us to act or thu occasion
for acting <«//v would stijj throu~)) uur fin~ers, whiJ.st \vc
wci~hcd, wittt anxiott'! s<;rupu!osity, t)~ merits of thé act auft
thé forhearanee.
Hut fHe!in}{ tlle necessity of rc.soh'ins pron)pt!y, wc shoidd
Mt~ pcrfonn thé proccss co)nptt-tc]y a)u) con'cctty. Wu .shonid
~ucM or conjecture hastity the cf)'L'f-t<! of thé act and thu for-
bfanmcc, aud cootp.m' thcir n'spc<:ti\'t; Gftcets with equ:d prc-
t-ipiuutcy. Ourprcmiscswxdd ocfnJ'.G'u' )tnp<rff'ct; ourt.-on'
ctusions, badty dcduccd. I.!t)n'u)!)~ to adjust ou)- c<j)tduct tu thf
pritK'ij'Ic ofKH)x.'rat utijity, wu s)iou)d work im'vitahif nti.<c))i(.'f.
And suc!t Wt;rc t])M e"ns(.;<tue))C(.'s of foH«wn)~ th<' principe
)) "f utitity, thou~h \ve sou~ht thu truc a))d thc u.ufui with
shnpticity aud i)t (-arncst. ttut, as wc t'ontmt.tdy prr'fc'r our
own to the httct't'st.s of oxr )'<d!ow-crcaturc' aod "ur owtt
ihnandiate to our own r<'mott; intcrt'st- it is ch'ar ttiat wc :thou!d
i. warp t)M prnx.-iptt; to seltisit aud sittistcr ends.
s,
 ~Tho finatcKHseorpHrjmseofthe~ïviMeJitws M thogonct'tt!
tiapptness. M ~ût)J. But tu tmea thc cMueE of MU' f)cduc~ «H
thc ~ctK'Kt! happincas or ~ood i.<! Mot thc \vny to ktiow them.
i!y consuttinn und obt'yin~ thti laws of Uod wo promotf our
own happinfiii àtild th~ httppincsit of our t'~Uow-cmutut' Hut
WH shoutd /<o<' consult his Ittws, we sitontd /f~ o)wy his taws,
aht), so i'itt' m ia us hty, wc shontd thwart theit' bum'vokn~
<tp.')i~n, if w<j nmde thé ~enerid )Ktppim'ss (~u- oh~ct <jy ~nd.
la n bt'<:at!t, we shoutd widcty doviate <~ <~r~ from thc pt'in-
cipte of ~cnm'al utility by titkittg it as thc y~<W<' of our cf~duct.'
Sud), t bflievo, is thc HK-anin~ of those-if thcy hâve a
)nc:t)m~–whu object to Lh~ p)'i)n'tt'!f ff utitity that tt wem a
</<t~<f<<.< principh' of conduct.'
A.st)tt' (')'jcet'n-s are ~(mernUy pft-son.s littio Mccustnmed tu
dcar and (~t~ruiiuatt.' tttiuki))~, 1 ata uot ~uite cm'taiu that 1
hâve cottCL'iYud the objt'ctiun t-'xactty. Hut f hayu cn'tcavourc~
with pcrt'uctty n~d t':m)t to undcrstand their ttK'ani))~, and as
t'urcihiy a'i t 'au to statc it, ur to statc thc tuost ratiunal tucan-
it)~ which t)icir wo)'d.< can ))n su~poscd to import.
It bas buctt sai(t, itt attswct' t" this "bjfctio)), that it involves
a cotttmdiction iu t':r!n.'). ~/iy'f is auothft' uatoe for ~'u~<&
;t<M'7it' And, suruty, wc hust av~rt thé pt'obabte miscincfs "f
uur couduct, hy eun.jccturing and cstitnatios its pn.'babte consf-
qucnccs. To say 'that the {n'iocipte of utility w~M a </M;)~<'M)<-<
ptiHciple of conduct,' is to say 'that it werc contfary to utility
to e'm'.utt utitity.'
Xow, thountt this is so bt-icf and l'ithy thttt. 1 heat-tiiy wish
it wcrt: conutusive, f must nced~ admit that it scarœly touetics thc
obj~cti~t), and t'aUs fat- short of a erushi)~ réduction to absurdity.
For the objoctiou obviousiy assutncs that wc c'<M?to< fot'tisce and
f~timatt' thc probable u)~t. of our eondact that ifwc attemptcd
to catcutate its nood and ils evil eonscqumice'i, our pt'csuntptuou;!
attMnpt lit catculati'~u would kad Uti to crror and .sin. What is
eontendnd i.s, that by thc attcmpt to act aeeordint; to utility, an
attempt which woutd not lie sucefssfu), wn shouh) duviate from
utitity. A proposition iuvotvin~ wl~'n fai)'!y statcd nothiu~ iikc
a contradiction.
But, thon~h this is not thc rcfntation, th~tt' M a réfutation.
And n~t, tf utitity be our on)y ind''x to thc tacitcomtaands
of thé t~fity, it is i'H(j to obj':t:t its imp';tt'ectio:M. Wu nmst
<ca taakc the most ot it.
If wo w'ro endowed with a Moiv</ .«:M.s<, or with a ''<:M«)'~t
<')<.«', or with te ~'(«;<t' ~w~Mi, wu -icarcety shou!d constrac his
eoHHn<MM!s by thé pHttciptcof générât utUity. If our soub w~
i'~mished eut with !?!«? ~'H~cM~ Mt<;t~,we s'.ttïech* shf'aM
rnad hit eomnmnds in thé tHtidcueics of hunMn nctiuus. i-'w, t<\
thé .suppositton, ]nau M'outd b<; ~iftcd wit)) a pceutmr or~ut for
acquiringo,ktio~'Icd~e of hta dutias. TtM dutn-:s mtpost'd by
the DMtty w<.)ukt bu subject~ of itttMtCtt!at<i ennsmxusH~ss, nnd
cotHpktciy exfjtuptcd f~ui ttM jun.~ieHMh«f tjhst.-t-YttH'jit aud in-
ductiMt). An attumpt tu disphme that invmdMe consL-tousuM.
aad tu thrust tlie pt'incip~ uf utili~' iMtu thé vacant .wat.
wunM be simp!y htipo.s:<ible aud )oanitu.st)\' aL.-m-d. Au ttttMtq't
to taste or suHill by ibt'cc of syn'~istn, w~ tt"t Icn itûpcf'tti o)
judtcMus.
Bot, if wc are uot ~ifted with thnt pecnjiar M-~m, wc ntust
take to thé pnuciptu ut' utiïicy, let it bf ncver so dcfcctiv~.
W(j tuust ~ath(;r uur dutif-s, ft. we enn, fmut t)~ tt-ndenci~ fj)
hutuitt) actiuu.s or rctuain, at our owu peut, ui i~uMtmc); oi
our dotics. Wc tnust j'ick our scubi~us way witi) thu h~p o)
a g!im)ucna~ li~ht, ar waudur m pt~found darkncss.
Whether thet'e bë any ~ruund fur ttt« hyp~th~t.-i ot' a M~f"' T~
.!tM~< M a question whit.-h 1 shall duly ux:mn))t- m a i'ntun-
!cctm-f, but which 1 shaH not pm-sue in thé ];i-u~ttt p]:(c- l-'or i"x
thc présent is a convenient phee ib!- thé httMducti'~) ut :)nothcr ~?'
topiu naMdy, that they wJM advanee thé ot~euon iu 'tUMti'a) '<
inisunderstand the theory wjtie!) thcy p~smttc tu itupu~t.
Tht'it- objection is foundcd ou tlie Mlowiu~ assuuipu-nt.
Tjiat, if Wt; '.(jjusted oui' conduct tu thé prht<;ip)M "f ~~nt-Kt)
utiIit),cvcrye!cctMn which wc umdM b~twucn d"i))~and iur-
bearin~ frotn au act wouLd bc pr~CM~d by n Mt/<'<«~(//t b\- utt
attcnipt to conjecture and eotnpari' th~ respectn'f prob~~f co;)-
scttuctmcs of {tctiMi and furbcaraucG.
Or (chtu~it~ tlie exprfssioo) thuir assMnption i.s
That, if wu adjusted our e'juduet t'
thi.
tbe principe oi' ~OK-ra!
utility, our conduct w<'u!d aJ~-ays b<; dctcntiittfd by an ituh~di-
ate ot' direct )-c.sf)rt to it.
And, grantitig their as.stnn~tioit, 1 ~KU)t thfir int'crcnct;. 1
grant that thé pri)tcip!e of utility w~M a h:duu~ aud purbHnd
guide.
Dut thcir assmmption M ~)und!ess. Thfy arc battcrir~
(attd most eHectua!ty) a mivMtception o)' their own. whitst tjtf.y
iancy thcy nrc h~rd nt wo);l: detxoiishin~ thé tht-ory which t!<cv
Itat~.
For, aceordio~ to th~t theory, our fondu't wou)d confot-u)
to )'t'~ infcrred t'rotu thf tenduncit-s of actions, but wou!d ])ot
be doteïMtned by tt ditect
tesort to thé ~Mncîpte of gancrat
HtHity. ÙttHtywonM b& thë tes~ o~ ow condnct, ultimutely,
bHtaotimmedMtely: thé immédiate t~tof the ruicstp winch
our eonduct would conform, but not thé immédiate test of
spécifie
or individual actions. Our m!es would be fashioned on
utility ]

our eonduct, on our ruiea.

Reeall the true test for trying thé tendency of an action,
and, by a short and cMy deduction, you will see that their c
tt3'}MmptioM i9 groundte!
If w<i try thé tendency of a spécifie or individuel
would
act, we muât not contemplate thé act as if it were single and
insulated, but must look at thé class of acts to which it belongs.
We must suppose that acts of the class were genemUy done or
omitted, and consider the probable effect upon thé général happi-
ness or good.
We must gués? the conséquences which would follow, if
acts of thé class were général and also thé consequences which
would follow, if they were genemlly onuttcd. We must then
compttre thé eonseqttenceaon thé positive and
négative sides, and
determine on which of the two thé &a~<Kee of advantage lies.
If it lie on the positive side, the tendency of the act is
expression)
good or (adopting a wider, yet exactiy equivalent
thé general happiness requires that arts of the c~<MS shall bo
done. If it lie on thé négative side, thé tendency of the act is
bad or (again adopting a wider, yet exaetly équivalent expres-
sion) tite general happiness requires that <!c<s of thé c/<MS shall
be forborne.
In a brenth, if we truly try thé tendency of a specific or
individual act, we try thé tendency of tlie class to which that
act belongs. Thé ~<M'<teK~M' conclusion which we draw, with
re<'ard to thé single act, implies a ~HC!'«< conclusion embracing
nll similar acts.
But, concluding that acts of ttte class are useful or pemi-
eious, we are foreed upon a further inference. Adverting to j
thé known wisdom and the known benevolcnce of thé Deity,
we infer that he
enjoins or fort'ds them by a général and
inuexible ~/<.
,S'Mc/~ is thé inference at whicl) we inevitably arrive,
supposing t
that tlie acts lie M<cA as to call for H.c interventionof a lawgiver.
To !'«/M thus infen-cd, and lodged in thé inemot-y, our eon-
duct would conforin MKM~M~y if it were truly adjusted to
utility. To eousider thé specifie conséquences of single or in-
dividual nets, would seldom consist with thnt ultimate principle.
 Amt our conduet woHid. thetefoM~ ba gmth~d by ~-KC!coacta-
Mons, or (to speak more acearatety) by interred from thôse
eonetusiot~.
But, this being adrnitted, thé aecessity of pansue and cal-
cutating, which the objection iu question supposes, is an imaginitry
necessity. To prefitee each act or forbearanee by a conjecture
and comparison of consequences, were ctearty superftuous aud
inischievous. It were clearly supedtuous, inasmuch
as the
result of thttt proeess \voutd be cmbodied in a known Jt
were clearly niischievous, inasmuch as thé <MM resuit, would Le
expressed by that ruie, whikt thé proeess would probably be
faulty, if it were done on the spur of thé occasion.
Speaking generally, human conduct, ineluding the human
conduct which is subject to the Divine eommands, is ine~taUy i
guided by Miles, or by ~KCi~M or Mt<M'i'M&
s
If our expérience and observation of particulars were not
~MM'~Mcf~ our expérience and observation of particuiars would
seldom avail us in pr«f<<'M. To review on the spur of the
occasion tt host of particulars, and to obtain from those parti-
cuiars a conclusion applicable to the case, were a process too
slow and uncertain to meet the exigencies of our lives. The
inferences suggested to our minds by repeated expérience and
observation are, therefore, drawn into ~M<M, or compressed
into ~MM-:m& These we carry about us ready for ~so, and apply
to individual cases promptiy or without hésitation without
reverting to the process by which they were obtained or without
recaUing, and arraying before our minds, thé numerous and in-
trieate considérations of which they are handy abrid~tnents.
This is the main, though not the only use of <7< whieh
ignorant and weak peuple are in a habit of o~oMK~ to praetice,
but which is essential to praetice guided by expérience and
observation.
"Tis true iu <A<o~; but, then, 'tis false in ~<M<M< Such
is a common talk. This says Nood!e propounding it with
a
look of thé most ludicrous profundity.
But, with due and discreet déférence to this worshipfui and
wei~hty personage, that winch is truc in </<e<~ is «/.? true in
~<'«C<t('<
Seeing that a true thcory is a <-oH~cMf~'«m of particutar
truths, it is necessarity tme as appUed to particular cases. The
terms of thé theory are genernl and abstract, or thé particular
truths whicit thé theory hnpMes wou)d not be abbreviated or
condensed. But, untess it )'e true of particulars, and, therefore,
tntcrntpntctîee,ibtmi} no~A <tt aH. ~~isnhvnyspttrtt. :1
c).tln~ ttMtt~h ~K~wy H cotmnonîy ~ttCM~L Utdess tkc tuïiuit J
ot' a tht.ry can hc rcMh'cd into pat'ticuhii' tniths, tho thcbry is
nn't'u jargon cuil of th".w s~ttKfk'.ss abstractions which oftcn 1

eusumv thu uMf~'«c~ aud in whieh thu wit~ uf tha i~uuruut. tu'a ..{
cci'Utinty cau~'t "nd entttx~h'd.wheu they stir [rom thé tmekot' j
authority, inut vuture tu thm){ for di~m.sdvfs.
Tt)''y who talk ot' theory as if it w~-c thu antngonist ot ?
pNetict', or ot' n thm~ hein~ truc in </«~ but uot truc m
/ct, mcau (if t))t'y ha\'e a tufanit)}.:) thitt the theory in ques.
tion i.s fn!su that t!)c particutar tt'uths which it conect'us arc
tr~atfd impft-t'ectiy m' im'ut-ruct!y and that, if it Wfre appticd
in practicc, it uu'j.ht, thm-ufuM, unskad. They ~<~ that truth in
ttieury is uut tt'uth in p~acticc. T)tt-y //«'«? tliat tt fitlse t)~ot'y .¡-

is not a truc onc, aud uu~)tt Icad us tu practical GD~rs.

SpcakinK. ~'f". ~encmHy, inunau conduct is iuevitaUy ~uided
~<t'f/
by <'«/t'.f. or by or ~«u-<<A'.
Th~ hmnatt conduct winch i.-i .'iubjuc't tu thc Divine com-
tuauds, i.-} not oniy ~uidud Ly /'M/ but al:<o by ~«/ <!tK<<MO(~
a-foeiatu't with thosu t'utfs.
If L bfii~vo (tto tnatter why) titat acts of n class or <kserip-
tiuu are cnjomed or forbi'tdcu by thu i~ity, a murât sentintuat
or i'udiu~ (or a sentitntjnt or tculin~ of approbation or disappro-
batiou) is inscparabty comieeted in my mind with ttn' ttto~ht
or eonecptiou 'jf such acts. And by this 1 atn ur~ed to do, or
ru'itmiucd fro))). doi))~ sueh acts, akhoi~h 1 ndvcrt not to t)t'-
rcasou in witich my butict' ori~iu.ttfd, nor rccaH ttic J divine rule ;1
which t tiavc ini'ft'rcd from that l'ea.sou.
Xow, If thé reason in whie)i my buin-f orl.nioatcd bc thu
usefut or pcrntciou.'i t~nd~nL-y of aet.s of titG ctass, ttty conduct
i.~ truly- adjasted to tlie pnnciple of ~t-ncKtI utility, but
my
conduct is not detct'mined by a direct re<ort tu it. It is direetty
detertuincd by it.M<<Mt.<i/ associat':d with acts of the elass, aud
wit)< the rute which 1 hâve iutbt-t-cd from thdr teudcucy.
If tny couduct bu truly ad)ust<;d to thc prmcipk of ~nuMl
utility, !uy couduet i.-i ~uided ]'cntot(;)y by t'a~,M/'<t. But.
iuuuedifttcty, or at thc ntomeut of action, !ny conduet is deter-
tnined by .<'K~'M«/ 1 a)n swaycd t~y A'<Mt(M< ns imperiousty
as 1 ~M<~< be swayed by it, supposin~ 1 werc utt~rty unabh:
tu producc a reason for my couduct, and were rutcd by thc
capricious ft*etin~;i which are styler.l thé moral sen'se.
l'or exampte, ttcasons which are quite "atisfactory, but som-
what nuux'rous aud intricatc,convi)tcen)uthat thé miititutiou of
 proppt-ty M necessary to thé ~etieral good. Cohvinced of titls,
rthefts
M& CMHvhteed t!Mt thJft* tM'e perhtMMtt. (.'MHvitt'd tttftt
are pernictous, 1 iuter that thé ~eky forbidx them. bv a
gênera! <md inftexibk ru)e.
New thé tmht of iuductioM :tHd rcttsonin~ by which ï nn'ive
at this ru!e, is sonewLat t~n~ nn't c~bomt'j. Uut 1 am Mot
cutnpeUcd tu repu~t thé pmeess, h<it'uM 1 ~m ku~w with cert!)inty
th<tt 1 .s!i~u!<t fM'beftt' from tftktt)~ yo~r purse. Throttsh
jny
prc\'Mu.t h~btts of ttiou~ttt ttad by my eduetttiun, <t ~<:M<t«t<~t~ «/'
«!<«yt hns btieutnc nssociated in My mind witii thc th'At~ht <jr
cfmccption of <t </<c/ And, without advcrti)~ to t!M rensons
whieh itave convineed Me that theff} M'e p<<nicious. M- without
ndvct'tin~ to thc nde which 1 hâve infen-ed from their perttiei'u-~
tendency, 1 am detenuiocd by that ready émotion to kecp nty
Angers from yonr purse.
To thiuk that tho theory of utility woutd .s«~<7K~' caleuta-
tiun for sentiment, is a gros.<) and Hagmut ct-ror the error of a
shtdtow, preeipitate uudet-staudt))~. Hu who <« catctdntion
and sentiment, opposes thé rnddet to thc saH, M' tu d~ brcMe
which sweHs the .sait. Calcuhtt!on is thé guide, and uot th''
auta~onist of sentihient. Sentiment without ea!cu!ation were
Hind nnd eapricious; but catculatiou without seutiniOtt WL't'c
iHert.
To cmsh thé mond seutimeuts, is not thé scope or purpose
"f thé true theory of utility. It seeks to Impress those sentimuut-s
with a just of beneficent direction to t'rec us of .'y<'o'<)f/M
hkings, aud from thé tymnny of sen.seless antipathies tu fix
uur love upon thé usefui, our hâte upon thé penticious.
If, then, thé principie of utility Wfre thé presidiog ])t'incip)e J
of ottt' cottdttct, our conduct wou!d be detertuined imtnediatciy i'
by Divine ?'K/M, or rather by moral ~~t'MtM~ as~oeiated witit .i
those rutes. And, coit.se(tuent!y,thé application of thc prittcipte
of utility to particutar or individua! cases, wou)d neither be r
nttcnded by thé en'or.s, nor foUowed by thé mi.=ichiefs, wj)ich thé
current objection in question supposes.
But thèse eondusions (!ike most conc!usio))s) must. lie taken t
with limitation: )
T))ere ccrtainly are ca.e.s (of connarativeh' rare occurrem:e)
<
witcrcin tha specHic considerati'tU.s b:dam;e or outwei~h th<i
genettd cases which (in thc lan~ta~e of Hacoo) an' innneMed
in matter:' casc~ perptexed with pecutiarities fx'm which it were i j
dan~eroos to abstmet them and to which our attention wo'dd
·
bo ttirected, if wc were true to our presiding pnncipk. It were
t
mischMVMM to départ from a rule whitth tegarded sny af these
caiMS, since cvery d~pMtum &um a rais tends to weaken its
authority. But sa important wcre tho .c~ conséquence!!
which wou!d follow our résolves, that thé evil of observing the
rulu might surpMS the uvil of bi~aking it. Looking at thé j
reasons from which we had infentid tho mie, it wero absurd to j
thiuk it in{!exib!c. We should, therefbre, dismiss thé TK~; resort
directly to the p~<M<t~(' upon which our rules wcre fushioued
tutd catcutato ~cc~c consequences tu tlie best of our knowledge
and nbitity.
I''or exampto. If wo take tho prineiple of utility as our index
to thé Divine commands, we must infer that obedience to
established government is enjoined generallyby thé Deity. For,
without obedience to thé powers which bo,' there were little
security and little enjoyment. The ground, however, of the
inference, is thé «<<y of government And if the protection
which it yieids be too cos</y, or if it vex us with ?:fc< restraints
and load us with K<'t'<MfM exactions, the principle which points
at subnt!ssion as uur générât duty may counsel and justify resist-
ance. Disobedicnce to au established government, let it be
never so bad, is an evil For the mischiefs inflicted by a bad
govemment are less than the mischiefs of anarchy. So moment-
ous, however, is the difference between a bad and a good goverm- .1
ment, that, if << w<M<M ~<t<< <o « good one, résistance to a bad one
would be useful. The anarchy attending the transition were an
extensive, but a passing ovil Tho good which would follow thé
transition were extensive and lasting. Thé peculiar good would
outweigh the generic evil: Thé good whicit would crown tite
change in the insulated and cccentric case, would more than
compensate thé evil which is inséparable from rébellion.
Witether resistance to government be useful or pemicious,
be consistent or inconsistent with the Divine pleasure, is, there-
fore, an aMoma/o«s question. We must try it by a direct resort
to the ultimate or presiding ~tMei~/c, and not by thé Divine
)')</<: which thé principlo elearly indicates. To consult thé ruie,
were absurd. For, the rule being gênerai and applicable to
ordinary cases, it ordains obedience to government, and excludes
the question.
The members of a political society who revolve this moment-
ous question must, therefore, dismiss thé rule, and caleulate
specific conséquences. They must measure thé mischief wrought
)~y the actual government the chance of getting a better, by
rcsorting to résistance thé evil which must attend resistance,
 whettMTtt ptosper or tail; Md thé good wluch m&y tbHow
résistance, in case it be cpowned with suecess. And, then, by
comparing these, thé clements of their moral calculation, they
must solye thé question before them to thé best of their know-
ledge and ability.
And in this eccentrie or anonialous case, thé application of
thé principle of utility woutd probably be beset with thé difli.
cu!tMS which the current objection in question imputes to it
geneittUy. To measure and compare the evils of submissiou
and disobedience, and to deternune which of the two would give
the balance of advantage, would probably be a difficult and
uncertain process. The numerous and competing considérations
by which the question must be solvcd, might well perplex and
divide the wise, and the good, aud the bravo. A Mitton
or a
Hampden might animate their countrymen to résistance, but
a
Hobbes or a FtdHand would counsel obédience and peace.
But, thougli the principle of utility would afford uo certain
solution, the community would be ibrtunate, if their opinions
and sentiments were formed upon it. The pretensions of thé
opposite parties being tried by an intelligible test, a peace.
able compromise of their différence would, at least, be possible.
The adherents of the established government, might think it
the most ~ye<HeK<; but, as their liking would dépend upon
reasons, and not upon names and phrases, they might possibly
prefer innovations, of which they would otherwise disapprove,
to the mischiefs of a violent contest. They might chance to see
the absurdity of upholding the existing order, with a stiffness
whicit must end in anarchy. The party affecting reform, being
also intent upon «<<7: would probably accept concessions short
of their notions and wishes, rather than persist in thé chase uf
a greater possible good through the evils and the hazards of a
war. In short, if the object of each party were measured by
the standard of utility, each might compare the worth of its
object with the cost of a violent pursuit.
But, if the parties were led by their cars, and not by thé
principle of utility; if they appeated to unmeaning abstractions,
or to senseless fictions; if they mouthed of 'thé rights of man,'
or thé sacred rights of sovereigns,' of unalienable liberties,' or
'etemal and immutable justice;' of an original contract or
covenant,' or the principles of an inviolable constitution;' j'
neither could compare its object with the cost of violent
pursuit, nor would thé difference between them admit of a
peaceable compromise. A saered or unalienable right is truly
and indcKt <i't~Mt- .t"or, aëemg tluit it. means Mthing, there
is notniu~with wtueb it c<m b<~ ntcttstt~d. l~ttioatwho rest
ttieir prett-nsions un thé jargon to wluctt 1 Ituve adverted, muxt
inevitabh- push tu theh- objecta thruugh thiek and thin, titou~h
their ubject.s be str<tWt or feathcrs aa wei~hed in thé batance of
utility. Having bandied thci)' fusttat) pin'ases, (U)d !jaw!cd till
their lungs be speut,' they must ev~n take tu their weapons, <tHd
ti~ht their ditfft~nce out.

It really /.< impottant (tt)ough t fed thé audacity of tlie pam- ;<

dox), th~t tuen should think d)sttnct!y, and speak with a mcatiiu~.
la most et' thé domestie bi-oits which tiave a~tated civitixud
connaunitics, the result bas heen deteruuncd or set-iousty
at)ueted, by thé nature of the pruvalent ~«~- by tho nature of
thé topics or phra.sM whieh hâve figured in thé war of words.
Thc.~ tupics or phrases havu LHen more than pretexts: tnorc
thtui v.n-nish: mure than distin~ui.sfim~ coekades mounted by
thf oppositu parties.
J:'or cxtuupte, if thé bulk of the peoptu of Engtand ha(t
thou~ht and rcasoued with ~Ir. Burkc, had been imbued with
Un- spirit amt ttad scixed the scope of his arguments, her need-
less and disastrous war with her Anteriean colonies would havu
!weu stincd at the birth. The stupid and infuriate n]ajority
who rushed into that odious war, could perceive and discourso
uf nothin~ but the iKM'<A<y~ of thé mother country, and her
~o caUtid to tax her colonial subjeets. 1
nut, grantin~ that the ntother eountry wa.s properly thé
a,
soverei~n uf thé colonies, ~ranting that tho fact ofhersovereignty
was proved by invariable praetice, and ~ranti)~ her so called
'-<(< to tax hey colonia! subjects, this was har()!y a topic to
)n"vu an euii~ttened peopto.
1.~ it thé interest of En~and to insist
upon her soverei~nty ?3
fs it )ter intf'rest to exerciso her ri~ht without thé approbation
"f t)x. colonists ?1 For thé chante of a sli~ht revenue to )'e
wrun~ from )ter Amo-ican subjeets, and of a trining retief froM
thé taxation which now oppresses hcr:-e!f, shati she drive those
rf!uctant subject.s to assert their aiïe~'d independcncc, visit her n

"wn f.-hUdren with the evil of war, squandur her treasures and
.«)t')ier. in tryin~ to keep tifent down, and deso!ate tlie vety
re~i~'n iront which thé revenue mu.~t be drawn ?––Titese and
the )ike considérations wou!d jtave detennined t)te people of
!n};)and, if their doninant opininns and sentiments had been
tashioned on the principle of utitity.
 AR~tf (hese and theiike eonsideratMns had detefïttHied
thé puMic tniHd, thé pHbtic wottM hftve dataned thé project
of taxing MMd cof~it)~ th~ ~toniM, and the govcrnrnent
wou!d hâve abitndoned thé pro}eet. For, it I. onty in thé
tgïtOMnce of thé peop!e, aud in their conséquent mental hn-
becitity, that governments or dema~ues catt nnd thé
menns of
tjusehief.
If these nud the like eon.'iidemttons had dutermiued thc
pub!!c tMiMd, thé expansé;} Md miseries of the war wouM JMve
been avoided the connectiou of En~iftHd with Anierica woutd
not itin'e been tom asunder and, in cai-e theh- e'jtamou iuterests
had !ed t!~m to dissolve it quietty,the rehtion of sovereign and
subject, or of parent and ehitd, would hâve beeH foUowed by
au
equat, but intnuate and la.stin~ aUiance. For thé interests of
the two nations perfectiy coiticide; nnd thé
open, and the
covert tiostilities, with whieh they ptague one tmother, arc thé
on'spring of a bestial antipathy begotteu by their oriKioal
quarret.
ttut arguments ftmwn from utitity wcre not to thé dull
taste of thé stupid and infuriate majority. Thé i-ahbte, gt'eat
and sma! wou!d Jtear of nothin~ but their /yA~. 'Tiiev'd
a
<-<y/!< to tax thé ccionists, and
tax 'en) they would Ay, //<«<
they wou!d.' Just as if a t-<y/<< were worth rush of itsclf,
a or
a !iomet!)ins to be cheri.shed an(t a~serted independently of th'~
~ood that it may bring.
Mr. Burke would hâve taught thon botter: woutd have
pur;:ed their muddied brains, and '!aid the fever in their sou).s/
witli thé heaUng princi]))<; of utility. H« asked them what
they would get, if thé project of coercion .sttouid succeed; and
in)p!ored titem to compare thé advantf~e with the haxard and
thc eust. J:ut thé sound practical )nen stiil insisted thé
'<< and sagaeiou.-dy .shook their heads at ]um, as a onrenner
and a theorist.
If a. serious diffen'nee shall ari.se betwecn OHrseh-M and
Canada, or if a serions différence shaH arise between "urselves
and Ireland, an attempt will probably be nmde to
cram us wittt
t)te saine stu~ But, such are thé mighty strides which
reason
bas taken in thé interva!, that 1 hope
wc AhaH not swallow it
with t]te rdish of our good ancestors. It wiH probabh-
oecur
to us to ask. whethcr s!te be worth keepin};, and wliether she bo
worth keepin~ at thc cost ot' a war ~–1 think therc is nothing
rotnantic in thé hope which 1 now express since an aunurabie
speech of Mr. ~ann~, advi.sin~ thé reiinquishnient of Canada,
 was seoniingty ïëcMved, M few yem's agu, with goncMÏ a~~t.
(md approbation.~

Thcre are, then, case*), which are an'Hnatoui! or ceeentrie;i

aud to which thé amn, whase eonduct was fashioned on utility,
would upp!y that ultimatc principle imunidiatety or directly.
And, in tliese anonMtous or eccentrio cases, thé application of
the principe would probably be beset with thé dilliculties which
thé cut'tcnt objection in question imputes to it gencndty.
But, even iti these cases, the principle would afford au
intelligible test, and a likelihood of a just solution: a probability
of discovering tho conduct required by thé général good, and,
therefore, required by the commands of a wise and benevolent
Deity.
And thé anomaHes, after ait, are comparativcly fow. In
the great majority of cases, tho gênerai happiness requires that
~</M shall be observed, aud that ~K<tM«;H~ associated with rules
shall bc promptly obeyed. If our conduct were truly adjusted
to the principle of generKi uti!ity, our conduct would seldom be
determined by an immédiate or direct resort to it.

LECTURE III.
ALTHOUGH it is not the object of this course of lectures to treat
of the science of legislation, but to evolve and expound the
principles and distinctions involved in the idea of law, it was
not a deviation from my subject to introduce the principle of
utility. For 1 shall often have occasion to refer to that prin-
cipte in my course, as that which not only ought to guide, but
bas commonly in fact guided the Iegis!ator. Thé principle of
utility, well or ill understood, has usually been thé principle
consulted in tnaking laws; and 1 therefore should often be
unable to explain distinctiy and precisely tilc scope and purport
of a law, without having brought the principle of utility directly
before yon. 1 have thereforo done so, not pretending to expound
the principle in its various applications, which would be a
subject of suf!icient extent for mnny courses of lectures but
attempting to give you a general notion of thé principle, and to
obviato thé most specious of the objections which are commonly
made to it.
Thé )tt<«m<t~ of thc )!o.ea!M treated in more dotait in Lecture Yt.
rights of sovereign govemments is ;«u(.
 ht mysecond lecture 1 exannned a caftent Tmd specious
objectiott to thé theory of gênera! utility.
Thé drift of tlie objection,
you undoubtedJ!y remembcr; and
you probably remember the arguments by which 1 attempted to
réfute it.
According!y, 1 mereiy résume that genend eonclusiorl
which 1 endeavoured to estaMish by the second of
my tw'~
aHswers.
Tlie coudtMion may be stated brief!y, in the Mlowh~
manNer.–If our conduct weM truly adjusted to the principe ot
gênera! utility, our conduct would eonform, for the most part,
to laws or ?-~M.- laws or rules which are set by thé Deity, and
to which the tendeucies of cAMM of actions arc the guide or
index.
But here arises a difHeulty which certainly is most perplex.
ing, and which scarcely admits of a solution that will perfectiy
satisfy the mind.
If the Divine laws must be gathered from thé tendencies of
action, how can they, who are bound to keep them, know them
fully and correctty ?3
So numerous are the classes of actions to which those taws
s
relate, that no single mind can mark thé whole of those classes,
and examine compieteiy their respective tendencies. If
every
single man must leam their respective tendencies, and thence
infer the rides which God bas set to mankind,
every man's
scheme of ethies will embraee but a part of those rules, and,
on
many or most of thé occasions which require him to act or for-
bear, he will be foreed on thé dangerous
process of calculating
specinc conséquences.
Besides, ethical, liko other wisdom, 'cometh by opportunity
of leisure And, sinee they are busied with earning thé
means
of tiving, the many are unable to explore thé field of ethics, and
to leam their numerous duties by leaming the tendencies of
actions.
If the Divine laws must be gathered from the tendencies of
actions, the inévitable conclusion is absurd and monstrous.
God bas given us laws which no man
can know completely, and
to which thé great bulk of mankind bas scarcely thé slightest
access.

The considérations suggestcd by this and thé next discourse,

may solve or extenuate thé perplexing dimculty to which I
hâve now adverted.
 fa so Rtt' as hw <md Muriditv nro whnt thoy o~~ to be (or
m sf) tar :f! !nw and moraUty accofd with their ultuttatc ~ost, or
in so far n9 taw and moralîty accord with thé Divine connnands),
!es:d aud moral rutes httve been fashiuned ou thc prineiple of
HtiMty, or obtaiued by ob.tervatiou aud htduutiutt f~tH thé
teudfncMS ut' hmnatt ttctioos. Dut, though they Jtftvc bM'n
¡.
t'.tshioncd on t)to pnMcip!u of utility,
or obtained by observation
!md imhtctiott front thé tendeneiG.s <;(' tunuati actions, it i.<}
not
u~cpssary that ail wi)o)n they biu.t shuuld know or adv~rt to
the proeess titrou~h wltich they hâve been gott~u. If aM whotn
they bitid kcep or ob.scrve them, the cnd.~ to which they exist
arc suttieicutty aceompHshed. T]~ pnd~ to which th~y exist
arc su(Heicut!y aceotuplisht.-d, thou~h tnost of thosu who observH 1
thon bc uuab!c to percmw their cnd.s, and lie ignorant of t)tc
Ma~ns ou which they were fuuttd(;d, or of thé proofs from
which they wero iuftjrt'fd.
Aecordiug to the thcory of utility, tlie science of Et!ucs
nr
I~ontok~y (or thé .science of Law aud ~tondity, they ~KM
as
be, or <.M~< to be) M one of the sciences whieh
rest upon, obiier.
vation and induction. The science bas been fortned, through
K w
)o'~ succession of a~, by mauy and .eparate contributions
trum many and separate discoverers. Xo sing!o mind could
explore thé whote of the field, though each of its
nutnerous
-tepartnMtits has been explored by numerous inquirers. i'

If positive law and moraiity were exaetty what they tw.i<

to be (or if positive law and morality were exaetty fashioned to 1

utility), sumeient reasons tni~ht be ~ivot for eaeh of their

con-
stituent rutes, nn<t eaeh of titeir constituent ru)es wou!d i'M~:<~ f
hâve been fuundcd on those rcason- iiuti
no sinule nnnd coutd
hâve found the whotc of thèse ruh's, nor could
any single mind
'ompass the who!e of tiieir proofs. 'Jltou~h all the évidence
w"u)d be hnown, the severat parts of thé évidence wou!d be
known by différent men. Every siu~e man )ni}{ht master 1
a
y't~t~t tjf the évidence: a portion commensurate wit)) tlie j!
attention which he to thé science of cthies, and with thé
nientid pcrspicacity and v~our which lie brought to the study.
i!nt no single Man could nmster </<('<; t))an
a portion And i

)uany of t)te rutes of conduct. whic]) wcrc actuatty observed or

admitte'), woutd be taken, by thé most instructed~ f<i<«'< 'j
on
)'M«~ or /<'«~
In short, if a System of !aw and morality were exact!y
fashioned to utility, all its constituent <-<< mi~ht be known
by aiï or )nost. I:ut aU the numerous
<-<<~Mi.<, upon whieh tlie
 system wouMrest.conMscnrcety b~cMnpasscd by:my: white

It
OtttCM.
most must Mmit thcir îuquMM.; io & ~w ~i' th~e mtmemtts
rcasons or, without an attoopt to cxanum; thé rca~ou.t, musL
rcœh'u thé whok uf thé r([!f~ n-om thé tc:tching
of
J~tt this ineonvMamceL. uu<,
aud t-xuhtbt~

peen)i:tr
exto)t).'< tu it)! t!M sciences, and tu atl thé
Mauy math'jfMMtical tt-nths a~ ).robab)y taken
an.s.
t' hm- attd moKtIttv.

upon tru.t
by deci) and scarchi)~ otathcmauciaiis Aud &t' th& t,h'~)MH.(s
who apply {ttithtnetie to daily and hourty
use, not one iM
tinndred ktMws ot- surmi.scs tit<- ycasons up-.n whif-h its ruics f(
itt-c
found~d. Of tiM tiuUions whu ti!! thc eatth a))d pjy th'; vari~u-
hatidicntfts, few are acquainted with the ~rounds of their
homely but i)))porta)tt arts, thou~it t))'"ie arts
arc Ht'nht'altv
practisfd with passaUc exp(;rt))c.ss and -.uecc"
Tfic power.<i ut' sin~c individuah
arc ft.-<-h]e nnd p..ur,
thougtt thc pow<;rs of <;<jnspirin~ numbcrs
nre ~i~antic and
admiraLIc. Litttc of any mau' knowlcd~c js ~(.ttctt hy
ongiual rescarc)). It H.ostty eous~b of i'M«/~
rcscarchcs ûf othcrs, and taken by himsch' upon /<~<H~/i/
~u.
),v t)~
And itt many dcpartmcttt~ of science
we may safejv rdv
upon tcstitnony: thou~h th<ikt)ow)ed.~ which w~thu-'oLtain
i.s ~sa satisthet'jry and u.scfut t~au that whicit
we wiu fut
oursch'cs by direct ('xatninati~tt of the pr<~jf<.
In thé nmtht'tnatieat aud phy.JKd .-ci(;ucf.-=, atM) m thc
art~
wldch arc fouudud upo); thcm, w~ )nay c'tfnnnnh'
trust thc
"'h..t.S.M.<M.jt.<!tf!)..[thi.i)os.t.UtM<:f-X).tCMhtiort)i(-).)tY.-iMh:f.h.]i-
MM<'intheh)t')wi)j~t'<i)m:Ti;t.rcMruti")!.<whiu))f'~t)a!f-th!-))t~'t]om~fl!h-
d<M)'t)t;!M)n!ttn'tMtht)t).t'i!"))<rnthshc!tve).h-hf).tK~r.-st.,u)..uncr)!Ujt;
w)tit.htHt:)K.-)it:Y<;tifj)<!mt)t')nty<;r(~(i- tt~x "f'/<< t'uc.'dfrotjt a:) tu.wtnu~-
tt)u)ty))yt)M~r't[t-t)<tf)t)f<;f)j!)'tii!u< )tU))))).-)<.)'u)~-rv:ni<.n.<Ui't:t\-anctv~t'
)h''m:t()Mtn:ttif;))<r))(h't)tf:ant)H.r n~t[)H')n:tti(;~t.'a!rn)!tti~tt<w!.i~h!t)'tt-r-
e:tnt)Ht)MYt'itt~n(t~tthu',i-)ty)~tin.[it;!t))t.tt<)y.t.~u)tM!)t.).Mit)tO:crMutt.ah.t
<'o))t:htsi')n'ior')~ht!;ti')Hsw)m;)t))t'rt!nn))\'t)u-))-<-f)fti)M"a-i!iUM:~tiuui,,h~<k.-
tu thc brunch of.-t:icnc~!t')!t~tn<je.c.L))t.d tt-itn.trt.r n~jjr~xitttatiMM. ~U
ptf/'<;ttNth';matic.'i.A.lhe)ttM))ti))t:~tt~ t)tM<;t';t)<;HL)tiunshftp)i.;ith'tt)~f.r
~Hrj)«rtot'.sMc)tr))tt):h:tun'ii.sM'Mujn !t.<~tmetht-j.nv~t~v)t't)in;t,!m.tthf-
0)t'«~;t[ya)~'r'-Lt:t)tie<t'nit)tMUt))nr.sM)M~
<)t<it')~'if)'C.).W!)i))KU)MhWhi~;h)h.-Y
f;n'MK't'f)ft)~t):tW~).mtMMithc
of t),f- .-ntitt- cith'tihti~i. cnM-
r~st,itw<))U.U)ritt'-r'-tyi~).tur'.mt~ttM- af~umcv
Li<)M)witht)mfin!tta~r''<;m''<ttut'M)~u-
n<ttti~iattt'ttak'!(h';t!)u)~htnht,~rt!)htth'ttwititut.-frvatifxi. Xow!j0..it<t-
)t)i''Vt!t))"n)M[~nt'tim'jhv. Uf'tivi.tu.t)ti')<ry.-nM)n~re<h;nmn
Th'mth"t'i)~ttM)):i<h~<rM))'tr.i.ti.))t:t))~)tf,t'ihi.<<.t-i.),)t. ();.t.,
')ou))tMt)yj)t'if, withr't~t.)a)! t!t);~aL!un)).tf")a[~tmw)to)j~')yiJ)n"
!iet<:))tiiioenM<;)n'.io)t.'iM);)nt)~t,)!)..tn!titr:t)if.)t. X't'.it~).'i)t.)ivi.!un)fMs<:x.
ph<:)t')m~h!t.a)~t))a!!<dmf<)no)Mn-:ttiu)js
Ih"!roolul'Ollt;:k~_ :1, ;tn in. :unnj~)mf.t.:t))ftn:tfr-tf:tir.;)ot't])'
l,ho:lI')III"11II.81111
"<tdMj;t!hun:ht. !wUftrtk't<!Utih. ~f;!t.)jwhMi.).).)..t)~)!-cun.i-f
!tt!nn:<'<)t)Cf<)'t)tc)~;st)<:nu\n)!t)ntmu;t !tMh~f.t!tt..u.tti))the\!tnt~n)'
wi.MyMt').t.f;)!t.m. Thf.uhihMt.. n)!<h;t.;t.!tt)t''rt)t-n-)tt\'Mr. Yf'tt)..
dcmu))'i(Mtt.tt)'<ft)tt.~(3))f~)~of 'M)tt)~t;)).!i.~t~nwi!)b.~in)ht).:t!v
f!Mvit!ttiu)t(f)rntt)K'rttn''tf-!ttM!tn'tiM) rt-i)~)'th\tr..n.~nt~~);M)~st)i.ut);"
otits(.<t'<]'ft~.<t'~]ntft'~ n:)vi~.ttor.R.C.
 eohctnsions wMeh we take upoM anthority. For thé adepts m
thèse scie&ees fuut arts mostly agrée in. t~ëir restd~, auJ lie
under tto tûMptation to cheat thé ignorant with error. t ~rmty
betieve (for example) that tho earth moves round thé sun;
Utough I know not a tittle of the evidence ft'om which the
eonc!usio& is inferred. Aud my bdtef is ptirfcctty fatioua!,
though it rests upon mefo authority. For there M nothing in
thé aUeged fact, contrary to )ny expérience of nature whitst
aM who have serMthtixed the évidence eoncur in aHirmiag thé
fact; and have no eonceivaMe motive to assert and diffuse the
conclusion, but the liberal and boneficent desire of maintaining
and propagating truth.

But tho case is unhappily dinerent with the important

science of ethics, and also with thé various sciences-such as
tegislation, potitics, and political economy–which are nearly
related to ethics. Those w!to have inquired, or auected to
inqnire into etincs, have mrely been impartial, and, therefore,
hâve dincred in their resttits. Sinister intérêts, or pi'e}udices
begotten by such interests, have mostty determined them to
embrace the opinions which they have Jaboured to impress
upon others. Most of them have been advocates rather than
inquirers. Instcad of exanuaing thé evidence and honestty
pursuing its consequences, most of them have hunted for
arguments in faveur of yn~ conclusions, and have neglected or
purposely auppressed thé unbcnding and incommodions con-
sidérations which pointed at opposite iuferences.
Xow how ean thé bulk of mankind, who have little oppor-
tunity for research, compare tho respective merits of thèse
varying and hostile opinions, and lut upon those of thé throng
which accord with utility and truth ? Hère, testimony is not
to be trusted. There is not <!yr«!M< of
</«!< co?t<'«~t'Mc< o)'
KKMte~'otM «M~ <~KWM< ~~<«'MM, to which the most cautious
and erect understanding readily and wisely defers. Witit
regard to thé science of (jthics, and to aU thé various sciences
which are nearly rehted to ethics, invincible doubt, or Mind
and prostrnte lielief, would seem to lie thé doom of tho nmiti-
tude. Auxious)y busied with thé means of earniu; a preeariom 'i
livetihood, they are debarred from cvery opportunity of earefully
surveying thé '</tw-'< wintst every <n<~f<'t<< whereon they
inay hang their faith, wants that ntark of trustworthiness which
ju-stines rcHance on authority.
Accor<tit)g!y, the science of ethics, with aU thé various f
 sciences whioh are nearly t'etated tô ethîes, !sg hehind th<

tion to these and

others. So fcw are thé 9tHcbt& iaqmrers whc tum their atten
so difficult is it for the multitude t(
perçoive thé worth of their labours, that thé advancement oi
thé sciences themaelves is comparativdy slow; whiist thé
mos<t
perspicuous of thé truths, with which they
at-e wcasionaUy
enriched, are either rejected by thé many
as wotthless or pe!
nicioMs paradoxes, or win their laborious
way to général assent
through a long and dubious strupglc with est&Hished an')
obstinate errors.
Many of thé légal and moral ru!es whieit obtain in thé
most civilized communities, rest upon brute custorn, and Hot
upon tNanty reason. They hâve been taken from preceding
geuerations without examiHation, and are deeply tinctured with
barbarity. They arose in early ages, and in the infancy of the
human mind, partly from caprices of the fancy (which
nearly omnipotent with barbarians), and partly from thé imper- are
fect appréhension of general utility whieh is thé
consequence
of narrow expérience. And so great and thé
numerous
obstacles to thé diffusion of ethical truth, that thèse are
monstrous
or crude productions of childish and imbecile intellect have
been cherished and perpetuatcd, through
âges of advaneing
knowledge, to the comparatively enhghtened period in which
is our happiness to live.
it
It were idle to deny the difticulty. The
ff~pa~mt~ ofethical truth are certaintyprevented
~K~ and thé
by great and peculiar obstacles.
or obstructed
But thèse obstacles, 1 am firmly convinced, will gradually
disappear. In two causes of slow but
sure opération,
clearly perceive a cure, or, at least, a palliative of thé we may
evil.
In every civilized community of thé Old and New Worid, thé
/f«<~ principles of thé science of ethics, and also of thé various
sciences which are nearly related to ethies,
arc gradually nndin"
their way, in company with other knowledge,
amongst thé great
)uass of thé people whiist those wlio nccurately study, and
who labour to advance these sciences,
are proportionallyincrcas-
ing in number, and waxing in zeal and activity. From thé
combination of these two causes we may hope for
a more rnpid
progrès both in the discove~ and in thé diffusion of morat
truth.

l'rofound knowledgc of thèse, as uf thé other sciences, will

always bë eottHncd to thc eontptunttwty few who stMfty them
!M)gftH(tn~MttOt)8ty. J~Ht th~ mttMtmtt} are MtyeotupetGht
to eum;ftv<* ihf /t<tf~~ ~<<c~< amt tu ~pp!y th'Mc teading' ¡
principics tu parth'uhr cit.-ifs. And, ifthey wcrc imbucd w!th
thosu principtes, aud were pmctised in thf art of apptying theni,
they \votdd tjo docitu to thc voiee of rcason, i)ttd attoed agaittst
sophi~try and t;t')'"r. t'i~M is a wi<t'; !md important din'o-enee
bctwccu i{;nonutcu of principle;! and i~tunmcn uf purticuhn's or
dutatts. Tho ntun who ia ignorant uf tHinciptf't, and unpmeti~cd
in n~ht n'astonin~, is iujjucnu as wc!I as i~not-ant. Thé tuan
who is shnpiy ignorant of partieutars ot- détail: ean reason
cun'ccUy trulli prc)ni.<c.< which are ~~«M tu ))i.s undct'standi)).

it.
aud eau jnstty ustintate th<j c'uscqucuccs n'hich nre dmwu frotu
thosu profiiscs by (.'th<M. If thé ntiods uf thu many wm-e
infonued nud invi~nttfd, .su far as thdr positi'Ht will perniit,
thcy eotdd disti)t~uis)< thé statcnMnts and t'easouin~s tjf theit' r

instrueted and judici<~)s ffi~nds, from thu lies and faHacies of

those who would use them to sinistcr purposc' aud fruni the
G'tuaHy pernicious nonscuse of their \n:ak and i~ttoraut well-
wishet's. i'u;i~u~.sud of din'ctit)~ principte.s, ab]u to n'aso) t'i~ittty, .¡1

heliled to thc ruquisitc pr~ttiiscs hy accnratc and eomprettensivf

in~uirers, t))~y coatd exannue and fathotu t!te questions w!)ic]i
it m'jst b(;)iovcs tt't'))) to undcrstand T)ioug)t tit<: leisurc- which
they eau snatch fruni tlieir caHitt~s is m'ccssaniy so tmutfd,
t))at thci)- opiniou.s upou nunim'ous <~mstiot). of subordinaU;
ituportanee would coittium' to Le takcn f~~a the hK't'e f<K~/<o<'<7.
of otitcrs. j.'

The shot'tcst and ctearcst illustratiom of this most checnn~;

truth, aK furni.sht.'d by thc incstitnaM~ scienct.' of political
econoniy, which i. so iutcrwovt'tt with (ivcry c<~)sidc!'ation
hclon~ing to momis, j'oHti' an't l'~isJittiot), thaï it is itopo&siblc
to treat auy onc of thcst: .sciences witLuut a eontittuat reft/tfae~
to
c~
Tite t'road or )eadin~ priocipics of thé .i'-npe of poHticat
cconohty, tnay bc mastcrud, wit)t moderate attention, in a sho't
period. With tth'so simple, but connnandin.K i'ritt<:ip!es, a
nutnbet-of important qu~-itiotts arc casityrt.-sotvcd. And if thé
xtuttimdc (as they can and will) s)taU t.'vcr understand titesc
prineipiM,
IJ1"IIIClP I): ilitiliy
ntany pernicious pn-judio-s
1¡C1'1I1CIOU.~ 1)1'1'.111( \1 lie
IC"Swin cxtirpatcd l'r0111
bc extirl-i-~iteg.1 front :j
l,
thé popuJar tnind, and trullis <jf inuHitb!~ toou~nt plautud in
<
thoir steald.
For MfunpiG, In many or aU countric~ (the least unciviHxcd
not <-Xt:<;ptcd), t))e prevalcut opinion.-i und scutitunuts of thc
 ~t:tBg~pteftrecet-ta:n!ynQteousisteHtwittt tt~cMMpIetc
seearity of property. Tu tho ~«~ ~~M-, thé ttM-qtKUitywhMt
inevitftMy foUows thé beneucott tnstimtmit uf pc~perty H
sarily invidious. TfMtt, they wi«) toit aud pt-oduce shoutdHM-M. tare
scantily. whi!st ot!tM~ who deh'e Mot.
nor spin,' batten on thé
fruits of tahour, secmi!, ta thé jaundiced
eyes of th.; poor and
thé ~uonutt, a moustrous statu of thin~:
!m :ti-nt)f!;f.m<.ttt
uphcld hy thc ÏMW nt thé M.~ of thc omt ttnth- ine.<usl.st.
ma!)y,
eut with thé bette vf))M)ttpm'j)osG3ui'l'i-)jvMH)tc&
A stMi~mett), <~ t!M ttuntcrous cvU. whit.-h f]ow i'roh] this
single préjudice, wou!d occupy
a volume. ]~;t thcy cast so
clear a )ight OH ti~ ousdncfs of poj~uiar i~toraneu, and .show
w (hstinct)y thé advanta~s of popular instruction, that 1 will
bnetiy toucit up&u a ft-w of titefa, thou~h at th~ t-i.<k oi' tinn"
your patieticc. °
lu the first ptae~, this préjudice Dinds thé people to ti~
cause of thcir sn<tt.nu~s, and tu thé only reniedy or palliative
which tho case wilt adtnit.
Want aud tubour spriu~ irout thé ui~M-dtinMS of
natnre,
and not frotu thé inequaJity which is coosequent
on thé institu-
tion of property. Thuse evils are inseparabk fron the condition
of man upon earth and are J~htened, not aggravated, hv this
useM, though invittious institution. Without M~< and t!te
arts which dépend upua capita!, t)te reward of tabour wo~td bu
far scautier than it i. and capital, with the arts which dépend
upon it, are créatures of thé institution of property. Thé
institution is good ibr thé ojany, wc!t
as as for thé few. T!te
pool- are not stripped by it of thé produce of their labour; but
K sivcs ti.em a part in thé enjoyntent of weahh witich
it caïïs
mto bein~. lu ef)ect, though not itt taw, thé labourers
arc
co-proprictors with t))e capitalists who iure their labour. Thé

from c~
reward which they ~et for their !abuur is principa!h' drawn
and they are jMt tess intercsted titan thé légal
owners in protecth~ the fund fron invasion.
It ts certainly to Le wished, that their rewat~
were ~-eatet-;
j and that they were reHeved fron] th.: incessant drud~ery
to
whie)i they are now condemued. l!ut thé condition 'of'
thé
working peo])!e (wj.ether their wages sha!! be iti~h ]ow theh-
labour, moderate or extrême) dépends or
upon their own wiH, and
not upon thé wiU of thé rich. în tite ~<- ~t-:M' ~K~/i~,
detected by thé saf!acity of ~Ir. ~fahitus, tftby
n.ust Jook for t!ie
cause and the remedy of their penury aud excessive toi!. There
t they may find thc means wl)ieh wouitt give thon
comparative
t~ttUMtco which woutd givo thom tho degrco of tei~re ncce~.
s<n'y to Ïtuowtëdga Mf! KiKtientdttt wbtdt \vuuld raisu Umm to
pet'Monat di~ntty nnd potitica! mfîuence, from grovo!!in~ <md
sontid subjection tu tho arbittary ruie of a few. i
And thèse tnutnentoua truths are dedueibte frmn plain
pmtctptcs, by short i~td obvious infel'eneea~ Hère, thM<i ia uu
need of iat~ and caretut t'csearc)), or of subtie nnd sustained
thtnkt))~. If tho peop]f undctstood distinetty ft ff'w indisputab!
ptupositt.utts, and were cap:tbte of ~oius con'ectiy thruu{;h au
easv process of reasonin~, their nuuds wou!d be purged of tho
t)rcjudi<e which binds them to thé cause of their sufferings, aud
th~y woutd see aud apply thé rouedy whtch is su~ested Ly tite
principle of puputation. Their rephnttg.'i at thé nOiuenco nt' thé
rich, would be appeased. Thoir tuurmurs at thé injustice of thé
t'iett, wou!d he sih'tx-'ed. They would scarcety break nMehinery,
ur (ire Lnrn.s and corn-ricks, to thé end of raisin~ wagcs, or tito
E

rate of parish retief. T))ey wou!d see that viotatioos of property

are mischievous to ~/<€Ht~'n.' t))at such victations wcakeh thé
r

motiva to accumulation, and, therefore,diministt thc fuud wttich

yieids thé !abourer his subsistenee. They wou!d see that they
are deep!y interested in ttte ~c)<)'y of property that, if thcy
nd)U;!ted their numbers to thé demand for their tabour, they
woutd share atjundantly, with their employers, in thé Uessings
of that tt.~efnl insututio)).
Another of t)ie numerous evils which ttow from thé préjudice
i n question, is the frequency of crimes. `

Xincteen oHences out of twenty, are offhnces a~ainst pro-

perty. And nMSt ofrence~ a~inst property may be imputed to
the préjudice in question.
Thé nuthors of such oH'ence.s are commonty of the poore)
~ort. For thé tuost part, poverty is thé incentive. And thi.-i
préjudice perpétuâtes povcrty atnon~st thé ~reat body of the
people, by b)indin~ thetn tu Ute cause aud thé remedy.
And whitst it perpétuâtes t!te ordinary incentive to crime,
it weakens thé rcstraints.
As a check or deterrin~ )noti\'e, as an induecment to abstain
frotn crime, thé fear of publit: disapprobation, wit)) its cotmtless
train of evils, is scarcety less effectuât than thé fear of teKat
punishment. To thé purpose of fonni))~ thé mora! charaetcr, of
rootin~ in thé soûl a prmnpt aversion from crime, it is intinitety
more eft~ctua!.
Thé hetp of ttte hangman and tho gao!cr woutd sc!don< be
catted for, if thé optHtOM of tttc gréât body of thé people were
cteMcd of the. préjudice in question, and, thereïore, fe!l h~vHy ]
upon &!1 oHetutet's agMU~t pM~tty. Ïf the~K<~ <~K~<M
wcre
thorough!yci"m'e'I of t!tat préjudice, k wouhi greatly we~keM
thé temptatiotts to erhnc, by its salutary iunuenee o)t thé mura!
ctmrKCter of thé muttitude Tho motivM whieh it would oppose
tu those temptaticHs, wonid Le .scat'c'~y !Ma eMceHt:d than thc
uiotives wllich are pM.seutcd by th~ Jaw Aud it woutd hci~htcu
thc ten'ors, attd stt'en~th<'n thé restraints of thé !aw, by u))"a~in"
a couHtks~ host of ca~er aud ucU\'n vutunt<:M~ in thx ~')'vk'e of
crihunat justice. If thu people saw distiuctiy thé tendencies of
offMices ttgaiust pt'operty if thé people saw distinetty thé tt:n.
deneics aud thé ~rounds uf thu p'uushn~uts and if thcv wcru,
theref<jre, bunt upon pursuin~ thé ct-inuoais to justice; thf Iaw.s
which pt~hibit thèse ottences wonid seidom lie brukeu with
itupunity, and, by c'm.st'quenec, woutd s<:ldom bc broken. An
Gtdighteued j~opio werc a bctter auxitiary to thc judgn thau ait
anuy of polieumoh
Hut, in conséquence of thé préjudice in question, thé i~iu' of
publie disa.pptoba.tiuu &cai'cely «peï&t~s upMt thé pt<or to thé pnd
of Tcstminiug thoa fmtu otfence. against ~he property of thé
wedthier classes. Fur every mnu's public is fonned of his o\a
class: oftttose with whom heas'iueiatcs: ~fthoMwhosefavmn'-
aMe or unfavoumbk opinion sweetens or ctabitters hi$ }ife. Thé
poor !uau's public is funned of thé pour. Aud thé crimes, which
affect nterely thé property of thé wcatthier classes. ai'e certMnIy
re~arded with little, or ritther with ne abhorrence, by thé indi~eut
aud ignorant portion of thé working pcop!e. Xot pereeivin"
that sueh crimes are perniciou.-i to «~ c!as;ies, but cunsidering
propertyto be a beHefit in which they ha\-e no share, aud which
is enjoyed 1Iy others at their expense, thé indigent and ignt'nmt
portion of thé workin{{ peopk' are prone to eonsider sueh crimes
as M~-Mft~ made upon usui~ers and em-mies. They regard thé
crhuinal with sympathy rttther ttian with indi~"ation. They
rathct' incline to fuYour, or, at lenst, to wiuk at his escape, than
to lend their hearty aid towards bringing itint to justice.
Those who have inquired into the causes of erimes, and into
tho meaus of lessening their nutnber, hâve connnon)y cxpected
nm~nineent results front an hnprovud systûm (jf ~«H!M!<M~.
And 1 admit that sometitin~; might be done by a judicious mitign-
tion of punishments, and by Temoving that fréquent inclination to
abet thé escape of a criminul which springs from their repu]sive
severity. Somcthing might also bu aeco!nplishe<t by itnprove-
nteuts in prison'disciplinc, at~t by providiug a refuge for criminels
who hâve jMt~f~ the!t ptnnshmeNtfh For thé stigma of tegat
pMnishmettt M coîttmonty Me!tMe;atnt, by de~trfing thé tm-
Mappy erimhMtt front thé )nea)H of Mving honestty, forées htm
o)t furtiler erhnes.
But nothing but </«: t/o~ of ~<)!c/ffAj'c <A?'M<~A ~Af ~'<
MCfM o/' the ~fc~e will go to thé root of tho evi!. Nothing but
this will cHt'e or aHeviat~ thu pove~y which ia thé ordinary

judices, aud cotTeet their momt will

incentive tu ci'mm. Notl)i)t~ but this will cxtirpatti thcir pré-
Lty thon under
thé rustNtnt'! which in'c impused t'y uoligiftcoed opinion, aud whieh
opefate so potcutty ou thé hi~her and tnot'u cuttivatcd classes.
Tho evi!s which 1 have now tnentiuncd, with mfmy which 1
pttss iu sileuee, ituw ffont une of thé préjudices which enslave
thé popular mind. T))e advantages at which 1 hâve pomtcd,
with nmny which 1 !eave unuoticed, woutd follow ti)e eHMttcipa-
tiot) of thé multitude from that .M'/t~c en'or.
Aud this, with other préjudice. might bo cxpeMed from
their uuderstaudings and aiiections, if they had mastered the
broa<! principles of thé science of political ecoHomy, aud could
nmke ttte easiest a~Iieations of thèse simple, though cotumand-
ing truths.
The functions of paper'money, thé incidence of taxes, with
other of thé i't!t'< points which are presented by this science,
thé multitude, it is probable, will never understand distinctty
and their opinions on sueh points (if ever they shaiï think of
them at aU) will, it is most likely, be aiway.s taken front f<M~/«M'y.
But thé importance of those nicer points dwind!es to nothin{f,
wtten they are compared with thé true reasons whieh call for
thé institution of property, and with thé effect of tho principle
of popuhttion on thé priée of Jabour. For if thèse (which arc
Mo/ dinicutt; were clearly apprehended by thé many, they would
be raised frou penury to eotnfort front thé necessity of toiling
tike cattte, to thé enjoyment of sunicient leisuro from ignorance
and brutishness, to knowtedgo and renuement from abject sub-
jec-tion, tu thé independcnce which <'t)MMM«<(<& respect.
if my litnits would permit me to dweH upon the topic at
Icn~h, 1 eou)d show, by many additiond axd pre~nant examples,
that thé multitude tni~ht c!ear!y apprehend t!te ~«~'My~Mt'
of ethics, attd also of thé varions science. which are nearly rclated
to ethies and that, if they had seii'ed thèse principles. and could
reason distinctiy and justly, atl thé more momentous of thé
derivative practieal truths woutd nnd access to their under-
staudin~-i and expel thé antagonist errors.
 And thé muMhtde (m cMized sommsaittes) wonM
soonLKCt.Ht
tr
«pprehend thèse pnneip~, M!d wouM somi !M~u:t-e thé talent
of reas&ning distmetty and ju.y, if one of the wcighticst of thé
duties, which Hod bas laid upon ~overnmeuts,
were perfonned
with ndetity and xea!. For, if we mu:st eonstrue those duties
by the principes of ~c'ncral utility, it h uot !oss incujnboit
on
guventmeuts to fonva~ ttm diffustou of knowlcdge, thau to pt-o-
tcct their subjects fmm one another by a due administmtiou of
('
j~tice, to défend them hy n mititary force fiMu thc attack.s
of extcraal enenuM. A stnatt fraction of t)tc
smus witich arc
squandered in Mcdteso war, would pt-ovi'k cotuplete instmction
fur the workit~ people: woutd ~ivc this important ctass that
portiutt in thé knowkdgc of the âne, whieh cojsists witit thc
nature of their caUings, and with thé necessity of toiling for
Jivelihood. a

It appears, thcn, that the ignorance of thé multitude i-; uot

atto~ether invincible, thou~h the principiM of genend utility be
thé index to God' CMnnMnds, nnd, theretore, thé pr'jximate te.st:
of positive law and moranty.
If ethical science must be ~ottcn byconsu!tin~t))e principle
of utility, if it l'est upou observatMn and induction app!ied
t<.
thé tendencies of actions, if it he matter of aenuired knowled~e
and not of immédiate consciousness, mach of it (1 admit; will
ever be hidden from the multitude, 01- will evcr be taken by thé
multitude ou authority, testimony, or trust. Fot-
an inquh-y
into thé tendencies of actions embraces so spacious fietd, that
a
none but thé coMpamtivety few, who study thé science assidu-
ousiy, can app!y the prineipte extensiveh' to received positive
or
!'u!es, and détermine how iar t!tey accota with its ~enuine
sug-
gestions or dictâtes.
But thé multitude might ctearly undentand the eletncnts
or
~roundwork of thé science, together wit)i the More tnoinentous
of the derivative praetical truths. To that extent, they nu~ht
be t'reed frotn the dominion of authority: fron thé nécessité of
Hindiy persisting in hereditary opinions and praetices;
or of
turning and veering, for want of directing principles, with
everv
wind of doctrine.

Xor is this thé oniy advantage whieh would follow the

spread of those cléments amongst thc gréât body of thé peopk.
If thc déments of ethical science were widely
science would af~a<K'e with proportionate rapidity.
'«~, the
 If thé mmdt of thé BMmy were mfwmed and iav!g')Htted,
it etmfst* antt sonttd pteaaurea~ and their atnptd inditfe-rpnce
their ï
about knowled~e, wauld bu supptantcd by ïonned imm.'MtaoHta,
and by Hbend curiusity. A nunierous hody of reernits front thé
i&wer of the midfHe cesses. ttnd even from thé higher classes of
thé workin~ peopte, woutd t!tieken the sicnder mnk.s of thé rend-
mK and rettectin~ public ths puMic whieh oecupius its teisuru
with tctters, sdpncf, and phitosophy; whusc opinion détermines
thu success tu- t'Mbuo et' t~~ka, ftnd who~ ttoUtt' tU)d tftvcmrnrc ~E

UtttumUy courtfd by the writers.

And untU that public ahitU bc mueh cxtendcd, shitH embraec
a cottsidet'ftMe portion of the middte and wotking peop!< thc
.eience of ethics, with ait thc various sciences whie)t ttre neM'!y
t'ftated to ethies, will ndvanec s!ow!y.
It WHs the opinion of Mr. Locke, and 1 fu!ty coneur in thé
"pini'~n, that tht.'rc is no pcculiar uneertainty in thc ~«&M-<
ur y/tff~t'?' of titesc sciences that thé ~rcat and extraordinary
diiticulti~s, hy whieh their «dvancemfnt is itnpcdud, ai-G <'A'/<-i'M-
& Me ~ppo~d hy .<,i)Mstey intei-ests, or by pr~udtpes whieh
tu'f thu ofÏ'sprin~ cf sueh interest.s that, if they w)t0 .<(;ek, or
ai&ct to seek thé truth, would pm~uc it with obstinate applica-
tion and with due't~t~)'t'Mc~ they tnight ft'equcntly hit upon
t)(c o))jfct whieh they profcss to look for.
Xow fuw of them K'<~ pursuc it with this requisitc indif-
ft-rency M- hnpartiaUty, so lon~ a.'i the bu)k of ttie pubHe,
witicft dMtermine.s the fatc of their tabours, shaU continue to
be t'ormed from thé classes whieh are elevated by rank or
opulence, and front thé pecnliar professions or catlings whicit
are distinguished by thé nanm of tiberat.'
In the science of ethies, and in a!t thé varions seieneea
whieh are ttearty related to ethies, your on!y sure nuide is
~Mf~ utitity. If thinker;; and writers woutd .stick to it
honMtty and c!ose!y, they would frequentty enrich thèse
sciences with additional truths, or wouM do them ~ood service 1

by weedin~ thein of nonsense and error. But, since the ~<'<:«~«- f

interests of particutar and nan'ow classes are atways soniewhat 1
adverse to the interests of thé gréât majority, it is hard!y to be
cxpccted of writers, whose réputation dépends upon such c-tasses,
that they should fear!ess!y treaft the pâtit which is indicated by
thc ancrât weH-bcing. Thé ~~<~t!'c/< in thé pursuit of truth
whieh is so carncsHy incuicated by Mr. Locke, is hardty to be
cxpectcd of writers who oecupy so base a position. Kuowhu;
that a fraction of the community can tnake or mar their reputa-
 tMM,they UHCMisMuHstyor pm'pos&tyttceotMtHodntotheh- Mut. f
Mt'Mionn te thé préjudices of that murower pHhHc. Of, to
boïtow thé expressive I~ngua~M of thb ~'oatest und tx'st of
pftitosophers, they be~in with espousin.'j: thé tt-t~-n«/MC(~
opinions in fashion und, t)<en, seek arytments to show theh-
t'eauty, or to s'arni.th and dis~uise theh- dcforrnity.'

Thé treatise byDr. raky on Moral ax~ Pf.)!it!e~ Phnosophy ex-

MHtpHftesthoMaturattendMtcy ~f Hfttww ftm! '(~rMtneertnp'intt'rmt!?
to pt'rvcrt the com'su of inquh'y from its legitituatc purpo.~c.
As n~u go, this celebMted and inHuptitin! writo- wn'; n
wi'!c and H vh-tuous tonn. Hy th<' (;ua!iticf of hi.s h~ad and
h<'art, )'y the cast of his talents and affections, hc wns uttc~.t,
in a higtt de~rce, to 'icck for <jthic:d truth, und tu ~xpound it
.suecc~MIy to otiicrs. He had a clear and just und<rst.m.tir)~;
a hencty coutmnpt of paradox, Mtd of in~nious, but usc'k'fs
t'MfinchMnts no iastidious disdiun of thé workin~ j.copif', hut
.t
warm synipathy Yvith tht;ir homc:!y enjoymettt.s and suOt-rin~s.
Hc kuew tha*. they ate Htore !nnner"ui) than nH thf! r("<t of thc
connnunity, und h'; fc!t t)tat tta;y aM ntot'c important than a!l
thé rcst of thu connnunity to thé cyc of un'I'~uded reafou and
impartial hcnevolence.
~ut the sinister inituence of' the position wjtich he t)))htcki)y
occupied, cratnpfd his noterons a(Ï~ct.io))s, aud warp~d thé recti-
tude of his undet-standin~.
A stcady pursnit of t)te conséquences indicatcd by ~'y<f?v~
utitity, was uot the most obvions way to prof~ssionat advanee-
tuent, nor evcn t!te short eut to extensive reputatio)). For there
was no impartial puMic, fortned from thé cotunmnity at !ar~
to rcward and encourage, witit its approbation, an inOexibtf
adtxjrcnco to truth.
If thé bnik of thé connnunity had heeti instructcd, so far as
their position wiH pcrnnt, hû mi~ht hâve looked for a host of
rMdft-s from thé middte chsscs. He mi.t;ht hâve lookcd f"r a host
of readers from thosc classes of thc workin~ people, whose wa~es
are connuonty In~h, witose teisure is not inconsiderabte, and whose
mcntat powcrs arc calted into frcftucnt exercise by thé natures of
their occupations or ca!)ings. To rendors of thé tniddte ctasses, aud1
of a!t the hi~her classes of thé workin~ people, a we]t nmdf and
honest treatise on Momi and Politien! PhHosophy, in his clear,
vivid, downri~ht, JF/t~MA style, would hâve bcen the most easy
and attractive, as wen as instructive and uscfnt, of abstract or
seientinc hooks.
 But those uunMtfoua classes of thf CMmMHMity wet'e c&Mt
tMOttiy Mtt coiH-M :Mtd i~MMttttt to
café fur honk~ of tho stM't.
Thé gre:n majoHty uf thé reader~ wh& w~'e Hkuty to look imo
hi-} b<juk, betongfd to thé e)as.<es wjuch
arc etevated by rank or
oputettee, and to thé peeutiar professions or caUin~ which are
t)i~it~ui.sh(id by Ut~ nfune of !ibcm! Aud thé character of
thti bouk witicit t)c wrote b<;trays thé position of thu writcr.
in ahnost every chnptet-, nn~ in a!tn<Mt cvct'y page, ht.-t R-a)- of
oUuudutg Uni pMjudi<:e&, contMuuty cMtft'tttitwd t'y aMch r<'af)cr",
p.t!pab!y suppt'us.sc.-i thc su~Mtions <jf his clear amt vigorou.-}
reason, and mastct-s thé better aiteetious which itK'lined hiot to
thé ~t ~t')'(!~ good.
He was oHe of thé greatt-st and bfst of thé gt-eat aud cxcet- t
!eut writcrs, who, by thé streft~t)) of thcir p))i!osop!iieal genius, d
or hy thch- !arg<' and to)eraut spirit, Itave givuu hnpurishMb!(;
lustre tu thc Churcit .'f Eu~tand, aud extingui.stmd or softcued
t))'* tiu-ititity ot' jmttty who reject iim' crecd. Ue tuay rattk wit!(
thu i!ft-ke!fy:! and Jhtt!uM, w:th thé Hurnets, Titiotsons and
Iluadiys.
Hut, !n spitu of thu esteem w!th which 1 regard his metuory,
truth compt'Is )nc to add that thé book is uowortJty of thé mau.
Fur there M tnach iguobiu tt-uckhng to thé dominant aud inttu-
entia! tew. Titere is a dea! of shabby sophistry in dcfcncp or
Gxtfttuatiou of abuaGS which thé fcw arc intere~ted hi upiioldin~. t
if t)tct-M WGM a rfading public tunneMus, disccmi)); and
~<t~~t<(/. thé science of cthi<;s, and att thé various .seieue<'s
whieit arc n~arty rctated to ethies, wou!d advanee with un-
Gxanipled rapidity.
i!y thé hope of obtaining thé approbation which it wou)d
bestow upon geimine merit, writer~ woutd be incited to thé
patient rescareh and rencetion, whieh are not less rcquisite to
thé hnprovemettt of cthica), than to thé advancement of mat))'
tnatical science.
Slight aud incohérent ttunking wout't bc reeeived wit)) c
gênera! eontempt, thongh it were cased in polished periods
studdett with brittiant metaphors. Etinc.') would be eonsidered
by reader.s, aud, t)ierefore, treated by writers, as thé matter or
'1
subjeet of a .M'-Hft as a subject for persevering and accurate
investigation, and not as a thème for ehiidish and babMing
rhetoric.
This général douand for truth (thongh it wero clotited in
hwne!y guise), and this gênera! contenipt of fabehood and
nonsense (thoug); they were decked with rhetoricat gtaces),
 wottM hnpmve the tneUtttd aad thé sty!e of mqttMes !nt~ t
ethics, ftttd iitto the vnnons sciences which tHe ttearty ~hfed t~ `
ethie-h The writers tvonid ftttcnd M thé ~~estio))'} of Hobbes
and of Locke, and wunid httitate thf tnethod su su<'ce'ssfu)iy
pursued by gcorneters Ti)Qugh such {.s thé variety uf the
p['<i)ni.scs which soiue uf t!~h- inqun-tcs invutvu, and sue); arc
thé comptexity Mtd nmMgttity of some of t))u tenus, that they
wûu!d ot'ten iaH short of thu pcri'uct <;xa(tt)t~s.< and co)t!-)~ncy,
which the fcwncss ot' h:s pr~Ut! und thu shupticlty aud
dethuteness of his cxpiussions, fnabte t)tc gMon~tcr to !~ntt).
Hut, [hou! titoy would often fall short of ~conietricat
exact-
ness nnd cottut-oucy, thcy might aiways appt-oach, aud wou)d
uftcu Httain tu thé!)). Thcy wou)d nequire thé art aod th<j
habit of detining their leading tctms of st~adily adh'iri))K to
thé tncanhtt~ annomiecd Ly thc d~tinition.s; of carcfuHy examin-
ingmtddiiitiuctiy statua their premiscs; and of dcducinf th<
consequences ~f thuir prf;!ni.(.i wit)) lo~icai t'i-~our. \ithf.'nt
rcjcetiu~ ctnbcUMuueuts which hti~ht i~ppeu to full in thcir
~y, the only c'xcd!c))cic.=i of :,tyt(j fur whidt t!~y wou!d .sc~k,
aru précision, etearness, nnd eouci.sencss: thc first beins a)Mo-
tutety requisite to thé succMsftt! prosccutiou uf in'juit-y whi!.st
thé otttcM cnabk the reader to .seize thé meanhtg with certainty,
uud spare ititji ttnoecessat-y fatigue.
And, what i-i equ:dty hnportttnt, thé protection afforded by
t)tis public to diligent and iionest writer.-i, would inspire into
wnteM upou ethies, aad upon tiie neariy rflated scicucc.s, thé
spirit of dispassionatc in<~uiry t!m h)di(ferM)tcy
or itnpartiality
in thc pursuit of truth, which i.< just us rcquisite to thc détection
of truth as contiuu'jd and etûsc attentio;), or sincerity a))d
simpticity of pnrpose. IMyi~ ou thc disccrntnent and thé
justice uf a numerous and powerfut public, shietded by its
countmtance from thé shnfts of thc hypocrite and thc bi~ut,
iuditfurettt to the id!o whistth~ of that harndess stonn, they
woutd scrutiHize cstablishcd institutions, and eurrcnt
or reccivpd
opinions, f~rkssiy, but coo!iy; with the freedom which is
hnptriousty dcnianded by gênera! utility, but wititout thé
antipathy which is begotten by thé dread of persécution, and
whieh is scarcely less adverse than thé !ove of things ancient
to thé rapid advancemGtit of science.

This patience in investigation, this distinctness and accuracy

of method, this freedom and indinerency in the pursuit of the
useful and the truc, would thoroughiy dispcl the obscurity hy
 whieh tho science isdoMdett) and woutd c!fin' !t fretin m'Mt of
M') tun'erttttttties. Thé wish, tb(t hopc, thé prédiction of Mr.
Lucke would. in tune. Le accomptished and ethic.~ wontd m~k
with thé science which arc <M/M~' < t~M(iM.<(<<'Mt.' Thé
adepta in cthicat. as weH as in niathcmatica! science, Wootft
connnoMly agrée in their resn!ts And, as thé .iar fjf <~<y con-
ctusîon-t ~mduttUy subaidcd, a budy of daett'tnc and authunty to
whieh thc M/t' tni~ht trust would CHterj. trotn thu existi))~
dtitoSt Thé dhect extUHioati'M) '.ti' th~ untkitnd~ w~tttt) futtv
extcnd tu thc cléments, aud to thé casier, th'~u~h more momentous,
"f thé derivative practical truths. J!ut nono of thoit' opiniutt!:
would be a'toptcd b!md!y, nor would any «t' their opinions bc
obnoxtous to -jronndtcss and caprieious ctiot~e. Thou~t) tnest
or tnany of ttieir opmion. woutd sti!! be takmt frum f<M</<o)-
the authority to which they wou!d trust tui~ht satisfy thu M)ust
.SCrUputuU. rMBSun. Itt //«' <'M«/ti'/«~<H < ~i<'7'f<~ t'WM(M< f~'
/i"M<t-<-«~ f<M</<m/~N-< <M'/<'«-<<, thuy woutd find t)tat mark of
trttst\vo)'thin'ss which justities t'(.'Iia)teti ott nutttoritv, whMrcvfr
we tn'ti dfbtu-red h-Mu the "ppot'tmnty of examtMin?; thc évidence
fur ouMc!c-
With regard, thcn, tu tho perptexin~ difticulty whieh 1 am
tryi)~ tu solve or ('xtenuate, the case stands thu.s
If utility be t)te proximate test of positive taw and morality,
it is shnpiy impc.-isibte that positive !aw and moratity .shoutd
be t'i'~û frotn dctfcts and cn'ors. Or (adoptin~ a dinht'ent, thou~h
cxactty t'quivatunt expression) if thé princip!e of ancrât utility
b): our suide to thé Divine commands, it is hHpossibîe that thé
rutes ofeonduct f«<««~f<'<«tK('w~«/«OM.~ j«f<M/'<M</ should accord
eompletely and correctty with thé !aws <&/M/«~ /'</ //< /). t<y.
Thc index to hi. will is impcrfect and uncertain. His laws are
si~niHed obscurely to those upon whotu they arc binding, and
are subject to inévitable and invohtntary nti~eonstruction.
For, positive law and mora!ity, fashioned on thé prin-
cipte of utility, are ~otten by observation an<t induction from
t))e tendencies of hnman actions from what can be known or
conjeetured, by ntcans of observation and induction, of thcir
uniform or customary eflects on thc gênerai happin'ss or ~ood.
Cunsequentty, ti!t thèse actions sha!I be marked and chssed with
pertect completeness, and their enects observed and ascertained
wit)t simitar <;omplett'nf'ss, positive !aw and ntorahty, fashioned
on thé pnnciple of utility, must he more or less defective, aud
more or tess erroneou.t. And thèse actions bein~ in<inite!v
varions, and their en'ects being innnitely diversincd, the work
 ofdasaittgthem comptetety, amt of <&HecHn~ their cfK'ets e&m- t
p!ct<y, transcends thc Hmitmt faculties et' cre<t!<tt ahd tunte
bemga. A~ thé expérience of manMnd entames, thfy obwrve
as
mot-o Gxtensive!y aud aeeuratdy and reason more c!ose!y and
precisety, th~y may gmduaHy mend thé de~ct-s of th«ir !ept!
and moral ru!es, and nmy ~Jua!!y ekar their t-utM fr~tu thé
crroN and nonsense of their predecessoM. But, thou"h they
ntuy CM)stant!y approach, they œrtuin!y will N~-m- «tt~n to
tmtMess system of ctttics to a systen) pct-iectîy in uni.son a
witit
the dictâtes of gênerai utility, and, therefore, perfcttty in uni~u
with thé benevoteut wi.~hes of tha Hcity.
And,~K. if utiHty Le tho pr-jximate test of positive )aw
and ttwmtity, thé defects and
cn'oys of ~<~f!/fo- or <<;)- cthic.s
wm Mareely adtuit of a reMcdy. For, if ethical truth be
ntattcr
of science, (md Mot of inun~diate conseiousness, of t)M
ethicat maxims, wJtich novfnt thé sentiments of thétuost multitude,
must bc taken, without. exantination, from Jtuman authont~
Aud wherG is tiie /t~<K auttiority
upon which th<-y enn safc!v
M'ty ?i Whcrc h thé /M/t authority hfiu'i)~ such tnarks of
ti-ustwort))iucss, t))ttt thé ignorant
!n:tv ha)~ thMJr faith it
with rea.ot)ab!e assurance ?r .t{evicwin~ tite various ujton
t!te various natious of thc worid, rcvicwi)~ thé various a~ and
Mets
whieh hâve dividcd thé opiniuns of jnankind,
we find cunitictit~
Utaxi~s bn~ht with cquat cuntidt.nec, nnd ree.-ived with equa!
doeility. We tind the guides of thé multitude tnoved Ly sinister
mtcrests, or by préjudices whieh
are thf o(~pri))~'o( such
interests. We tind them stMing inquiry, in.-eontu~
to thé
measure oftheir means: Hpholdin~ with firf and 8Wf)rd, or with
sophistry, dcctanMtion and catumny, the theoh~ieat aud ethieat
dogmas which they impose
upon their prostrat~' di.ipk?.
Such is the ()ifHeu!ty.–Thc on!y sohttion of wjiich this
di)fieu!ty seems to admit, is su~ested Ly the rooarks
whieh 1
hâve atready submitted to your attention, and w])ieh 1 wiH
now
repeat in an inverted and compendious fonn.
lu the place, the <~MMM of bthica! science amenât
thé gréât btuk of mankind wiH gradua!Iy obstacle.
remove thé
which prevcnt or retard its ~)v<MCfH<fM~ Thu fie!d of human
conduct heing innnite or immense, it is impossible that human
understauding should embrace and cxp)oru it completely. Dut,
by the générât diHusion of knowledge
amon~t the sreat bu!k of
mnnkind, by the impulse and the direction which the diffusion
will give to inquir)-, many of the defects and in existing
law and momtity wii! in time be supplied and '-rrors
corrected.
 t~

1
L~T.tM
~ï ~'<f)K~?y.- Though thf many
mustt: tHiat to authotity thf tt
ttmubet' of atttoKtIuate &-nths,ttK)y aM competem to exatutne
t!tt; ftftuenta whieh aro thf ~'omtdwot'k of t!t6 seMuee r
(itiucs.
ttud to itticr ths tttom muttK'ntous ot' thé derivative pt'aetieat
conxeqttuMccs.
Aud, //tu'< as the sciuucc ut' fth!cs n'tvfmcfs, nnd is denre'!
oi' obscurity nnd uncertamt~s, thuy who ttt'e dubtUTed front ,°

oppm-muitu's ot' ttxaMUHitt~ thé scMnee extonstvcly, will tind aa

authonty, wiK'ruott they may HttMUfdly i.'uly, iu du: untmimous
or gcnut'at a~ctMcut ot' scarching aod im~rtiat inquit-e~

LECTL'HHIV.
Il
:n-. t\'
LECT.tV Ix my !ast !ucHnv, 1 endcavoured tu answct-
nu objection which v
Thccoo.
e M.
t'~h
KectioMof
thtifuut'th "t' ~S
may be ur~ed M~ainst thé theory of utitity. And to the purpose
Bty ptt-scnt with my la.'it tecturc, 1 wiH )tùw restât~
~ttK. in a somt-what itbnd~cd '.hapf, ttmt
withth~ sunutmry et' thé objection
thint
~nft~M
[ure.
~t tl~ ~"swM- wit~ wtuctt 1 coticludcd my discoursc.
Thc ut~ection nMy bu put bnefty, itt thé foUowhtX
tnatmer.
If utility be thé proxtxmte test 'jf positive !aw attd rnot-ality,
it is itttpo.ss:b!e that thé rutM ot' conduct f<c<««//y ~~<i'M~/
f~o?~< 7<(f<M~<M~ shou!d accont co))tp!ete!y aud eon'cetty with
thé htws M<<!MM/<ff/ &y ~t; ~~y. Thé iudex to his witt is
inipeh'cct nnd uncertain. His taws are signiHed obscurely to
those u)K)n whorn they at-u binding, aud ai-e subjcct to iucvitaMe
a)td invohtutal'y nu.seoHstructio)).
Fot-< positive htwand !<fomlity, fashioued on the pnu. >

eip!e cf utility, are ~otten by observation aud induction frotn

thé t<jnd<'n<:iMs ot' human actions. Cons(;qu(;ntly, titi thèse
actions shaU bu markcd an(t claMed with perfect coinpteteness,
and theit- enect.s observed and ascct1:ained with shnihu' coniplete-
uM, positive
ness,
u juw and
~uainvu luw nMfatuy, i'astnone' on thé principle f)f
imn niomlity,
Thé cxt-erienee of thé thirty yMM MM view. An<tif)iomKtMnm))tioasof);ttm;<
which )<:tVe (.-h~Mcd since the fort-~oint!
~iMg aud potiU'at 'oo'ooy hâve in
t~cture WM wntteM <ioM not ix-on to<'ountry;)<;netrat'ttmr.;wMcty<())'t our tum
to )
juatity t)«' author'< M))g)tit)o of)ti.;ip:t. p:t. <)M').)y ttMtt tt ft-w yf.trt axo was :u.)m.
lion. of th': efr<:f;t.< of thé tipfcad of eduea.
~a. ttttt, t )x:)ieYc it )m.~ih)~ to ttx.'t-ft), in
tion Mto)))! th<- ~ojtte. But it mn;tt:bet))Mwrit)H);aorth').-icwho))avc)jet'u
be t
!t
observedth:tt, K.< little or no attellipt )fMmo.t!.uc<i.j,fM)i)tdifr:t.<iif<);t)tMt:))ow.
whtch hn cont(-nij))ate') (<H)'t ttpon which
)<
h<t!t
'wn t)t!nt<- to f;h-c thf- sort o(' ittfitntetit.n
i"n tunong thti )<.t).t)tac< K trace at
tch tmift nf Mr.H'itiM'.s inttttfnt.-e tn inOu.
alune his t-xpectatians n"it<ft), tMthittK
lit ~rian'-M wtth th)-.«; consohtton' viL'W!)
)t)K eMee titr more j~t-erfu),
M t <HM aiMxre.t
-W!t by thoiie <;OMV<rsaut \nith hH Hvtt))! tth-
<tn <M ittt<-rru<).–S. A. (JS/. 18'n'.) couMf, thttt can be Mtimated by tho!t<-
T)M histftty of even th~ few veaM convenant onty wit)< thé rettMins of his
w]n(;h hâte eta))'!<-(t since thé thtc !<tM of writiMgs.–K. C.
thé above note, itMpif)! a more hopefu) 'fut
.¡p
utHity, must
rnillgil be r. ïeM
"w.n ot-
Ma more .1.,1'a: and
t.,ri.: defëctîve, _&tMore or less en-oHeous.
Attd, thèse actîous benig MntMy v<n-~<M, mnd
thcjr ~ecm
~iu~ innnitety dive~ifk.d, t!<e work of classa UMm completetv
and of eonectin~ t!tcir GUt-cts cornp!ete!v, transcend.t thé !imited
ftteulties of cteated and iinito hcin~.
And~MMtf~,if utility be t!~ proxitnate test of positive law
and momUty, thé defects aud et-rors p~M~ or ,-«~ ~htM
will scat-ceiy adunt ~t' a rchK-dy. l'or if ethicat tiitth Le
matter
of seiencf, tmd uot of um~ditHe cMMcioust~ss,
et)ue:d mnxhus, which ~tim t)tG sentiment') ui' thc Multitude,
ht~t ~f th<.
must be takcu withmtt exantinitUon, frotn humau autitoritv.
Such is t)ie objection.–Thé o))!y
answct- of whicit thé
objection will nd)uit, is su~ested by the rcmarks w)nc]t 1 ofïered
iu )uy last !eetUM, nnd which 1 repcatcd at its close, aud hère
t'epcat in an invcrted and coinpcndiou.s form.
In the /<~ place, thé (~<Mi-<w ûf ethical seieuee
tho grcat bu!k of mankind wiU ~raduaUy
amenât
yemove thé obstacles
which prevent or t-et:u-d its ~M<HMM<<<. Thé field of humau
conduct being infirtitu or immense, it i$ mtpossiMe thab huwan
understandin~ shontd Gmbraec and explore it cotupletdy. Hut,
by thé gênera! dinusiou of knowledge amon~t thé
grcat butk
of mankmd, by the impul.se aud the direction winch thc diOusion
will ~ive to inquiry, niany of thé defects and
en-ors in existin~
!aw and tnorality wit! in time bc supplied and eon-ected.
<<-OH~; Though tite many must trust to autjtoritv for
a
munbcr of subordinate truths, they are compétent
to examine
the éléments whieh arc the groundwork of thé .science of ethies,
and to infer thé more monientous of the derivative practiea!
conséquences.
And, </tM/y, as the science of ethies advances, and is ckared
"f obscurity and uncertainties, they, who nre dcbarred fruin
opportunities of cxnminin~thé science extensiveh-, will find
authority wjiereon they tnay rationany rcly, in thé unnnintous an
or genend agreonent of searching and impartiat inquirers.
Hut this answer, it tnust he admitted, merdy <H(«~ thé he Thc.-icc'.n.)1
objection. It shows that taw and morahty f.ts]iioncd
on t)te).)())'
principle of utility nnght approach continu:d)y and indennit<v !v thf-orv
to absotutc perfection. But it ~-anb that !aw and moralitv
1
tv"y.
uf
MttttK~).
iashioncd on tho principe of utility is inevitahh- dt-fective and Mt
en-oneous: that, if thé laws MtaUished by thc ï~itv must be (~n
construed by the principle of utitity, t))e niost perfcet
svstem of
ethics which the wit of man couht concf-ivc,
were a partial and
inaccurate copy of the Divine original
or pattem.
 ?Xf/~1M~M<'<!<?/'

(i6 tnay ha tttged) <Mspmves tha thooty which

im~esAndthMthia
Luch tV
pnnc~tte of thé ifxtex to thé Mvine p!easnrc.
MtiH~y
For it cûtt~ts. tt~t Wtth thé known whdom and thé known
benevotence of thé tA'ity, that he sttoutd si~nny his commands
defeetivety tnnt obscarety t'~ those upon wttotn they m-e hindin~.
Ahtrthcr Dut aJtuittu~ thé huperfucH~n oi' Htitity as thé index tu thc
aoM'ortut" Divine pkasm-e, it is impossible
that to ur~'c, ft'oni this its admitted
secfmt imptirt'eeti~u, that utility is ~< thu index.'
ottjmtiutt.
011,
Owing to cau.sus whic)) m'e hidd~'n ft-om hmnan uudct'staod-
inn, ai! thc wurks uf thc Dtiity which arc opeu to humau obser-
vation atf aHoyud with im~rh-ction or evil. That the Dcity
slioutd si~nify )tis cotfnnand.s dMt'fetivfly and obscuruty,is strictty
in keepin~ oy unison with thé t'est ot' his inscrutabte wny.s. The
objeetiou now in question proves too nmch, and, therefore, is
untenabte. If yuu fu-~ue that thé pnncipte ot' utitity is ~M< thé
index to his laws, &<<-<tt<c thé principle of utitity were an ~/t-
~< ~<'< index to his laws,' you argue that ait hii! works
are
~<t-< exehtpt t'rotn evil, tfcctMt' itnperfection or evil is ineonsistent
witit his wisdont and ~oodue. Tho fortner of thèse argument:!
«/~<t. thé htfer, or is merely an application of thé sweeping
position to <<<' of innumerabie cases.
Accordingly, if the objection now in question will lie to thé
theory of utility, n sinntat- objection wiJI lie to ft'y theory of
ethies which suppose:! that any of our duties are set or imposed
by thé Deity.
Thc objection is founded on thé atle~ed inconsistency of evit
with his perfect wiadom and ~oodneM. But thé notion or idea
ûf evil or imperfection is invoh'ed in thé conneeted notions of
!uw, duty, and .sanction. For, sceing that every !aw imposes
a
re.stmint, overy law is an evit of itsetf: aud, uukss it Le thé
work of matignity, or proceed frotn consunnnate fo!)y, it a!so sup.
poses an evit whictt it is ttesigned to prevent or rcmedy. htw,
like medicine, is a préventive or remedy of t<'t7; and. if thc wortd
were free from evit, the notion and thé name woutd Le unknown.
That his taws are signified obseurety, if utitity be thé index
to tus taws,' is rather a presumptionin faveur of thé theory which
tnakes utility our gui(te. Analogy mi~ht Jead us tu expect
that they woutd be sig!)if!ed obseurety. For taws or commauds
suppose thé existence uf evils which they are desi~ned to remedy:
let thctn be signine't as they may, they remedy those evits int-
perfectty and thé imperfection which they are desi~ned to rcmetty,
and of which thé remedy partakes, might naturatty bc expected
to show itsetf in ttte mode by which they are manifested.
 ~MM~~M~wM~~ t43
My <tMswer
wer t~ thc onction
objection M the
thc very arfument wMdt
vet-y ar~MieHt
excelletlt Butter, in hî.<< adniimNe 'Ah~y; t,~ wi~dcd
w!ueh the d~ L~~ 1
in de.
fence of Christianity with t!te vigour and t!ie sktH of
:<. m~tec.
Consider<;d as a systetu of rutes for t))c guidnnce of
Jimnan
couduct, the Christian Kjigiou i.< def~tive. There
circumstanee~ re~ardiug the matiucr at- its p~mu!~ttiun whic).
are a~
JtunM!) reasoM VHih!y lubours to rccond~ with thé wisdM.i
aud
~ooduess of 0<A[. StiU it were a Lsurd to
ar~ne t !tHt thc yeii.'ion
is not of Uûd,~< t.hun..)~ion is det-Mtive.and is hat~t~v
revenkd to mankind.' !.M. thé oLjec-ti.m is found~d
thé
ath~d tuconsistency of evil with his p~rfcct w].s<to)u attdon"ood-
UM.s. And, siuce evil j~-vad~s thé universe, in ns"it
so far is
open to our inaction, a situil~r <.)-JMtiun wiU lie to fw-y system

f.
of reh~ou which ascribM thu uxi-tcneu uf the u!)ivcr~
tu (t wi~
and benevo!cnt Author. WhocYbr Ldi~-cs that tlic
uuiverse is
thé work- of Len~vol~nce and wisdon), is cooctuded,
or
by tus own reh~ious crccd, frohi takin~ ubj~eti-jtt
a), of thc kind
to t!M ci~fd M' sy.ste]a ofatioth~r.
Ana!«gy (as Hutkr iias siMwn~ ~-onl,l lead
u~ ta ex~ct dM
tmperfceti&tt u~n wftich the objection i.~ ibunded. Su).)btinn<.
of tite imjjerfection which runs through thc frame of thc
univers
would prot~bh' be fouud in a rev~iation ematmti))"
fr.jn) thJ
Author of thé uuivur.sc.
And Itère my solution of thé diMeutty n~cessarih-
contptete solution is rnani&st!y impossible. To reeoncilj
stop!
the
existence of e\-it with the wisdom aud goo~tnesa of C:od is
whie!) sut-passes the powers of a ta-ik
our han-ow aud feetde under-taud-
)ngs. Uns is a deep wJtieh
ot.r reason is too .s!«jrt t'. fathom.
From thé decided predotninanec of ~d whieit is cb.~rvabic in
thé ordcr of tlie worid, aud front thé tnanifoM marks
of wisdom
which t!~ o)\kr of thé worH exhibits,
wc nmy draw ti).. c))cer-
ing infcrence -that its Autitor is ~ood and wisc.' W)n.
titc
wor!d which he has made is not a!to~thcr pcrf.'et,
bexevoIeHt I)eity tolënne.-) thc exist..)~. or why a
of evil, .,r what (if I
may so express myscit; are thé ubstat-tM in t!~ wav of his
beuevoltince, are c~arly questions which it
wen.' imposable to
sotve, and whieh it werc id!e t.. agitât.- ahhou~) thev
admitted
a solution. It is enough for us tu know, that thé Deity is
perfectiy good and that, sinee he is perfeeth- good, he
wilis
thé happiness of Lis ercaturM. 7%M is a truth of thé
<wate<t
~-<!<-<M/ moment. For thé cast of thc afieetions,
winch we
nttribute to thé I)eity, détermines, for the
most part, the cast uf
our tuMftI sentuuents.
t~4 7~f/~M'<W<r<~
htM-.tV
h)!<T. !V
V' Ï ntttnit, theu,
] n<ttn!t, eomtamKts are
t!otra
thon, tht<t Hott'a m~erfeettyMgHtnett
are !m})erfeet!y
'thé hvpe. tn tnan, atmnosttï?
to tMiLH. must gathcr
sttpposiug wo mnst his cnntmanfh
suthcr hi~ cnmmand'! frorn thé
tetidencies of htunan actions. J<ut { deny thnt this imperfection
<h~h'"r«t<.tid<
M~~ htsive objection to thé theory whic)) makes t)te principto
is
M~<a con<
t
ut' utinty nur guide or index tu his wiit. Whoeveï wuuld dis-
brh-ttyiM- ut'Ut
truuttct:d.
prove the theory whiftt tnakes ntttity om' ~uide, Mtust produce
prov<
!Ht'Jt))pr pnndt'k thnt welf a sur(fr and a better ~ui'.k'.
!Ht'Jt)
Xo\v, If we r&)eut M<<<<<~ as thé index to God's eoummnds, .Il

wu inust assent tu thé theury ot- hypothcsis wiiich su~pos~s «

Wuï
n<~y«/
n<~y« ~?t«'. Une ot' thc advcMf tht'ori''s, which re~mt thé
nutut'u uf thitt ind~x, is ecrtaiuty true. Hc hus !<ift us to
nutu:
~-M«~<; ins cutaumuds ft'otn thu tundencics of tiumau actions, ttr
~~M
heh.
he bas given us n pecutiar .w'/t~ of which his conimands are thé r
objet
objecta. ,t

~t
'Amont
cuMttnott
iitn.se/'tt ~pu<
Ail thé hypot)t("it;.s, rc~ardin~ thé nature of that index, which
discal thu principte ot' utitity, arc btnit upou thc supposition of
o pueuUiU' or appropriatu .7M< Thé ian~m~e of cach of thèse
j

tnontM. j.t.t),, hyputin'ses

"'I~ diit't;rs front th~ Janguago of thé others, but the
~t."a
pnnt'ipk )tap<J itaport of cach resemUes the import of thé rest.
ttfrcttc. By « Miw«< ~tK~ with which my understanding is hu'-
tionut'oj))'
~k)Kv,' uish( nished, 1 discem thé hurnan actions whic)t thé Deity enjoins
~m. and
'apnnjtiM! <~d] forbids And, siuee you and the rest of the species arc
'it))Mte provided
prov with a like organ, it i.s clear that this seuse of tnine is
))ntt;ttL'a)
prin. 'thé <wMm<w sense of mankind.' By 'K ~!<'<'f!/ <<<y< with
't!'e
~ij)))M,' which the'Deity bas endowed me, 1 ani urged to some of thèse
~.)~e r]
'c~nnittt
M~O and am wanied to forbear from others.
actions, ~'t'oc~/t' <
pmctica)
~/&<io~ o' cw<<t)t<'f,' wiach Hutier assures me 1 possess, in-
)-<<M i
<'))<)<;s, fornis me of their rectitude or pravity. Or ~/K' t?u<ff/< ~~<e<t'c/<~
!'r
etc.~t. fOHU
('xpr.
~'<
~Mc~/f.< wltich Locke bas presumed to question, definc t)te
duties, which (tod bas hnposcd upon me, with iufaMible cluar-
.mnafor duth
W!t)h)t))f and eurtaixty.
imnM)ty)«- nuM
th<:<).<. Thèse and other pitrascs are varions but équivalent expres-
sions fur one and thé santé hypothesis. Thc oniy observable
sion'
diiference betwcen thèse various expressions consists in this
dii)'H: i'
that some dénote MM~t'/KtM/'i witich are excited by taunan actions, i;j
whitst others dénote thé ~MM< to whieh tbo.<e .'icntiments
whit
are thé
are) t index. r
'r)<hy[!('- Thé hypothesis of a morat sensé, or thé hypothesis which is v
th~i-im varioustysi~nitied by thèse varions but équivalent expressions, r,
.t.tio..
im-h-< i)~.(, involvcs two assmnptiuns.
m'oM' Thc iirst of thé two assurnptiona involved by thé hypothesis
KUOt~tMn.
TtMfirst inq i~~ question,
ri may be stated, in genemi expressions, thus:
f.fthKtwo r
L'crtain sentitoents or footings of approbation or disapproba-
fniitimp.
i
t
 J~~<~< t~
Me
Mcoiapany
.Mther eSeeta
_ri~ il.
MtyQurcottcepttMM~CMtMRhtnBttaa~Mns.
our conceptions. certMn hamtta ariens, l'he~ Thev
of rettectioa upon thé t~deticies of thé action.
whtchexcttethem~norM-ettteyoftects~fettuMttiM.
~Ci-.tV ~~c

Aeoncep.
tion of any of thèse actions would be aecompauied by
ttte~ MMtimeats, although we had not adverted certain uf
to its good M
evtt teiMtoncy, nor knew thé opinions of other.s
with r~'aKt to
actions ai' t}M class. °
In a word, that portion of thé hypothesis in question
wjtieii
1 iun now statiHg is pu~y M~w. We
arc siited with mom!
sentimonts wJtich are <~«<<e <~c<-M~«&/t.~< whieh
«r nre
thé conséquences of Section the tendeucics
upon of i.uman
actions, which are uot thé
conséquences of thé éducation that
we rece.ve froM our fe))ow.men, which are thé consequences
or eneets of any antécédents or cause. placed within thé reach
of our inspection. Our conceptions of certain
actions are
accompanied by certaiu sentiments, and </<c is
knowfedge. an end of our
For thé saké of brevity, we
may say that thèse sentiment
are 'instinctive,' or we n~y oaU them momt instincts.'
l'or thé terms 'instinctive,' and instinct,'
y«~. are mereh-
expressions. They me~Iy denote iKHomne.
fhey mean that thé phenomena of w!,ieh our own
talking are not preceded by we happen to Le
causes whieh man is ab!e to her-
CMve. l'or example, The bird, it is cormnonly said,
hernest by 'instinct:' or thé ski!! which the bi..d buitd.
évinces in
the building of her ..pst, is conunonty styied
'instinctive.'
That is to say, It is not thé product of
experit.tents made bv
the bird herself; it !)M not been impartcd
to the bird ),v the
teachn~ orcxamp!e ofothers;
nor is it thé conséquence or
effect of any antécédent
or cause open to our observation.
The remark whichlhave nowmade
stmctive' and -instinct,' is not interposed upon thé tenn-t'in-
needless!y. For
though thetr true import is extremdy simple
and trivial, thev
are apt to dazz!c an<( confound us (uniess advert to it
steadily) with thé fa!se and cheatingappearaneewe
of a mysterious
and magmneent meaning.
In order t)tat wc may clearly apprehend thé
nature of the~e
esCTheforf.
mora! mstmcts,' 1 will descend from
nnagmary case.
genomt exp~ssions to an ~s
1 will not imagine thé
case which M fancied by Dr. PaJey .y. a-Humt)-
for 1 think it ilt ntted
to bring eut thé n.ean.ng sharplv Il'L'motifio)
will
n merety
mereiy take thé bon~i~ ins
tH.' liberty
I.berty of bor~win~ solitan- savane, a").!ait)(-.n.y
his solitarv sava. t i
child abandoned.
chdd abaudoned. in,
in. thé witdcrne.~
wUderness immediateh-
hnnMdiatdy after its 'birtil
Mrtil
tit,aHit)f!t~i)i-
vor_. r
LECT.tV and gt'owtngto
nud growtng thé ag& of mmhood in estrangement hom
hnmansociety.
hnmftn society.
Ht~vittg gotten my M~ec~ 1 proeeed t~ deal with bun after
Htwit)ggo< ?¡
myuwnfasinon.
my uWM fasino
1 imagine that the savttgo, as ho wanders in search of prey,
meets, for thé first time in his !ife, with a man. This man is
a huuter, and is carrying a deer which he bas kilkd. The
savage pounces upon it. Thé hunter hoids it fast. And, in
order that he may remove tbia o)Ntao!e to the satisfaction of his
gnawing hungcr, the savage seizes a stone, and knocks thé
hunter on thé head.–Now, according to tho hypothèse in
question, thé savage is affected wit!i ?'e~M'~ at tho thought of
thé deed which he bas doue. He is affected with more than
t
the cMH~«~M'M which is excited by thé sunenngs of another,
and which, considered by itself, amounts not to a moral senti-
ment. Ho is auëeted with the more complex emotion of
sc~-coM(~eM?t<t~'<M or Mm<M'~ with a eonsciousness of y:«7<
with tiie feeling that haunts and tortures civilized or cultivated
mon, whenover they violate rates whieh accord with their
notions of utility, or which they have learned from others to
regard with habituai veneration. He feels as you would feel,
in case you had committed a murder: in case you had kitled
another, in an attempt to rob him of his goods or in case you
had killed another under any combination of circumstances, [
which, agreeably to your notions of utility, would make the act
a pernieiou!! one, or, agrecaMy to the moral impressions which .)
you have passively rcceived from others, would give to tho act ]
of killing thé quality and the name of an tK;'K)'y.
Again: Shortty after thu incident which 1 have now
imagined, he meets with a second huntcr whom lie also knocks
on thé hend. But, in this instance, he is not thé aggressor.
He i.s attacked, beaten, wounded, without thé shadow of a
provocation and to prevent a deadty blow winch is aimed at
his own head.he kii!s thé wanton assaitant.–Now hère, accord- t
ing to thé Itypothesis, he is Mo< anccted with remorse. The
suiferingH of thé dying man niove him, perhap.-), to cût/~MMi'M!
but his coM.t'M<'<: (as thé phrase gocs) is tranquit. He fecis as
you would fée), aftc)' a justifiable hotuicide after you had shot
a hi~hwaYman in défonce of your ~ods and your life or after
you had kiUcd an'jther under <f/~ contbimttion of circumstances,
which, agrceab!y to your notions of utility, would render killing
innocuous, or, agrfcaUy to the current tnondity of your âge and
country, would render thé killing of another a just or tawt'u! action.
 fhatg!M<ahott!d temoïse if yottkit! m an «tt~nptto (f t,ft't'.
t t\'
rob, and shoaM not be afteeted with rémora if you MU
tfMttd~rou.~ robber, M a di~rence whieh 1 readity accouht for
sit
r
without thé supposition of an instinct. The inw of
your
country distinguishes thé ca.~s aud thé current morfdity of
your country accords with tho !aw.
Supposing that you Iiavc never adverted to thé
rcusons of
that distinctioH, thé diHerence btitween your fcdin~ i.<i easily
expinined by imputing it to <<M~t'o~ mauiug, Ly t!m tenu
(~<ca<«w, the inHuence of authority and example
on opiuious,
sentiments, and habits.
Supposing that you havo ever adverted to thé
ycasons of
that distinction, you, of course, hâve been stmck with its
obvions uti!ity.–Genera!!y speakiug, thé tutentional killing of
another is au act of pernicious tendeney. If thé act
were
fréquent, it would annihilate that général security, and that
genefai feeling of security, whieh are, or should be, thé pnn-
cipal ends of political society and law. But to dus there
are
exceptions and the intentioual killing of a robber who aims at
your property and life, is amongst those exceptions. Instead of
being adverse to thé principal ends of law, it rather promotes
those ends. It answers the purpose of tite punistiment which
thé law inflicts upon tnurderers: and it aiso accomplishes
a
purpose whieh punisitinent is too tardy to reach. Thé death
innicted on thé nggressor tends, as his punishmeut would
tend, to doter from thé crime of murder and it also
prevents,
what his punishment would not prevent, thé compietion of
the murderous desi~ in thé spécifie or particuJar iustance._
Supposing that you have ever adverted to thèse and siiiiilir
Masons, tho différence between your feelings is easily expiaincd
by imputing it to a ~-(~iM o/' ~7)/. You sec that thé
tendencies of thé act vary with thé eircumstances of thé act,
and your sentiments in regard to thé aet
vary wit)t those
varying tendencies.
But thé différence, supposed by thé hypothesis, between thc
feelings of thé -Mt-f~, cannut bc hnputcd tu ~~«-«/j'f</<. I-'or thtj
.savage bas Uved in ('stran~ment frotn human soeiety.
Xor can thé supposed (HOerence be imputed to ~ow~ta,,
)<~7<7/iïe knoeks a man on thc hea<), t)i:tt he «may sati~fv
his gttawi)~ hunger. Ue kn~eks anuther
on thé h<-ad, that !h-
'nny escape from wounds and deat))..So far, then, as thcse
~merfnt actions cxch).sive!y tt~itrd hinMdf, they equa!)y
:od and so far ai! tht;s<j dinercnt actions regardarethé men
t4~ Z%Mw~<~
LKct. ÎV whom he Ht!s, they are equalty Lad,
whe tried by thé test of

<
ttttti
tttttity, <tM<~ <f<~ /M/A~ <t'A<t'& (A<t «<K< jMMe~~f Mo taotat
qualities of thé two mettons tu-e pteebety thé samc. If we sup.
pose it possible titat he adverts to considérations of utiHty, and
t!Mt his eentuHeuts in tvspect to thèse actions are detcrmined
by considérations of utitity, w« tnust iuH'r that ho t'etnembers
buth ut' t!mttt with sinutar i'tifHn~s with suuilar fee!tugs of
CMnptacfttcy,as tho ftctmns regttnt himsc!f with similar feelings
oi t~rut. as Umy tcg:n'd t!M su~nu~s ot tim shuu.
To tho social tuan the diffcrGnœ betwce!t thèse actions, as
tned by the test of utility, wcro immense.–Thé gênera! happi-
uess en' good dctnauds tho institution ot' pmperty: that thé
exclusive enjoynMmt coufen'ed by thé law npon thé owner shall
not be disturbed hy private aud unauthorised pcrsons that no
man shall take fron another thé product of jus labour or savhtg,
wititout thé penm.ssion of the owuer previousty signified, or
without thé authority of thé sovereign aeting for thé commou
wea!. Were want, howuvcr intense, an excuse for violations of
propotty could every mim who hungera takti from MMthe!' with
impunity, and s!ay thé owncr with impunity if thé owner stood
on hi;; possession; that benencent institution wouM become
nugatory, and ttte ends of government and law woutd be
defeated.–Aud, on thé other hand, the vcry prineipte of utility
which deniands thé institution of property requircs that an
attaek upon thé body s)MM Le repeUed at the instant that, if
thé impending evil canuot be averted otherwise, the aggressor
shaU be slain on thé spot by the party wttosu tife is iu jcopardy.
But thèse are considérations which would not présent thein-
selves to thé sontary savage. They involve a number of notions
wittt which his mind wou!d be unfurnished. They involve thé
notions of potitical soeiety of suprême govennnent of positive
law of légat right of tegat duty uf légal injury. Thé good
and the evil of thé two actions, in so far as thé two actions
wou)d af!ect thé innnediate parties, is ail that thé savage eoutd
perçoive.
Thé difference, supposed by the hypothesis, between the
feelings of thé savage, must, thcrefore, be ascribed to f< M«~
~i. or to <MK~<t: ~i'«c~'K</ ~'t~-t~/t'.t. Or (speaking in hontelicr
but plainer tanguage) lie wou!d regard the two actions with
-Ut~
<
'titt'erent sentiments, /f«'!t' K«< !'7~.
T)t<-)ir.<tf<f Thé nrst of thé two assumptions involved by thé hypothesis
th..tw.jin1!1 question is, therefore, thw.–Certain inscnttaMe sentiments
sumptl.,¡¡s
M))H]'H''tf!.
of approbation or disapprobation accompany our conceptions of
 certain kuman aotioM. ThcyaretMtbegottsnbyïBlteetio!i Ml hKM-.tV
«pon thetenttcnciesof the actiotM which excite them,nor:tre b\-
thé h)--
th&y instiUed mtf~ our mihtb by ~«~ mtercoHrse with ottr fettow- )«'t);if m
men. They are simple e!emen.ts of our nature. They are 'MeMvre-
Mttimate tacts. They aro not thé effets of causes, or are nut ,(~t«M!)t
the consequents of antécédente which aru upM) to ttuntau MM);t'e.'niiuH<.
( observation.
Aud, thus far, thé hypothesM in question has Leen embraecd cd
by aeeptica as we!t as by rpHjrion! Fer exa!np!c, It is
supposed by David Hume, in his Essay on thé Prmci]'!e') of
~Iom!s, that <MM<' of our moral sentinicrits spring from f< ~c~-
~K o/' M<<~ but he a!so appears to imagine that «</t«-~ are
not to be analyzed, or be!ong cxclusively to the proviuce of
~f<t'. Sueh, 1 say, ~ws tn be his meaning. For. in this
essay, as in ail his writiugs, he is rathcr acute and ittgcnious
than cohérent and profuund: haudting detached topics wit!t
signal dextcrity, but evincing an utter inability to grasp his
subject a.s a whoJe. When hc spuaks uf M<M'a/ ~M~t/iO!~
belemging to the province of he may, pprhaps, bo adverting
to thé origin of ~cMCM/fMcc, or to thé ori~in of our .<y~f<</<.ywith
the pteasurcs and pains of others: a fueling that diners as
broadty as the appctite of hunier or thirst from the sentiments
of approbation or di.sapprobation which accompany our judg-
juents upon actions.
That thèse inserutable sentiments are signs of thé Divine T
will, or thé proofi! that thé actions whieh excite th~m
are '.t-hcm-u
enjoined or forbidden by God, is thé second of the two assump- n
!p-n.~i.<t)t-
tions involved by thé hypothesis in question. ~j
In thé language of the admirable Butter (who is thé ablest 'StthfM.'iHt
advocate of thé hypothesis), the huntan actions by which thc~e ~C)'.n.,ttY
fecling*! are excited are their direct and appropriate objects~<tat<;(l
just as things visible are the direct and appropriate objeets Of of
the sense of seein~
In homelier but ptainer langnage, 1 may put !<i.s mcaning
thus.A-s (ïod bas givcn us eyes, in or<h'r that wu may see
thercwith; so has he gifted or eudowed us with thé fudings
"r sentiments in question, in order t)mt we may (tistingui~h
directiy, by means of these fee!ings or sentintents, thé actions
which he enjoins or permits, from the actions wjtieh hc
pro-
hibits.
Or, if you !ikc it better, may put thé meaning thus.–
1
That these inscrutabte sentiments aro .sign~ of the Divine will,
an inCerence which we neeessarHy deduce from our considera-
 !5o T~c/~wMffe'~
Lt:(*t'. !V t!on
LMt-.tv tMtt fti* ~'MH/ tf<M~.
&t'~M«<~ <MM~t Liko
T-ittn thé ~F our
MKtt. pf
tttM rest tmf ~ietitea
nt~~tit~Q or
ttM &vet'9MM~
thes<
these settttments wef6 (tcsigttc<t hy the Author of sur being to
answ(~'
auM an appMpriate ead. And tho 'anty pettinent end which
we can possibly ascribo to ttton, is thu end or final cause at
we
wbt( t hâve ttow pointed.
wbich
~'e.'"on
A'tth[-
<Ier L~1 tuottd
I1r01't
Now, supposing that the Dcity bas endowect us with a
SMUM ur ittstinct, wu arc tMM of thtj t!if)icu!ty to winch
tntt)td.t, we at-u
Wf!! il subject, if we nmst construc his iaws by thé principle of
tt)«cr.t) ~Monti utility, AccurdiMg to thé hypothesis in question, the
s<;t)scw<n' S~~
inserutaMc feuHn~s
!<s!ifat[ibk-{nge) which ara styled tho moral .senso anse

"s'
Omntht-
pnn~~ directiy
UttfttY.
IItl It~
"CC
objects.
obje(
attd iuevitabty with thé thou~hts of their appropt-Mte

to mtmkind,
p
ni
We cannot mistake tho !aws which God has prescribed
althou~h we may often bo seduced by thé bhmdish-
ments ùf présent advantage irom t))e plain path of our duties. The
tuen
understanding is never at a fault, a!thouglt thé will may be fraiL
und<
Butbtt~tt
,tU\' <
1
<v~

SU*t!tittth<-
Hut iiere anses a small questiot).–Is therc any cM~otec
that we are gifted with fceHngs of tj~e sortl
that
That this questtOH is possible, or is seriousjy asked and
h\'tMtiiMM

ti"
itt.('K-.<.
,t, agitated,
"gttt wonM seem of itsctf <t Mtftteient proof that wo arc not
1 endowed with such feehngs.–Accordiug to thé hypothesis of a
ettdc

&
U~
ThehvtM;' moral
qm'i.ti'~itGod'
h\' tlto
up~th-
'"°"
,T.M sensé, we are conscious of thé feelings whieh indicate
God's commands, as we are conscious of hunger or thirst. In
O~
other words, thé feelings which indicate God's commands are
ultimatc
ultit) facts. But, sincc they are ultimate facts, these feelings
staMufout-
'0)t)i'tOM.T
Or sentiments
or SI must be indisputable, and must also differ ob-
MC~. viously from thé other elements of our nature. If 1 were really
\'{ou!
!ft& with feelings or sentiments of thé sort, 1 could no more
Sifted
seriousiy question whether 1 had thcm or uot, and could uo
seno
tftore biend and confound thcm with my other feelings or senti-
tnorc
ments, timn I can seriousJy question thé existence of hunger or
ment
thirst,
thirs or can mistake thé feeling which affects me when 1 an)
hungry for the different feeling whieh affects me when 1 ani
huas
thirsty. AU thé parts of our nature which arc ultimate, or
thit's
incapable of analysis, are certain and distinct as well as in-
inca;
scrutable.
scrut We know aud discern them with unhesitating and
invincible assurance.
invir
T)tf:tw<~ Thc two current arguments in iavour of thé hypothesis in
curf'ota.s'u.M.t. question are raised on thé foUowing assertions. 1. The judg-
ments which we pass internatly upon thé rectitude or pravity
i)tt'av')ur"tn)et)<
ththvh'j-
theswfn of M~itlactions are immédiate and involuntary. In other words, onr
;t"tion, moral mota sentiments or feelings arise directiy and inevitably with
br~t))-
st~tci nttr conceptions of thé actions whictt excite them. 2. Thé
our
OUr
moro sentiments of aU men are precisely alike.
moral
 bw~amtof
Now thé fimt of thèse veatmot~ {iaseïttons M! ao~ uttiwersatty
veatUMtMasseïttOBsisao~uttiwetsatty atty &Ecr.!V
&Ecr.!V
true. ïn num~rïesa cases, thé judgmemtjt whieh we pass P~s'fiJ~
MttornaHy ttpoM the reetitttde M' pravity of actions are he.?itatin~
dn'y "~nK'nt
and slow. And it not unirequentty !mppens that we cannot motof,)~
arrive at a conclusion, or are utterly at a !uss to détermine im<yt~is
whether wo shal! praise or btame.
And, granting that our moral sentiments are always in- .tUMM't.
stantaneons and inevitaNe, this will not detuonstrate that Our Mn-
moral sentiment') are instinctive. Sentiments which
are fac-
titious, or begotten in the way of association, are not less
prompt and involuntary than feelings which are instinctive or
inserutaMe. For example, Wc be~m by loving money for tho
sako of thé enjoyment which it purchases and, that enjoyment
apart, we care not a straw for money. But, in time, our love
of enjoyment is extended to money itself, or our love of enjoy-
ment becomes inseparably associated with thé thought of thé
money which procures it. The conception of money su~ests a
wish for money, although we think not of tho uses to whieh
we
shonld apply it. Again We begin by loving knowledge
as a
mean to ends. But, in time, thé love of thé ends becomes
inseparably associated with thé thought or conception of thé
instrument. Curiosity is instantly roused by every uttusuat
appearance, although there is no purpose which the solution of
thé appearance would answer, or although we advert not to thé
purpose which thc solution of thé appearance might subserve.
The promptitude and décision with which wo judge of
actions are impertinent to thé matter in question for
our moral
sentiments would be prompt and inevitable, although they arose
from a perception of utility, or although they were impressed
upon our minds by thé authority of our feHow.men. Supposin~
that a moral sentiment sprang from a perception of ntility,
or
supposing that a moral sentiment were impressed upon
onr
minds by authority, it would hardiy recur spontaneousiy until
it had recurred frequently. Uniess we recatled thé rffM~ whieh
had led us to our opinion, or unless we advcrted to thé <t!<~tM-)'~
which had determined our opinion, thé sentiment, at thé outset,
would hardly be excitcd by thé thought of the correspondingaction.
But, in time, thé sentiment wou!d adhere inseparablyto thé thought
of thé correspondingaction. Although we reeat!ed not thé ground
of our moral appMbation or aversion, thé sentiment wou!d
reeur
direetty and inevitablywith thé conceptionofits appropriuteo~ect.
But, to prove that moral sentiments are instinctive
or
inscrutaMe, it is bodily asserted, by thé advocates of thé
~Sz ?~~pMw<'<~
t.tM'.
t.tM'. tV hypethesis in oHëstion,
tV ttypethe~M
mfpMCMt~ynMko.
question, that the rnpmt ait men are
sentïmettts of aïi
mom! sentiments
tttt~YQUt'uf
tt~hyt)U* Thé argument, in thvour of thé !typothesis, which is raised.
tt~bmt.
tjtMstiutt, on this htH'dy assertion, may be statfd briefiy m thé Mlowing
fX.MutU);'t. manuet.No opinion or sentiment which is ?reeult of observa.
tion and induction is heM or felt by atl mankind. Observation
and induction, as apptied to the same subject, lead diir<jrent
uien to dinei-eut conclusions. But thé jw~ments which are
passed iutcrunHy upon the rectitude or pravity of actiot~
or
the tuoral scutimeut!! or t'eelings which actions excite,
are pre-
cise!y niike with aU men. Conseqm'ntty, our moral sentiments
'jr ieeiihgs were not gottea by our inductions from thé ten-
dencies of thé actions winch excite thetn: nor were thèse
St-ntitueuts or feelings gottcn by inductions of others, and then
itttpresstjd npon our minds by huinan authority aud exampie.
Consequc-utiy, our moral sentiments are instinctive or
are
u!tmtatcorinscrutab!efacts.
Xow, though the assertion were granted, thé argument
raised on thé assertion would hfndly enduïe examinatMn.
Though the moral sentiments of aH men were prceise!y alike, it
would hardiy foltow that moral sentiments aro instinctive.
But an attcmpt to confute the argument were supernuous
labour: fur thé assertion whereon it is raised is groundiess.
The respective moral sentiments of dinerent âges and nations,
aud of diu'erent men in tho same âge and nation, hâve dinered
to mfinity. This proposition is so notoriousiy true, and to
every instructed mind thé facts upon which it rests are so
famitiar, that 1 s]iou!d hardiy treat my !iearers witjt due respect
if 1 attempted to establish it by proof. 1 therefore assume it
without au uttctnpt at proof; aud t oppose it to the assertion
which 1 am now considering, and to thé argument which is
raised on that assertion.
But, bei'M'c 1 dismiss the assertion which 1 am now cou-
sidcrmg, 1 wi!I brieity advert to a diu)eu!ty attending thé
hypothesis in question which that untbundcd assertion naturally
.~uggests.–Assuming that moral sentiments are instinctive or
inscrutable, they are either dif!erent with différent men, or they
are alike wit)) aU men. To atnrm that t))ey are a!ike with ait
me)),' is mere!y to hazart! a bo!d a-~sertiott contradicted by
not-ious facts. If they are dînèrent with ditterent men, it
Mtows that Cod bas not set to men a '-«MMMt n~e. If they
are diU'erent with dîneront me)), thero is no c</Mm<Mt test of
hmuan conduct there is no test by which one man may try
 th& conduot ûf ~other. ît
were Miy and pretumptionin me
t t& Mt i& jmtgmcat upon ymt, That which we~ pravtty itt ?<
1
tmy, for aught~ 1 ctm kn<tw, ho Mctitude m The mcrat
sense which ~« allège, may be just as good and genuine as
that of which /am conseious. Though ?< iMthtet points bne
way, yo!< may point another. There is no broad sun destined
tu illumine the worid, but evGt'y smg!e mnn must wa!k by his
own cand!e.
Now what ia thé tact whercon thé second argument in
i'avour of thu Itypothcsis in question is founded? TJte p!ain
and gtanng fact is this.–With regard to actions uf a few
classes, thé moral sentiments of most, though not of a!I men,
hâve been alike. J}ut, with re~tard to actious of other classes, i
their moral sentiments hâve dittered, through every shade or i
degree, from stight diversity to direct opposition.
And this is what might be expected, supposing that the:J
principle of gênerai utility is our onty guide or index to thé
!<
tacit commanda of thé Deity. The fact accords exactiy wit!*
that hypothesis or theory. For, first, the positions wherein t
men are, in différent nges and nations, are, in many respects,
widely diHerent whenc-û it inevitaUy follows, that nmch which
was useful there and then were uselcss or pernicious hère and
now. And, seeond!y, since human tastes are various, and since
human reason is fa!!iUe, men's mora! sentiments rnust often
widely diitet- cven in respect of thé circumstances wherein their
positions are alike. But, with regard to actions of a few classes,
thé dictâtes of utility are thé sanie at aU times and ptaces, and
are also so obvious that they hard!y admit of mistake or doubt.
And hence would naturn!Iy ensue what observation shows us is
thé fact namely, a général resernb!ance, with infinite variety,
in thé Systems of law and Moratity which ]mve actually
chtained in thé worid.
According to thé hypothesis which 1 hâve now stated and
examined, thé moral sense is our <M~/ index to thé tacit com-
mands of thé Diety. According to att intermediate hyputhesis, ta
conpounded of thé hypothesis of utility and thé hypothesis of a
morai sense, thé mora! sense is our index to .~M< of hi.< tacit com- ''<
mands, but thé principle of gênera! utility is our index to o<«r.<.
In so far as 1 can gather ]us opinion from his admirab!e
sermons, it would seeni that thé compound hypothesis was
embraced by Dishop Hnt!er. Dut of this 1 am not certain
for, from many passages in those sermons, we rnny perhaps
infer that he thought ttte morat sensé our unly index or guide.
 '34
ty4 7%M~<~
Mct.tV
Met. !V Thé MHHpotmd
The hypothesis now ht qu~tioa
tompcumd hypothexts (HM~tioaN&tu!ttttyaro8e
na
f<M
froit thé ttMt to which-1 haro ftiready aftvcrte~–With regnrtt
to actions
tu of et ftt\v dusses, tha moral MntimeaMof m<Mt, though
.i(
not of a)t mon, hâve been atike. Witit regard to actions of
other einstes, thcir morttl sentiments have di(!ered, thron~h every
shade or degrue, from stight diversity to direct opposition.–ta
respect to thé dassea of nctioHs, with regard to which their
moral sentiments hâve agrecd, there was some show of reasou
for thé supposition of a mora) MMf. In respect to thé e}aase9
of actions, with regarct to which their moral sentiments have
dinered, thé supposition of a moral sense seemed to be exctuded.
But thé modified or mixed hypothesis now in question is
not less halting than thé pure hypothesis of a moral sense or
instinct.–With regard to actions of a few ctasses, thé moral
sentiments of WM< men hâve coocurred or agreed. But it were
imrdiy possible to indicate a single class of actions, with regard
m which f< men have thought and felt a!ike. And it is clear
to
that every objection to thé simple or pure hypothesis may be
t1.
urged,
U] wMt stight adaptations, agaitMt thé modified or mixed.
Thedivi- By modem writers on jurisprudence, positive !aw (or law,
tiionottMsi.
simply aud strictly so called) is divided into /<:w Ma<«ra~ and
ti~hw
M ~<M<<tM:. By thé classicat Roman jurists, borrowing from
intu~t'- ~«f
w<<<t<'f</
<m.[/«<c
t) Greek philosophers, ~M MC! (or positive law) is divided
thé
~«M<tK, in ~M ~tK<u«M and ~M civile. Which two divisions of positive
into
at)dt)n!
division
yM~Ctt'~
ct'law
t a are exactty equivalent.
By modern writers jurisprudence, and by thé classical
into~'tM
on
jjftit<<'<')«
Roman
T) jurists, positive n)ora!ity is also divided into !<f<<<()'<~ and
re
andy<M ~o~<i'c.
ne For, through thé fréquent confusion (to which 1 shaU
C!'t't7t,in~'
{)0!uri<t-~ advm't hereatter) of positive !aw and positive momlity, a portion
t'utveth'; oC of positive inorauty, as well as of positive law, is embracod by

t"
intemnxt-
iat~'hy.
whtc)i
i.9':M<H'
th1 ~«' M<!u'< of modem writers on jurisprudence, and by thé
thé
équivalent
eq y<M ~<:)(/<x/<t of thé classical Ifoman jurists.
By reason of thé division of positive law into ~M w<<i«v<<
t)«uud<t and ~!c ~<t!'< crimes
ofthehy. are divided, by modem writers on
ju
pothesis jurisprudence, into crimes which arc ma!a t'K ,«' and crimes
ofutititv which
<n.)th~ ) arc mala ~<M[ ~<~«.' By reason of thé division of
hyjtuthKJ.spo positive kw into y<M yeM<<<M and ./M et'ft'/e, crimM are divided,
ofomorid by
.'séné' 'J1 thé classical Homan jurists, into such as are crimes y<o'M
ye/t<K<tM and such as are crimes yrn'c n't'~t. Which divisions of
crimes,
er !ike the divisions of law wherefrom they are respective!y
derived, are exactiy équivalent.
de
Xow without a clear appréhension of thé hypothesis of
utility, of thé pure hypothesis of a moral sense, and of thé
)
modiBed or mixed hypothèse wbich M c&ntpoMndedof 'f thé
the MM-.tT
,~«t-
others, the distinction of positive law into tt«~M'«~ and j~t-
tive, with the various derivativa distinctions which rest upon itpon
i

tbat main one, ara utterly 'unitttel lisible. Assuming thc

hypothesis of utility, or assuming the pure hypothesis of a
momi sense, thé distinction of positive law into M«<«y-a/ and
~(M'<«'c is senseless. But, assmnin~ thé intermediate hypo.
thesis which is compounded of thé others, positive law, tUtd
also positive tnotfdity, is inevitably distinguished into M«<«~</
and ~o-M'~fe. In other worda, if thé modified or tnix~d
hypothesis bo founded in truth, positive human rM!es fall
into two parcols:–1. Positive human rutes which obtain
with ail mankind; and the confonnity of whicii to J~ivine
commands is, therefore, indicated by the moral sensé 2.
Positive human mies which do not obtain universally and
the confonnity of which to Divine commands is, therefore, not
indieated by that infalliblc guide.
When I treat of positive law as considered with référence
to its ~oM/fM, I shall show completeîy that the modifie J or
mixed hypothesis is involved by the distinction of positive
law into law natural and !nw positive. 1 touch upon thé
topic, at thé présent point of my Course, to the followinp
purpose namely, to show that tuy disquisitions on the hypo-
thesis of utility, on thé hypothesis of a moral sense, and on
that intermediate hypothesis which is compounded of thé others,
are necessary steps in a séries of diseourses occupied with thé
!'<!<t'OM«& cf jurisprudence. It will, indced,
appear, as 1 advance
in my projected Course, that many of thé distinctions, which
thé science of jurisprudence présents, cannot be expounded, in a
complète and satisfactory manner, without a previous exposition
of those seemingly irretative hypothèses. But the topic upou
which 1 bave touched at thé présent point of my Course shows
most succinctty thé pertinence of thé disquisitions in question.

Having stated thé hypothesis of utility, thé hypothesis of a T)

momi sense, and thé modified or mixed hypothesis which is
compounded of thé others, 1 will close my disquisitions on thé M'
index to God's eommands with an endeavour to clear the hypo- H',
thesis of utility from two current though gross misconceptions. ~<"
mn
cto
Of thé writers who maintain and impugn thé theory of
utility, three out of four fall into one or thé other of the fol-
lowing errors.–1. Some of them conibund thé M~M which
t&6 ?~7~~e/'
onght to detenn!no
t.)!t"t'.
t.)!t-f. tV
JV detennino ony conduct with thc
onr cotM!uct ptexitMte Meao«4f
t!<& ptexitm
utMity~
utMity of to which om' sheutd eontbrBt
om' coMjuct sheMJtd eontbfBt and by wM~h
iromtwo fm' conduct should ho tried.–2. Qth<i<3 CMtfoumt ttM </«w~
emTettt
thoo~h <(7!t'<w/ «/<7< with that </Mw~ M' A<«M's cûK~'fKM)~ <~e
gros< n)i<- <«/t<t <{/' ~teM~Mte whieh M brMtdcd by Us ignorant or (tis.
t'MttM')''
tions. ingenucus advetsaries wtth tto miakudmg unJ invidtous name
Thetwo ft' thé -tf~/M/t ~)<
tnm'"tt- Now these et-rofs ure sa palpable, that, perhaps, Y ought to
''Optt'MtS
<t'ttt!tt. conetudu with thé bare atatutticnt, M)d leave tuy h~trers to
supply thé con-ective. Hut, let th~m be never so palpable, they
hnvc itaposcd upon persons of ~nqnesttonable pcnch'atioM, and
ttMt~f'M'e may impose upon aU who will not pause to examine them.
Accordmgly, 1 will ckar thé theory of utility ftom these gross but
~m-rent uuseonceptions as cotnplete!y as my limits will permit.
1 will Hi'st examine thé error of coufonnding M(o<M to
conduct with thé proxinMto MWMto'c or /M< to which our conduct
-houtd couforni a~d by which our conduct should be tncd. 1

whieh is styled thé ~;</M~ .M.

c'
will theu examine thé error of coufouudh)~ thé </<eo~ o/' !«'<V!
with that //M'w~ û~' /t/o</tMM tMc<:<'<ttM~ </)< of &<'Mf!'o~e<~

ThottMt According to thé t)teory of utility, thé mensure or test of

tnMc'~n' humau conduct is thé law set by God to his human créatures.
('L'j)ti'nex-
ajuutt.'j. Xow some of his cotamauds arc revealed, whitst others are
unreveaied. Or (ehanging thé phrase) some of his commande
arc express, whiist othcM are tacit. The commamls which God
has rcveatud, wo mu.st gather from thé terms wheroin they are
prontu!ged. The coumiands which lie bas not rcvealed, we
must construo by thé principle of utility by thé probable
uttects of our conduet on t!tat gênerai happiness or goud which
is thé final cause or purpose of thé good and wise iawgiver in a]I
hiii laws and coMmaudments.
Strictiy speakiug, therefore, utility is not thé M<'Mi<?'<; to

source or .spring of our or

which our eonduct should eonibrm, nor is utility thé <M< by
which our conduct should lie tried. Jt is not m itsetf thé
paramount obligations, but
it guides us to thé source whence thèse obligations i!ow. It is
inM'ety thé <M<~<: to tho tneasure, t]te !'Mf/ to thé test. i!ut,
-iince we confonn to thc measure by foUowin~ thé suggestions
of thé index, ï may say with sufncient, though not wit!) strict
proprifity, that utility is thé measure or test ~'o.«a<'7~ or
'<«/«'~M<('/y. Accordingly, J style the Divine commanda thé
«/~M)~< nteasure or test but 1 style thé prineipte of utitity, or
the gênerai happiness or good, thé ~w:<mt<~ measurc to which
ot<r condHct should coHfbnm, or (~ ~wMM<!<e t~t by which our J
cMKtuctsbouMbett-ittL
New, though the gcumtti good M that p~ximate
mMm)'< M.
t!mugh tt.e gênera! good is titat proxintate ~<, it is
not iu «tt,
or even ia most caaes, thé M~M or <w<~<KM~ w!iic!t ought to
deterMine our conduct. If onr eonduct wcro aîwavs ..fetcnninej
by it considère) as a M' or ~«-<mM<, our conduct wou!tt
often 'UMgrce with it con-'idM~ as the ~w</(t~
or ~«MMn. If
our conduet wet-e alw~'i; detemttn<tt by it ponsMcrpd as a m~-
or <M~«-<-m<-7~,our conduet would often bti Hameable, rather thau
deservit~ of praïse, w)Mn tried by it as the test.
TiMugh thèse propositions may sound tike paradoxes, they
aro perfectly just. 1 should occupy more time t)ian t (.an
to thé disquisition, if 1 wejit throu~t the whole of thé proofs
wltich wouht Mtabti.sh titetu beyond eontmdictiott. But thé few
hints w!)ictt 1 shall Mow throw oui wiH sunicient!y
s~~est thf
cvidencc to those of tuy itearers who may not hâve re~cted
ou
the subject.

When 1 speak of thé public good, of the gênera! good,

or
1 mean tho a~gregate enjoyntents of thé sing!e
who
or individuat
persoHs compose that pubtic or ~.nera! to winch mv atteu.
tion is direeted. The good of tuankind, is t!te
aggregate of thé
pleasures winch arc rc.specti\-c)y enjoyed by ti.e iudividutds who
constitute thé Iiuman race. Thé good of Kttg!and, is thé
a~re-
gate of t]M ptuasures whic!t fall to thé ]ot of Ht)g)ishinen"con-
sidered individuany or smgty. Thc good of thé public in thé
town to whieh 1 be!ong, is thu a~regate of the pteasures whieh
t!te inhabitauts severaHy enjov.
Mankind,' country,' puUic,' are coneisG expressions for
:t
number of individua! persons considered co!!ecti\-e!y
whote. In case thé good uf those persons considered sin'dy or as a
htdividuaUy were sacriHced to thé good of those per.~J 01
sidered coUectiveiy or as a whole, thé générât good woutdeuh- bc
destroyed by the sacri<]M'. Thé sum of the particular ctijov-
ntents which constitutes thé gênerai good, wouM be sacrifiecd
to
the mère Marne by which that good is dt-notcd.
When it is stated strictly and nakediy, this truth is ptain
and paIpaNe that the statement is a!mo.<t laughabie. so Hut
penence sumcientiy évinces, that ptain and patpabte truths t.-x-
arc
pMne to s)ip from the monory that the neglect of phiu and
patpaMe truths is thé source of tn<Mt of thé
errors with which
the wortd is infested. For example, T)tat notion of thc pub!iL
t.t!<T. tV good
gpûd W whieh was cHtront in ttt& ancrent ropuNics supposes n.
negleet
neglect ùf thé H'uiatn to which 1 hâve ettUed your aMentioH.
~crrt'e~!] to that notion of thé public good, the happiness of
Agreeabty
thé individual citizens M sacrineed without scniple in order that
thé eommon weal «ttty witx aud prospcr. Tho oniy substantial
interests are the victims of a barren abstraction, of a sounding
but empty phrase.
Now (spc~kin~ genemUy) every individual pomoM is tho best
possible judge of his own interests of what will ftfteet himsetf
with thé gt'uatest pteasures and pains. Compared with his
itttimate cousciousness of his own peculiar interests, his know-
kdge of thé interests of others )!; vague conjecture.
Consequentty, tho principle of genernl utility imperiousiy
Jcmands that he connnonly shaU attend to his own mtlter than
to thé interests of others that he shaU not haNtualIy neglect
that which he knows aecumtely in order that ho may liabitually
pursue that which he knows itMperiect!y.
This is thé armngement which thé principle of général
utility manifestly requires. It is also thé arrangement which
thé Author of man's nature manifestly intended. For our self-
regarding affections are steadier and stronger than our social
the motives by which we are urged to pursue our peculiar good
operate with more eonstancy, and commonly with more energy,
than thé motives by which we are solicitod to pursue thé good
of our fettows.
If every individual neglected his own to tho end of pursuing

the
aud promoting thé interests of others, every individuat would
objectswith whieh ho is intimately aequainted to the
end of forwarding objects of which he is comparatively ignorant.
Consequentty,thé interests of every individual wouM be managed
unskitfuHy. And, since the générât good is an aggrcgate of
individual enjoyments, tho good of the générât or public would
diminish with thé good of thé individuats of whom that général
or public is constituted or cmnposed.
Hie principle of général utility does not demaud of us, that
we shall aiways or habitua!!y intend thé gênent! good though
thé principle of général utitity does demand of us, that we shaiï
ttcver pursue our own peculiar good by meant which are incon-
si.stent with that paramount object.
For example Thé man who delves or spins, doives or spins
tu put tnoncy in his purse, and not with thé purpoac or thought
cf pt'omoting thé général weH-bein~. Hut hy dciving or spinning,
)te adds to thé smu of eommodities and lie thereibre prum'jtes
that générât weU-beuig, whick is Mot, and ought Mot to be, hia
pmetical end. GeaM~t utiMty isr Mot tus motive to action. Bat tt
bu action contorms to utility considered as t!t<t shmdatd of con-
``~
t-
duct and when tried by utitity considered as the test of conduct,
hHtMtioudeservesappKtbation.
Again Cfa!I pteasures Lodi!y M' mental, thé pleasures of
mutuat love, cementcd by mutua! esteem, are thé must enduring
and varied. They titet-efore contribute targety to swell thé sum
of well-being, or they fonn au important. H.en) in thé accent of
human hapj~Hess. And, fM- that reasou, thé weU.wisher of the
gcnemt guod, or thé ad)terent ofthe principle of utility, mttst, in
that character, consider titem with mueh compiaccMcy. But,
though hc approves of love because it accords with his principle,
he is far from maintainin~ that thé général good ought to bo the
motive of thé lover. It was never contended or conceited by
a
sound, ût-thodux utilitarian, that thé lover should kiss his m~tress
with aH eye to thé common weal.
And by this last exantpic, 1 am uaturaUy condueted to this
further eonsidemtion.
Even where utility requires that benevolenee shall be owr
motive, it comMouIy requires that we shall be determined by
partial, rather than by general benevolence by thé love of the
narrower circle which is formcd of fa)ui!y or relations, rather
than by sympathy with the widtir circ1e which is forrned of
friends or acquaintance: by sympathy with friends or aequaint-
ance, rather thau by patriotism by patriotism, or love of couutry,
ratjter thanby thé larger humanity which embraces mankind.
In short, thé principle of utitity reqnires that we shall act
with thé utmost ei!ect, or that we sltall fio act as to produee thé
utmost good. And (speaking geueratly) we aet with thé utmost
eft'eet, or we so act as to produce thé utmost good, when our
motive or inducement to conduct is thé tnost urgent and stcady,
when thé sphère wherein we act is thé most restricted and thé
most familiar to us, and when thé purpose which we diroctly
pursue is thé most detenninate or précise.
Thé foregoing gênerai statement must, indeed, be received
with numcrous iitnitatious. Thé principle of utility not unfre-
<{ucnt!y requires that thé order at which 1 have pointed shall be
inverted or reversed that thé se!f-c.arding auections shaU yieH
to thé love of i'!Ut)i!y, or to syntpathy with friends or acquaim-
ance: that thé !o\'e of fnmily, or .syMpathy with friends or
acquaintnncc, shall vield to thé Jovf of country that thé !ove
of country .s!i~U yield to thé love of mankind that thé ~Oieral
t6o T~WM~C~
tjft-.n'bttppht
tttM-
~~aÏsobe
,t
t~Mf~.t~- or good, which
tt* httppim'ss
J
,.t. t)- test
-.tt.t..t. ht~ (tîwnya thé of our eonduct, shalt
t~~t ,.f
aÏso bc tha motive detetmmutK our contînt or sttati atso be thé
practical cm! tp which our eonduet is directet!.
practict)
('oothn'M lu order further to dissipât~ th'' contusion of idcns giving
ttthtbittt. rise
M.<.<of
to thé UHaconeeption last examiaed, 1 shatt here pause to
t'Hetot
aufttyxe thé expression 'good and bad motive~ and to show
m'~tiv~ auatyxe
iu what sensé it t'epreseuts n sound distiactiou.
Wu often say of a nm~ on any givcn occasion that his
motive was good or bad, aud in a certain .seusc wo may tru!y
say that some motives are butter than others inasmuch as
some motives are more likely thau others to lead to beMeiieial
couduet.
But, in another aud more extended sensé, no motive is good
or bad since there is no motive which may not by possibitity,
and which does not occasionatty in fact, kad both to bénéficiai
and to miscttievous conduut.
Thus in tho case which 1 have ah'eady used as an illustra-

the
tion, that of thé man who digs or weaves for his own subsist-
motive is self-te~rding, but. thé action i& beneScitt!.
The same motive, thé désire of subsistence, may !ead to
pernicious aets, such as steaUng. [Love of réputation, thongh a
self-reganUng motive, is a motive generaUy productive of
benencial acts and there are pet-sons with whom it is one of
thé ruost powerfui incentives to acts for thé public good. That
form of love of réputation catted vanity, on thé ot!ter hand,
implying, as it does, that thé aim of its possessor is set upon
worthiess objects, commonly leads to evil, since it Jeads to a
waste of energy, wjnch Mi~it ottterwise hâve been turncd to
useful ends. Yet if, as a motive, it be subordinate in thé
iudividual to other springs of action, and exist merety as a
latent feeling of setf-compiacency arising ont of considérations
huwever foolish or uosubstantia!, it may bo harmtess, or even
uscfui as tending to promote energy.] Benevoienco, on thé
other hand, and oven religion, ttiougii certaiuly unsetnsh, and
generatty esteemed good motives, may, when narrowed in their
aims, or directed by a pcrverted understanding, tead to actions
most pernicious. For instance, thé anection for ehitdren, and
thé conséquent desire of pushing or advancing them in thé
worM (a species of narrow benevotence), is with many pcrsons
more apt to lead to acts contrary to thé pubhc good than any
pure!y selfish motive and thé puHiation, which thé supposed
gMdness of the motive constitutes in thé eyes of thé public for
the pernicious aet, encourages men to do for thé sake of their
 ctuHren, actions wMehtheywouMboashtnnedta daf~their t.ECT. t ÏV ]
a own direct iatetest. Kvca that 6tt!ttrgëd benevolenco vMchr
i
emhtMcs kumamty, may tead to action cxtrcmety mischievotts,
uniefts guided by n perfectiy sound judgment. Fcw will doubt,
forexample, that Saad and those other entitustasts in Germany,
whu hâve at différent times thought it right to assassmate those
pcrsons whom titey beHeved to be tymnts, havc acted in H
manner htghiy perniciou!; as regards thé gênerai ~ood. Of the
punty (aa it; i9 coMUMonty termed) of their moth-cs, 1 hâve not
thé ieast doubt that is to say, 1 am convhjeed that they nctcd
under the impulse of a most enlarsed benevolence; but 1 Jiave
as littte doubt that, by this benevotenee, t])ey were led to thé
commisMott of acts utterty inconsistent with that général good
at whieh t))cy aimed.
But, a!though every motive may lead to good
pre.enunentiy or bad, mme
] are likely to tead to good; behevolence, love
of réputation, religion. Others pre-emiueutty likely to lead to
bad, aud Jittie likely to lead to good e. thé anti'sociat
antipatby–partieu!ar or ~nerai. Others, again, are as likdy
to Icad to good as to bad; c. thé sdf-rejjarding. They are
thé origin of ]nost of thé steady industry, but a!so of ntost of
thé ofiences of jnen.
In this fjuatined sense, therefore, motives
tuay be divided
into such as are good, sueh as are bad, and such as are neither
good uor bad.
If an action is good that is, eonforming to gênerai utiJity
tite motive makes it more laudaMe. If not, uot. Hut it is
oniy secondarily that thé nature of the tuotive aHects the
quality of thé action.
[That the nature of the motive does nftcct thé quality of
thé action is évident front this considération. Acts are never
insutatud. And as their moral comptexion is u!ti)nate!y tested
by their confbnnity to the law having utility for its index, so is
that moral complexion immediately tcsted ))y thé nature and
tcndency of the course of conduct of which thé acts arc samples.
Xow, the conduct of au individua! is (spcakiug ~enerfdly) detcr-
inined partty by thé mc~')'(.< wl)ieh are his springs of action, and
partty by the <'M/(M<M/i, or thé state of his undcrstanding nt thé
instant of action, r~rding thé efiects or tt-ndency of bis acts
both being antécédent to thé M/i7<Mt by whieh thèse immediatch'
etnerge into act. Human eonduct i.s, in short, detennined by the
ntotiveswhich urge, as we!! as by thé intentionswhich direct. The
intention is thé uim act, of which the
aim of thé aet, thé motive
moth'c is thé
t!te fpri!M.]
sprin~.]]
T0!.t.tr.
VOt. M
162
<v~ 7~P~~
r. rv
t.ECT.!V
a
It M,
I)
tm
thc action
ct.r
a_ therefore, ~M_~h-
wîong td mtuntain at_~ i comp!exioa of
thitt the
tmtmty dépendit ott the complexiutt of tho motive.
It is cqtudiy wrou~ to nmintam that thé nattirc of thé moti-ve
Tt ie
does not, to & certain degree, détermine its eomptexion.
In this linHtcd sense, ther~fore, tho moral com))tcxion of tho
action is detennmed by thé motive. If thé intenti'Mt be goud,
tiie action i.') thé bettM' for bein~ prontpted by a social motive.
If the action be bad, it is less bad if pïompted by sociid one.
It is impM'tiUlt diat good dispositiMM shoutd be reeogmsed
and approvcd. But the gooduess of thé action dépends upon i
it-! eonfornnty to utitity [and even if jud~ed from thé narrow
point of view eommauded by t)te individu:)! w)to.se acts are in
questi'jn, dépends upon thé state of his understnnding as to tho
effets of thé action that is, upon thé intention, Mo less than
upon thé motive.]~
Dut to adjust thé respective claims of thé seinsh and social t
motives, of partial sympathy and général benevotence, is a task t
which beiongs to t!)e détail, rather than to thé principles of
cMtics: a task which c~uld h~T<Uy SH~Maplish Ht elear and
1
satisfactory tnanner, uuless 1 visited my hearers with a complète
f~t'~f~MK upou ethics, and wandered at uneonscionable len~th
from the appropriate purpose of my Course. Witat 1 have
sug~ested will suinee to conduct thé reHectinK to t))e foHowmg
conclusions. 1. Général utility considered as t!ie measnre or
test, difters from général utility considered as a motive or (
inducement. 2. If our eonduct were truly adjusted to the c
principle of utility, «ur conduet would conform to ruies fashioned
on thé principle of utitity, or our conduet wou!d be guided by t
sentiments associated with sueh rules. Hut, tins notwithstand-
in~, général utinty, or the général happiness or good, would not
be in al!, ur even in most cases, our motive to action or
forbearance.
The fécond Having touched gcaerally and briefty on the first of the
mMeom'cp-
tintf'-x- two miscouceptions, 1 will uow advert to thé second with the
aoincd. like ~eneraiity and brevity. ]

Thé for~K )<a~c, cotxttx'nciM~ i-utMtance in the

morf !t)n)<)e «tition of
!<tt!tKtu)t)t)t)it)';ofp.tOO,i<nat''ott-
t.<h<-w«rkwhh.-hht;)n~)itatMt;!tt!H-e
tM))fCt)in<)).-t<-xtuff:ith';t-<'ftht:))r!:i.'MU!!
)!!Vcn<urt''tt<)cotMtrt)';tthu!t);o\'MjNj)!,a~e
t'titir<n<! fit th<-iie )c-f'tur< rtparttyfromthcfrttjXtt'ntary notes
Thé pnrport t:t.st
hf)ti<))owevtr'-ottt:tinM[)Mrttytn.).S. <.)t~-)ttMn'~),u)h)t.:nt!vfrmn.).S.M.'9 'g
At.'i! ottCi! of th~ )'m<i! as <)n~inaHy yttotc'i..S<ttH)'nft))<'f)-)M'n't!trynotc-:)
<t''fivcr';d MM') jart!)' ))) the ft'!<t:tm't)t<
L'<t)mVt'Vf))t')r<ttoM)mntt.t-))t)wonr-
frotnthefmthor'iMS.pntttMtufth'
Miu!;todoi.ocmt),)!,t.-Mt)ywitht)«'].ur.
;)"«"< to ~)wrt"t't))<'r''<t(<rth'!iet'tun;& Th''
thé )!tiit édition. At it t)My b'*
t~)M.imge)i)!o.),:n).M!)i!)\j)<tar){':()
i))f''rrttt frotn tht-se fra{;tneHtt t)mt th~'
authw eoMtcmpIated inco~Mratin,; tht-if if hy thc use of ).ract:<;t.I!. C.
 TLhoy whc Mt mt~ thia miaconecptiûtt are ~uMtyof
twM <a-M~. t~tCT~ !V
1. ihcy mMtah-e and tttsfoFt: thé hypothesis concenttng thé '9;
ori.'tM
!t<
oi' heaevolonee whM. atyted thé .-rc~A .<~f. p.T~y
M
-y
!nm~MG that that hypothc.sis, ttm.s mistak~n
as and dbtortfd,
is an essentm! or Heccss:try ingrcdieut iu thé ~<w~ M<,7<~
<
1 witt examine the twu
en~rs int.) which thé mist-um~ti'm
tuay be resotved, in th<' order wt~Mit) 1 have st:tted thon
1. Aceoifling to an Ityp.,thcsi.~ oi- Hart~y and uf Yari~n
uther wt-it~r- b<.n"v<nce or synipathy :< nut
an ulthnaic f~t
or j'i not unsu'ic<jj.tibh- oi' ana!ysis or msuinHon, ur i. n..t :t
simpte or inserutahk c)cm~nt of man's bein~ or nature. A~ordin"
tu their hypothesis, it crnanates from sett'-Iove, from tite .su!~
or
re~rdin~ a<fcction.<), thron~h that t'antiJMr
procès stvh.d thu
a~ciatiou of ideas; to wjuch 1 hâve bricttv adv<rt<jd in a
precedu~ portion of tny discoursu.
Xow it foUows paipabty from thé forc~oin~ concise
that t)tcse writeM dispute uot thé MM~w of disititer~stJ statemcnt
benevolencc or sympathy: that, assutning ti.e exist~f-f
of
'hstnterestt'd ~nevoteneo or sympathy, thcy ûu~avour
tu tracu
thé f~hn~. through its su])posed ~ucration, to thé simpjcr and
ultcnor fcelin~ of whiett thcy bciiuvc it tin; on's})rin~.
But, pfdpaUe as this conscqueuf.-c is, it i.~ faneied by
tuauy
opponents of thé thcory of utitity, and (what i.s iiiorc rcmarkabi~
by some of ils adhérents al.so, t))at the.~ wntcrs dispute thé
(.M~utt-t' of disinterestcd benevoluncti
or .<ytupaHn'.
Accon!ing to thé hypothesis in fjue'stion,
«~~ ~<<«/, we hâve no syntpathy, properly «.<caUcd, with the
<<.< ~<K
.o
pleasures and pains of others. T)Mt whic)i is .stykd .svinpathv,
"r t)iat which is stykd benevolenec, i.s provident r~ard to sdf~
Every ~ood 0~00 donc by man to man springs from ~r~~
of which se!f is the object. We pt-r~-ive that a dL.pend
we on
others for much of our own iiapphtess and, pereelvin~ that we
('') 'Thé ftrst of thèse mhtakM m~tt!
!"t<vt.fy)M[~t,!tnJ))!t!i)Xtt-itfor))Mc-
hyf:o.!win." Thc.seMn.thvt'.tj.-Y. <K<
FroMt Hpienrus and f.nert'tiu.<\t(Mn)
'y"fth~Mritf'r.swhf)!tt')j<trtu
toi'!t).yam)C:o(twin,Mr.)!)it)t:ttnis
~'sr~ectuti!ity.)u,i!)f;tf't,f.;nhr.tc(-it-
tft<))iiywrit)Tw))o)ta-i<'x;))ttih<[thi.
.).(..< (;i..<.r.)..S.u(..ca..).,hn..un, .-t.
h<hit.t.)non:mu!i). T)j~i~i.sthf
t.ubj~tM-ith<;it-!)ntt-<'i!n).hu~;nMry.
tfe
t'')Mt,indct.-d,th')ttt'<'ntor«t't)jttti.corv
ffry;<t.<u.fu). Th.-«/<7.i..th.t.
t't'Mi)ity«'th.)ti<!Ko)t)!).<tiM
tiMi-.<y).<-n)i"i.<i)jutw)ti..jtWuuM!HMwcr
)ntnMMM~-),buth6isthf'fir.tof:.))
:')'n)j)t..whM!t!t))tI<inistur))Un.o'i<M'
!'tti)o-u~h<:Hwh)h:(f<Yicwctitfr~ht
~htf~;f,,it,j<.
"K)Muirycot)e..mi~ro)iti.'atJustin.
i'<'f-rt.ti;j)\i)ui.ipat.:<,nn.]M-the)!~n<'ot'
t~y MiXiamGcdtvin.
"kiv.<;h.ii). M,t)~<'<,<i<j't-jj)(.Q)'j.
JanuMy.UM,
Ipn-~ain~tt~-sutthorMr<))~tt<.mu.t..t)'M-th-r)\-U).inf!.vot)rof
'.]ax.<e!.(!(.'twm!tm()ntf!.tt)t''a')h(-n-)tt.
!'t-<.th't))M)n-futi)itY~-it~,j;c,).c,~j~,
ofthetheot-yofutitity. Thiiiwntc-r tc-ra'Utf-rch'.t.–ti.C.'
!ïV depemtoMothM'itf~Mtttehof our owtt httpphtess,wc da good
anto others th~t. otho~ may d~ tt: unto t<f. Thé seenuugîy
dMMt~'<jst<it( s<'t-vi(i<'$ ~Mtt ftre wmt~ by Mftt t~ n~ett, tn~ thc
uitspriHg of t!te very ntotiv~s, aud are suvcfHed by the ver'y
pnndptcs, whieh cugettder amt regulatu ~'«A'.<~
2. Having thus nustakeu amt distorted tho so-canfd ~~A
~'<f<i'<, tHauy opponents of the </<tw</ o/' f~<7i7.y, togethcr with
sontc adhe~nts uf the satue thwry, imagine thut thf tbxnM', us
thus tfttstaken ant) distortcd, is tt ncccssnry portion of the tattcr.
And heneo it naturnUy foUow. that thé ad))UMuts of the theM'y
of utility are stykd by niatty uf its oppoueuts sdfiiih, soi-did,
and eotd-Uouded catcutatut's.'
('')Thf)K..t)i)!h!!y.stcH!,inthh!t!iiitfrat us to jfur.suti thé tKtvonbgt: ur bem.-Ët of
tt)t)Mrt,Mt)at)yi)tM)usnt<tttwithob)'ioU!) Othet)!.
facts, itMtt t)t';r''tur<) i< h:tr'))y 'k'-Mn'iM To ohvhte this ttnthii~tity, with thé
ot'.wriotHrt:fut!ttiuM. Wt.arMthtttyimH wreteht'dtjuibMitt~whMtithtgcts.Mr.
(1IIibhlill~ \l'hlef¡
honrtycti<Mfm«.'ofttL<inttrt:<tt;<tbuM<;vo'lit-litliatit
Hcnthatn )KM judicioudy dMmr(ttdtii-4car(ILd thé
311',
tt.UMorsyhijathy.orofwiitftiHgthe duM"H!) cxj'rc.~tox .M~A. Thé txoth-s
S'M'tofuthcrswtthoutregiUtttoonrwhich)fotictttMtopur9!Uet))c<Ktvantaf;<
uwn. tnth<rf.<)'tttw~'t(;)tM)(.'unttitio)t or gomt of othctn, h< fftytM M<-<a~. Thé
t'fhNmim!!<M<'ty,Munt!n'ûM:t)jtuart!tnuth'Mwhn.-huti~ltutopuMMoM
thfOM[H'tm[t;hvutM!itm<t'<wht:rtittt!)tO!itown attvattta~ or )~m), ho jjtytM iM~
tnentU'e~itN~.ttn't.suh~tbthuedn'<ty«n<f'/<y.
mtit<n<jftr!Uui)tt;n;c<-ivedbyM'itm<;tt Uttt, h<Mht<") thé mciiU an') !te)f.re)j!ttJ-
inthcit'youth.thtttthtfbettcvutenteuf it)K tuoth-e!), there are dMinterMteJ
MM.'itXMXWMtstheiutetuitytmJctt' tu<jtiv<N, or dixitttt'rMttd whhea, by
dtimncc which ore Mfjniixte tu th'ir nwn whM) we trf i)«tj<))e(( Ko~ite't to
htH't'tMe~MttdtuthehapjtiMt.'MofthcirvisitotheKM-ithevit.urThèse dMn-
Mtutv.~rMttur~. WithtuostHMtt.bt.-jn;. t<;rt!tt;d)jUt Mm)et'f)tMt))totn't-h<'
vo)'t)ef'or!!yt)))Mthyii)mthe)'&)Mrn;H sty)t;')<'«<t-<t~-<t/Whett t stytp a nM.
et)tutMnthttM!tiitrot)jj;aMt)'it<'at)yin<:<:n' tive of thé sort a f~t(<'<'«<«< tiiutift-,
tiv~toY)~r')u.')!tmt(-f)ici'ttt!K:ti<j)). apply t''e tpithf-t with thé tuc'anins
AhhoM!;hth'!)~-)in''or.«'ntinx;nt!t)r'-cts wh':r<:iht!t])j)tyittoM)~!)6Vot<;mtUtoth'e.
thtrn)ott<:u':Mou);h,tt)seM)t)<n)tdyfitit)<:d Sp<t)iiM){mt)ta)Mo)ut<:t)rt.-(;Mot)thu
att)t)!Mrt)tbyanta~ui.tfe<;fin~M' tu'ttiv<'i<uf)tdi<it)t<-r'stt([tn<itht-tca«:!
)!utto<tt:My,K-i<hifof))' fur,it)<'tt''h~ftht.'two't!.t;.s,t)h;mntt
s'-utiMtt.-ut.t.
fou'tH)~"rAf!tmttt-it)~th<:t.tMM.ufd<;sin'i reitef frum (t wisit ftttp'!rtu))i)f;{
)Mt''vu)<nt:e<;r.<y)t))at))Y,hr.ttht'ra hitn.'it;)f.
l', Hut,<xrej[)ti)t};th<;d'<ir)-ot'
wit'tp)ta')')X,)t!t~n)<:dutthewat)tutt-a refiff whit;h the wi.-ih n':<;cs.Mri)y int[))it;x,
nc.4..<it'.otirf.t)Mt)t)t'Miberat<:p')si' thé wi.<h, it) cach of thé caifcs, it ))nr':)y
tioftnfa)~i)'«o[)hM't-[Khthnttfit)t'i ')i"i))<fr'"<t~). Tht'end urobj~tto
!!))nn~<ot'<u)b[u';t. whirr))iturt;t-sth'))<tMiitth';);MM)f)r
Att')h<:r'ttm!tybt'i<:<)yr<-)n!)rk,t))itt<:vi)ofa))')th'-r,<utdn<)th)9«wn~h':m.
th';f!t)'rf-Mif<Mj'{/</<m;ti<tt«t«ù. t~<)!y it<ttit)t)HM t'< humatt Mturc
<iv'<.)t.t)!a)!trji"*(tn'tnn.nrowf'rtm'an- ()i!inft<:r<it<))n~!L.V!)ktj~(;fr.)~:ntitam
))<Taktttg th' fXj~-MhH M//MA with hMdr:mttU)")u))i)n!i'-t)thf;rc)'ro!)dK)-t
!t.< htr~-rtUt.-imitt~.K~ tn~ti~tiar' «7/M<. ofMftaittfntiM. )!))ti))imputin};tii)i-
t'or )-v':ty «jutiv; M a K'i.s)i at)~ cvery intcrc-stM) t))ah-v.,tc.))rt- tu humau tmturf,
wi'<)ti<!H~ittwhit;hM)rmt~am!m'i!< h(:i.<f~rfr<))n))<!i))~!ii)));n)ttf. Th<-f<n-t
!mdw))Mtttrp:(iiimtoM':kre)icf,))y is m)Mtitt<;J or os.sutMM) by Ari-itotte iux!
<ttta!ni)t); t)M u);j).-<;t wi.'ih'I'Mkit)~ )!Mt)cr,!H)d))ya))whohf<Vt<<;tu"-ty
tht:<!];))r.i'.if<)i'<</tt/twithit.<Mrrow:r exsnti))):)! thé xprit)}; tn')th-t: of
or
t'h .tttjhK. "'otiv- w)ti<;)) ar~- ~.7~/t )hU.<t duet. Attdt)Mf!tcti.m.si)vM~!tin<tcun.
)M.)hnt~U)<!ht4fnm)t<t')tivMw)tM)ate by thc !d).~rv.nt:t~ pn)tei)))e wLi.;h )..<
t-;<M<<:)t<M)rwi<,h<i fur hnf ow)) styM 'thf aMuciatiott of tJe~ ~i)i-
Ru')'), ffûtn our wish''< for thc ~ood of itttL~itcdtHat':vo)t-uc<:orfU)<:t<athy,tiku
ourn.:i,;t))'M)r:t!Mt)t".itMwhic)t itx[«;) ')Mint<;r'it~))x-tt<;vo)t-Mcf:orKYtn)Mth\
u.'it~~nr.o~&ur 'tWM~h'ant~e'jr
bcMttit, front thé <tt;sir):!t which .'i~)ieit re~r<tiMj{ att'ectiuttf!.
 Nowthfj) ~Aeo!q~c~Mawtii~ 1 styîe tÎM~K~</w~<~ r&MT; tV
bas no neces-m'y couuuctioa with any <Ae~ </ ~~t'wA ït haa
}
? )? Hfcmsary connection with any theory or hypothe.tis whtch<
conceras thé nature w engin of benevotenee or sympathy.
Thé theory of utiuty wi!ï !toM good, witctiter benevotence
orr
¡ sympathy be truty a portion of our nature, or be nothing but
a
tnere namo fur pr'jvident regard to sc!f. Thé tl~nry of utility
wi!! !told good, whether Lenevut~ttCG
or sympathy Le a simple
or uMmntc fhct:, or be eng~nderud by thé principle of association
û)) thé sdf-regardi))~ afÏuetions.
Aecording tu thé theory of utility, thé prineiple of ~Mf)-f~
uti!ity is t)~ index to Cod's eonuuands, and is thcMfore thé
proxhnato tneasure of a!t human conduct. We are bound by the
awfui sanctions with which his eotnmands
are anned, to adjust
our conduct tu rules fonued on titat proxitnate nicasure.
TJiOUSh benevolence be notliing but
a name fur provident
i~ard to Stitf, we are rnoved by re~rd to setf, when we titink
of those awftu sanctions, to pursue thé generaHy u.sefu!, and to
forbcar from thé generaîty ptirnieious. Aceordin~Iy, thut is the
version of thé theory of utility wi)ie)i M rendered by Dr. l'aley.
He supposes t)tat .~fK<</ utility is thé proximate ~< of eonduct
but he supposes that nM thé ~«<)'t-M by which
our conduct is
detenuined are pure!y ~?v~~t\'y. And his version of thé
<AM!y o/' «<<7t7y is, nevertiietess, cohérent tboush 1 think that
his ~fM-y o/' Ni«~M is nnserabiy partial and sha!!ow, and that
mère regard to self, although it were never so provident, would
hin'dly perform thé ofnce of gennine benevotencc
or sympathy.
For if genuine benevolence or sympathy be not portion of
a our
uature, we hâve onty one inducemeutto eonsult thé gênera! good
nnmety, a provident regard to our own we!fare
or happiness.
nut if genuine benevotenee or sympathy be a portion of
our
Nature, wo hâve two distinct inducements to consuit thé gênera!
Suod natnely, thé same provident regar(t to our own welfare or
happiness, and a!so a disintercsted regar(t to thé wethre
or
happincss of ottters. If genuine benevolence sympathy
or were
not a portion of our nature, our motives to consutt thé gênerai
good would be more détective thaa they are.~

('*)

c
Cott/fMjMt

Syt,~tt).y is tht
</ ~)t~<</ty tef/A
).)cfMt)re
~nt<
or ~iu
"t
with mom] Mntin<entf! «et their onpn
it nny), often rutti: eounter to
As (..f/.) t)mt large syn.~thy
t))<-m.
wtnth WM M anothcr et)jo\ or with every Mhtitnt heittg, or at t~st
w)K-))
'utr~. tn common iMgHam it M M. with every hutnatt being, whieh is ta))c.t
M'v.teOtn". t)t)s M tottUy difR-Mot )mM)!mitvorb<'MeM)f))ec,inc)iMes)Mt')
~M tnorit) ap))ro)mtiuh or <ti.s3))proha. i.ytxjmthiM with th': )iu<r':ri)tg!! of thé
'MM, fttttt ttMteim of atw«ya cûiMciding entprit w))Me ;nt))ishn)e))t
we ap~rove.
'portitv
!<)!Ct.tV A~itt:As!)Hmin~th<t<!beneYo!enc~or~ympKthyi9tnt!ya
portion ofour nature, thctheoryofutiKtyhasttucMUtecUon
whatever
wtm) with any hypothcsis or theory which eonccrns th<'
urigia ot' thc Kmth'e. Whethct' benevokttce or sytnpftthy
simple or ultitnatu tact, or be engeudet'Md by thé pntMtp!~ uf
be n,
xssociatioM on thé scH'-n'~rding af&ctions, it M one of the motive-!
by which our eouduct is d''t<'n))ine~. Ant), on either of the
t:oni!ictiug suppositions, thé pt'incipte of utility, nnd Mot bette-
votHUCt) of sympathy, is thé Mt'<Mt<?'<; of of conduct For as
conduct tuay bc geuc)'nUy useM, thou~h thc hiotivu is self-
rc}{ardii)~ so jnay couduct bu ~nemlly pemicious, though thé

.j~
motive is purcty benevolcut. Accordin~y, iu ait his expositions
of the tt~ot-y of utitity, Mr. ])Gnthnni nssun~s or supposes t)m
cxisteucc: oi' disiutercstcd sytnpatlty, and scarculy adverts to
-t
thc hypothèses which regard the origin of thë feeMug.~
Liketh''paiu))!tndpka'iUrc9w))K'h ttftfrow and eontKK'tcd Letug that <;raw]t
j)nretyr<)'duurseh't'9,th''p«init!)U't th''t'!)rt)<Mat<;n)!t))w,t)K')'iot)
[)k:MUMot'syttn!:tthyMetj(;ttHt)rit! betWt'ftitt~'MXt.~whcMtxatte~int't
.sctttiMK'Hts,but ft'cfit)~ or tnotive.'iwhich, f~<Vt-,th<Mntot'!it.t.'taud[Mrty,itM!U'-
Mccohtiui; to thc justm-j ot' our mond row~trtuthm–!tUtb~M<!Mlik'y
f!t-ntUtt<')tts,<))«)'tNtct M)! H'r'))){{t<rtii:).t. t"mtstcadth<:jtu)~m.'utwthctMor:d
This !))t;<tthy )n«y b<; Nn uri~it~d in- 'i'nMM thé ))t)tt:)y;!t:U'-rt~t)~i)tK''))"
stinct, tiit'' our ajXfctitM, or )~ntte)t )'y tiutM;w)tMt,M)theoth<'rhtnh),thoH):)t
as.~x'istioM, tike (fi.~imd curio~ity, )ov~ oft<'nmi'i)<'tu[it)!t'K't<!Xt''ttt,
hf)HOtK-y,t'tc.(t!bhoj))!Mt)tr). t)K'cau!!t.-9off;w),pntmptmg)Mnto~U
)iut ou )!<it)K'r of thcrn hy[<ot)n't'!t is tnt)S"ndob!'eurM<;<f<'rt.–J/.S'MyMn~.
t)~- thmry whi''h dcnrt~ our mond <t)tti. t')l}ttth<rttwmtttM<:t)ytt;<Mrk,
t)n-n<ifruUittti)ity!tta))itt)'ctM). t)Mt,thoHK)<t)'ehyputh''iii.<ut'tf;trt)t-
T))'th';uryotutitityassumt"!sytn' ishoh(:c<;i.<ary!t)f;ttdit'ntinth<;th<;«ry
]Mt)ty,LtttniaimuiMst)N(f'ttrjm)f;m<;nt<uf~"<'ratntnit)',iti')!t))'sa)-yit).
of iMtiotj. ou);))t to h', atid iu a fjit.itt Ktt-L)iMtt(ifit);enutHnt')U)Mtt:<))it)
ttM:t.surMare, dt'rh'cd front our pweptiun cvfrymmdtiy.sttmoft.dm'ationor
otth~<'K«f(~'ott.*<«M)<:e.ot'a(.-tMtS;tminitt~. F")'t))<ia):<'t)fftnroM')))ii)]!-
i.t.notthL'it't«tUK:dM",Lutt))t-irre. ['t)K-M,andth<'ha)~)))<'MofN:tM!ow-
tnutc<-«n'!M)tten~s,.sup)'osi))jB;th<:)nM)i- w:)tnrL"t))<U'tMuo)')x')tt'vo)e))~
r<-)!'tl!'te!)))yM';ri)t-)mi{.!tw;!mdnot «r.'<YHt[<tthy.shou)')))'')itmt){{t)ntt'ite~h'
';tttythMr<;<tttS(:<)U(:n(:t!.upot)nMRch't"<,astmM)))te:tbrt)M))~h,Uhto<h);r)o'"
Lut ai~o Ujmo our r'ihtiottff, nnr Mt'nd-i, th's,itHmy)t'a'tH'!top<rni';iMMeu))-
<)Hr<;()Untry,ourM)<)W.)m:tt;withwhon), d<Mt,iti!i)'~s)iM)'<hau!uostttft)t<:
awntitffttottteth'jon'.K.'itumkr'.Mttd«t)t~tu!-M)m'H.<froK)t))<:n};t'tro:t<).
i X')H'if))t:ncvuk<Kcor.ym)~thy))t;
it.m:ttrt!hc)d)'y)MM').'ir)f)!yttt)Mthy;
whMt.thoH~htt'tt.fojtrmt~Mor.'iocott- )--)t~<;ttttf-fM[t)ythej!)'int:i)t)<:nt'!t.<tc).(-
Ntitnt as cmr tuft': r'-gart) to ourst'h'M, )!! ti')t),t))'fH'Kti''n)tmybc~h)ttcJat~[
jtMt !). nec<'s'-nry tu our owx K'f))-)wi))~. nnrtMrtt)))yt;thcatM)'))-tr:)i)t)t)f;. T)f
Sy)t))mthy,a.W-))!u))Mn:fi<-))'-)~v<).< tn)th"rf!th';h')'")')ft)t<;)ty)mth<i'i,to-
not!tmf;r:t)!i':)ttitt)ettt,bMt!t)'rit«lp)e ~t)t'rwi(ht))'')wt-«byw]tic)tth''
or moth'f to action eithfr b<-in~ )M))" at)'(L-tion)'!fi:<'t)<*rat~),~t'<:t)K'Mfnr<)b-
to~tstMr)<ottrt)mt.djm)~M~'t<t. tn'tt'ed jctt<'))'f!)-<'at)'N!-tic~mom<int,aud
a ttitrrow syntjKtthy x. itt sonK' tnihtt.f, weU dest-n'ing ot' close <md tnittttt~ cx-
M tyrtnMnm a< thJ iietf-tuve of thé tnoiit ntxinatiu)).
s LECTURE V.
ÏHK tcrm or thé tenu ~K'.it, is app!ied to thé M!owing
&<?, ing LKc-r. Y
&
objecta:–to laws proper or properly so call&d, and to laws t.aw9
pro.
hnpMper or itnproperly so caHed to objects which hâve ail thé
the [~r
esseutials of an imperative law or rute, and to objects w!iic~~ .).fy~
p< or pro.
M~ MtJed, tmd
are wantin~ m some of those essentiats, but to which the term
'rm laws
1~
of..Mo~'rot
is un'hdy extended either by reason of «M«/<~ or in thé way Mttn~r'HXitty
}~
Me<(îp/MT. so
Stnctiy speaking, «// improper !aws are to laws
<!MM~oMnvs
proper: and tiM term ~(«', as npptiMd to «ny of them, isi a
M(~/«M't'c«< or~yMW<t'M expression.
For every metapitor sprittgs front an analo~y: and every ery
aualogicat extension ~iven to a term is ft mctHphor or ifj.nu'e-of of
speech. Thé tenn is extended from the objects witieh it properly 'rly
si~nines to objcets of attûther nature to objects not of t]te c'hs.t
~S.t
whercin thé tonner are centaine'), ahhou~h they are aDied tu
the ibt'mer by that more distant re.semblance winch is usuaHy ~y
styled «Mf< But, takin~ thé expressions with thé nteaninKS "KS
whicli custont or usage bas cstnb!i.shed, thcre is a dif!ercnee [tCe
between an onpbytnent of a term analogieaUy and a metaphor. or.
Analo~y is a .species of ~-c~ ;/fMf</«'c. Thé word resemblance
ICC AtMJu~'
At
is hère taken in that !ar~e seuse, iti which a!! subjects which 't.ondtu't~'
"jt.t.ot-a.
hâve any property in common, are said to rest-mbtc. Hut besides .tcsu"ti"
u<.
this more extended aeeepttttion aecottUng to whieh resembJance tf'f)
']':tth)~
is a genus, and anab~y one of thé species inehnted thcrein, therf~t'fdctitftt).
't~
is another and a narrower sense, in which Ksc'mb)anf;e is opposediC-d
to analo~y. Two rcsembHns subjeets are said to ~:« ~Mc in thé
narrower meaniH~ of thé tcnn, witen tttey bot!) betong to sontt'
deterntinate ~euus or species exprcssty or tacit!y referred tu
when they both hâve every pMpet-ty, which belongs to aH tht.-
subjects inctuded in the class. Two rcsembHn~ subject.s aru
said on the contrary to be fnM/t)yoM.s, when M«' of them be!ongs
to some ctass exprcssiy or taeitly referred to, and thé f~/«T does
))<'< when one possesses a!I thé properties conmion to the e-!a-is
and thé other onty some of them. 1 choose, for in.stanc' on
aceount of a particutar conveuience, to range to~ether in one
c!ass a!l nni)na!s having feet. When 1 a)n speaking with refer-
ence to this class, thé foot of a lion and thé fout of a mau woutd
be said to resemMc in the narroweras weH as in the wIJer seuse
of the word. But the foot of a tabte, though it resemblea thc
foot of & lion and of a man in thé more enlarged sense, does
LEcr-Y aotfes
not resemUe theso in the Harï~wet seM(~ but te onty <HMt!oguu9
tothett
ta thêta. For ~«M possest thé who!o of the qM!t!itM$ bo!ong!ng
ntUversaUy
ntuveri: to the ctass, wh!te possesse~ ot~y ft ~rt of thé
samo qua!ities. If 1 were not htcitly refen'ing to a gentus, 1
:night say that all thé three objects resemble, but if thé genus
bc referred to, thc foot of thé lion and tho foot of thé man
fesetubte, thé ibot of thé table is on!y anniogous to them.
ResemMttuce is heuce ttn ambij~uous tenN. Wtten two things
K9etMb!e in thé nat'row sen.'te, that. is, when they both possesg
ail thé pt-operties which belong untvefsaUy to t)te class, thé
common namc (such as ~< m thé instance aboyé given), is
applied to both of them strictly and propcriy. When they are
amUogous,that is when thé one possesses nll, thé other only some
ut' thé properties whieh belong universa!!y to tho class, thé name
dénotes thé one properly, thé other improperty or aualogicany.
It is extremety important to fix our conception witl1 respect
to this atnbiguity, as thé words anatogy and analogous often recur
iu the science of jurispntdence, and by tho taxity with which
t~y are einptoyett involve it itt a searcety ponetraMo mist.
The nature of unwritten law, and thc principles of interprétation
or construction, are among thé most obscure of ail thé questions
whieh arise in jurisprudence. This obscurity springs, as is
usuutly thé case, from nonsense or jargon; which jargon, on
thèse questions, arises front hence, that nien talk profuse!y of
analogy and things analogous, without ascertaining thé precise
Hteaning of thoso terms, or taking pains to empby them with
any précise meaning. Protessor Thibaut of Berlin, in his treatise
on thé interprétation of thé Homan Law, is, as far as 1 know,
thé only writer who has seen this perptexity; and notwith-
standing my warm respect for that learned and discerning jurist,
it seems to me that even he has scarcely solved thé dimcu!ty,
though he has pointed out thé path by which we may arrive at
a solution.
A metaphor is thé transierence of a term from its primitive
signification to subjects to which it is applied not in that, but
in a secondary sense. An analogy real or supposed, is alwayss
thé ground of thé transference; henco every metaphor is an
ana!ogical application of a term, and every analogicat application
of a term is a metapttor. But a metaphorical or figurative
appHcation is scarceiy, in common parlance, synonymous with
an ana]ogica! application. By a metaphoncal or figurative
application, we usuaHy mean one in which thé analogy is faint,
the alliance between thé primitiveand thé derivative signification
 fMnotet WtteMth<)<MMtBgyiftcte<tt,s<:t'OHg,aH<le!of)e;whenthe Ï.M Ï.M-t-.Y
& 8Mb)eet9 ta which thé term M deMected lie on thé confmesofF
the ctass pmperly donotctt by it, and bave ma&y of t.he pro-
pcrties connnon to thé class, we hardiy say that thé Matne isi
emp!oyed ngutativety or tnetaphoncat!y.
? In thc tanguage of !o~ie, objects which hâve a!! thc q~aUties
cotnposin{; thé essence of thé class, aiid all thé quatittes whiet)

"l'
at'e thé necessary consequences of those eomposin~ thé essence,
~t~~M~. WhMt an f~ject tto< Mot posfesa <tU thé essence of
thé class, but possesses many of thé qualities which compose
f thé essence, or ntauy of those which neccssarily resuit froin thé
essence, thé application of thé tMUue to that ohject will be said
to be anatogical and not a MGtaphor. TI)e din'ereuce between
tnetaphor aud analog)' b heuco a difterenee of denrée, and not
to bo .settled preeisely by dt'awing a strict Une between them."
Now a broad distinction obtains between laws improperly ty ~m
Laws :M).
so caUed. Sone are e/c.'«/y, others arc !'f~i«~<y analogous to to
~ttwo
as
laws propcr. Tite tenn ~'«' is extended to some hy a decision ~ttitj.t.'i.–
Mtj.)
of thé reasou or understandin~. The tet'm /f<w is extended to ,~l.JLtm's
ctost'fy
others by a tum or caprice of thé fancy.

1
xuatt
ttuatc~oM
In order that 1 may mark this distinction brieny and com- <ohW3 N
~ro))er.
!.<<

1
modiousiy, 1 avait mysetf of tho dif!erencc,established by eustoM
l~etrseen thé rnenr~in~s
or usa~e, between meanings of thé expressions «tM/o'/i'c~
tlre evluressicms
~n
crn!rly~irnl
and /.y!«'«<t'M'ï style Jaws of thc first kind /f!<M t/Mc/y Ntive.
Lawf!
.tncMjthori.
jto
"catorËgur-
"t!~
«KK/c~iM <o /«K's ~)'<'y."j'. 1 say that they are c:t]h:d ~«M by an n
«Ma/oyi'M~ extension of thé tcnn.1
style !aws ni' thé second .1
Mud /<t!M Mt<<e«/ or ~!«'f<<t'< I say that they arc cnlled d
~fnps by a m<< or /<~w<: of ~f'< c7<.
Now htws proper, with such improper laws as are closeh' y Dh'i!
Division of
analogous to thé proper, nre divisible thus. j~,
hwspm-
jwr.f'n~uf
Of laws properly so ea!!cd, some are set by God to his jjjHtchito-
human créatures, others are set by mon to mon. proper
!aw.<

Of thé laws properly so called which are set by mon to men,

J j
some are set by men as politieal snperiors, or by men, as private
~°'
:etoth<-
to th
)"'<'<
nimln
ctos-iy

persons, in pursuance of tegal ri~hts. Others may be described (1

T)M subject
-0
in thé fbitowin~ négative manner They are not set by inen as tS

H)d of these kcture~ W)ts impractie!t)))e but

of atMtogy witt ))e found
)note Mty treate't in say in otder to cnn'y out to MXiC extent thé
a sepamtt- c.ssay
or <.MMMtM prittttJ in thé secom! me, intention Mi~tc-t! by thé note now re-
votutoc,
Mt)f' one of thé MSS. coth-cted bv the thé f<-)T<) to, t hâve v<-ntut~t to te.stoM thé
htte Mtt. Austin after the author's th-ath.~th. a)MVf ja.);e (upon ~M)np)- and ))Mt:t-
!t app<'t)T! from a note to the edittût) of of t)h<')', <-û)nMt<-ndM}{ ût) p. 167) ft'o:n Mr.
tMt, that thé eathor had some intention ion J. S. ~tiU'.< n&tes of thé on)! !ecture.s,
of mserting thé essay in thé bo<ty uf whuM it i.'i tnueh )eiM con'teMMtt thMt thé
the )non! extendet) work which he medi' 'dt' con't-ipotMtmf pas~tge of thé tecturcs as
tattt!. To inseft it entire !n thé body xty fomKrty puMi~hed.–R.C.
 170
'<* 2~Mf~
LM-. Y potttteat supenoïs, nor M~ they set by htMt, <? pMvate petsoas,
MtMtMMNttceofle~nght~
Thé taws improperty so caUed wtaeh nru closely ~a!o~ot~
tu thf proper, are Mtcrety opinmns or sentiments hcM or tett by
men in regard to imman conduct. As 1 shaU show hereitfter,
thèse opinions and sentiments are styted ~<n~, because they
(n'e
«H~««. to laws proj'friy su catIcJ tj(;eau!!C t!t<jy resemble taws
IH'opur)y so caUcd itt ~Mo of thch' prup<;t-ties or soMc of their
en~cts or cunsequeuces.
MstnbM. According'ty, I distribute taws proper, w!th such nn].(WpGt'
At
tiuttut'hwi).laws

<
rro~.iU.d~S"' as at-M dosdy analf~ous tu thé propcr, under three capital
ofifuchhu. classes.
t'Mt" The
,.<, first comprimes the !aws (pMpcr)y so caUed) whieti are
tawiituftn! v

set
~by
totut'pru.
tliret-
capital
set by Co~t to jus titunau créatures.
in second cMttprise.'i thé taws (property so caUcd) which are
Thé
set by men as poittieat superiors, or by met), as private persons,
ht put-:
pursufuiee of lo~d rinitts.
cta~ex.–

t
l.Thehw Thetiiird cotuprises law.~ of thé twoibnowin~species: 1.
'pt,

~tby
ofUod.or Thêta'
the 111\1'8 ut
2.1'oMth-<)Bpm'
The !aws (properly so catled) whieh are set by ruen to men, but
not loby men as p~itica! superiors, uor by Men, as prh'ate persous,
ht pursuance of legitt ri~hts: 2. Thé laws which are closely
Jaw.or anatogous tu litws proper, but are taerdy ophuons or sentiments
i'natogc
punitive
S.f'Mtttve
hetd~
hetd or felt by men in regard to human eonduct.t
put !a\v.
mnmHtv, otthes) species into a cotumou c!a.ss, aud 1 mark theui wit!i thé
of thèse
J!0.'1tI \'e
eomuton naine tu which 1 sh:t)I advert hnmcdiately, for thc
coiniuo
followin~ rcason. Xo luw of either species is a direct or circuit-
fullow])
tttora)itv,

",ural ous coiumand of a jnonareh or soverei~t number in thé character

n~ ofpolii
of potiticat snperior. ht other words, no law of either species
isttdi
.t.
is a direct or ch-cuitous eounnand of a monarch or soverei~n
nun)ber to a persMt or persons in !t state of subjection to its
author. Conséquente-,taws of both «peeie.s may be aptiy oppose'!1
to laws of thé second capital c!ass. Fur cvery law of that second
capital class is a direct or circuitous coimnand of a monarch or
soverci~n number in the character of politicat sujterior: that M
to say, a direct or eircuitous contmaud of a monarch or sovereign
number to tt person or personN in a state of subjection to its
author.
Laws cotnprised by thèse thrce capital classes I mark with
the foUowing names.
1 naine !aws of the nrst elass <A< ~«o or ~!M <
G'o~, or thc
-DtM/ie /aK:
or /««'&
For varions reasons which 1 shall produce immcdiately, 1
name laws of thé second ctass ~<M(~'M /~< or ~Ms~n- /<!«.-&
 For thé same reasohs, Ï naine laws of thé tbiïd clasit ~<MtM~
MMt~ LMrr.V
V
MM~~y,y~~wwtMiR~y,M-w~wt~<-<~t-!<&&
My reasutM for usiHj.; thé two expressious 'p~t~t'e htw* f tmd
tUtd 1bigMsiih~
'M'M Mturatity,' are tl<e Mlowing.
There are two capital classes of hnman laws. Thé first sfirst~
comprise thé hnvs (properly so called) which me set by mon
i'
~n:)Sa,,j~
p

!uam:c~
political superiors, or by men, <ts prh'Ktu persous, iu pursuam:c (
as
l.
of Icgal n~hts. T!tt; second comprises thé laws (pt'~p~rrand and 1
ihtpmpcr) which belong to thé twu species mfution'id ou ~tthu
thu
pruetfdin~ pa~e.
As nterely distin~uished ft'otn thé second, the fit'st of thosu
capital classes tui~ht Le muned .simpiy /«! As mcrcly distiu-
~uishcd iront thu iir:!t, thé second of those capîtid classes nn~ht
bc Mittncd .shnpty MM'7' l!nt both must Le distinguishcd irom
thé !aw cf f:od and, for thc pm'po.St; uf distin~uMhin~ buth from
thé !:tw of (.'od, Wf mu.st <~ua!ify thé natucs /(!?' and !«<<
Accorttingty, style thé first uf those capital classes '~Mt~'f
!aw:' aud i style the second of t))ûsc capital choses'~(~<~
htoratity.' By thé cmmuon epithet ~~t' dénote that Loth
classas now from humau sources. Dy tliu di~uucth'e tiaines ~"«'
and M«i-H/j' i dénote thé diOercnce between thé huumn sources
from which thé two classes respccti\'e)y etnarmte.
Strietiy speak!n~, every law ])roperty s' eaUed is a ~M<<('t''
Ia\v. For it is ~"< or set by its individual or coHeetive author,
or it cxists by thé ~t'<<&M or institution of its individual or
coMective author.

'ft
But, as opposed to thé law of mture (meanin; th<* !aw of
Cod), ItUtuau law <jf thé first of those capital classes is styled by
writers "n jurisprudence !nw.' This application of thé
expression '~<M<<i't'c law was htauifestly tuade for the purpose
ot' obviating confusion; confusion of human law cf tl)e tirst 'jf
those capital classes with that Divine law which is thé measure
or test of human.
And, in order to obviatc similar confusion, 1 apply thé
expression *~M:'<tM morality to humau law of thf sceond capital
class. For thé Hame t/~)'ff/~y, wt)ea standing unqualined or
alone, may signify thé law set by Cûd, or human law of that
second capital class. If you say that an act or omission vio-
lates M!OM< you speak aml)iguous)y. You tnay rnean that
it violâtes thé law which 1 style */)M!t morality,' or that
ït violâtes thé Uivine law which is the meaisure or test of thé
former.
Again: Thé human laws or ruies whieh 1 style 'pM!c
t72 ?Xc~MWM~O~
Lcer. V mor<t!ity/ 1 mark with that oxpreseioa for thé
mottt!ity/ Mlowing additiotMt!
reason,
Ih~
1h&vestnd titat tit&HMHe MwaMy, when standing MtMtH<tMed
cr aloue, may si~niiy positive moratity, or may signify thé law
cr<ttoMo,
Gott. But thé Hnme M<o:'f<< whcn standing unoutdiBed or
ot'Gott.
of
a!one, i~ perpiexed with a further ambiguity. It may import
indiH'erentIy either of thé two fuUowing sensés.–1. Thé nanto
~MM/f' whcn standing unquaUficd or nlone, may signify positive
rnorality which ia ~ood or worthy ot' approbation, or positive
!nor:tUty as it wou!d bG if it were good or worthy cf approtjation.
lu other worcts, thc untne MM'a~y, wtten standing ut)~ua!ified
or atone, may si~nify positive rnoratity which agrces witit its
nteasut'e or test, or positive MMra!ity oa it w~'uM be if it agreed
with its tneasure or test. Thé name M<M'<< when standing
unquaHHcd or alone, )nay si~uity tho )nunMU laws, whieh 1 style
positive tnorality, as eousidered without regard to their goodness
or badness. For exampte, Sucii laws of thé class as arc pecu!iar
to a ~i\'cu âge, or such laws of thé class as are peculiar to a
~iven nation, we style the M«wf~<y of thnt yiven âge or nation,
whether we think thon good or dcem thcm Lad. Or, in case wo
tnean to inthnate that we approve or disapprove of them, we
natnc thetH thé M«x'f</<7~ of that given a~e or nation, aud we
qualify that name with the epithet ~</o~ or &f!<
Xow, by t!M name positive ttK'ratity,' 1 tnean thé human
laws whieh I mark with that expression, as considered without
regard to their goodness or badttess. Whether tnunan Jaws be
wurthy of praise or blâme, or whether they accord or not with
their measure or test, they are ru!es of ~(M!'<M.'<: morality,' itt thé
sense
"I{;U;~C
which r give to thé expression, if they bolong to either of
thetv
thé two species lastly mentioncd on p. 1 i 0. But, in consé-
quencc of that ambiguity which 1 hâve now attempted to explain,
quence
Icoul
1 could hardiy express my meaning with passable distiuctnes'!
the unquaHned name M<<<t'
t'y thé
E~~M. ~rf
From thé expression ~M~t'~t'e /f!tt' and thé expression ~OM'<
tM.ofthe,
toUmnng
)tf'o'«~t7~, I pass to certain expressions with which they are
exprM. closely
ClOSc!y connected.
sio;M:vix. Thé .<<'«:?<'<' of yM)'M'«~tM<'<' (or, simply and brieny, y~n's-
Tt
Mj'tMt'e/'
~/M~~ ~)'K~t/i is concerned with positive laws, or with laws strictiy
~t'K~e/tcf)
srieu.:e oj so) called, as considored without regard to thcir goodness or
/<tM badnes
badness.
M~t<t~; ï'oaitivo mornlity, as considered without regard to its
ir,
Mt<M«!<~
f~fe* & goodncss or badness, M~/t< be thé subject of a science closely
goodn<
f<<MtMOMM,
M~M~f an:t!og
analogous to jurisprudence. 1 say W)'y/(< be since it is onty
 itt oae of itsbmaches (nMnely, thé lawof aations 6t taMt-
~~t
nattontf! t:tw}, that positive !Mor!t!ity, as eonsMerfid withcitt
regard to itit gtx~tttfft of badtK~'ha~ becM trestett by writersM tu
~<
:~lotlt j~Mjl7l(ttt41l~
m 'm4<ft'K'<t«'
E
[
a acientific or systematic ntanue~–For thé science of positive dtive `

moraUty, as considered without regard to its ~oodness or Ladness,

~MS,
current t'r estnb!hhcd lah~Uttge will hfn'dty afford us a uanM. mnM.
The name m<f< ot' ~<:K<'e < M(or«~, wouM deuot(.' it atubigu- hif'H-
ousty thé nattM /<< or j!c<i<;<' <
mM'<t/.<, bcins contnt'joly
applied (as 1 shati show immcdmtety) to a 'tepartment of ethics
or d<j0!itology. But, siuce thé scicucu of jurisprudence is uot
unfrcqucntly styled thé science of jfj'~<<'<t'<' !aw,' thé science iu
question might be styled anato~ical!y 'thé science of ~/Mt7«'t
ntoratity.' Thé departtneut uf thé science iu question whieh
relates to international law, JMs actually Leeu stykd by ~'on
~fartens, a récent writer of cetebrity, '~<M!t'M oder ~M«-<<<«<!
Votken-echt:' that is to say, '<n-t international law,' or
'~r«c<<cf</ interuationid law.' Had lit- nained t)iat duparttneot
of thé science '~MM'/M-c international MM'«/<7y/ thé naine would
have hit its import with perfcct precision.
~X(; ~<'fMM o/' c<AM-~ (or, in thé langua~e of Mr. Denthatu,
//n' SM'cMce o/' ~<'M:<o/o') may be defiued in the fbHowiug
tnanner.–It affects to determine thé test of positive law and
tuorality, or it afteets to detennine thé principles whereot they
must bu faahioned in order that they tnay merit approbation.
Inotherword.s.itaffeets to expound thon as theyshou)d be;
or it aft'ects to expouud theru M they ought to be or it fd!'eet.s
to expound them as they would be if they were ~ood or worthy
of praisc or it affects to expound thejM as they wouid be if
they confonned to an assutued measure.
The science of ethies (or, simply and briefiy, ethics) consista
of two departments one reiating speciaHy to positive luw, thé
otiter relath)~ .speeially to positive tuoraHty. Thé dep:tK)uettt
w!nch relates specially to positive law, is connnonty styled
.«'«MM o/' /<«<«/M, or, shnpty and bricth', /<M~<<M. Thé
department which relates speciaUy to positive Mûra!ity, is
commonly styled tlce ~c!«c<; of M</f'«~, or, shitply aud briefh',)y,
M<0)V<
fore~oing attempt to dt.'nne thc science of ethics natur-
Th~ tt'-M<:Mtit)f!of
ally leads me to ofter thé foHowing exptanatory remark.
When we say that a innnan law i.-i ~ood ur bad, or is worthyt\t-!tt.p)M.)
of praire or Marne, or is what it s)muld be or what it shouid
i.)
r

'"hM-. j
Jto~hntMn

not be, or is what it ought to be or what it ought not tn be, we

mean (uniess we inthnate otn- tnere liking or aversion) this
 t~
'74 7%w~c<*o;
[~LKtï.y tttn.t~nlv. thnt
v MMMttty, thot thn Kgt'uaa with ut
thé Ittw tMrH'aa dittbts fNMn
ut' t)i(thfs
we tacMy refer it as to measttre (M'test.
from & aoBtettMng to
which
1
Fut' cxMuptû, Accordin~ to cither of thu hypothcsmwhich 1
stated
9 in preccdinfî lectures, a human taw is ~:oo<! or bad us it
agrées or 'tocs not H~rce with tho !aw of Ood that is tu say,
with the !aw of Cod as indicated by thé principh* of utility, or
with thé !aw ot' Uod as mdictttcd by thc momt sensu. To tho
mthurcnt ot' thf thuory of utHity, a humim hw is gùod if it ho
~f))fm!)y usftut, fmd & hmnMt htw t-i btt't it' it~ bo ~enM'itUy
pcrnicious. For, in /<M npiuion, it is eonsounut of uot witit thé
ht\v of Ood, iuastnueh as it is cousouatit or not with thé
principe of ~emjnd utitity. To thc iuthcrent of tho hypotheais
of a nioritt smiso, a hnmim tttw is if hc likes it he knows
uot why, and a humnn !(W is Lad it' he hâtes it he kuows not
whurfi'ore. For, in /t<< opinion, that his iucxp!icab!e fcclin~ of
tikin~ or aversiou show.s that thé htuuan law ptuases or oH<mds
the Deity.
To the athcist, a human taw is ~ood it' it bo gcneraHy useful,
and a human htw it bad if it be ~eHeraUy pemicious. For the
principle of gênerai utility would serve as a measure or test,
atthough it were not au index to an utterior Yneasuro or test.
Dut if he eati thé !aw a good oue without betieving it useful, or
if he call the taw a bad one without bdicvin~ it pernicious, tho
atheist simply intitnates his tuerG Hkin~ or aversion. For,
utdeM it Le thou~ht an index to the law set by thé Dcity, au
inexplicable t'f'eUng of approbation or disapprobation can hartUy
be considcnid a mea-sure or test. And, in thé opinion of thc
atheist, there i.-i no htw of God whieh his iuexpiicablu feeling
ean point at.
To the betiever in a suppoMd révélation, a human law is
good or bad as it agrées with or differs from the terms wiferein
the révélation is expressed.
ïn short, thé ~oodness or badness of a hunmn law is a
phrase of rotative and varyin~ import. A law whieh is ~ood
to one man is bad tu anothcr, in case they tacitty refer it to
(Hftercnt and adverse tests.
Thé Divine !aws may bu styicd ~ood, in ttic sense with
"whi<
MMnin~of
<j'< ~M a)'-
r
which thé atheist may app!y the epithet to hnman. We !nay
style thetn ~ood, or worthy of pmisc, inasmuch as they agrée
j.!i<i<)tothesty!<
fawofG~.
with utihty considcrcd a-} an nttimatu t~st. And this is the
oniy meaning with which we can app)y thé epithet to thé lawa
«f (tod. Uniess we refer thetn tu utility considered us an
uttintate test, we hâve no test by which we can try thcm. To
I. fitrispnmence (tetermmea.

i say
ï
say that they are good hecause they are set Uy tîw JX*ity, h to
that they are good as measured or triwl by themselves,
But tu say tliis is to talk absurdly for every object whieh is
| weasured, or every object whieh is brought to u test, is cuiupural
3 with a given object other tlmn itself. If the laws set by the
I Deity were not genemlly usefnl, or if they diil uot promote the
§ gênerai happiuess of his créatures, or if their «reat Author were
| not wise ami benuvoleut, they wotikl uot be «uotl, or worthy of
l praise, but were ttevilish and woFtliy of Mwmtiuit.
liefore 1 concluJe the présent ili^ressiou, 1 must subinit
,j this further reuinrk to the attention of the reader.
I 1 have iiitûnated iu the course of this digression, that the
j phrase tuw of nature, or the phrase natnml law, often signifies
| the law of God.
| iVutural lato ns thus understood, aud the uatund luv whieh
.1 îuentioiied in iny fourth lecture, are disparate expressions. The
=
mUural leur which I there mentioned, is a portion of positive law
and positive uorality. It eonsists of the huuuui rules, légal aud
l moral, whieh have obtained at ail tintes and Ol.ktitilled at »U places,
Accordiny to the compouud hypothesis whieh I mentioned
;i in iny fourth lecture, thèse huinan rules, légal aud niorul, hâve
' beeu fashioned on the law of Cîotl as indicuted by tht -moral
i sensé. Or, tidopting the language of the classical lionian jurists,
thèse huiuau rules, lujçal aud moral, hâve been fushiuued ou the
Divine law as ktiowii by -nul and ivmoit.
But, besides the humau rules which hâve obtaiued with all
mankind, there are human rules, le-zal and moral, which have
been limited to peculiar times, or limited to peculiar places.
Xow, according to the compouml hypothesis which 1 nien-
tioned in iny fourth lecture, these last hâve not been fushioncd

Being on
on the luw of God, or liave been fashioned on the law of God as
conjeeturod by the lijtht of utility.
the law of God as kuown by iin infallible
guide, huiuau rules of the lirst class are stylei.l th? litir of nulurv
For they are not of humau position purely <>r siniply, but arc
laws of God or Nature clothed with humau sanctions. As
obtaining at all times and obtaining at all places, they are styled
by the clnssicnl ^misis jus gntti uni, or jmt oMiiium yrntiuM,
But human rnles of the second cla.ss are stylell po&ttùr.
For, not Vieinji fashioned on thé law of God, or beiii» fashioned
on the law of God as merely conjectun;d by utility, they, cer-
taiuly or probably, are of purely liunian position. They are not
lftws of God or Nature clotheU with human sauclions.
i"}6 Tfie Province of
Lect. 17
LECF. V
" As T1 aiabjaA ia mmyv fatu'fclt
stated in fourth lecture, «ntl ahall
if'iïf.nrH mtd. utmw completely.
glmll «how
hereaitwv the distinction of hnraan raies into naturel and positive
herea:
Uivûlvus tue cojupound hypothesis which 1 tnoutioned in that
iuvoli
diseourse. I6
discoi
The cou.
The Positive laws, tho nppropriato mntter of jurisprudence, are
1'
1*
cou.
neetiou
neetioii
theprewntof of t
rolated in tho- way of rescmblancc, or by a close or reinote
riAat.
lClatt'
kfturo
witt.thc they
1..
analogy, to the followingobjects. 1. lu the way of resemblauee,
(th« liith) analo^
ÏSh*. t le~Vnare relatecl to thé laws of God. 2. In tho way of resemblance,
theye
ûrst, they (are related to those ruh» of positive moralhy which are
secoud,
third. laws
1
iaWS properly
] so called. 'A. By a close or strong analogy, they
sixtli.
i'ijurtli.atut m'y
sixtl~.
fclated to
arc lie those rules of positive morality whiclt are nierely
opinic or .sentiments held ur felt by men in regard to human
opinions
couduct. 4. By a remate or slender analogy, they are related
coudu
laws merely niutaphorieal, or laws sueruly figurative.
to lav
To distinguish positive laws from the objects now enume-
rated, is the purpose of the prcseut attempt to détermine thé
province oi" jurisprudence.
In purstiance of the purpose tu whieh 1 have now adverted,
1 stated, iu tny first lecture, the essentials of a lato or ruk (tfikei)
with the largest signification which can be given to the tenu
properlg).
),
In my second, third, and fourth lectures, I stated the marks
or characters by which the laws of God are distinguished front
other laws. And, stating thoso marks or charactura, I explained
the nature of the index to his unreveakd kws, or 1 explained and
exainined the hypothèses which regard the nature of that index.
1 made this explanation at a length which may seem dispropor-
tionate, but which I have dccmed necessary because thèse laws,
and the index by which they are known, are the standard or
mcasure to whieh all other laws should conforni, and the standard
measure or test by which they should be tried.
But before I eau complète the jmrpose to which 1 Imvo
adverted above, I must examine or discuss especially the follow-
ing principal topics (and must touoli upon other topics of
secondary or subonlinate importance).– 1. I must examine thé
marks or characters by witicit positive laws are distinguished
from other laws. 2. 1 must examine the distinguishing marks
19 The abovft (li^ri-ssion \vns in Imth it, onc of tltc iniiior {joints of ilassilî-
e,liliollS
tlic \,reviolls
the previous <;otn|>ri.snlwLïcLa
c-ilitious cOlIIl'ri~C1.1 mtiollccontaiucd
lit a cation ill
ontllinc,liu the represent
fint Lecture,
I.l:ctllre.1I
<li.«|uUiti»ti in tliu lurin of a note, whieh havu cmU-avoiir(.'>l to represent tin- Html
n[ii«nrs to lmvc bcen [«niiot bv tluê iut<'iitinu of thé ntitimr. Tlie plact- ut
nuthoraftfr somii [jortioii of thé original tin- intrusion is niarkeil by thé Uhc of
cilitiou was in the prrsa. iîy insc-rtiiig tlie wortl «ligivs sion in tho niargiuiil
iu the text tliu (p-catur jart of this note, note ut the coiuiiiencetiiulit of thu in-
«fier moilifying,in ndonlaiiw with tin: scrteJ jiassage (j;. 171 (mit). 1!. C.
.iuj;j;t.stious'eoiitain«>l in auotlier lart of
t
1
of those positive moral tûtes whleh ave law» pvopeily s<> ealled;
3, I imwt examine tho distinguishîng marks of those positive
| moral mie» whioh are styled /o-w$ or rule* by an aualogieal
] extension of the term. 4. 1 must examine tin; distinguisMn<£
1 marks of laws merely metaphorient, or laws merely figurative.
In order to an explanation of the marks which distingnîsh
positive laws, I must nnalyze the expression tovenignh/, tho
corrélative expression $uhjedion, and the inseparably connectud
? expression indépendantpolitmtl imiely. Vov th« esseutinl differ-
i once of a positive law (or the diflerence that severs it from a
• law which is not a positive law) may be stated thus. E'very
| positive lnw, or every law simply and strictly so called, is sut

[
that person or body is or
by a sovereign person, or a sovereign body of persons, to a
member or niembers of the independent ]>olitical society wherein
suprême. Or (cliauging thé
expression) it is set by a monarch, or sovereign number, tu n
person or persons in a state of subjection to its author.
But my analysis of those expressions occupies so large a
space, that, in case 1 placed it in the lecture which 1 nm now
delivering, tlie lecture which I am now delivering would run tu
insufierable length.
The purpose mentioned above will, therefore, be complcted
in the following order.
Excluding from my présent discourse niy analysis of tliose
expressions, 1 shall complete; in my présent discourse, the
purpose mentioned above, so for as 1 can complète it consistently
with that exclusion. In my present discourse, 1 shall examine
or discuss especially the folluwing principal topies namely, tlie
distinguishing marks of those positive moral rules which are
laws properly so ealled the distinguishingmarks of those {wsi-
tive moml rules which are styled Imcs or riths by an anulogical
extension of the tenu the distinguishing marks of the laws
which are styled latcs by n metaphor.
1 shall complete, in my sixth lecture,the purpose mentioned
above, by cxplaining the marks or characters which distinguish
positive laws, or laws strictly so ealled an explanation involving
au antilysis of tlie capital expression sovtrcyintg, the corrélative
expression subjuction, and the inseparably connected expression
ÎMlependctit political society.

Having shown the connection of my présent discourse with

foregoing and followiug lectures, 1 proceed to examine or dùcuss
its appropriate topies or subjects.
t. 178
'7o TAéProvmeecf
t.KCT.V In my firat lecture, 1 éndéâvoitted to vesolve a law '(tn'toir
Tlie wi
with the largest signification whieh can be giveu to tho tenu
ti<lls or Il praperly)
jB)'! into the ueeessary or essential démonte of which it is
hwpt'o- composed.
perly su C0;
tntik-ti, to- Now those essentiale of a law proper, together with certain
tain
ttether
withcL-r-

'll1"lIce.~
which
H
conséquences which
CC those essentials import, may be stated brielly
in the following manner. 1. Laws properly so called are a
species
Spi of commands. But, being a eommand, every law properly
thmf ei. 50 so called iiows from a delenaiuate source, or emanates ùoiu a
determinate author. In other words, the author from whom it
selltlal8
import. (Ici
proceeds
PP is a déterminait rational being, or a determinale body
or aggregate of rational beings. For whenever a command is
expressed or intimated, one party signifies a wish that another
shall do or forbear: and the latter is obnoxious to an evil which
the former intends to infliet in case thé wish be disregarded.
But every signification of a wish made by a single individual, or
made by a body of individuals as a body or collective wkole,
supposes that the individual or body is certain or determinate.
And every intention, asparpose held by a single iudividual, or held
by a body of individuals as a body or collective wlwte, involves
thé same supposition. 2. Every sanction properly so called
is an eventual evil annexed to a command. Any eventual evil
may operate as a motive to conduct but, unless the conduct be
commanded and the ovil be annexed to the command purposely
to enforce obedience, the evil is' not a sanction in the proper
acceptation of the term. 3. Every duty properly so called
supposes a command by which it is created. For every sanction
properly so called is an eventual evil annexed to a command.
And duty properly so called is obnoxiousness to evils of the
kind.
The laws Xow it follows from thèse premises, that thé laws of God,
ofGocl,nml and positive laws,
positive are laws proper, or laws properly so called.
lan-s, are The laws of God are laws proper, inasmuch as they are
express or tacit, and therefore omanate front a certain
laws jnrj- commaïuh
pcrlv so
callcU.. source.
Positive laws, or laws strictly so called, are established
directly or irnmediatclyby authors of threo kinds :-by monnrclis,
or sovereign bodies, as supreme political superiors
by men in a
state of subjection, as subordinato political superiors by subjects,
positive
as private persons, in pursuance of légal rights. But overy
law, or every law strictly so called, is a direct or circuitous com-
tnand of a monarch or sovereign number in the character of
political superior that is to say, a direct or circuitous command
of a monarch or sovereign number to a .jiërson. oi persona in a
state or siibjecïian to its autîior. And being a wmnanU (and
théreforé flowing from a tkUrminntt source), every positive law
is a law proper, or a law properly so called.
Besicles the huinau laws which 1 style positive law, tkere '0 Th'H.
1
are human laws wlncji I style positive morality, raies ïri<:
of positive *| ebar-
morality, or positive moral rules.
The generic character of laws of the class may be stated ,,1 moral
J.'
!U mies.
briefly in the following négative mariner. Xo law betouging to ;o
the class is a direct or circuitous command of a monarch or n-
sovereign number in the charaeter of political superior. Inn
other words, no law belonging to the class is n direct or circuitous 13
command of a monarch or sovereign number to a person or per-
Cl'
sons in a state of subjection to its author.
But of positive moral rules, some are laws proper, or laws \V3 Ofjiositivi'
o
properly so called others are laws improper, or laws improperly ~lY
.1
Mtom)
ruies,
lUonll
so called. Some have all the essontials of an imperalke law Or or "lie-
»< are
rule others are deficient in sorne of those essentials, and are !j'
ue per, lut
styled laws, or rules by an aualogical extension af the term. «"
The positive moral rules which are laws properly so called, j? iui-
laws
'Uj ]iropcr.
are distinguished from other laws by the union of two marks.The ])osi- ï
1. They are imperative laws or rules set by men to men. 2. 2. tiveJj moral
They are not set by nien as political superiors, nor are they set >et whieh
w are
by men as private persons, in pursuance of légal rights.
Inasmuch as they bear the latter of thèse two marks, they ey called,
« arc
are not commands of sovereigns in thé character of political °
winMUiuh.
suporiors. Consequently, they are not positive laws they are
not clothed with légal sanctions, nor do they oblige legally the
persons to whom they are set. liut heing commands (and there-
fore being established by rfe/«-»it««<«individualsor bodies), they
are laws properly so called they are armed with sanctions, and
impose duties, in the proper acceptation of the terms.
It will appear from the following distinctions, that positive
moi-al rules which are laws properly so called may bc reduced
to three kinds.
Of positive moral rules which are laws properly so called,
some arc established by men who are not subjects, or are not in
a state of subjection Aleaning by subjects,' or by men in a
state of subjection,' men in a state of subjection to a monarch
or suvereign number. Of positive moral rules which arc laws
properly so called, and are not established by men in a state of
subjection, some are establiîhed by men living in thé négative
state whieh is styled a state uf nature or a state of anarchy
t8o Th Province of
c ou
thiitt»wtoto myt
I,k»-t.v thiitt
f.K»;T. V Ijj'lue»
s»y,l>y lue»who ait}»«rf
wlioare »«rf the
iu iu thestate whi is styled
statewhieh
a stnte of govemment,or nre not mcmboro, sovereig» or subject,
ai iiiiy political soowty.– Of positive montl mie» whieh ftre lttw»
properly su ealled, ami are not established by men iu (i statu of
subjoction, others aro established by sovereigu individuals or
bodies, but nre not established by sovereigns iu thé clmraeter of
political stiperiors. Or a punitive moral rule of tins kiin.l may
be described iu the following nianner It is set by tt inonareli
or sovereign nwmber, birt not ta a person or persans in a stnte
of subjeetiou tu its uuthur.
Of laws properly so cnlled which nre set by subjects, some
aro set by subjects as subordinate political superiors. Mut of
laws properly so called which arc set by subjects, otheis are sut
by subjects as privatc persons Ifeauiug by privato persuus,'
subjects not in thé class of subontimite political superiors, or
subordinate politieal superiors uot considcred as aueli. Laws
set by subjects as subordinate political superiors, are positive
laws they are clothed with légal sanctions, aud impose légal
duties. They are set by soverei™ns or states in the charaeter of
political superiors,althotigh they arc set by sovereigns circuitously
or remotely. Although they are nmdu directly by subject or
suboi-dinate authore, they are ruade tlirough légal rights granted
by sovereignsor states, and lield by those subject authors as mère
trustées for thu grauters. Of laws set by subjects its privatu
persons, some are not established by sovereigu or suprême
authority. And thèse axa rules of positive inonility they are
not clothed with légal sanctions, nor do they oblige legally thé
parties to whom they are set. lîut of laws set by subjects as
private persons, others are set or established iu pursuauce of
logal rights rosiding iu the subject authors. And thèse are
positive laws or laws strictly so called. Althongh they are
ma(te directly by subject authors, they are madu in pursuance
of rights granted or couferred by sovereigns in thé cliomutur of
political superiors they legally oblige thé parties to whom they
are set, or nre clothed with légal sanctions. They are coiiimands
of sovereigns as political stiperiors, although they are set by
sovereigns circuitously or remotely.'1'

I.aws set (f) A law set by a su1>ject as a privato l.iw us viouvil fiom nue aspect, nml a
byineu, ass p«nou, but in iiiir.-unnc; of a lcgiil riglit rulc of positive nwtality as viewi-J from
priviiti; reHiiHi)^ iu thé ijiilijirt iiutlior, is i:itlu-r ;i aiiutlini'.
periàotis. îui iwisitivi: Imv i«ruly or «iiiiiily, or is <.otn- The in-rson who nrakvs thé Uw iit
pnr.suaiKv [wiiinle<l of « positive Inw ami a rule of y>iir.suan.:f of the lugal ri^ht, u cithi-r
of l'il jnMtivc iiioiafity. Or (iliruigiity tliu
c.v('rc-ssicn) it is eitlier a [iositir« l>uv
[.jully bon ml tu niake thé litn-, or lie ii
riglus. not. lu tha lirst ca.w, tlie law is a posi-
(iur«ly or siwply, or it M » positive tive Iaw puroly or siiuply. In thé «woinl
 lt appeau» frem. th& ioregoin» distinction v tlmt positive I-kc
moral niJes whieh are laws pwperiy go called are of thwe fcinds.
1. Thèse whioU ave «et by we« livin» i» » st«te of iroture.
2. Those whieh are set by sovereigns, Lut not by soverei«iis as
political supeiiors. 3. Those which arc set by subjcets as private
persous, and are not set by the subject nuthors iu purstuuice of
légal rights.
To cite an example of rules of the first kind were superflwms
| labour. A man living in a state of nature may impose an im-
perative law thougli, since the mon « in a state of nature, he
cannot impose the law in thé chnmcter of sovereign, and carmot
î impose the law in pursuance of a légal right. And the law
being iutperative (and therefore procecding from n ddvnu imite
-_u__J.1L
case,
law and a positive moral rule.
§L*
.lt *»of a positive
the -1lnw is çompounded m
vuitunily 4 •
by tho sovereign, it mis
m sc-t or
e.vtabli^heil by the suve-feisu lit tlie
Fur exuiiiple, A j^uartiiuu may liavc a l'luasuru of tue subject nuthor. The
right over lus jmj»il or ward, winch lie master is not the instrumentof the aove-
is lefially bouud to excnUe, l'or the reign or Mate, but the sovureign or statu
Ijeiiefit or the pupil or ward, in il given i» rather the Jnatrunu-ut of the mautcr.
or spécifiée! tuaiiner. In othe-r wonlx, n Uefore I dismiss the subjwt of the
guarumu may U- clotln.il with a right, présent uote, 1 uiust uiakc two iciimrks.
ovur liis pujiil or ward, iu trust to exercise 1. Of laws made by tueu as private
thé salin-, fur thé tencHt ot° tlie pu]iil or pelsons, noms arofrei|ueutlystyleitMaw.s
\rdu\, in a given or si*ificil nmiuier. ruilviioiiiit.' Or it is freijueutly said of

are
Xow if, iu |)iirsmmee of lii.s right, aud ««me of thosc law.s, that they lire inacle
ngrecably tu bis duty or timt, he «ts a tlirough un acVorp/u'a ifsiilijifi i» the
luw or raie to the pupil or wani, tlit fou- subject authors. Xow laws aulunumie,
is tt positive luw pua-ly or simjily. It is or law.s made by sub-

tu
properly a law which thé state .-i-u tu jecta, iu jirivate pmons, iu ]iur.stiaiice
thv wanl through its ininistc-r or in- of le«al njjhts tlint is
strument the guurdian. It is not maile suance of li-gul rifîhts whieh they are
hy the guanlim of hit own spontniicuiis free to exercise or mit, or iu )ntrsliunc<;
in pur-

niovciiieiit,or is made in purstiaurc of a of légal rights which are uot saddled

ihity which the state lias iiuposc-J upon with trusts. A law of tlit kiud is «trlcd
htm. The position of thé ^tiardiau is < (iiitmionili:, bc-causu it is niade \>y its
clom-ly aualopous to thé position of sul,- author of his own spontiiiieous ilispusi-
cmliiiate political supenors; who liuhl tion, or llot in pursuance of n duty ini-
their dfk'K'iteil poweis of ilir.'i.t or jntii- Jiosed upon him by the state.
cinl législation as m«rc trustées for the It is clear, however, that the terni
xonn-i^n gr.iuttrs. aulonuinic is uot exdusivtly applicible
A^iiin thv. niTistcr lias lc^al ryhts, to laws of the kiud iu <juestioti. The
over or a^inst lii.1 slave, which are cou- term will ajijily to iv<-iy luw whieh is
fvrivil liy the stute upon the iimster for1 not made by its author in pur3iiance of
hi.i own bencfit. Ami, since they «Te « légal duty. It will sipply, for iii.stance,
conferreJ u|K>n him for hi» own Iwiicfit, to tvery law which i.i imide innncili.itely
lie is not Ii^'ully linuixt tu exercise or u.se or diri'i'tly by a inonnrrh or sovercigii
the-tn. Xow il, in pursuaiice of tliese iiudiIht: indfpendviiw of h-pd iluty
rights, lie sets n lnw to lii>- slave, the luw being of the «•ssciiev of sovereiguty.
U compounded of a positive law and a •i Ijiws vhii'h are positive law as
positive moral iule. licin^ niade l<y viewed from "lie a-spcit, but whii.li are
«ovcreiKn authority, and clutlivil hy the1 i insitivt murality as vit-wed from another,
sovereign with .sam-tiun», the law imi.lo I place simply «r absnlutily iu the first
I)V the iimster is proiicrly n positive law, of thosc capital classes. If, atletting
tint, silice it i* limita Ijy the mu.stcr of ex(|i:i.ito précision, I placeil theiii iu
hi.by
leis own S\'OllttllleOIlSlllovemollt,
sjjoiituneotismovenient, ofor u not <-ai:h of ilniso clnssc-s, I couM hardly
i.s letiml
nade by tue master in ptmustncu of a Icgal iiidiiate the bouudary by whieh those
iluty, it U properly n rule of positive mu- classes nn: sc-vered willtolit resortin^' to
rality, as well as a'p>sitive luw. ïliuu^h expressions of répulsive complexity and
the law set by thé master is sut tir- length.
:!»* The Province of
Lkct. v
.Uct. somïco) js
V sottiw)
sOWÏ
sove
js a, la-w pioperly
a law s« ealletb
pïoperly s« ealledf thoush,
though, tW
sovereign author ptnxiurate or remote, it
iW wiuit
wnnt of a
is not « positive law
but a rule o£ positive momlity.
An irnperntive law set by a sovereign to a sovereign, or by
one suprême government to another suprême governwtiut, is au
example
exar of rules of the second kind. Since no supremu govern-
ment is in a state of suhjection to auother, an imperative law
set by a soveruign to a sovereign is not set hy its author in the
ehantcter of political snperior. Nor is it set by its author in
pursuance of a légal right for every légal right is conferred by a
suprême government, and is conferred on a person or persons in
a state of subjection to tho granter. Consequently, an imperntive
law set by a sovereign to a sovereign is not a positive law or a
law strictly so called. But being imperative (and therefore pro-
ceeding from a déterminait source), it amounts to a law in the
proper signification of the terni, although it is purely or simply
a rule of positive morality.
If they be set by subjects as private persons, and be not
set by their authors in purmtanee of legal rights, the laws follow-
iug are examples of raies of the third kind namely, imperative
laws set by parents to children imperntive laws set by masters
to servants; imperative laws set by lenders to borrowers;
iraperative laws set by patrons to parasites. Being imperathv
(and therefore proceeding from dekrminale sources) the laws
foregoing are laws properly so called: though, if they be set by
subjects as private persons, and be not set by their authors in
pursuance of légal rights, they are not positive laws but rules of
positive morality. 1
Again A club or society of men, signifying its collective
pleasure by a vote of its assembled members, passes or makes a
law to be kept by its members severnlly under pain of exclusion
from its meetings. Now if it be made by subjects as private
persons, and be not made by its authors in pursuance of a légal
right, the law voted and passed by the assembled members of "

the club is a further example of rules of the third kind. If it

be made by subjects as private persons, and be not made by its L

authors in pursuance of a legal right, it is not a positive law or

a law strictly so called. But being an imperalive law (and n
the body by which it is set being therefore ilcttrminale), it may
be styled a law or rule with absolute précision or propriety,
although
aith< it is purely or simply a rule of positive morality.
The posi- The positive moral rules which are laws improperly so
tive moral1 called,
Cftijc are laws set or imposai hy gcntral opinion that is to say,
lzy
l>y tho genernl:.opinitin
the général opinion of;aüy n'y class
of !any elass or ««y saciety of persons.
any socrety persons.
For example, Some are set or imposed by tho genevat opinion of'f r raie»
persons. who are. members. of a profession or calling others, bya «
which nre
that of persons who inliabit a town or province others, by thutt jiroperlj'so
v
independent political society otliers, by that of,£ tftlk-d, aru
of a nation or jj

a larger soeiety formed of various nations.

A few species of thé laws whieh are set by general opinionjj«pinion. tjmeml

have gotten appropriate names. For example, There are lawsS

or rule» imposed upon gentlemen by upinions ouïrent awoujpt t
gentlemen. And these are usually styled the rules of honuur, orr
the laws or law of Iwnour.– There are laws or rules imposed d ]

upon people of fashion by opinions current in the fashionablee

world. And thèse are usually styled the law set by fashion.
There are laws which regard the conduct of independent politicalii
societies in their various relations to one another Or, rather,r
there are laws which regard the conduet of sovereigns or supreme
gov ernments in their various relations to one another. And
laws or mies of this species, which are imposed upon nations or
sovereigns by opinions current amongst nations, are usually styled
the law of nations or international law.
Now a law set or imposed by gênerai opinion is a law im- m- jiA law set
properly so called. It is styled a law or rule by au analogical ^"1 by{
général
extension of thé term. When we speak of a law set by general 1^1 opinion,
« is
opinion, we dénote, by that expression, thé following fact opiuiuH ( or
of
Some intermediate body or vncertain aggregate persons regards
J<5 S'iitimaU
J
of an indc-
kind of conduet with a sentiment of aversion or liking n Ot
Or terminale
a <
of
(changing the expression) that indeterminate body opines an-m, liody
J

favourably or favourably of a given kind of conduct. n

1is
SC- rcjtarJ
conse- i to a
that sentiment, or in conséquence of that opinion, it kind
r of
quenee of conduct.
likely that thoy or some of them will be displeased with a party
rty
who shall pursue or not pursue conduet of that kind. And, in
conséquence of that displeasure, it is likely that some party
(«/<«<

party being undetermined) will visit thé party provoking it with

some evil or another.
The body by whose opinion the law is said to be set, does
not command, expressly or tacitly, that conduct of the given
kind shall be forborne or pursued. For, since it is not a body
precisely determined or certain, it cannot, «« « hody, express or
intimate a wish. As a boiltf, it cannot signifi/ a wish by oral
or written words, or by positive or négative déportaient. Thu
so called law or ride which its opinion is said to impose, is
merely thé sentiment which it feels, or is merely the opinion
which it holds, in regard to a kind of conduct.
 184
*r TlièPtvmicè ôf`
LEt7. V A detenuinato membcr of the body, who opines or feeïs
witli tfche bwly> nroy tlonbtless be moved or impelkti, by that
very opinion
very 0 or sentiment, tu wmtuand tbat conduct of the kind
slmll 1be forborno or pursued. But the commaml expressed or
sham J

rotiniateri by that determinate party is Hot a law or rule imposed <

by gênerai opinion. It is a law properly so ealktl, set by n
ik'tcnniuato autlior. For example, The so callud Iaw of nations
consists of opinions or sentiments eurrent amoiig nations
genemlly. It therefore i» not law properly so called. But o»e
suprême government may doubtless eommand another to forbear
frorn a kind of conduct which the law of nations condemns.
And, though it is fashioned on law which is law improperly so
called, this eommand is a law in the proper signification of the
terni. Speaking precisely, the eommand is a rule of positive S
morality set by a deterniinate author. For, as no suprême
government is in a state of subjection to another, the govern- 1

ment coiunuuuling does not eommand in its character of political

superior. If the government receiving tlie commaml were in a
state of subjection ta the other, the comnmnd, though fashioned
on the law of nations, would amount to a positive law.
The foregoing description of a Iaw set by gênerai opinion
importa the following conséquences that the party who will
enforce it against any future transgressor is never determinate
and assignable. The party who actually enforces it against an ><
actual trtmsgressor is, of necessity, certain. In other words, if
an actual transgresser bc harmed in consequence of the breach ;1!
l~
of the law, and in conséquence of that displeasure which the a
breach of the law has provoked, ho receives tlie liann from a
party, who, of necessity, is certain. But thnt certain party is
not the executor of a eommand proceeding from the uncertain
body. He lias not been authorised by that uncertain body to
enforce that so called law which its opiniou is said to establish.
He is not in the position of a minister of justice appointed by
the sovereign or state to execute commands which it issues, n
He harms the actual offeuder against thé so called law or (to
speak in analogical languuge) he applies the sanction annexed (
to it, of his own spontaneous niovenient. Conseqiiently, though
a party who actually enforces it is, of necessity, certain, tlw •

party who will enforce it against any future ofiender is never

pm
iletemiinate and assignable.
dct
Ahrit-f It follows from the foregoing reasons, that a so called Iaw
ttott-tnent
ul tla"
set by gênerai opinion is not a law in the proper signification
3et !j
atmiogy 'jf
of tlie tenn. It also follows from the same reasons, that it is 1
aofc aviflHtl with 10. JjKrf'V.
a sanction;. tutti dues not impose a. duty, iu the
proper acceptation of. tbe expressions. For a sanction properfy ty y,t~twwM it
so called i» an evii annexée! ta a conmiaiid. Àad duty praperly
f1 Ia
IatS' y!'uyel"
illitt U Î:1.\1'
so called is an obnoxiousness to evils of the kind. m
liut a so called law set by gênerai opinion is closely 1,>Ie..1.1,)'
ana- J"gellenl
I"
logous tu a law iu the proper signification of the term. Autl, (.1, o;
olittioli.
ljy conséquence, thu su culled sanction with whieh the former er
is arnied, and the so called dutv which the former imposes, are re
closely «nalogon» to a sanction and a duty ill thé proper accepta-
tion of the expressions
The analogy between a law in the proper signification of
the terni and a so called law set by gênerai opinion, may Le
stated briefly in the following manner. 1. In the case of a
law properly so ealled, the determinate individual or body by
whom tlie law is established wishes that conduct of a kind shall
be forborne or pursued. In the case of a law imposed by
gênerai opinion, u wish that conduct of a kind shall be forborne
or pursued is felt by the uncertain body whose «encrai opinion
impose» it. 2. If ft party obl»«eil by the law proper shall not
comply with thc wish of the determinate iudividual or body,
he probably will sufVer, in emwqucnce of his not coiuplying, the
evil or inconvenience annexed to tlie law as a sanction. If
a party obnoxious to their displeasure shall not comply with
tlie wish of the uncertain body of persons, he probably will
suffer, in cuiwjwncc of his nut complying, some evil or incou-
venience front some party or another. 3. By the sanction
annexed to the law proper, the parties obligea are inclined to
act or forbear agreeably to its injunctions or prohibitions. By
the evil which probably will follow thé displeasure of the
uncertain body, the parties obnnxious are inclined to act ov
forbear agreeably tu the sentiment or opinion which is styled
nnalogicAlly a law. 4. In conséquence of the law properly so
called, tlie conduct of the parties obliger! has a stcadiness,
constancy, or uniformity, which, without thé existence of the
law, their eonduet would probably want. In conséquence of
tlie sentiment ur opinion which is styled analogieally a law, thé
'conduct of the parties obnoxious has a steadiness, constancy, or
uniforiiiity, which, without the existence of that sentiment in
the uncertain body of persons, their eonduet would lianlly
présent. For they who are obnoxious to the sanction which
arms the law proper, commonly do or forbear from the acts
which thé law enjoins or forbids whilst they who are obnoxious
to the evil whieh will probably follow the displeasure of thé
 ? «incertain body of persons, couiiuouly do or fôrbear from the
acts which tlie twtty approves or disHkes. -Ma»y of fclte applica-
tions of thé terni law which ave, merely mstaphorical or figura-
tive, were probablysuggested (as 1 shall show hereafter) by that
uuiforiuity
umioru of conduct wbîoli is conséquent on a law proper.
Di$tiuv In the foregoing analysis of a law set by gênerai opinion,
a
tweeil
tW~~1t a
tl théle meaning
me of the expression inthlerminatc body of persons
rother thau explained. To complète my analysis of
iieterutia-• is indicated
indic
«le, uml an
iJjOtr. •a law set
ll s9 by gênerai opinion (and to abritlgo that analysis of (
iiùnate sovereh
sovereiguty which I shall place in my sixth lecture), I will hère
boiivof
iiisertaaa concise exposition of the following pregnant distinction
single or insert
individual namely, the distinction between a determinate, and an indeter-
ll namely
psmous. minute body of single or individual persons.-If my exposition
of the distinction
<
shall appear obscure and crabbcd, my hearers
hope) will recollect that the distinction could hardly be
(I hopt
{
expounded
expouni in lucid and flowing expressions.
I will first describe the distinction in gênerai or abstract
terms, and will then exemplify and illustrate the general or
abstract description.
If a body of persons be determinate, all the persons who
compose it are detennined and assignable, or every person who
belongs to it is dotermined 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. 1. The body is composed of persons deter- |
mined specifically or individually, or determined by characters or
descriptions respectively appropriate to themselves. 2. Though i
every individual member must of necessity answer to many
generic descriptions,every individual member is a member of the
determinate body, not by reason of his answering to any generic
description, but by reason of lus bearing lus spécifie or appropriate
character.
A determinate body ofthe other of those kinds is distinguished |
by the following marks.- 1. It comprises ail the persons who j
belong to a given class, or who belong respectively to two or
more of such classes. In other words, every person who answers
to a given generic description, or to any of two or more given »
generic descriptions, is also a member of thé determinate body.
2. Though every individual member is of necessity determined
by a specifie or appropriate character, every individual member
is a member of the determinate body, not by reason of his
bearing his spécifie or appropriate character, but by reason of
his answering to the given generic description.
 If a body be mdetoriuinate, ail thé persons who compose itt tEii-r. V
assignable. Or (ehaiighig the expres-
are not detennined ami
sion) evtrif person who belongs ta it M uot detenuiued, and,
therefore, cannot bo indicated. For un indeterminate body con-
sists of somc of the persons who belong to another and )ftrger
aggregate. But how mnny of thm ptrims are members of the
indeterniinate body, or wkùh of those penom in jmrticvlar are
members of the indeterminate body, is not and cannot be known
completely and exactly.
For example, The trading firrn or partnership of A B and C
is a determinate body of the kind first described above. Every
ntomber of the firm is determined specifieally, or by a character
or description peculiar or appropriate to himself. And every
member of the finn belongs to the detemiinate body, not by
renson of his answering to any generic description, but by reason
of his bearing his specifie or appropriate character. It is as
being that very individual person that A B or C is a limb of
the partnership.
The British Parliament for the time being, is a determinate
body of the kind lastly described above. It comprises the mihj
person who answers for thé time being to the generic description
of king. It comprises mry person belonging to the class of
peers who are entitled for the time being to vote in the upper
house. It comprises every person belonging to the class of
commoners who for the time being represent the commons in
parliament. And, though every member of the British Parlia-
ment is of necessity determined by a spécifie or appropriate
character, he is not a member 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 individual who answers to thé generic
description of king, thnt George is king of Britain and Irelnnd,
and a limb of the determinate body which is sovereign or
supreme therein. It is not as being the individual Grey, or
as being the individual Peel, that Grey is a member
of the
upper house, or Peel a member of the lower. Grey is a member
of the upper house, as belonging to the class of peers entitled
to vote therein. Peel is a member of the lower house, as
answering the generic descriptionreprésentative of the commons
in parliament.' The generic characters of the persons who
compose the British Parliament, are here described
generally,
and, therefore, iuaccurately. To describe those generic character
minutely and accurately, were to render a complete description
 of the iritrieate nrid poéplexecl System vrlu'cb is styled tha Bvitish
11 Constitution.– A mftxim ofthat -Coitatibitïoit may illustrât» thé
Coùstitut
siibjt'et of thé présent paiagraph.. The ineiiniug of the uioxiin,
siibiect o:
thé king never dies/ may, I believo, be rendered iu thé following
mauner. Though au «ctnal occupnnt of tho kingly ofUce is
luimoa, murtal, and ttansient, the duration of the offlce itself
lias uo possible linùt which thé British Constitution
eau eon-
template. And on tho ilenth of nu aetual occupant, the office
instantly devolves to that iudividuol poison who bearo thé
geueric eharacter which entitles to take the crown: to that
individual person who is then hoir to the crown, aceording to
the generic description contnincd iu the Act of Sottlement.
To exumplify the foregoin» description of an indetermiimte
body, I will revert to the nature of a law set by »eneml opinion.
Where a so called law is set by gtiund opinion, must of thé
persons who belou» to a determinate body or class opine or feel
aliku iu regard tu u kiud uf conduet. JJut the miinber of that
îuujority, or the several individuals who compose it, cannot bu
nxod or assigucd with perfect fulnus»
or aecuraey. For example,
A law set or imposed by thé ycnenû opinion of
a nation, by
thé ytnemt opinion of a législative assembly, by thé gmmd
opinion of a profession, or by the gcncrnl opinion of n club, k
an opinion or sentiment, relating to conduct of a kind, which is
held or felt by mont of those who belong to that certain body.
But how nmny of that body, or which of that body in particulur,
hold or feel that «iven opiuion or sentiment, is not nnd cannot
be known completely and correctly. Cousequently, that inajority
jf the certain body forms n body uneertoin. Or (chau«ing thé
••xpression) the body which is fornicd by thnt inajority is
an
indeterininate portion of a determinate body or aggregate.
l Jeuemlly spenkinj?, thcrefore, an iniletenninate body is an
indeterininate portion of a body determinate or certain. But
a
body or chss of persons may also 1» indeterininate, because it
eonsists of persons of a vague «eneric eharacter. For example,
The body or class of gentlemen eonsists of individual
persons
whosu genuric character of gentleman cannot be described
pre-
cisuly. W'hether a given muu were
a gemiine gentleman or
not, is a question which différent nieii inight answer in diilerent
wnya. An iudeterminate botly may tliurcforu be indeterininate
atter a twofold nianner. It may eonsist r.f an uncertain portion
of an uncertain body or class. For example, a law set
or
imposed by the f/aimtl opinion of gentlemen is an opinion or
««Miment of mont of those who are coramouly deeincd gentle-
manly. But wlittï proportion of thé class holdltlw opinion m
i(tte»tioHï or wliat projHiitwn of the «Insu féels the senthneut ïtt
question, is not less indetemiinate tlutn the «^ucric clmmeter of
gentlemen. The body by whose opinion the so called law is set,
-is, therefore, an «incertain portion of au tinuertaîu body or
agsregate. And hère 1 nmy bvielly remark, that a certain
]jortiou of ii certain body is itself n body determinate. For
example, Tho persons whoanswur the geiieric description repré-
sentative of tlie eoiuuiûiis iu parliumeut,' are a certain portion
of the persons who answer the geuerie description comiiioiier
of the united kingdom.' A sélect comniittee of the représentative
brjdy, or any portion of thé body happening to form a house, is
a certain or determined portion of tlie représentatives of the
corutnons in purliainent. And, in any of thèse or similar
cases, the certain portion of the certain body is itself a budy
determinate.
A determinate body of persons is capable of coqiundi. con-
duct, or is capable, m « Lwly, of positive or négative deportiui'iit.
Whether it consist of persous. detenuiued by spécifie clmracters,
or uf persons deternuucd or defined by a character or eharactors
generic, every person who belon^s to it is determined and may
be indicated. In the lîrst case, every person who belon«s to it
may be indieated by lus specifie character. In the second case,
every person who belnngs to it h also knowable: For av/v/
person who answers to thé given generic description, or who
answers to any of the given jenerie descriptions, is therefore a
nieinber of the body. Consequently, tlie entire Ijody, or any
proportion of its mernbers, h cajiable, nt a M y, of p«jsitive or
négative déportaient As, for example, of meeting at determinate
times and places; of issuing expressly or tacitly a law or other
command of choosing and deputin«< îvprcseutatires to perform
its intentions or wishes of receiving obédience froni othei-s, or
from any of its own members.
But an indetermiuate body is incapable of corpumtc conduct.
or is incapable, <« « lody, of positive or négative déportaient.
An indetenninate body is incapable of corporate conduct, iuas-
mucli as tlie sevend persons of whoni it consists cannot be
known and indicated completely nnd correctly. In case n
portion of its members act or forbenr in concert, that jjiven
portion of its members is, by that very concert, a déterminât^
or certain body. For example, A law set or imposed by
the
ijuntml opinion of barristers condennis thé sordid proctiee of
hugging or caressing attorneys. And as those who.se opinion
""
v or sentiment sots tho so cttllud luw aro an indetenninitto part of
the
the déterminait;
détél
and inca
body of -botristew, they toi a feody uneMaih
incapable of corporate conduct. But in case a miïnber or
portion r that uncertaiu body assembled and passed a résolution
iiovt.inn of
to elieck the .pracliee of.huggiug, that uuiuUiv or portion uf that
uncertain body would be, by the very act, et certain body or
aggregate. It wonld form a detenuhuite body consisting of the
detenuiued individuals who assembletl and passed tho résolution.
A law imposed by gênerai opinion may be the cause of a law
in tho proper acceptation of the term. But the law properly so
called, whieh is the conséquent or effect, utterly differs from the
so called law which is the antécédent or cause. The onu is an
opinion or sentiment of an uncertain body of persons of a body
essentially incapable of joint or eorpomte conduct. The other
is set or established by the positive or négative deportment of
a certain individual or aggregate.
For tlie purpose of rendering my exposition as little iutri-
cate as possible, I hâve supposed that a body of persons, form-
ing a body determinate, either consists of persons determined
by specifie characters, or of persons determined or defined by a
generic description or descriptions. But a body of persons,
forming a body determinate, may consist of persons determined
by spécifie or appropriate characters, and also of persons deter-
nn'ued by a character or characters generic. Let us suppose,
for example, that the individual Oliver Cromwell was sovereign
or supreme in England or that the individual Cromwell, and
the individuals Ireton and Fleetwood, formed a triumvirat*.1
which was sovereign in that country. Let us suppose, more-
over, that Cromwell, or thé triumvirs, convened a house of
commons elected in the ancient rnanner and that Cromwell, or
tliu triumvirs, yielded a part in the sovereignty to this repré-
sentative body. Now the sovereign or supreme body formai
l>y Cromwell and the house, or tlie sovereign and supreme body
formed by the triumvirs and the house, would hâve eonsisted of
a person or persons determined or defined specifically, and of
persons determined or defined by a generic character or descrip-
tion. The luemburs of the housc of eommons would hâve
been members of tlie sovereign body, as answering thé generic
description représentatives of tlie commons in parliameut.'
But it is as being the very individual Croinwell, or as liuing thu
very iudividuals Cromwell, Ireton, ami Fleetwood, that lie or
they would have formed a limb of tho sovereign or suprême
body. It is not as answering to a given goneric description, ur
ns acquiring it part in the sovereignty by a given gemviv mode,
that lie or they wûuld havé sharëd the sovëreignty wfth"tlu»
body representingthe people.– -A body of" person»,. fonuing a
body deterrainato, may also consist of persons detenniiied
or
defined specifically, and dutermined or deiiued moreover by
a
character or character3 generic. A sélect eommittee of a body
represcuting a people or nation, consists of individual persons
naraed or appointed specifically to Bit ou that given committee.
But those specifie individuals could not be members of the
eonimittee, nnless they answered the geueric description
repré-
sentative of the people or nation.'
It follows from the exposition immediately preceding that
the one or the number which is sovereigu in an independent
political society is a (kkrviiiMte individual person or deter-
a
minate body of persons. If the sovereign one or number were
not determinate or certain, it could not command expressly or
tacitly, and could not be an object of obedience to the subject
members of the community. Inasmucli as this principle is
amply explained by the exposition immediately preceding, 1
shall refer to it in my sixth lecture, as tu a principle sufficiently
known. The intricate and difticult analysis which 1 shall place
in that discourse, will thus be somewhat facilitated, and not
inconsiderably abridged.
As closely connected with tlie matter of thé exposition
immediately preceding, thé following remark concerning
supreme
government may put be commodiously in the présent place.-In
order that a supreme govemment may possess much stability,
and that the society wherein it is suprême may enjoy much
tranquillity,the persons who take the sovereignty in thé way of
succession, must take or acquire by a given generic mode,
or by
given generic modes. Or (changiug thé expression) they must
take by reason of their answering to a given generic description,
or by reason of their respectively answering to given generic
descriptions. For example, the Roman Emperor3 or Princes
(who were virtually monarchs or autocrators) did not succeed
to thé sovereignty of the Homan Empire or World by a given
generic title by a mode of acquisition given or preonlained,
and susceptible of generic description. It \va3 neither lineal
as
descendant of Julius Cïesar or Augustus, nor by tlie testament
or other disposition of the last possessoi- of the throne, nor hy
thé appointment or nomination of the Roman iwople or senatë,
nor Ly tlie élection of a determinate Viody formed of thé niilitary
class, nor by any mode of acquisition generic and preordained,
N" Worll
that
Lew. v that every
aequirc
e successive. Emperor, or every successive Prince,
aequiretl thé viitimL sovereignty of thé Itomati Empire or
World. Every successive Emperor ocquir«d by a mode of auciuU
Warld.
sitiou which was purely tuioinulous or accklentul which Lad «ot
been predetermined by any law or ettstom, or by any positive
law or rnle of positive ututnlity. Kvcry aettial occupant of the
Impérial office or diyuity (whatevoi- niay hâve been thé îaauner
whereiu lie had gotten possession) was oboyed, for tho time, by
the bulk of the military elas»; wa» aeknowledged, of cour»»;, by
the impotcut and trenibling senatu and rcceived subniissiun, of
course, from the inurt and helpless mass wJùch inliabitcd the city
and provinces. By raison of thi.s irtvgulnrity in thé succession
to thé virtual sovwuignty, the duini.se uf au Emperor wns not
uncoimuonly followed by a short ur or longer dissolution of the
général suprême govermnent. Sinco no ono could clnim to
succecd by a given generic title, or as answering for thé time
being to a given generic description, a contest for the prostrate
sovereignty almost iuevitably arose between thé moi-u influcntinl
<>( thé actuul military diiefs. And till one of thé inilitary
candidates had vaii^uisiied and crushud his rivais, aud Imd forced
with au armed hand his way to thé vacant throne, the gcnerality
or bulk of thé ialiabitiuits in thé liouiau Eni]>iro or World
could hanlly render obédience to one and the same superior.
Hy ruason, also, of this irregularity in the succession to the
Impérial office, the «jeueral and habituai obédience to tui actual
occupant of thé office was always cxtremely precarious. For,
since lie was not occupant by a given generic title, or by reason
ut his having answered to a «iveu yeneric description, the title
of any rebel, who inight anyhow eject him, would not hâve
been less legithnate or less coustitutional than his own. Or
(speaking with greater précision) thons was 110 mode of acquirinj,'
thé office, which could be styled legitiuuito, or which could be
styled constitutional which was susceptible of generic descrip-
tion, and which had been predetennined by positive law or
morality. TJiero was not, in the IJonian World, any determinate
person, whom positive law or îuomlity lmtl pointeil out to its
iuhabitants as the excltuively appropriate object »f gênerai and
lmbitual obédience. The reasouing which npplies in thé case
of a monarchy, will also apply, with fcw variations, in thé case
of a govemment by a munber. l'nless thé uieinbers of thé
suprême body hold their respective stations by titles generic
and fixed, the given suprême govemment iiinst bo extremely
uustable, and thé given society wherein it is suprême must
ofteu bë tom by contesta far the possession of ehares
sovercigHty.
m tbe 1
v
the. y Z

Béions ï close, my analym of those laws improperlyf SO h

no Lawuset ?
called which are closely analogous to laws in the proper accepta-
V™ opinion, or
tion of the term, 1 must advert to a seeming caprice of current
rent opïnîonsbr
01
or established language. Jjj
A law set or imposed by (/encrai opinion, is an opinionil oror w**7"'k'
m
sentiment, regarding conduct of a kind, whieh is held or felt »y tfxtks, are
by the
« ouly I
au indetcrniinate.hody that i» to say, an indeterminateportionn of opini*»»"
°t
a certain or uncertain aggregate. w
tii
Now a like opinion or sentiment held or felt by an indmdital,
~Zr(6r«lgUttel! tlllt
or held or felt univcrsally by the members of a hody déterminait,
liame of
Mit; fait-*
la But
may be as closely analogous to a law proper as a so called law an "J °I'iuion
sent¡,
set by gênerai opinion. It may bear an analogy to a law in or meut
m lieM »
the proper acceptation of the term, exactly or nearly resenibling
ID °Jj
"^g or felt by
an ùuli.
the analogy to a law proper which is borne by an opinionl or vidual, »» or r;
sentiment of an indeterminate hody. Au opinion, for exaraple, P'"> by
î» ail
metnbep) thetlit f;

of a patron, in regard to conduct of a kind, may be a law or rule ofa«/

ot
of
to hia owa dépendant or dépendante, just as a like opiniona 01 gâte, '1
an indeterminate body is a law or rale to all who might suffer h may -=
~fîer cloyely
1:
by provoking its displeasure. And whether a like opinion be an
be analogous
ofa toalaw
v
held by an uncertain aggregate, or be held by evcry member of a t0
precisely determined body, its analogy to a law proper is exactly
Otly tïh
the
or nearly the same. °F
But when we speak of a law set or imposed by opinion, We we of au imle-
always or commonly mean (I ratlier incline to believe) a law set tenuinaU
{,*
b0liv.
or imposed by gênerai opinion that is to say, an opinion or or
sentiment, regarding conduct of a kind, which is held or felt by
an uncertain body or class. The term law, or law set by opinion,
is never or rarely applied to a like opinion or sentiment of a
precisely determined party that is to say, a like opinion or
sentiment held or felt by an individoal, or held or felt univers-
ally by the members of a certain aggregate.
This seeming caprice of current or established language
probably arose from the following causes.
An opinion, regarding conduct, which is held by an indi-
vidual person, or which is held universally by a small deter-
minate body, is commonly followed by conséquences of compara-
tively trifling importance. The circle of thé persons to whom
its influence reaches, or wliose desires or conduct it affect-s
or determines, is rarely extensive. The analogy which such
opinions ljear to laws proper, lias, therefore, attracted little
attention, and lias,
has, therefore, not gotten them the name of laws.
vol.
VOL 1. 0
 The Province of
194

>mm '
LSCT". V -–An opinion hold «niversully by a large determinate body, is
<
ttot tess !«rgely iniluentiai,
flot or is more largely infliientittl, thfth
ail opinion ofan uncurtain portion of the saine certain aggregat».
an
But since thé determïnnte body is large or mimerons, au opinion
|«
:¡

?j

huld by all its members can hardly bo distinguished from a» g

opinion hekl by mod of its membere. An opinion held univers- i
ully by the inembcrs of the body determinate, is, therefore, j
equivalent in pructice to a gênerai opinion of the body, and is, 'f
therefore, classed with the laws which gênerai opinion imposes. f
Deferring to this seeming caprico uf ourreut or established
language, 1 bave forborne from ranking sentiments of precisely
determined parties with the laws improperly so called which are
closely analogous to the proper. I have restricted that descrip- ;-i
tion to sentiments, regarding conduct, of uncertain bodies or
classes. My foregoing aualysis or exposition of laws of that \)il
description, is, therefore, an analysis of laws set by gênerai '((
opinion. i'

If the description ought to embrace (as, I tliink, it certainly

ought) opinions, regarding conduct, of precisely determined |
parties, my foregoing aualysis or exposition will still be correct 't
substantially. With a few slight and obvious changes, my fore. ;j
going aualysis of a law set by gcnml opinion will serve as an i
analysis of a law set by any opinion: of a law set by the opinion
of an indeterminate body, and of a law set by thé opinion of a
precisely determined party. '>
For the character or essential difference of a law imposed by
opinion, is this: that the law is not a command, issued expressly
or tacitly, but is merely an opinion or sentiment, relating to con-
duct of a kind, which is held or felt by an uncertain body, or by
a determinate party. A wish that conduct of the kind shall le
pursued or forborne, is not signified, expressly or tacitly, by that
uncertain body, or that determinate party nor does that body
or party intend to inflict an evil upon auy whose conduct may
deviate front the given opinion or sentiment. The opinion or
.sentiment is merely an opinion or sentiment, although it subjects
a transgresser to thc chance of a conséquent uvil, and may even ;
lead to a command regarding conduct of the kind.
Betwecn the opinion or sentiment of the imlutunninatebody, ,'
and the opinion or sentiment of the precisely determined party, ;.
there is merely the following différence.– -ïhe precisely deter- j
mined party is capable of issuing a command in pursuance of the
opinion or sentiment. But the uncertain body is not. For, j
being essentially incapable of joint or corpomto conduct, it can- î
,Ji
;1
Il
 .r -Æ

not, idy, ter. Y

as a body, m»niïy a wish or désire, mut cannot, as a body,
ItoM an intention or pwrpôsé,
It appvars from the expositions in thé precwliiig portionJ of TUdlbif.
wy discourse, that laws j>roperly so called, with sueh improper
i
.pcr~
j
ital dflaw»
laws as are closely aualogous tu thu proper, art» of three capital
classes. 1. The law of God, or thé laws of God. 2. Positiveuf J"UC)¡
«
KTd tivo
law, or positive laws. 3. Positive morsility, rules of positive tive liupwiwr
i
1,
morality, or positive moral rules.
t!
It also appears from the same expositions, that positive tjve «lialoifUs
«
moral rules are of two speeies. 1. Those positive moral rules nies tu thebriefly vn-
lJer,
which are express or tacit commanda, and wjiicli are therefore fore ^*ljitu'·
int- 19t1'4.
laws in the proper acceptation of the terni. 2. Those laws im-
properly so called (but closely analogous to laws in the proper >per
acceptation of the tenu) which are set by geueral opinion, or or
are set by opinion which are set by opinions of uncertain tain
bodiesj or by opinions of uncertain bodies, and opinions) of
determinate parties.
The sanctions annexée! to the laws of God, may le styled fled The son»
rdigious. The sanctions annexed to positive laws, taay be styled,'1~ ~t-m'tt,
emphatically, leijal: for the laws to whieh they are annexed, xed, impi-oper,
are styled, simply and emphatically, laws or law. Or, as every 'elT tfiosc-laws
positive law supposes a wôXtç or civitus, or supposes a society ictV »»K«p'«t-
political and independent, the epithet pulitiutl may be liedh'd)'
applied Cil-
forcedjtlio
to the sanctions by which such laws are enforcecL Of j]le the .luties,pro-
and
sanctions which enforce compliance with positive moral rules, lies, lierinipmiier,
some are sanctions properly so called, and others are styled
“]“,< .1 winch

sanctions by an analogical extension of the terni that is to say,

some are annexed to raies which are laws imperative and
say, re^oct-
proper,
'r*-1' and
tnel-
aud others enforce the rule which are laws set by opinion. Sincc ince |»t;; tlic riglit»,
rules of either species may be styled positive morality, tbp t,
thete l'fperai»!
1l1I1'1'O!'er.

sanctions which enforce compliance with rules of either species >cies »«i«:i>
laws
11(~eeJII
ttlmsc
may be styled moral sanctions. Or (changing the expression) • _vrwirtct-
'ion)
l°n)
ws

wc may say of rules of either species, that they are sanctioned med ivi-ly <oii-
or enforced momllyfi)
The duties imposed Ly tho laws of God may be styled vieil
(s) TU« term iiiumlUy, mural, or >««• whjtl» thé sanctions are annexai, or by
!W//iw«//y,iinlim|H)ru or confevrej, are ]xisittve arc rules:
nlily, i'iitiiiu/(i/, ut
alil.y,i~.t",wrul,utirnmot<ill~,ru,dimlart3ar conferre,l, are posittvc tnortl rtiles
that tin; oljjtii-t to which it is a]>|>lû-d or rules hcitritig tin: Htiieri'. ohara^ter wlikli
rofvrrcd is nppravinl of by the speaker I liare statol amt exj)laiii«l nbure. If
or writer. Dut l>y tho terni Motality, 1 1 meau to jiraise or blâme a positive
merely dénote thu linnian mies which I human nik-, ur a ilnty or ritfht wlik-h
style positive morality.' Ainl by the thé rule imiuscs or conféra, 1 style it
turms uwml smotions,' rules "sano- counonant tu the law of Ood, or contrary
tionetl tiiaratti/ moraldtitii.s ur rights,' to the law of Goil. Or (what, in olfcct,
•.nul 'dutit-i »r îiglit.s siiiftioiiùil mu- is thé same lliiiig) I style it gênerai ly
fulty,' 1 nicrc-ly iiiiaii that tlie rules to Uscful, or gi-ntrnlly ]ieriiiciou$.
'°'
TW y'. 7-et
et*)
1 11e province qj
?¥%(««.– The dufîes imposed by nosittvu laws, may be styled,
eittplifttieally, kgtil ov, like tlie laws by which they are imposât,
tlicy
th(
posed
1~
may be said to be sauetioned légal/ 1/. :Of the duties. im-
by positive moral rules, some are duties properly so called,
and oUiera are styled dnties by an analogical extension of the
term that is to say, some arc créatures of rules which are laws
imperative and proper, and others are créatures of the rules
which are laws set by opinion. làke the sanctions proper and
iœproper by whieh they are respectively enforced, thèse duties
proper and improper may be styled moral. Or we may say of
the duties, as of the rules by which they are imposed, that they
are sanctioned or enforced viorally.
Every right supposes a duty incumbent on a party or parties
other than the party entitled. Through the imposition of that
corresponding duty, tlie right was conferred. Through the con-
tinuauce of that corresponding duty, the right continues to exist.
If that corresponding duty be the créature of a law imperative,
the right is a right properly so called. If that correspondu)»
duty be the créature of a law improper, the right is styled a righi
by an analogical extension of the term. Consequently, a right
existing through a duty imposed by the law of God, or a right
existing through a duty imposed by positive law, is a right pro-
perly so called. Wliere the duty is the créature of a positive
moral rule, thé nature of the corresponding right dépends uptai
the nature of the rule, If the rule imposing the duty be a law
imperative and proper, the right is a right properly so called.
If the rule imposing the duty be a law set by opinion, the right
is styled a rvjht through an analogical extension of the term.
Eights conferred by the law of God, or rights existing through
duties imposed by the law of God, may be styled Divine,
Rights conferred by positive law, or rights existing through
duties imposed by positive law, may be styled, emphatically,
légal. Or it may be said of rights conferred by positive law,
that they are sanctioned or protected Itgallt/. The rights proper
and improper which are conferred by positive morality, may be
styled moral. Or it may be said of rights conferred by positive
morality, that they are sanctioned or protected morally?*
(b) Hero I may brielly observe, that, supreme political superiore. Ami, for
in order to a complete cictcrmiiintioii of varions other reasons which will appear
tlio ajipropriatc province of jurispni- in my sixth lecture, the appro(iriatê
dence, it is uccessar^ to exnlain the im- province of jurisprudence cannot be tle-
port of thé term rujht, >or, as I liave Uueil completely, uniess an explanatiou
stated atready, numerous positive laws of the terni riqkt constitute a part of the
proceed directly from subjei.ts tlirough delitiition. But, in onter to an explaii».
rights conferntd upon thé authors by tion of right in abttract (or in or.li.-r to
 fi'"

The body or aggregate of law» whioh uiny te styled the law tker, V '[
of God, tlse body <»v y^î TVlu^of
aggregate or laws which roay be stylett >î

positive law, and thé body or aggregate of laws whiéh mayy Ijé bé OoJ,
c )nsi-
styled positive morality, sometimes coïncide, sumetimes do ftol five law,
not iiudjHiii-
coïncide, and sometiraes conjlkt. t
when mlity,
One of thèse bodies of laws aàncùtes with nnotker, rtUMl soiiiftime»

j «"«*
s
acts, which are enjoined or forbidden Ly the former, are also also J
enjoined, or are also forbidden by the latter. For exemple, The souietiœes
î
do™i
kflling which is styled murder is forbidden by thé positive coinciile,
J law
of every political society it is also forbidden by a so called law
lawtimes
t evn-
which the general opinion of the society has set or imposed it JI: it
is also forbidden by the law of God as known through tl,p the
principle of utility. The murderer commits a crime, or he
violates a positive law he commits a conventional immorality,
or he violates a so called law which gênerai opinion has estab-
lished he commits a sin, or he violates the law of God. He is
obnoxious to punishment, or other evil, to be inflicted by
sovereign authority: he is obaoxious to the hâte and the spon-
ttineous ill-offices of thé generality or liulk of tlie society he is
obnoxious to evil or pain to be suffered hère or hereafter by the
irnmediate appointment of the Deity.
One of these bodies of laws does not coincide with another,
when acts, whieh are enjoined or forbidden by the former, are
not enjoined, or are not forbidden by the latter. For example,
Though smuggling is forbidden by positive law, and (speaking
generally) is not less pernicious than theft, it is not forbidden
by the opinions or sentiments of the ignorant or unreflecting.
Where the impost or tax is itself of pernicious tendency,
smuggling is hardly forbidden by the opinions or sentiments of
any And it is therefore practised by any without the slightest
shame, or without the slightest fear of incurring gênerai censure.
Such, for instance, is the case where the impost or tax is laid
upon the foreign commodity, not for the useful purpose of raising
a public revenue, but for the absurd and mischievous purpose of
protecting a dotnestic manufacture. Offences against the game

an cxpknation of the nature wliifii is ta détermine thé province of jurispra-

common to «// rights), 1 must pre-
riou% exjilain the différences of the
principal ktnds of riv'hts, with thé niean-
liigs of various tirais which the tenu
right imiilii-s. And as that ftrerionx ex-
plaiiation cannot be çiren ^th cflwt,
till positive law is ilistinguished from
thé ohiects to which it is wlated, it fol-
lows that an explanation of the exprès-
sion right cannot enter into thé atttmjit
datée.
At i-very «tep which lu- takes o» liis
long and sVahrous roail, » difficulty «imi-
lur to that which 1 harcuon-eudeavournj
tn tu^gi-st oncoimtcis the expositor of
th* s'-ti-m*. Asftvcrj'departmeiit of tli>?
sciem-e is implicated" with every other.
any detavh«d exposition of a «iiigl* and
separatc dejarttnent is int-vitably n fmg-
ment more or less imjftrfett.
 y, law>
L^f-tow* aï» ttls» in point fer. thuy are uot t?ffeaccs against positive
raor
morality,«Ithough they «ire forDidclôn by positive law. A gcntlc
»«»» »s Hob tlwlioHtmrwl, or generally sîmnnetl by gentlemen,
uititi
though
thov ho shoots witliout n qualification. A peasant wlio wiies
Imres eseupes tho 'ccusuru <rf peasants, though thé squires, as
cloing justiueship, suml him to o the prison nml the tread-mttl.
One of thèse bodies of laws emifiieta with another, when
acts, which are enjoiued or forbidckui hy the former, are forbidden
or enjoineil by the lntter. ^For e.xample, In most of the nations
of modem Europe, the practice ofduelling is forbidden by positive
law. It is also at varianec with the law which is received in
most of those nations as having been set by the Deity in the
way of express révélation. But in spite of positive law, and in
spite of his relijjious convictions,a man of thé class of gentlemen
may be forced by the law of honour to give or to take a challenge.
If ha forebore from giving, or if he declined a challenge, he
might incur the gênerai contempt of gentlemen or men of honour,
and might meet with slights and insults sufficieut to embitter
his existettce. The négative légal duty which certainly is in-
cunibent upon him, and the negative religions duty to which he
believes himself sulyect, are thereforu mastered and controlled
by that positive moral duty which arises from the so-called law
set by the opinion of his class.
The simple and obvious considerations to which I have now
adverted, are often overlooked by legislators. If they fancy a
practice pernicious, or hâte it they know not why, they proceed,
without further thought, to forbid it by positive law. They
forget thut positive law may be superfluous or impotent, and
therefore may lead to nothing but purely gratuitous vexation.
They forget that the moral or the religious sentiments of thc
community may alrendy suppress 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 légal pains can inspire may be mastered by a stronger
fear of otlier and conllicting sanctions/0
ai1 Vf VYfiV'L 1i11U W/11111:4111·~· 3à4L11:1

Tlip Mt» (') ThTheto nru olassos of useful nets ct.s such classes arc tint enjoint or forbM-
and liieli it wtre usele*s {•> i-njuin, nul
for- wliù-li
>
nml den
i by the tan* of Cad tliut lie no more-
asses oof miscliievousnets whieli itt-re
bcaniiecs, classes wereenjoins
« or forbids nctx of tlie dusses in
wliii:h, ac- nwleiis
*le«s to t forbiil for we are sullkii-iitlv tlv question,
i ttinn Le enjoins or forbkls siicli
roii'-ti to the useful, an<l sulficieiitly
rnriliii^to prone tly faets as are genc-rally peroicious or useful. '>
tin- tliiivry iversefr
-•erse- fromtlie
tr iiiisfilnevfiitsaets, witliout
«it Thero are also classes of nets, j»i"iie-
of ntilityj tlie
m incentive!!
incci and rc-*tniints npplioit by rally
t useful or peniicious,wliich demand
are ïligious saiir-tionij, or by sanctions légal
objw.t. religion» gn\ iiH-Piitivc* or n-straiiit» applicd by
t(lie
«f th« hw "r moral.
mora And, nssmning thnt gi/iicral rai religion»
r sanctions, or by sanctions légal
off!o<l: titility i tlie index to thé Divine i;oiu-
ïility U ni- cor moral. Witliout the incentives ami j
amis, we may fiiirly infer tliat acts of restruims
îuands, t api>li«l by toligious sanctions,
I'
 In consecyieaeo of tho fretjueut coïncidence of positive law *»
and morality, ami of positive law and the Inw of God, the trueî
nature and fountain of positive law is often absutdly mistakeui
by writers upon jurisprudence. Where positive law has been
fashioned on positive inorality, or where positive law hus been
fttsltioited on the law of God, they forget that the copy is the
créature of the sovereigu, and impute it to the author of the model.
For example Custommy laws are positive laws fmshicmed
by juilioial législation upon pre-existiiig custoius. Now, till
they become tho grounds of judicial decisions upon cases, and
are clothed with légal sanctions by the sovereign one or number,
the customs are merely rules set by opinions of the governed,
and sanctioned or enforced morally Though, when they become
the reasons of judicial décisions upon cases, and are clothed
with legal sanctions by the sovereign one or number, the customs
are rules of positive law as well as of positive morality. But,
because the customs were observed by the governed before they
were clothed with sanctions by the sovereign one or number, it
m fancied that customary laws exisfc «a positive Ime» by the
institution of the private persons with whom the customs origi-
nated. Admitting the conceit, and reasoning by analogy, we
ought to consider the sovereign the author of the positive
morality which is often a conséquenceof positive law. Where a
positive law, not fashioned on a custom, is favourablyreceived by

or applied by sanctions legal or moral,I, object of tho latter, la an objeet of the and the
wu are not sufficiently prone to those x law of Cod as construedby the priuciplc [pice acts and
which aro generally useful,and are not>t of utility. But the cirele embraced by forbear-
sufficientlyaverse from those which aree thé law of Cod, and which may be c-m- :-m- ances,
ity, which, ac-
generally pernteious. And, assumint*
that general utility îs thé index to thée la larger than tho circle which
Divine commands, all thèse classes oi>f embraced to advantage by positive law,
n
g liraced to mlvantage by positive inamlity,
be carding to
a\v. thé satne
usefnl, and ail these classes of ptrnicious is Iuasinuch as the two circles have oue theorj',
acts, are enjoincd and forbiddenrespect-t- and the same centre, thé whole of thé the ought to
ively hy thé law of God. région coinpritcd by the latter is alsoilso b» objecta
Being enjoined or being forbidden byy comprised by the former, liut the \vhlole oie respect.
the Deity, ail thèse classes of nsc-fiil, and
d of the région comprised by the fonner r is ively of
ull thèse classes of pemiciom acts, ought it not comprised by the latter.
to be enjoined or farbidden by positivev To distingimn thé acts ami forbear.»ar- morality
morolity that is to say, bv thé positivee auces that ought to bo objects of law,
consista
iw, and law.
morality which of opinions or>r from those that ought to be abandoned ned
sentiments, liut, this notwithstanJing, to the exclusive coguisance of morality, ity,
some of these elasses of acts ought not
it is, perhaps, thé lianltst of thé problème
•DIS
to be enjoined or forbidden by positivei: wluch tho science of ethics present.s. its.
law. Somc of thèse dusses of acts ought It The only «isting approach to a solutionion
not to be enjoin»! or forbiitden even byy of tho problem, may be fourni in thé ~1,
the positive morality which consists ofif writings of Mr. Bentham who, in mnst
iinnemtivc nile«. of the' departinents of the two great
Évcry act or forbeamnce that ought It bronches of ethics, lias a<tfomplished
to be an object of positivelaw, ouglit to be more for the ailvanccmcut of the science
an object of thé positive morality whichh than all his predecessors put figetln;r. •
consists of opinions or sentiment;. Every y Sec, in particular, hù l'riutipks of 3lornk
act or forlx-arance that onglit to be ann nui' législation, eh. xvii.
 I.KCT.Y the
tho. govemed,
~ove~ and euforoeil by theré opinions or sentiments,, we
dee the sa callect law, set. by those opinions or sentiments,
must deeni
aa law
law ù»j
imperative and proper of thé awpremo political superior.
Agaû The portion of positive law vvhich is parcel of the
Again
law of nature (or, in the langimge of the olassical jurists, which
is parcel of the jus gtntiwm) is often stipposed to emanato, eveu
as positive law, from a Divine or Naturel source. But (admit-
ting the distinction of positive law into law natural aud law
positive) it is mnnifest that hw naturaî, considérée! as a portion
of positive, is the créature of hunrnn sovereigns, and not of the
Divine monarch. To say that it émanâtes, as positive law, from a
Divine or Natural source, is to confound positive law with law
whereon
wl it is fashioned, or with law whereunto it eonforn».10
The fore. The foregoing distribution of laws proper, and of such im-
goingdis. proper laws as are closely analogous to thé proper, tallies, in
tribution pr «,
of laws th main, with a division of laws which is given incidentally
the
and or
)lroper. by Locke in his Essay on Human Understanding. And sinee
b'l!
such im- th division of laws, or of thé sources of duties or obligations,
this
ls recommended by the grent authority which the writer has
proper islaws
as
are
justly
closely
ju! acquired, I gladly append it to my own division or ana-
analogous 1lyste.
to the pro- ™ The passage of his essay in which the division occurs,
per, tnllies, is
jg part of an inquiry into the nature of relation, and is there-
m the
main, with «01fore concerned indhectly with the nature and kinds of law.
a division With
W the exclusion of all that is foreigu to the nature and kinds
of laws
which is of law, with the exclusion of a few expressions which are
KH'<mn<.i-
£&&* obviouslyob redundant, and with the correction of a few expres-
by I«ocfce sic which are somewhat obscure, the passage containing the
sions
in his divisions may oe rendered in thej words following :(l5) :(k)
Buay on tln
Hunmn >' In J. S. M. 's notes of the lecture» from
fi being complète, and thé hnguage
l'nder- as originallydclivcred I lind a consider- in il which it b stated is often cxtremely
standing,
!>g. abh passage giring instances of thé tire- unapt.
able u It must, however, b«
vailiug
vail tendencyto thé confusionof ideas bered,
b that thé nature of relationremem-
genu-
above referred to. I hâve not venturctl rally n (ami not thé natures of Imo, with
on thé attempt to incorporate thé pus- its it iiriiK-iiMl kinds) is thé aiiprouriate
sage in thé ti-xt, presuming that thé abject o of his imjuiry. Allowingfor thé
author refmineil advisedly from hère defects, «1 which, thereforc, were nearly
pursuiiiK tha tojiic further, and tlmt he incvitable,
il his nnulysix is strikingly ac-
deçmeil nuch imtances les» suitalilu to a curate.
ci It évinces that matchless power
u'rittcti discourse than to an oral lecture, of ol précise and just thinkin^, with that
I tliink it, however, of some vaine to ruligious
n repru for gênerai utility und
Iire.wrvc this passage, lioth as calculatcd tmtii,
t» which niarkvd the incoui]iurable
to uid the sttiduiit in applying th« prin- mnn tu wlio emancipated lnunaii reason
ci|j]cs stateit in thé text, and also as from fr the yolce of mystery iind jargon.
illustrativc of thé author's mode, wlicn And A from this his incidental excursion
orally ttiiiiilifyinffin pn-sunceof hia class, into
in tlm lield of law aud moralitv, and
the lecture which in substance he nlwnys front fr other passages of his essay Wiicrein
had coininitted to writiug. The passage, lu he toucliPS upon them, wo may infer thé
In-ing inconrenieutly long to insert as a iu important serviceswhich ho woultl hâve
note here, I Imve placed iu tlu; fcinn of n reudt-red to the sti-iui-e of ethics, if, toin.
a note at tlie end ûf tliis lecture. R. C. iilyinf; with the instances of Molynoux,
)>1
(*) I.ocko's division or nnnlysis is far lit lie had examined thé subject exactly.
 'The conformity or disàgreenient iiien's voïuirtaty notions
have to a ilule to whieh they are referréd, and by which thfey
arc judged of, is ft sort of relation whieh xnay be called moral
relation.
•Human actions, when with their various ends, objects,
manners, and circumstances, they are framed into distinct com.
plex ideas, are, as bas been shown, so many miuxd moiks, great
a
part whereof bave names annexed to them. ÏJius, supposing
gratitude to be a readiness to acknowledge and return kindness
received, or polygamy to be the having more wives thau
one at
once, when we frame thèse notions thus i» our minds, we have
there so many determined ideas of mixed modes.
But tins is not ail that concerns our actions. It is not
enough to hâve determined ideas of them, aud to know what
names belong to such and such combinations of ideas. We
hâve a finther and greater concernment. And that is, to know
whether such actions are morally good or bad.
Good or evil is nothing but pleasure
or pain, or that which
occasions or procures pleasure or pain to us. Moral good
then, is only the conformity or disagreement of
w ail,
our voluntary
actions to some law, whereby good or evil is drawn on
us by
the will and power of the law-maker: wbieh good
or evil,
pleasure or pain, attending our observance breach of the law,
or
by the decree of the law-maker, is that we call reward
or
punishment.
Of these moral rules or laws, to whieh
men generally refer,
and by which they judge of thé rectitude or pravity of their
actions, there seem to me to be three sorts, with their three different
enforcements, or rewauls and punishments. For sinee it would
be utterly in vain to suppose a rule set to the freo actions of
man, without annexing to it somo enforcement of good and evil
to determine his will, we must, wherever wc suppose a law,
suppose also some reward or punishment annexed to that law.
It would be in vain for one intelligent being to set a rule to
the actions of another, if he had it not in his
power to reward
the compliance with, and punish déviation from his rule, by
some good and evil that is not the natural product and conse-
quence of the action itself: for that bwng a natural convenience
or inconvenience, would opernte of itself without a law. This,
if I niistake not, is thé true nature of ail law properly called.
so
The laws that men generally refer their actions to,
to judge
of their rectitude or obliquity, seem to me to be these three 1.
The Divine law. 2. The civil law. 3. The law of opinion
or
Itft:*vVr'jmttetiwt,
p^mMitt if 1 may so call it.– the relation they bear to
By
fint of thèse, ineti judge whether theîr «étions are sins or
tîie first
dut
tUrtie*
-m by the second, whether they be «immal or innocent
uiul by thc third, whether they be virtues. or vices.
By the Dkini: law, I mean that law which God hath set to
the actions of titeu, whether promulgated to them by thu light
of nature, or the voice of révélation. This is the only true
touchstone of moral rectitude. And by couiparing them to this
law, it is, thnt men judge of the most considérable moral good
or evil of their actions thnt is, whether as dattes or tins, they
are like to procure them happiness or misery from the Imnds of
the Almiglity.
• The civil law, the rule set by the commonwealth to the
actions of those who belong to it, is a rule to which men refer
their actions, to judge whether they be m'initiai or nu. This
law nobody overlooks, the rewards and punhlunents that enforce
it being i-eady at hand, and suitable to the power that makes it
which is the force of the comoionwealth, engagée! to protect the
lives, liberties and possessions of those who lire according to its
law, and lias power to take avtay life, liberty or goods from him
who disobeys.
The law of opinion or réputation is another law that men
gtsnerally refer their actions to, to judge of their rectitude or
obliquity.
Virluv and vice arc names pretended, and supposed every-
where to stand for actions in their own nature right or wrong
and as far as they really are so applied, they so far arc coïncident
with the Divine law above mentioned. But yet, whatever is
pretended, this is visible, that thèse liâmes nWiec aud vice, in
the particular instances of their application through the severnl
nations and societies of men in the world, are constantly
attributed to such actions only as in each country and society
are in réputation or discrédit. Xor is it to be thought strange,
that men everywhere should give the name of virtue to those
actions which amongst them are judged praiseworthy, and call
that vice which they account blameable since they would
condemn themselves, if they should thiuk nnything right, to
which they allowed not commendation anythiug vrrowj, which
they let pass without blâme.
'Thus the mensuro of what is everywhere calleil a-nd
esteernerl virtue and vice, is this approbation or dislike, prai.se
or blâme, which by a secret ami tacit consent establislies itself
in the several societies, tribes, and clubs of men in the world
 wheïeby Soverat action» cohmj to nnd crédit or disgrâce «nwtigst I
thein, according to the jiuJgweiit, uiaxiuw, or fashiûus of that
place. For though mon uniting htfo ij6lîtick soùiétie» Iravé
resigned up to the publick the disposing of nll their force, so
that they cannot employ it against any fellow-eitizens auy
fiuther than the law of thé country directs, yet they rutain still
the power of thinking well or ill, approving or disapproving of
the actions of those whom they live amougst aud eouverso witli:
and by thîs approbation and dislike, they establish amongst
themselvBS what they will call virlue and vice.
That this is the common measun- of virtue ancl vice, will
appetir to any ono who considors, tiiat, though that passes for
viec in one country, which ts counted virtue (or, at least, not vice)
in another, yet everywhere virluc and praise, vice and blâme go
together. Virtue is everywhere that which is thought praise-
worthy aud nothing but that which bas the allowance of public
esteem is called virtue. Virtue and praise are so united, that
they are often called by thé same name. Sunt sua pra-niia
laudi," says Yirgil. And, says Cicero, nihîl habut nature
pnestantius, quam honestatem, quam tandem-, quam dignitatem,
quam deeus all which, he tells you, are names for the same
thing. Such is thé language of the heathen philosophers, wlio
well understood wherein the notions of virtm and vice consisted.
'But though, by the different temper, éducation, fashion,
maxims, or interest of different sorts of men, it fell out, that
what was thought praiseworthy in one place, escaped not censure
in another, and so in different societies rirlues and vices were
changed, yet, as to the main, they for the most part kept the
same everywhere. For since nothing can be more natural, than
to encourage with esteem and réputation that wherein every-
one finds las advantage, and to blame and discountenance the
contrary, it is no wonder that esteem and discrédit, virtue and
vice, should in a great measure everywhere correspond with the
unchangeable mie of right and wrong which the law of God
hath established there being nothing that so directly and
visibly secures and advances the general good of mankind ill this
world as obédience to the law He 1ms set thern, and nothing
that hreeds such mischiefs and confusion as the neglect of it.
And therefore men, without renouneing all sensé and raison,
and their own interest, could not gcnernlly mistake in placin#
their commendation or blâme on that side which really deserved
it not. Nay, even those men, whose practice was othervïse,
failed not to give their approbation right few being depraved
to that degroe, as not to eondemn, at least m etber% thé fanlts
they themwlves
tl werw gtttlfcy of. Whieroby, even in thé corrup-
tion of mdanerî, the law of God, which ought to bu the raie of
tiiin af
virtue and vice, was pretty well observed.
If any one shall imagine that I hâve forgotten my own
notion of a law, when 1 make tho Ittw, whereby men judge of
eirtue and -vice, to be nothiug but the cotisent of private men
wlio have not authority to make n law; especially wanting
that which is sa necossary and easeutial to R law, a power to
enforce it 1 think, I may say, that ho who imagines commenda-
tion and disgrâce not to be strong motives on men to accoininodate
themselves to the opinions and rules of those with whom they
converse, seems little skilled in the nature or history of mankind
The greatest part wliereof he shall nnd to govern themselves
chiefly, if not solely, by this law of fashion and so they do that
which keeps them in réputation with their company, little regard
tlie law of God or the magistrale. The penalties that attend
the breach of God's law, some, nay, perhaps, most men seldom
seriously reflect ou and amoiigst those that do, many, whilst
they break the law, entertain thoughts of future reconciliation,
and making their pence for such breaches. And as to the
punishmeiits due from the law of the commonwealth, they
frequently flatter themselves with the hope of impunity. But
jio man escapes the punishment of their censure and dislike,
who offends against the fashion and opinion of the company he
keeps, and would recommend himself to. Nor is there one of
ten thousand, who is stiff and insensible enough to bear up under
the constant dislike and condemnation of his own club. He
must be of a strange and unusual constitution, who ean content
himself to live in constant disgrâce and disrepute with his own
particular society. Solitude many men have sought and been
reconciled to but nobody that has the least thought or sensé
of a man ahout him, can live iu society under the constant dislike
and ill opinion of his familiars, and those ho converses with.
This is a burthen too heavy for human suiTerance and he must
be made up of irreconcileable contraclictions, who can take
pleasure in company, and yet be insensible of contempt and
disgrâce from his companions.
The law of God, the law of politick sncieties, and the law
of fashion or private censure, are, then, the three raies to which
men variously compare their actions. And it is from their
eonformity or disagreement to one of thèse rules, that they jndge
of their rectitude or obliquity, and name them good or bad.
 Wliether we. take the ruie, to wbidi, as to a touehstoue, we I
bring our voluntary actions, from the fashion of thé eowntry, or `
from the will of a law-maker, thcmiad is easily able to observe
the relation any action hath to it, and to judge whether tlie
action agrées or disftgrees with the mie. And thus the mind
hath a notion of moral tjoodnm m- evil which is either couformity
or «ot conformity of any action to that rule. If 1 flml an action
to agrée or disagree with the esteem of the country 1 have beeu
bled iu, and to bo beld by most men there worthy ot* praise or
blame, I call tlie action virtuous or vicious. If I bave the will
of a supreme invisible law-maker for my rule, then, as I suppose
the action comnianded or forbidden by God, I call it good or
evil, duty or sin. And if 1 compare it to the civil law, thé rule
made by thé législative power of thé country, 1 call it lawful or
unlawful, no crime or a crime. So that whencesoever we take
the rule of actions, or by what standard soever we frame in our
minds thé ideas of virtues or vices, their rectitude or obliquity
consists in their agreement or disagreement with the patterns
prescribed by soiue law,
Beibre I quit this argument, I would observe that, in the
relations which 1 call moral relations, 1 have a true notion of
relation, by comparing the action with the rule, whether the
rule be true or false. For if I measure any thing by a supposed
yard, 1 know whether the thing I measure be longer or shorter
than that supposed yard, though the yard I ineasure by be not
exactly the standard. Measuring an action by a \vrong mie, I
shall judge amiss of its moral rectitude but I shall not mistake
the relation which the action beai-s to the mie whereunto I
compare it.' Essay emcerning Hmnan UnderstamUng. Book
Il. Chap. XXVIII.
Tlie analogy borne to a law proper by a law which opinion Ui
imposes, lies mainly in thé following point of resemblance. lu }•'),'
iigurstirc.
the case of a law set by opinion, as well as in the case of a law 1The
properly so called, 1\a mtiotial
rational being or moxtOlls to
bein,s are 0obnoxious
or beings to coniiiion
™"
ami jicjja-
'111<1
contingent evil, in the event of their not complying with a tivi' iiotnn.-
tiv<
<>{ laws of
J'i,e
known or presumed desire of another being or beings of a like tlie class.
nature. If, in either of the two cases, the contingent evil is
suffered, it is suffered by a rational being, through a rational
being: And it is suftered by a rational being, through a rational
being, in conséquence of the suffering party having disregarded
a desire of a rational being or beings.- The analogy, therefore,
by which the laws are related, mainly lies in thé resemblance
of the improper sanction and duty to the sanction and duty
306 T/tc Province of
Lsa. v propurly
pn so catletL The contingent ovit in prospect whieh
"'J enl
enforee» th-e I»w iraproper, atut the présent obuoxiotisness te
that contingent evil, lùtiy be Hkeimd to thé genuine sanction
tlit
whieh
wli enfurces tlio Iàw proper, and tho' geuuine duty or obligà-
tion which the lnw proper imposes. Tho analogy between a
tiu
law in the proper acceptation of the term, and a law improperly
lav
sa ealled which opinion sets or imposes, is, therefore, strong or
close. The defect which excludes tho latter from tho muk of a
law proper, werely consista iu this that thé wish or desire of
its authors has not been duly signifiai, aiul that they havu no
formed intention of inilicting evil or pain upon those who may
break or tmnsgress it.
But, beside thé laws improper which are set or imposed by
opinion, theits are laws improperly so called which are related
to laws proper by slender or remote analogies. And, since they
have gotteu the mime of laws from their slender or remote
analogies to laws properly so called, I style them laws meta-
phorical, or laws merely metaphorical.
ïhe metaphorical applications of thé term law are numerous
and différent. The analogies by which they are suggested, or
by whieh metaphorical laws are related to laws proper, will,
therefore, hardly admit of a common and positive description.
But laws metaphorical,though numerous and different, have the
followiug common and négative nature. No property or char-
acter of any metaphorical law can be likened to a sanction or a
duty. Consequeutly, overy metaphorical law wants that point
of
<
resemblance which mainly constitutes the analogy between a
law proper and a law set by opinion.
Th"? corn- To show that tigurative laws want that point of resemblancc,
mon ami and are therefore remotely analogous to laws properly so called,
négative 1

nature of I will touch slightly and briefly upon a few of the numberless
laws metti.
iiliorical orr tcases in which the term law is extended and applied by a
figurative, metapljor.
slioivn hy
c-xanipk-s. The most fréquent and rumarkablo of those metaphorical
applications
t is suggested by that uniformity, or that stability of
conduct, which is one of the ordinary conséquences of a law
proper. I)y reason of the sanction working on their wills or
desires, thé parties obligée! by a law proper commnnly adjust
their conduet to the pattern which the law prescribes. Conse-
quently, wherever we observe a uniform order of events, or a
unit'onn order of cuexisting pluenomena, we arc pronc to impute
that order to a law set by its author, though the case présents
us with nothiiig that can be likened to a sanction or a duty.
 r "JI!
toi exempta: We say tHat the moveweirt» of lifeless Mies
xltes Liwt.
l Y ç
are tletemùhed by certain Immt: though, sînce the bûdîés are are" s
lifelas» ami have no desires or aversions, they
cannot bu touched
clied
by (iu«ht which in the least reseinbles a sanction, and
caimot
be subject to aught which in the least reseinbles au obligation.
We mean that they move in certain uniform modes, and tltat
they move in those uniform modes through the pleasure nud
appointmentof God just as parties obligeel beliave tu a uniform
nianner tlirough the pleasure and appointment of the party who
imposes the law aud the duty. Again We
say that eertniu
actions of the lower and irrational animais are deteraùned by
certain Unes though, since they cannot undorstauU the purposé
and provisions of a law, it is impossible that sanctions should
effectually move tliem to obédience, or that their conduct should
be guicled by a regard to duties or obligations. We
mean that
they act in certain uniform modes, either in
conséquence of
instincts (or causes which we cannot explain), or else in
couse-
quence of hints which they catch from expérience and observa-
tion and that, since their uniformity of action is
un effet of
the Divine pleasure, it closely resembles the uniformity of
conduct which is wrought by thé authors of laws in those who
are obnoxious to the sanctions.1 In short, whenever we talk of
laws governing the irrational world, the metaphorical application
of the term data is suggested by this double analogy. 1. The
successive and synchronous phamoraena composing thé irmtional
world, happen and exist, for the most part, in uniform séries
which uniformity of succession and coexistence resembles the
uniformity of conduct produced by nu imperative law. 2. That
uniformity of succession and coexistence, like the uniformity of
conduct produced by an impemtive law, springs from the will
aud intention of an intelligent and rational author. When
an
atheist speaks of laws governing thé irrational world, the meta-
phorical application is suggested by an analogy still
more slender
and remote than that which 1 have now anaîyzetl. He
means
that the uniformity of succession and coexistence resembles the
uniformity of conduet produced by an imperative rulc. If,
to
(i) Siwakiiif} with aksolutt précision, «adou* »re «o far from l«it»R irrati«ti»l
the loweir animais, or th.- «uiiuab iu&. tliat thtv uti.lcntati.l nnd okerve Un's
n«r to man, «renot _ilu.stitut<>of tesson, sc-t to tfii-m !>>• hunmn iiwstcts. Hat
Sm«c titrir cowhwt i8 )mrt!y tleteriiiiiieti the>" laws 1).!Iiàgt'w an.) of little im.
liv conclusions .lrawi from ..x|n-riniee, portan™, I tlirowtlicm, for the &ikc of
th,y oijserve, ror.ii.m-, abstrart, «u.l si.i.|.lMtv, ont u( my account. I »v
mler. liuttheint.-ilif.cncoof th.- Lm-r mAnniW of the louvr animais tSt
animais is so i-xtreinely limitoil, tlwt, th.:y rannôt un.K-rstan.l a law or"aUe
a.lojmiiff the oum-nt «pression, I .style tlieîr conduct l.v a ilmv. °
tlwm irrationttt. Sonie of the more sa-
aeS
." The Prmrim e of
Lect. v draw tho analogy
am elosér, he ascribes tliose laws to an author, ho
petsonifies
"lllir"T' aa verbal abstraction ami inakes it play tho legîslatot.
}»wo»ifies

attiibutes thé uuiforaiity of succession and oooxistenee to

He attributs }
hua
huai set by nature: meaning, by nature, the world itself; or,
perhaps, tha that very «nifonnity whîuh he imputes to nature'» h

commands. I

Many metaphorical applications of tlie term law or rule aro

suggested by thé analogy following. An imperative law or
rule guides the couduct of the obliged, or is a ««•?»«, model, or
pattern, to which their conduct conforms. A proposed guide of
human conduct, or a model or pattern offered to human imita.
tion, is, therefore, frequently styled a law or rule of conduct,
although there be not in the case a shadow of a sanction or a
duty.
For example: To every law properly so called there are
two distinct parties: a party by whom it is establislied, and a
party to whom it is set. But, this notwithstanding, we often
speak of a law set by a man to himself: meaning that he
intends to pursue some given course of conduct as exactly as he
would pursue it if he were bound to pursuo it hy a law. An
intention of pursuing exactly somo given course of conduct, is
the only law or rule which a man can set to himself. The
binding virtue of a law lies in the sanction annexed to it. But
in thé case of a so called law set by a man to himself, he is not
constrained to observe it by aught that resembles a sanction.
For though he may fairly purpose to iuflict a pain on himself, s
if his conduct shall depart from tho guide which he intends it
shall follow, the infliction of the conditional pain dépends upon i
his own will. Again When we talk of rules of art, thé meta-
phorical application of the term rules is suggested by the analogy
in question. By a rule of art, we mean a prescriptionor pattern
which is offered to practitioners of an art, and which they are
advised to observe when performing somo given procès». There
is not the semblance of a sanction, nor is there the shadow of a j
duty. But the offered prescription or pattern may guide the
conduct of practitioners, as a rule imperative and proper guides ,1
the conduct of the obliged.17 s
Laws The preceding disquisition on figurative laws is not so t
metaphoi'- superfluous as some of my hearers may deem it. Figurative
ical or

17 Supposai dilfcrenco betn-een law ami

aiul rule. M.S. vote.
tu motaphorical applications oftlio
tenu Miijat'wn, liko thoso of tho terni
The author refera, 1n a memoran. law.' UiiliappilyI have bevn unable to
dum, to notes on 'laws metatihorical, nt liml theiu. S. A.
the l'oint whieh relates to Ruilcs of Art,'
laws are not unfre^ueiitly jnistakett for k\vs inipcrative ftnd m<t ttKer.V
proper. Nay, «ttempta have aetntiHy beeit made, and by
writars (;•
rare ftgurativ»
of thé highest eeltibrity, to explain ami illustrait' the nature of are
«' °ft«"
hleinleil
laws imperntive and proper, by allusions to so culled laws wliicli
ICtl ft!ami con-
are merely suoh throitgli a inetaphor. Of these most gros» and
nut fouuJtJ
&
withla»*
scorcely crédible eiwrs, various cases will be mentioned in 111 kimj)cuativ«
future stages of îny Course. For the present, the following ing ™a"a
examples will amply deinonstrate that the errais are uot opro~f. r
impossible.
In an exeerpt from Ulpian placed at the begiiining of tlie the
Pandects, and also inserted by Justinian ut the second title offi
his Institutes, a fancied jm nat-urate, common to aU animais, is
thus distinguinlied from thé jus naluruk or gaUium to which 1
have adverted above. '»/"«« naluraie est, quod natura oniixia
niiimalitt doeuit nam jus istud non humaiii generis proprium,
sed omuiuiu nuiuialiiun, qmo iu terra, quœ in mari uascuntuv,
avimn c|uoque commune est. Hinc descendit maris utque iemina'
conjunctio, quain nos matrimoniiuu appellamus hinc liberorum
procreutio, hinc educatio: videmus etentm cetera quoque aniiualiu,
feras etitim, istius juris peritia causeri. Jus gentlum est, que
gentes hurname utuntur. Quod a naturali recedere, inde facile
intelligere licet quia illud omnibus auimalibus, hoc solis homini-
bus inter se commune est.' The Jus naiurnk whieh Ulpian hère
describes, and which ho hère disthiguishus from the jus wUurale
or genlium, is a narne for the instincts of animais. More especi-
ally, it dénotes that instinctive uppetite whieh leads them to
propagate their kinds, with that instinctive symptithy which
inclines parent animais to nourisb and edneate their younj, Xow
thé instincts of animais arc related to laws by the slender or
renxote analogy whieh I hâve alrcady endeavoured to explain.
They incline the animais to net in certain wrifonn modes, and
they are given to the animais for that purpose by an intelligent
and rational Author. But thèse mctaphoricnl laws which govem
the lower animais, and which govern (thouyh less despotically)
the lmtuan species itself, should not havo been blended and
confounded, by a grave writer upon jurisprudence, with laws
properly so called. It is trne that the instincts of the animal
man, like many of his affections which are uot instinctive, arc
amongst the causes of laws in the proper acceptation of the term.
More especiiilly, the laws regarding thé relation of husband and
wife, and the laws regarding the relation of parent and child, are
ulpian particularly points
auily caused by the instincts which Ulpian
mainly
at.
» And that, it is likely, was the reason which determined
VOL. I. P
 this légal oracle to class the instincts of nnitnttls witlt laws.
imperative naît proper. Kut nothing en» bé more abstint than
imperf
the ntnktug
mi wtth ktw» ttwmselves tho causes whieh lead to their
existence. And if huumii instiuets are laws beeause they are
causes of laws, thero is searcely a facuity or affection belonging
to thé luunan muni, and scarcely a class of objects presented by
the outward world, thnt must not bo esteemed a law nnd an
appropriate subjoct of jurisprudence. must, however, reinark,
thnt the jets qvnd natnra omnia animnlia dmeit is n conceit
peculinr to Ulpiun nnd that this most foolisli conçoit, tliough
iusertetl in Justinian's compilations, has no perceptible influence
on thé détail of tho Roman law. The jm naturale of the
classical jurists geuerally,and thé jus naturale occurring«enerally
in thé Pandects, is eiiuivalent to thé nalund law of modem
writers upon jurisprudence, and is syiionynious with thé jus
gcnliuM, or thé jus naturale et gentium, which I hâve tried to
expiai» concisely at the end uf a precedinj? note. It means
those positive laws and thuse rules of positive rnorality, which
are not peenliar or appropriato to any nation or a«e, but o)rtain,
or are thuitght to obtain, in ail nations and âges and which, by
reason of their obtaining in ail nations and âges, are supposed to
be fonned or fashioned on thé law of God or Nature as known
by thé moral sensé. Oinnes populi (says Gaius), qui legibus
et moribus reguntur, partim suo proprio, partim conmnini omnium
homimim jure utuntur. Xam quod quisque populus ipse sibi
jus constituit, kl ipsius proprium est, vocatunjue jus civile; quasi
jus proprium ipsius civitatis. Quod vero naturalis ratio inter
omnes hommes constituit, id aput onines populos peneque
custoditur, vocaturquo jus gentium quasi quo jure omnes gentes
utuntur.' The universal leges et mores hère described by (tains,
and distinguished fn)in the hfjes et mores peculinr to a particular
nation, are styled indifferently, by most of the elassical jurists,
jus gentium, jus nattimk, or jus tuiturale et geatiittii. And thé
law of nature, as thus understood, is not intriiisicnlly absurd.
For as soiue of the dictâtes of utility are always and eveiywhere
the sanie, nud are also so plain and glaring that they hardly
admit of mistakc, titcre are légal and moral rules which are
nearly or quito universal, and the expedieney of which must be
seen hy murely natural reason, or by reason without thé lights
of extensive expérience and observation. The distinction of law
and morality into natural and positive, is a needless and futile
subtilty: but still thé distinction is founded on a real and
manifest différence. The jus natimitc or gcnlium would be liable
 to litele objection, if it wero not supposeil ta te the offspring of
a moral instinct or sensé, or of immte pittetica! principes. JJut,
since it is closely alliêd (us I shall show hereal'tcr18) to that
niiskading and pernieious jargon, it ought to b« expelled, with
the mit ural kiw of the modems, from thé sciences of jurisprudence
awd morality.
The following passage is the iirst sentence in Montesquieu"»
Sjnrit of Laws, Les lois, dans la signification lit plus étendue,
sont les rapports nécessaires qui dérivent de la nature des choses:
et dan» ce sens tous les êtres ont leurs lois la J divinité a ses
luis; le monde matériel a ses lois les intelligences supérieures
a l'homme ont leurs lois; les K- tes ont leurs lois l'homme
a
ses lois.' Xow objects widely différent, though beariug n eommon
nnnte, arc liere blended and eonfounded. bf the laws which
govera the conduct of intelligent and rational créatures, soine
are laws iniperative nnd proper, and others are closely unalogous
to laws of that description. But the so called laws which goveni
the material worltl, witli the so called laws which
govern thé
lower animais, are mei-oly laws by a ujetaplior. And the
so
called laws which goveru or détermine the Deity clearly in
are
thé same pralicament. Jf his actions were govurnod
or deter-
mined by laws imperative and proper, lie would l>e in stati: of
a
dependence on another and superior being. AVhen
we say that
the actions of thé Deity are governed or determined by laws,
wu
mean that they eonform to intentions which the Deity himself
has conceived, and which he pursues or observes with inflexible
steadiuess or constancy. To mix theso figurative luws with laws
imperative and proper, is to obscure, and nut to elucidate, the
nature or essence of thé latter. The beginning of thu passage is
worthy of thé sequel. We are told that laws
are the necessary
relations which now from the nature of things. But wliat, I
would crave, are relations ? Wliat, I would aîso
crave, is thé
nature of things ? And how do the necessary relations which
now from the nature of things differ from those relations which
originate in other sources ? The ternis of thc tleiinition
are
incomparably more obscure titan the term which it atfcctâ to
expound.
If you read the disquisition iii Blaekstone on the nature of
laws in gênerai, or the fustian description of law in Hooker's
Eeclesiastical l'olity, you will nnd the same confusion of laws
imperative and proper with laws which are merely such by
a
glaring perversion of the tenu. The cases of this confusion
I.cct. xxxii, )Kst.
 are, fndeéd, au numerous, that they would fit! considerable
Volume.
F6y»fco! From
Fr< tlte confusion of kwB metaphorical with làws impern-
OfMtUral tivean
tive and
tli~ propei-, I tura to a mistuku, soiuewhut siniilar, wlikh,
tive
wiwtlau».
1I présume
prusu tu think, lias been couunitted by Mr. Benthiun.
Sai
Sanctious proper and improper are of three capital classe»:
-thethe sanctions properly so called wliich are annexed tu thé
laws of God the sanctionsproperly so call&l which are annexed
to positive lnws: the sanctions properly so ealled, and the
sanctions dosely aualogous to sanctions properly so called, which
respectively enibrce compliance with positive moral raies. But
to sanction religions, légal, and moral, this great philosopher
and jurist adds a class of sanctions which he styles physieal or
nuturaf.
When lie styles these sanctions physicul, lie does not intend
to intiniate that they are distinguished firom other sanctions by
thé mode wherein they operate lie dues not intend to intitiuite
that thèse are the only sanctions which aflect the suflëring
parties thrqugh physical or material nieans. Any sanction of
any class may reach the suffering paity through rneans of that
description. If a inan weru smitten with blindness by the
imrneiliate appointment of the Deity, and in conséquence of a

thief who is or
sin lie had comtnitted against the Divine law, he would sufler a
religions sanction through liis physieal or bodily organs. The
imprisoned by virtue of a judicial com-
mand, suflcrs a légal sanction through physical or material
nieans. If a inan ofthe class" of gentleweii violates the law of
honour, and happons to be shot in a duel arising from liis moral
delinqueney, he suffers a montl sanction in a physieal or
material form.
The meauing annexed by Mr. Bentlmm to the expression
1 physieal sanction,' may, 1 believe, bu rendered in the following
manner. A physical sanction is an evil brouglit upon the
suffering party by an act or omission of liis own. But, though
it is brought upon the sufferer by an act or omission of his own,
it is not brought upon the sufferer through any Divine law, or
through any positive law, or rule of positive morality. For
example If your house bo destroyed by firo through your
neglecting to put out a light, you bring upon youreelf, by your
négligent omission, a physkal or iiaiurul sanction supposing,
I mean, that your omission is not to be deemed a sin, and that
the conséquent destruction of your house is not to be deemed a
punishment inilicted by the liand of the Deity. In short,
 thougjj a i>hysieal sftnetioB ia an evtt falling on a rationai being,
g, teor. v }
aiid broaght on a ration»! being by an act or omission of lus is
own, it is neither brougbt-on tho siififerer thrcmgh a law impern-
tive and proper, nor through an analogous law set or imposed
by opinion. In cnse I borrowed the just, though tautoJogîcal
laugungo of Locke, I should describe a pliysical sanction in
some such tenns as the following, It is an evil naluraUy pro-
duced by the comhict whereon it is conséquent ami, Leing
ïuUimtUy produeed by the eonduet whereon it is consequent, it
miches the suffering party wit/ioul the intervention of a law.'
Such physical or naturel evils are related by the following
nnalogy to sanctions properly so called. 1. When tliey are
actually suffered, they arc suffered by rational beiiigs through
acts or omissions of their own. 2. Before they are actually
suffered, or whilst they exist in prospect, thuy affect thé wills
or desires of the parties obnoxious to them as sanctions properly
so called affect the wills of the oblijçed. The parties are urged
to the acts which may avert the evils front their heads, or the
Inities are ileterrwl from the ncts whieh may bring the evils
upon them.
But in spite of the speeious analogy at which I hâve now
pointed, 1 dislike, for various reasons, the application of thé
term sanction to thèse physical or natural evils. Of those
reasons I will briefly mention the followin». 1. Although
thèse evils are suffered by intelligent rational beings, and by
intelligent rational beings through aets or omissions of their
own, they are not suffered as conséquences of their not corn-
plying with desires of intelligent rational beings. The acts or
omissions whereon thèse evils are conséquent, can hnrdly be
likened to breaches of duties, or to violations of jtnperative
laws. The analogy borne by thèse evils to sanctions properly
so called, is nearly as remote as the analogy borne by laws
metaphorical to laws imperative and proper. 2. By the term
sanction, as it is now restricted, the evils enforcing compliance
with laws imperntive and proper, or with the closely analogous
laws which opinion sets or imposes, nre distinguished from
other evils briefly and commodiously. If the term were
commonly extended to thèse physical or natural evils, tins
advantage would be lost The terni would then compreliend
every possible evil which a man may bring upon himself by his
own voluntary conduct. The term wonld then comprehend
every contingent evil which ean work on the will or desires as
a motive to action or forbearanee.
 I close my disquisitions o»i figurative Iaws, and on those
ïaeutphorîcat sanctions whieu Mr. IWUmwu thiHMmmU;* pliyviml,
with tliu followhig eonneeted remarie.
Deolaratory Iaws, Iaws repealinj,' laws, and Iaws of iinperfect
obligation (iu the sens» of tlt« ttoiiinn jurists), are nierely
analogous to laws in the proper acceptation of tho term. Like
laws iinperative aud proper, declurutory laws, Iaws repealing
laws, aad laws uf imperfeet obligation (in the sense of the
liomnn jurists), are sigus of pleasuru or désire proeeeding from
law-nmkers. A law of imperfeet obligation (in tlw
sense of the
Houitm jurists) is also allied to an impurative law by the follow-
ing puint of reseinblance. Like a law iinperative and proper,
it is uffcred as a noruui, or guide of couduct, although it is not
arme-il with a légal or politieal sanction.
Declaratory laws, and laws repealing laws, ought in strict-
ness to be classed with laws metuphoriual or figurative: for
the îinalogy by which they are related to laws imperative and
proper is extremely slender or remote. Laws of iinperfect
obligation (in the sens/! of the iïamau juriste») aw> law» sut uï
imposed by the opinions of the luw-umkers, and ought in
strietness to be elassed with rulus of positive morality. But
though laws of thèse titrée sjjecies are inerely analogous to laws
in the proper acceptation of thc ternt, they are closely con-
nectecl with positive lztws, and are appropriate subjects of
jurisprudence. Conséquent!)' 1 treat thein as iinproper laws of
nnouinlous or eccerttric sorts, and exelude them froni thé classes
of laws to which in strietness they belong.
Xvtt on the pruvuillng tc-mlc-ncy tu voiifuuiid wliat is with whut nii^lil
to be liiw or iiiortility, that is, lst, to cuiilotunl {.MÏtive law with thctcicuw
of législation, nml i».sitivc moiiility with Oeontulojjy ntul âiully, tu
con-
fuunil i««itivir law witk positivi- morality, unil both with législation ni>it
<lcontol(jjs'y.– (Suc- page 20(>, and note thetv.)
The exi.-tence of Inw in onu thing it» inciit ilemerit is anotlur.
Whtthtr it Le <>r bu uot is onc- eiii{iiiry whethor it ofbe or l)c not conloriii-
Mu to an nKmm<M Htnndard, h u iliffon-nt <iK{uiiy. A law, which uctuullr
exiHtc, is u law, tlinnxh we lmp|)en tu «lislikf it, or tltuii^k it
vary froin tlie
tt:xt, hy which we iv;ulat<: otir approl«tioii and «lisi|>pr<i)Mtiiin. This
trutli, wlien f'.iniially annouiKi-d as an abstrac-t pi-upositi'in, is so simple
and ^lariiiH tliat it sc-ems Wle tu insist upon it. But .simple and ghiriug
as it is, whtn t-nunciatvd in nbsti'act cxpivssifius thé emuncratiun of tho
instances in which it lias Ijbcm for^otte» woukl till a volume.
Sir William Blackit-mc, for cxuinple, says in his Comuientaric-i-tliat
th« luws of Owl are superior in obliKutiontu ail otlier laws tluit human
no
laws .should Ijc suffered tu contmdiet tliem that human lnw»
are of no
vnhMity if coiitnuy to thein and that ail valid laws dérive their force
from that Divine original.
 Now, he may mean that ail huiuiui laws ougltt to confuvin to thc Divine
iU
biwi If îliis bu lus uuiiuiûg, I asseiit to it witbout ltetutotion. The eviU S-v^
whieh we are exposai to utitfcr 'roin the ïmiids of Gotl as a conséquence </f
dîsobcyîiig Hfo OoiDliiitmb itiv (lie greatcst evils to winch we are obnoxioiis
the obligations which they impose atv eonseijufciitly parnmount to tlio*
huposed by nny other laws, ami if litiimm commnmls conftiet with the
Divine law, we ougkt to dùaUy tltu cunmumd whiclt is enforced by the
lees powerlul sanction this i« iinplkii tu thé term ouykt the proposition
U idcutical, and tlK-a-foi* i«rfwtly iiuluputablc– it i» our iutuR-st tu choow
tho sumlk-i- i«ut mua- uiiut-rtaïu evil, in pitti-n'iice tu thc gratter and suret'.
If tins lie JilaukiiUDiu's inwtiiinji, 1 «switt to hi» proposition, «nd hâve only
to object to it, that it tells us just nothing.
Pt-rlmjj.s, uptiu, he rnean» that Iniiuan lawgirer» are themsclvtsoUi^>l
by tlte ltiviue luws to fttsliion tlie luws which tlicy imjjose Ly that ultinmte
fitaiularil, W'uu^u if they du not, Qod will punish thon. To tlii>i al.-y I
ejitirely asseiit for if the index to the law of Cîod Ut the priuciplu uf
utility, that la»' emljmces the wliole of our voluntary actions in so fur a.-i
motives applivd from «-ithout are requiruU to j^ive tliem a direction cou-
funnnhle tu tlie nt-neml liappiness.
But the jin-aninf,' of tlii.s passage of Blavlc^tuin-,if it lias u nienning, seeiu-i
rather to be this that no hutuax law which <;unt[ict. with tha UivinM taw
i.f oblipitory or bindin^; in utlier wonls, thut no humau law which confltets
with the Divine Imv i< a latr, fur a law witliout an obligation U a contra.
dictiuii in ternis. I suppute this tu be his ineaniu; bvcuusc when we say u(
any transaction that it is invalitl or void, we ineaii that it M n<it bindiiig
as, for exaniplê, if it be u cutitract, we meaii thut the politkal law will not
lend its sanction tu euforce thc controct.
Now, to .-«y that hiiniuii luws which conllitt with thc Divine law are
not bindiiig, that is to say, are not law.s, is to talk .stai-k iinnsense, The
luost perniciott» luws, and then-fore tho.su which are most upposed tu tlio
will of (Jod, hâve heeu aud are eontinually eufurced as laws hy judiciul
triblittal.i. Suppose an act innocuou*, or positively bénéficiai, Le jirohiljttuil
by the soverci^n under the penalty «f death if I commit this act, I shrill
be trted and cunduinned, and if I object tu the sentence, that it is coutrary
tu the law »ï 0<«\, who lias commandwl that humait law^ivejs olmll not
prohibit nuit) which hâve no evil coiiseejiu-ncvs,the Court »f Justice will
demonstrate tho iiicoiicltisivenessof niy rwisonin^ by hnngiug me up, in
pursuancfi of the law of whieh 1 hâve iinpugned thé validity. An excep-
tion, deinunvr, <»r ]>lca, fottnded on the law of God wa.» never heanl in a
Court of Justice, front tht: création of the world dowu tu the présent
moment.
But this abuse of language is nut inerely puérile, it is nii$chievou>.
When it U eaU\ thut a law ought to be di.°»bercd, wliat is meant is that
we are urjjed to di=r,b«y it by motives rnore codent anil cuinpiilsory thun
those by which it is itself sanctioned. If the laws of God arc- certain, thi-
motives which they hold ont to disobey any lmnian coinniaiid which is at
variante with thetn arc jiaramount to ail iithers. But thu laws of Gi>d arc-
not always certain. Ail divines, at least all rc-aamable divines, admit that
no echetue of duties perf<;ctly complète and unamLiguouswas ever imparted
to us by révélation. As an index to the Divine will, utility is obvioufly
insuflicieiit, What appe-ars pernicious to one person niav appear bénéficiai to
another. And as for thé moral sùtisc, innatc- practicitl principles, conscience
they are merely convenient cloaks for ignorance or sinister intere.-t they
 3»6 ThëPnmimof
-I,ect. V uietra eitlier tbat I bote thé law to which I abject and emmot fott wliy, or
uietix
»–•' that I hntethe 1«W, nnd that the cnwse of my Imtfed is ono which I flnd it
ihccmuiiwlbiu taavQvr. If I say optiily, I lutte thé luw, tr</o, it M not
iixnoi
bindiug- and ought tu W disolieyetl, ntt one will lktettto me bnt by callin^
my hâte my conscience or my moral «enise, I urge the «une argument in
it
Auotlier aud mow plausible Ibnu I scem to osaigii a «ason for my dislike,
when in truth I Iwvo only gîven it a «onmling and specious mïme. In
time» uf civil discord thé mischief of tins détestableabuse uf languag© is
apparent. In quiet Unie» the dictâtes of utility are fortuuutely so obvious
thnt theimawhical doctrine sleeps, and mon habitmillymirait thé validity of
luws wliich they dislike. To prove by pertinent reasous thut a te
pcruiciotti i» hiyhly iu«ftil, because such procesa jnuy Icml to the abrogation
is
uf tlie penucious liw. Tu incite thé public to résistance by iletc-rminate
view* of «tiUly juay be useful, fur résistance, Kroitmicil on clcar and definitc
prospects of gowl, is sometime» boneflcittl. But to pruclaim gencrully that
ail law» which are pernicious or contmiy to the will of Ond are void and
îmt
i to lie toleratud, is to preach unarcliy, hostile and pc-rilous as much to
wise
1
and bcuigii rule tis tu stupid and gallinn tyranuy.
Auotlier In unuther pa»«igu of lii« Coimiienturies,' Black-stone enters into au
cxample argument
;i to prove tlrnt a master cunnot liuve a right to thé labour of liis
frow ïluve, Hiid lie contented hinistlf with expn.f»ing his dt^probalioii, a very
Hlnek.
étoile. well-j-Tounded one certainly, of the institution of slavery, no objection could
1huve been matle to his
no exprcssing him.<elf. But to dispute the existence
cor the possibiliry of the right is to talk ab-iutlly. For in every ajje, ami in
alinost
il cvery nation, thu right lias been given by positive law, wliibt that
pernicioiij
F disposition of positive law lias been backed by the positive
luorulity
Il of the ftee or niaster classes.
l'aley's de- Paley*s admired définition of civil liberty appean to me to be obnoxiott»
tinitiou ol° to
(, the very «ime objection it is a définition of civil liberty as it ought to
civil be. Civil liberty/ he nays, is the nut being restraiiicd by any law but
liberty. L
whicli conduces in a gratter degrue to the public wclfnrc and this is dis-
\i
tinguished from naluml liberty, which is thé not bein^ restrained at ail.
ti
But when liberty is not exactly synotiymous with risjht, it menus, and can
mean nothiiig el.se, but exempti<m front restraint or obligation,and is then-
fore altogetherincompatiblewith lnw, the very iden of wliich iniplics rostraint
and obligution. But restreint is restraint although it be useful, and liberty
is liberty though it may be pernicious. You raay, if you please, call a usefiil
restraint UUrlij, and refuse the nniiie liberty to exemptionfront restraint
when restraint is for thé public a'tvantage. But by this abuse of language
you throw not a ray of light upon the nature rif political liberty you only
add tu thé ambiguity and imlistinetuess in which it is alrcndy involved. I
Il,1el
«hall have to detine «nul unnlyzv the notion of liberty hereafter, on account
ahal
of l intimate connexion with right, obligation, aud «onction.
of iits
Exempte Grotius, Puifi-ndorf, and the other writers on the so-called law of nations,
from the hl\1 fallcn into a similar confusion of ideas they hâve confoiinded positive
hâve
writrra on internatiunul
inte morality, or the rule» which actually obtain uniong civilizcd
IIÜèrna.
tionallaw. nations
natii in their mutual intercourse, with their own vague conceptions of
international morality as it mujht to te, with that indeterminate something
inte
whi
whicli they conceived it woukl be, if it confurmed to that indeterminate
something
aom which they call the law of nature. Professor Vou Martens, of
Outtingen, who died only a few yea» ago,19 is actually the ntst of the

This, it will ho remembered, was spoken in thé ycar 1830 or 1831.

 wrîtew on thé law uf tintions who has m\w<ï this distinction wif a firm
n
griisp, the first who tins dhtfnguîshed thé raté» wfcich onght ta he receh'ed tei -Si ••<•'
iit Ut» iutewottreeof mitions,or whieh wottltl be received if they confonued i«l
to «ir «sflitiiirâl standard of wlmtevçr kind.frora thoa* vrhfch mm rcccivcd, ed,
eadeavour to collect fnm thé practice of civilized couuiiuuities what are aru
the rulea aetnally Kcognixed and aetwl upon by tliom, nnd gave to thetfe etfe
rules the naine of positive international law.
I hâve giveu suveral instances in which law ami inorulity us they ought
le
to are coufoundul with the law and inorality which uctuully exist.
shall next mention nome exemple» in which positive luw is cunlomn.lvd witli
I
Jit 2nd.
I
S
dvncy
l
Tcn-
tu
coufound
..t Jpositive
1111
positive JJmntlity, mid Ijotli with the science, of législationund dcontology.V-j law
) witb
Those who knuw the writings of the Roman kwycrs only by ht-arsay are isre positive
i
only part of their «ritinjjs which deservts contempt. Their extraurdinaty
the
aecustomed to admire tlmir philosophy. Now tliis, in uiy c-stimution, is the morality,
r
iry wlthkgU-
rnerit i» evineed uot in gcneml »i)cculation, Lut as e.xpositorsof the Roman i"n ]latiouand
law,^ They hâve Mi««l it« gênerai principlvs with grent cleunietii and ne- deonto-
jjene- c
tration, hâve upplicd the.se- principlus witli «ilmimUw lo^iu to thé e.xplunutiou
îon ï°ar-
1
of détails, and h«v« thus reduced tlii» positive «ysU'iu of hw to a compact act ExaiupU-s
the
and cohérent wliolc. But tlie philosophy which they bonowed fiMin ",c ffrom the
Oifeks, or which, aller thé «amplesof thé Oweks, they tlwtn wlv«s fashioned, e'ijjEommi
jurW».
i* naught. Tlieir attempte to detine jurisprudence and to dek'rniinu the he
province of the jurinconsult arc absolutely pitiuble, und it is hnrdly con- 1/
ceivable how mvit of such admirable dia-ernmeiit slioulil have displayed
sucîi conteniptibleinibecîlity.
At thé comtiieiicement of thé di^est is a plissage attempting to «lcfine
jurisprudence. I gliiill lirst présent you witli thia passage in a free transla-
tion, uud afterwardsin the original. Jurisprudence,' «jys this définition,
i» the knon-ledge of thinga divine and huinan thé science which teache.s
nien to discem the just from thé unjust' 'Jurispmdeiitiaest divjnurum
atque huinuiiuruiii itruiii notitiii, justi at(|Ue injtt«ti *L-ientia.' In thé
excerpt from Ulpian, which ia placed at the It^iuniug of thé Digt-st, it is
attentpted to define the office or province of thé jurisconsult Lnw,1 mys
the passage, 'dérives its name from justice, juttilia, and is the science or
skill in thé good ami the équitable. Law beinj; the créature ofjustice, we
the jurisconsulteinny be considered as her priests, for justice is the goildeM
whom we worship, and to wliow service we are d'rvoted. Justice and
equity are our vocation we teach men to know the différence between the
just and thé unjust, the lawful and the unluwful we strive to îucluim
them front vice, not only by thé tenurs of punishment, but also Ly thé
blandWiment of jwanl» j herein, unies* we flatter ourselw», aspirinK to
Bound and rcal philosophy,and not lik« «nue whom we could mention,
contenting ourselves with vain and enipty prétention.1 'Juri ojjer.nu
daturum priu» nos* oportet, unde nomen juria descendat Est nutcm a
juMitm apjiellatum nani, ut tiegunter Celsus detinit, jus est ars boni et
a^ui. C'ujus W'ritoquis nos riacerdotes appellet justitiain naiiKjue colimns,
et ^?u} et llM'11' notitiam profiteniur, {eqmim ah iniquo separanti-s, licitum
ah illicite discernantes, ljonos non solum metu pœnarum verum etiani
prœtnioruni quoqne exhortatione efficere cupientes, venun, nisi fallor, philo.
iiophiam, non rinralafaun affectantes.'
Were I to présent you with ail the critieism» which these two passages
suggest, I should detain you a full hour. I shall content myself with one
observation on thé scope and purpose of them both. That is, that they
alfect to define jurisprudence,or what cornes exact!y to the same thing, the
 office or pruyfuw of tfnj iuriscoiisult.. Xow jurisprolenav iï it »* «inythinK,
1» thûscîviieê of îâw, oï at iuost thé scîuiké uifltt cujubïned with tlui art uf
iippIviHg it but whut i9 hère jjiven as « définition of it, embiiiees not only
law, bnt positive morality, ami ûveti the test tu «litvh' bolh thèse are fo lu
refwml. It therefoiv compris-M the m-ience uf législation uml deoutology.
Ftirther, it- ntHrins thnt )an* i* the ereuture of justice, wliich » ta iimch as
to «y that it is the chiM ot' its own olbpriug. Fur when hy jiut we menu
tuiytliiii|j but to exprumi oui- f>wu approbation we nieuii «omcthin? which
accunU wîlk some (jirtH laïc. True, \vl> xpcttk of law uil'l justice, or of law
uml wiuity, a» opposcd to l-ucIi otli«r, but when we Jo so, we lut-an tu «xpresa
iiiero illdikc ot' llm law, ut tu intimatu tlmt it cuutltct» with nuotliei* l»w,
tbe law uf Ooil, wliick is it? stuiulurd. Acciinling to this, every ])trnieiou»
law is uiijust. But, i» trutli, law U itsulf the stnniliiril uf justice. Wlmt
ilcviati-'s lïom ttuy law is uujust with ruierciice to tlmt luw, tliuugli it miiy
bc jiut with reference touuutliL*r law of miperiur niithority. The t«t'insjuiit
uiid unjust iiaiily a stiiiulanl, un<l confortiiity tu tlmt .stamliird iind a duviu-
tinii froiu it else tlu-y .signiiy mure clisliku, which it woukl be far better to
»ij;uify by Il ynuit or u yrumi thuu by u ini.-cliievoiis mul tlttetdblo tibuse uf
urtiuiihite laiijiiui^e. Utit justice is commouly eructed iuto au eutity, and
spoken of ils a legUlutor, in which olianick-r it U aupiused tu proiivri'ljc the
liiWjConforiitity to which it «liould ik-uole. Tlit vtritit doit wlio is plactil
in a jury box, the increst uM irumou who luijipeUJi tu bu raiscd tu the
U-iu-b, will talk iiiK-ly »f «.-quity or justice tliu justice of the «u>u, the
t'juity uf the ouae, tlli; iiiiperi'JU-i demanda of justice, the jilaiu tliclutca of
t<juity
eituity. Hl- lotjKts thut ho is t hère tu entutai the taxe of llw land, tlsu lie
docs «uot lultuinirter that justice or that u<iuity with which nlutie he is
dues
inuuediatcly
inuneil cuiicci'liod.
Kxitmpk- This is well knowu to ha vu bœn a strong temk-ncy of Loitl Munsfichl
Tli
Nu toi'l ua stmujje
jtnw oblûjuity ill so uivat u timn. 1 will giv« nu instance. By the
Maustiold. Knjilish
Ent|,w luw, u promise togive somethiii),' or todusomethinj; for the Iwiiulit
uiiothc-r i.s nul binilin^ witliimt uliat is called a considération, tlmt is, a
of uiiol
of
motive awigned fur the promue, whieh motive rmist lie uf u purticular
motive
kiud. Lonl ^lun.sfiekl, howewr, overrulett tho distinct [)rovi>i<ins of tla-
kind.
law by rulint,' tliat morul obligation was a suiiicitut considération. Xow,
Moral obligation is nu obli^atimi impo&d by ujiiniuti, ur au obligation
iiiipo-ied by Oui.l that i. luoi-al obligutiim is auythin^ which wc cliuo>e t»
util so, fur the precvpts of positive iiiorulity uie iiiliiiitvly varying, aud the
will uf Cîotl, whethur imlicated by utility ur by a iaoiiil sensé, i.i M|ually
umtter uf disi»ute. This décision of Lord Mnnsik-ld, whieh assume* thut
tlie juil«o is to enforec mursility, tiiables the jiul#! tu enforce just wliatevcr
he ])lcasi.-s.
I iiiit-st hure observe tlmt I am ont objectin;; to Lord Maustield for
assumin;; thé oliiee uf a legislator. I by nu menu» dteippruve of what Mr.
Bentliam lias chosen tu util by the di.-îivspectful, and tlien.-fi.ie, as I cou-
ceive, injudictotis, naine of judge-madelaw. For I consider it injudicious
to call by any miitii- indicative of d irrespect wlmt uppùura tu nw highly
beiielk-ial ami even absolutely utecj-sary. I catmot tiuderstaïul how any
perso» who ha* coimiileretl thé cubject c«n «uppa«i; tlmt Society could pos-
sibly liave fj'jiie un ifjudges hatl nut k-j;islated, or tliat there U any dauber
whatiiver in allowiny them that power which tliuy hâve in iact exercixeil,
to inakc np fur the négligence ur the incapucity of the avowed kgislatur.
That part of thé law of every couutry which was uiude by jurigus hua been
far better iiunlc thnn that part which consista of statutes enacted by the
k'gialïUiitu. Nutwittwtoiuliiig wy gmt atlmmttiou tov Mr. Bemliam, I
ke
Citnuot but tlûitk tliut, iiisttiul of Mituiing judgv» fur Imviitji k-yMutt-Ll, he
slioiild Llnmu thcm for thu tltiiiit, immw, «lui {>îeci'iiivul imitim'i- in which
ihuy Imvu Ivjjislutiiil, imtl for Iegislatin^ under eorér of vague ami indtttr-
JI
I

minatu jjhr-.ists, such as Lonl Miuistitild tiniiloyetl iu the utave cxuwjJu,

nnd whieh wunl<! be cell8umbl. ümrty îeghhfar.

LKCÏUltE VI.
PosmvK laws, the appropriât» mtitter of jurisprudence, are re LLnw. Yj
related in tlie way of l'estuublance, or by a clos« or rernote te Tl
Tlie con-
nnulogy, to the following objecta. 1. lu the way of reseiublance, th
(- tliusixtli
they tire relatetl to the laws uf God. 2. lu the way of resem- jj! ltcture
with tin-
blance, they are relatcd to thoso mies of positive morality whieh ;h Ifl
lirst,
tic
are laws properly so callud. 3. By a close or stron» analogy,tlilhl,
they are related to those rules of positive morality which are l'C f«
•
fourtli.atid
raerely opinions or sentiments held or felt by men in regard to fifth-
huinnn couduct. 4. By a rernote or sluudcr analojjy, they are ta
related to laws meroly metaphorical, or laws merely figurative.
To distinguish positive laws frorn the objects uow émane-
rated, is the purpose uf-the présent atternpt to détermine thé
ju-ovince of jurisprudence.
In pursuance of the purpose to whieh 1 hâve now adverted,
I stateil, iu jny first lecture, the cssentiuls of a luw or ruk (takon
with the largest signification which can be given to tlie terni
properly).
In iny second, third, and fourth lectures, 1 stated the marks
or characters by whieh the laws of God are distinguished from
other laws. And, stating those marks or characters, 1 explained
the nature of the index to his unrerealed laws, or I explainud
aud exauiined tlie hypothèses which regard the nature of that
index.
lu my fifth lecture, I examined or discussed especially thu
following principal topies (and I touclied upon other topics of
secondary or subordinate importance).– I examined the distin-
guishing marks of those positive moral rules which are laws
properly so cnlled: I examined the distinguishing marks of
those positive moral mies which are styled laws or rules by an
analogital extension of the term and 1 examined the distiu-
guishing marks of laws merely mutaphoiïcal, or laws merely
figurative.
1 shall finish, in the présent lecture, the purpose meutionud
above, by cxplainiug the marks or characters whieh distinguish
positivé Inw'g/or. law» strîctly so coiled. And, iii order ta au
explanatton of thé marks which distinguisu positive law», ï slmll
aualyze tho expression soeemrjniij, tho corrélative expression
liidyevtiwt, and the inseparably connected expression indqxndent
pditkul society, With the ends or final causes for which «oyet-n-
ments mnjhi ta exist, or with tlieir différent degrees of fttness to
attnin or npproach those ends, I have no ccmcorn. I examine
the notions of smmiynty and indepondent pulilical soeiety, in
order that 1 may finish the purpuse tu which I have advertud
above in order thnt 1 may distinguish complotely tho appro-
priate province of jurisprudence from thé régions whieh lie upon
its confines, nnd by which it is encircled. It is necessary thnt I
should examine those notions, in order that I may finish that
purpose. For the essential différence of a positive law (or tho
différence thnt sevors it from a law which is uot a positive law)
may be stated thus. Every positive law, or every law simply
and strictly so called, is set by a sovereign persou, or a sovereign
body of porsons, to a meinber or members of thé independent
political society wherein that person or body is sovereiga or
suprême. Or (changing thé expression) it is set by a monarch,
or sovereign number, to a person or persons in a state of subjec-
tion to its autlior. Even though it sprung directly from another
fountain or source, it is a positive law, or a law strictly so called,
by thé institution of that présent sovereign in the charncter
of political superior. Or (borrowîng the language of Hobbes)
the legislator is hc, not by whose authority the law was first
made, but by whose authority it continues to be a law.'

Having stated the topic or subject appropriate to my présent

discourse, 1proeeed to distinguish sovereignty from other
superiority or might, and to distinguish society political and
iudependent from society of other descriptions.

Tho superiority which is styled soveroignty, aud the inde-

pendent political society which sovereignty implies, is distin-
guished from other superiority, and from other society, by the
following marks or characters. 1. The bulh of thé given society
are in a habit of obédience or submission to a ddvrminate and
common superior: let that common superior bo a certain indi-
vidual person, or a certain body or aggregate of individual
persons. 2. That certain individual, or thnt certain body of
individuals, is not in a habit of obédience to a determinate
human superior. Laws (improperly so called) which opinion
 sots or imposes, may pennanently affeet tué eouduct of tlatt Lecr.
l VI
certain iadivùlual or tiody. To express or taeifr cotiHnatwi» «f
other determinate parties, th«t certain individual or body iaay
yield oceasional submission. But thero is no determinate persou,1, =

or detenuiuate aggregate of persons, to whose commanda, express

or tacit, that certain iiulîvitlual or body renders habituai
obédience.
Or the notions of sovereiguty and iiidependent political
society nmy be expressed coucisely thus. If u tUUnnimU
human superior, not in a habit of obédience to like superior,
a
receive habilitai obédience from the Imlk of (t given society, that
detenniimte superior is sovereign in that society, and tbe society
(including the superior) is a society political and independent. It. i
Tu that detemiinato superior, the other inembers of the Therc-h-
society are sulqcet or on that determiimte superior, the other
members of the soeiety are dépendent, The position of its other
n« n

iiieuibers towards that determinate superioi-, is a zlalc 0/ subjecliun, nmlsub.

,•lun< £"jwtwn.
j'te
or « siok of dqkndcnce. The uiutuul relation which subsists sists
between that superior and them, îuay be styled lite nlatù/nKi/ of
sovereign ami mtbjtct, or (/te relation of ijoecrci'jattf and suljeetion.
on.
Hence it follows, that it is only tlnough an ellipsis, or an an Strictly
st
abridged fonn of expression, that tlie socid»j is styled rndqmidaU. btt.JJJ«p^inp,
The party truly independent (independent, that is to say, of thesove-
of reigu
n\ por-
1 Jjj
a detemùuate hunian superior), is uot the soeiety, but the tion of thï
UKi society,
sovereign portion of the society: that certain meruber of the ii"J »« not
society, or that certain body t>f its members, to whose commaiuls, -y society
tlie
>tls. itA-lf, i»
expressed or intiniated, the général ity or bulk of its members jCk iinlepenJ-
reuder habituai obédience, t'pon that certain peisou, or certain
body of persons, tho other members of thé soeiety are dépendait
:am r.
"ï
,,r
v( siiiircmi-.
s"l
or to that certain person, or certain body of persons, the other lier
members of the society are sitbjttt. By un independent political ical
society,' or an independent and sovereign nation,' \ve niean a
political society consisting of a sovereign and subjects, ns opposai sed
n
to a political soeiety which is merely subordinate that is to
say, which is merely a lirnb or member of a not lier political
society, and which therefore consists entirely of persons in a
state of subjection.
In order that a given soeiety may fonn a soeiety political lu
and independent, tlie two distinguishing marks whieh I hâve t1'*
mentioned above îuust unité. The gentmlity of the given cît-i
society must bo in the habit of obédience to a determinate and
ammon superior: whilst that determinate pereon, or determinate v>\
body of persons must not be habitually obedient to a deter-
 Lt:t,1'. Vlm¡n8;t~
minate perso»
~el or Votly. Tfe is thé union ni tfmt positive, wkh
tri. t%tu thte
t!'i9ne~<t:
négative marte, which ravie» tfmt- certain superior sovereîgn
Il4UIl'
jCui.hiul/
m* sujnvHu*, «mlwhk'l»
tlY 9111f1'~ltlE Hjndw» tfwt give» soeiety (tnelmli»» -tlmt
n,;6,~>ca certain superior) a society pulitk*al mul independent.
c<ji-tatnsu{
sehirlr;~r4. To slu
To. show tlmt tho union of those marks renders a giveu
JII~lItiulI~(1
!thuvc sooiety
sUI:wty 1\ti society
S political and independefit, I call your attention •
IIll!'t tf<thei'o!!f
tu tho ibllownig positions and examplus.
Il Il Itc,
1. Ili
In order tlmt ti given soeiety may fonn a society poli- '•
ttffttthfn
tteal, the generalit}p
n or bulle of its members must be in a habit )
of obédience to a dutenuinate and couunoii superior.
In case the geuerality ot" its îiieinburs obey a determinate
superior, but tlie obédience be rare or transient and not liabitual
or purmanent, the relation of soveiviynty and subjectiou is not .<
created thereby between that certain supi'rîor and the wembers î
"f that given society. lu other words, that duteriiiinate superior
and the niembers of that given society do not become thereby
an independentpolitical society. Whether that given society be
politicnlaud indeijendent or uot, it k not au independent political
society whereof that certain superior is the sovereign portion.
For uxaniple In 1815 the allied armics oceupied France;
and so long as the allied armies oceupied France, the com-
niands oi" the allied sovereigns weru obeyed by the French
guvenuiient, and, through the French governinent, by the French
peoplo generally. But since the eoniniands and the obédience
were comparatively rare and tmnsient, they were not sufficient
to constitute the relation of sovereignty and stibjection between
the allied sovereigns and the nieinber.ï of the invaded nation. J

\i\ spite of those command.s, and in .spite of that obédience, the î

French governinent was sovereign or independent. Or in spite
of' those commanda, and in spite of that obédience, thé French
govurniiiunt and its subjects were an independent political soeiety
whereof the allied sovereigns were not the sovereign portion.
Xow if the French nation, before the obédience to those
sovereigns, hatl been an independent society in a state of nature j(

or anarchy, it would not hâve been changed by the obédience

into a society political. And it would not hâve been changed
by the obédience into a society political, because the obédience
was not habituai. For, inasniuch as the obédience was not r
habituai, it was not changed by the obédience from a society
political and indépendant, into a society political but subordinate.
A given society, therefore, is not n society political, unless
the generality of its members be in a huhit of obédience to a
deterniinate and common superior.
 Agftiu A feeble utate holds its mdependence préeariousîy, Yt tsév. VI
or nt thf will of the powerful states fo whoscs aggressions it is
i4
obnoxious. And muets it h obnweicms to their njrgressiohs, It It
and the bulk of its subjects render obédience to commands wliitli
they occiisionally express or intiïnate. Sud», for instance, h thé
position of tho Saxon goVenunent and its subjeets iu respect uf
the conspiring sovereijrns who lbnn the Hoiy Alliance. Rut
since the eomumnds ami the obédience arc cornparatively few
nml rare, they are not sntttdent to constituée the relation of
sovereigiity and subjection betwoon the powerful states and tlie
feeble state with its subjeets. In spite r»f those commands, aud
in spite of that obédience, the feeble state is sovereign
or inde-
pendeut. Or in spite of llioso cormuands, and in spite of that
obédience, the feeble state nnd its subjeets
are an independent
political society whereof the powerful states are not the sovereigu
portion. Although the powcrful stateâ arc pernmnuutly mpmw,
and although the feeble state is penuaneutly in/irwr, there is
neither a habit of comnmml on the part of thé formel-,
nor a
k«hit of obédience nn thé part of the latter. Although the lutter
is unablu to défend and inaiutain its indépendance, tlie latter is
independent of thé former in faet or practice.
From the examplu now adduced, as from the exaniple
adduced ljefore, we inay draw the following inference that
a
given society is »»ot a society politieal, unless the «enerality of
its members be in a habit of obédience to a detenuiuate and
common superior. By the obédience to thé powerful states, the
feeble state and its subjeets are not chan-jed from
an independent,
into n subordinate political soeiety. And they
are not chnngetl
by the obédience into a subordinate political society, becauso
the obédience is not habituai. Consequently, if they
were a
natural society (.settin» that obédience nside), they would not he
changed by that obédience into a society political.
2. ln order that a given society may fonu a society political,
habituai obédience must be rendered, by the <iem:mlUy ùv bulk of
its members, to a deterniinate and common superior. In other
wonls, habitunl obédience must be rendered, by the ynuratity
or bulk of its members, to ohc und the saine deterniinate persoiî,
or deterniinate body of persons.
Unless habituai obédience he rendered by thé todb of its
members, and be rendered by the bulk of its members to
one
and the Mme superior, the given society is either in n state of
nature, or is split into two or more independent political societies.
For example In case n given society be tom by intestine
Lbct. VI wnr,«m!
wnr, a m case tlio conflicthig partie» h» nèarîy balanced, the
ciîvinii society is mûhe of thé tw> positions yrhîeh. I liiivo now
given
sirpposed. As then is no commou superior to whieh the bulk
ut' its members render habituai obédience, it is not a political
miefety single or uudividud. If the bulk of each of the parties
be in a habit of obmlienco to its head, the given socicty is broken
into two or more societies, which, perhaps, may be styled iude-
pendent political societies. If the bulk of each of thé parties
be not in that habit of obédience, the given society is simply or
absolutely in a state of nature or auarchy. It is either resolved
or brokeu iuto its individual cléments, or into nuraerous societies
of an extreiuely limited size: of a size so extrenrely limited,
that they could hartlly bo styled societies iudependeut and
polUwl. For, as I shall show hereafter, a given independent
society would hardly be styled political, in case it fell short of a
numkr which cannot be fixed witli précision, but which may be
called considérable, or not extwmiely minute.
3. lu order that a given society may ibrm a society political,
the geuerality or bulk of its members must habitually obey a
superior déterminait as well as connuon.
On this position 1 shaH not iusist hère. For 1 have shown
sufficiently iu my fiftl» lecture, that no indeterminate party ean
comumnd expressly or tacitly, or can receive obédience or sub-
mis.sion that no indetcnuiuatc body is capable of corporate con-
duct, or is capable, as a body, of positive or uegntive deportmeut.
4. It appears frum what lias preceded, that, in order that a
given society may form a society political, tho bulk of its mem-
bers must be in a habit of obédience to a certain nnd common
superior. liut, in order that the given society may form a
society political and independent, that certain superior must not
be habitually obedient to a déterminâtes huimui superior.
The given society may form a society political and inde-
pendent, although that certain superior lie habitually affected by
laws which opinion sets or imposes. The given society may
form a society political and independent, although that certain
superior render occasional submission to commanda of deter-
minate parties. But the society is not independent, although it
may be political, in case that certain superior habituallyobey
the commands of a certain person or body.
Let us suppose, for example, that a viceroy obeys habitually
the author of his delegated powcrs. And, to render tho examplc
complete, let us suppose that the viceroy receives habituai
obédience from the generality or bulk of the persons who inhabit
 hh province.–Nq~~though he commanda! httMtuaMywithintt~ t vt1
he LncT.
thn!tsofhiaprov!QCG,n(! reëmvcstmbît.ùàï ottcdienëe front thé he
generaMty or buïk of its iiutabitants, thé viceroy is not sovoei;~))
1
within thé lintits of his province, nor are ho und its initabitant.~
)t.<
an im!epcndout poUticat soeiety. Thf viceroy, and (th~ugh thé
viceroy) thé generaiky or bulk of its inhabitants, are habittm!!y
obedicnt or submissive to thc soverei~i of a tat-~cr society. He
and t)tu inhubitants of his province are therefore m a state of
sttbjecttou to thé soveMgn of that lar~e!- soeiety. He aud thc
inhabitauts of his province ai-c a societypotiticat but subottMnatM,
or fonn a political society which is tnerdy a limb of another.
A natural society, a society in a state of nature, or a soeiety .1
independent but uaturat, is composed of persons who are coH-
uected by mutual intercourse, but are not members, sovereign "a
or subject, of auy soeiety political. NoHe of thé persons w)K'
compose it lives hi thé positive state which is styled a state of
subjeetiou or a!l thé persons who compose it live in thé uegativ~-
stato which is styled Il state of independence.
Considered as cntire communitics, und considered in respect Se
of one another, independent political societies live, it is common!y ')"
said, in a state of nature. And considered as entire eommunities, 'o
and as connected by mutual iutcreoursc, independent political
societies fbi'm, it is commouly said, a natural society. Thèse
expressions, liowever, are not perfectly apposite. Sincc a!! thé
niembers of each of the related societies are members of n
soeiety potitiea!, notie of thé related societies is strictly in Il
state of nature: nor can thé iarger soeiety ~nned bv their
mutuat intercourse be styled strictly a natural soeiety. Speaking
strictly, thé several members of thé several related societies are
ptaeed in thé following positions. Thé sovereign and subject
members of each of t,he related societies form a society politica!
but thé sovereign portion of each of thé related societies lives in
thé négative condition which is styled a state of independence.
Society formed by the intereourse of independent political
societies, is the province of international !aw, or of thé !aw
obtainin~ between nations. For (adopting a current expression) 1
international law, or thé law obtaining between nations, is con-
versant about the conduct of independent politieal societies
eonsiderecl as entire communities: euw< M<yo<M et cf<tM<M~<Kw
~<an<m. Speakmg with greater précision, international law,
or the law oblainin~ between nations, regitrds thé conduet of
sovereigns considered as related to one another.
And hcnee it inevitably foUows,
fotlows, that the law obtai:
obtaining
VOL. t.
 Ltier.V! bctween nations i9 nôt posttivet&w: fotovery positive Ia.wis
set) set by a given sovereign to ft person or ponoirn in a atst~ of
sMbjectioK
fmt~ t~ its autttor. As t have alrendy mtmated, the lav
obtaining
,At.. between nations i9 law (improperly so c<tlled) set by
gênera! opinion. Thé duties which it imposes are enforced by
moral sanctions by fcar on thé part of nations, or by fear on thé
part of sovereigns, of provoking général hostility, ttnd incnrring
its probable evils, in case they shall violate maxims genoralty
récent am! reapecteet.
receivett
Atoctcty A society political but subortHnate b merely a limb or
))utitiMt' ,nmt
member of a socioty political and independent. A!t thé persons
f.Mt.m~r.mt
ttin:tt< who~compose it, including thé person or body which is its
who
immedinte
irnme chief, live in a stato of subjection to oue and thé
Mme sovereign.
samo
AMcietv Besides societies politieal and independent, societies inde-
B
~III.bllt
P~e
pendent
pane e but natural, society formed by the intercourse of
tbnninga indep!
independent political societies, and societies political but subor-
titnbor dinate, there are societies which will not quadrate with any of
t.te.n~-rofdinat<
r
~~eMur those descriptions. Though, like a society political but BMbor.
tfohttcat
dinate, it forms a limb or member of a society political and in-
audinde. dtnat<
1'enJcnt. dependent, a society of thé class in question is not a political
depen
societ
society. Although it consista of members living in a state of
subjection, it consista of subjects considered as private persons.
8UbJC(
–A –A society consisting of parents and children, living in a stato
of subjection,
sut and considered in those chMacters, may serve as
an example.
ex
To distinguishsocieties political but subordinatefrom societies
not political but consisting of subject members, is to distinguish
the rights and duties of subordinate political superiors from thé
rights and duties of subjects considered as private persons. And
beforo 1 can draw that distinction, 1 must analyze many expres-
sions of targc and intrieatc meaning which belong to thé détail
of jurisprudence. But an explanation uf that distinction is not
required by my present purpose. To the accomplishmentof my
présent purpose, it is merely incumbent upon me to detemine
thé notion of sovereignty, with thé inseparably conneeted notion
of independent political society. For cvery positive law, or
every law simply and strictly so called, is set directly or circuit-
onsly by a monarch or sovereign nuniber to a person or persons
in a fitate of subjcction to its author.
Tt définition of thé abstract term M~eH~<'M< ~<<«'a/
The
~y
Tho<tef)))i-
tien'.f thé ~«~ (including thé définition of thé t~rrehtive term wt'<.)'«//K~)
t
!th.<tra.:t
e:(nnot be rendered in expressions of perfectly precise import,
and ? ther~r& a MtiMe test of ~peciiic or pttrtietdsr cases. The
teast imperfect definition which the abstraot tëMt wiH htke, i
would hatdly enable )? t& Sx thé e}as9 of every poMiMe soeiety. ]
It would hardiy enabte us to détermine of every ~M/ty<:K~H<
socicty, whether it wero ~M~«-a~ or K«~(~. It would herd!y
OMbIu us to determine of everyjM~«:<~ society, wliether it were
«t<~y<!M<~<< or M<&O~M«~.
In cutter that a given society may form a society politicalr
and independen~ thé positive and négative marks which 1 hâve
mentioHed aLove must unité. Thé ~M'a~y or ~<&' of its
members must be in a habit of obedience to a ct<'<<«'K andJ
t'oMMCM superior whikt that certain person, or certain b<tdy of ]
persons, must not bo habitually obedient to a certain person or j
I)O(IY.Jhtt,
body. t1
<
in order that the bulk of its members tuay render
obedience to a c~Mmo~ superior, Ao~' Ma~ of its members, or 1
M'/«<< ~o/Mt of its members, must render obédience to one `

«Hf< <Ac s<!M€ superior?3 And, assuming that thé bulk of its
membera render obedience to ft common supenor, how ~K must
they render it, and ~ox' long must thoy render it, in order that
that obedience may be AaM<w<New since these questions
cannut be answered precisely, thé positive mark of sovereignty
and independent political society is a fallible test of specifie or
particular cases. It would not enabie us to determine of every
!'tM~K~<:K< society, whether it were ~o~'<Ma~ or ?<!<«)'«/.
In the cases of independent society which lie, as it were,
at thé extrêmes, we should apply that positive test without a
moment's difficulty, and should fix thé class of thé society
without a moment's htisitation.–In some of those cases, so large
a proportion of the members obey thé same superior, and thé
obedience of that proportion is so fréquent and continued, that,
without a moment's difnculty and without a moment's hésitation,
we shoutd pronounce thé socioty ~<<'< that, without a
moment's difficulty and without a moments hésitation, we
should say thé .<M<t'<y of its members were in a habit of
obedience or submission to a certain aud f'oM!«<~ superior.
Snch, for example, is thé ordinary state of Eng]and, and of every
independent society somewhat ndvanced in civilization.–In
other of those cases, obédience to thé same superior is rendered
by so few of thé memLers, or ~encrai obédience to thé same is
so unfrequont and broken, that, without a moment's difiieulty
and without a moment's hésitation, we should pronounce th'}
society M«~f< that, without a moment's dimctdtv and without
 ttMMnent's hetttittion, w~ .~hMtM fuy thtf ~tf~~y of ttf
tHftnbef.'}
MM were /f~ itt a A~<'<~ ot* «bcfttpBce to n cft'tnin and
<-fM~wt
<-t~ fttpft'it~ Sttfh, for fXtHMptt*, M thf Htat~ &f thc
independeut
iud and savasc soeteties which subsist by htuitin~ or
nshin~
fist Ht ttie wouds or ou thé coasts uf X<w HoUantt.
ttut in thc cases or hKh-p'-nd~nt socifty which lie bctwcf'n
thf ~xn'cmcs, we shoutd htti'dty tittd it possible to fix witt)
ab."t)!utu (.'ettuinty thc c!as<i of t!ie giv<jn conununity. Wt:
sho~M hanUy iimt ït po"?iMe tu <(ctcnnmf w!th absoitttc
cet'tamty, wh~ther thc gfnft-idity ot' its McmbcM did 01' did uot
obey oue aud thc samu superior. Or we ahou!d hardiy Hnd it
possible to dctenuine with nbsolute cet'taioty, whether the
HOMral ob'Jinucf t" ouc aud thé Siuue snpfnor wns or was uot
habituât. For cxmapte Durin~ thc hci~ht of thc conOict hc.
twucn Char!e.'i thc First aud thé l'ariiainput, tho En~lish natiou
was broken into two distiaet societius each of which societift i
tnay pet'hap.'} Le stytëd politieal, aud may cortaiuly be stytec)
indcpendeut. Ahm' the conttiet had suhsidcd, those distinct
societies were in thcir tKm dissotvcd nnd thé nation wa~
ruuuitfd, uudur thé cottonou ~overumeut of thé ParliatHeut, int'j
oue iudepcudent aud politieal connjmuity. But at what junctuM
])reci'!ely, after t))c conttict liad suL.-tided, was a common goven)-
nient coHtpleteIy K-cstablishcd ? Or at what juneturo prcciseh',
after thé coniiict had subsided, were thosc distihct socicties
compititcly dissolved, and t!m nation comptetdy reunited into
one political community ? Witeti had so many of thc nation
rendered obédience to the Parliamcnt, aud wh~n had thé générât
obédience bccome so fK;quent and !astin~, that tite &«? of thf
nation were /M<&<<iM/ obedient to thé body wtnch an'ected sove-
reignty ? And after the conitict had sub~ided, and until that
juncture had arrived, what was thé c!ass of the society which
was formed by thé En~hiih people ?–Thèse are questions which
it were impossib!e to aoswer with ccrtainty, although the tacts
of thé case were preeisely known.
The positive mark of sovereignty and indépendant political
society is therefore a fa!Hb]e test. It wouM not enaNo us tf
détermine of evcry M</t~MfA'K< society, whether it were~o<<<t'tf'<
or Ma<x~.
Thc négative mark of sovereignty and independent potiticat
society is abo an uncertain tnea-sure. It would not enab!e us
to determine of every ~<t<<'«!~ society, whether it were tM<7<<
<M< or .!t<t<M'<<MM<<Giveua. detenninate aud common superior,
and aiso that the bulk of the society habituaUy obey that
~npM tM't is th~t cMtmKMt supenor fme ft'~m hfA~ of 'J~Ucnc~ ~m.~ iLt:tt.t
ta it detertniîKttc persan or bmty? ts that common superior 'rtor
~vortn~M a&t~ mdepettdeHt) of is &h~t eattunon tMtpM'KM' a, supcriM'
~M'
in a state of subjection ?
it! numeroMS cases of politica! society, it were itnpossiMo ta
nnswer this <~t«:stioa with absolutc cerhtinty. For cxMrnp!c
Although thé Ho!y AtHanco dictatM to thé Saxon govenuMOit,
thé eotjtmands which it ~h'us, nud thf subm!ssjon whieh it
reefiv~, {tTM cMH~rattVfty few ont! Mn~ C'MHSMtMeKtty, thf
S~xou goYurntHCtit i. soverei~u or suprême, and thé Saxon
~vernmcnt and its subjccts arc fut indépendant political society,
uotwith.standing iti) submission to thu Ho!y AHiaueu. ~ut, in
case thé commauds and subniission WGt'e sontewhat tuore numer-
ous and fro~nent, we might nnd it impossible to détermine
<m'tMin!y thc class of thé Saxon eonntunity. We !ai~)(t nud it
intpossible to dutermine certainly whcrc titu sovercignty resided
whether thé Saxon ~overntncnt wcre a govcrntuent suprême and
indépendant or were iu a Af<M< of obédience, and therefore in
a state of SMb)ec'ion, to thé aMied or conspinn~ monarehs.~
The définition or général notion of iudependent political
society, is therefore vague 'jr uncertain. Applyin~ it to sp"eitic
or partieutar cases, we shoutd often encounter thé difficulties
whieh ï hâve laboured to exptain.
The dii!icu!tics which I havo kboured to expiait., often
embarrass thé application of those positive moral rutes wldcit
arf styled international law.
For cxampte Whea did thc rcvolted coiony, which is now
thé Mexicau nation, asccnd from thé con(Htion of an insurgent
proviase to that of an independent eommunity ? When ()id thc'
body of colonists, who aftectcd soverei.nty in Mexico, change thé
chinfteter of rebet leaders for that of a suprême government ?
Or (adopting thé current lau~ua~c about ~ovemments ~'«i'c
and f/c /«') when did thé body of colonists, who aftected s'-t\'e-
fci~nty in ~texico, bccnmc sovcreii.rn !'M /<«< ?–And (apph'ing
intentational law to thé spcciSc or particular ca~e) when did
international law authorixe neutrat nation< to adtnit thé in-
ttcpendence of ~Icxico with thc ."overeiunty of thé Mcxican
~overnment?
Xow thu questions su~este~i above are equivatent to this
–When had thé inhabitants of ~fexit-o obeycd that body so
~enerany, and when had that genct-al obcdience bceome so
A vrry <tpt mstanct n)' tht't ktit') of ))"w <'u)npri'i&t in <he Xort))
Lçortli t.ftDMn
'UHiculty ix Mt~'i-te~t hy thé brL-St-ot rt:- C<;ttfe'kr;ni'n.–R.C.
httJHX of t'ntssia to t)n' other Ma'fs
ttEcr. Vt[ fréquent and tasting, that thé
freq of the inhabitattt~ of Mexico
were ~aMMN~y dtsobedient to Spain, and probably woutd not
woc
resuHluthNrdtsctwted
resu habit ot'MtbmisMOK?
Or thé questions suggested Kbove are équivalent to this
WtMn had the inhabitants of Mexico obeyed that body so gene-
raHy, and when had that générât obedience become so fréquent
and lasting, that thé inhabitants of Mexico were independent
of Spain in practice, nnd were likely to retuain pertHauentty i~
that state of Rfacticat independence ?1
At that juncture exactly (têt it have arrived when it may),
ueutral nations were authorized, by thé !nora!ity which obtains
between nations, to admit thé independence of Mexico with thé
sovereignty of thé Mexican govemment. But, by reason of thé
perplexing difficulties w!iich 1 have laboured to explain, it was
impossible for neutrat nations to hit that juncture with précision,
and to hold thé balance of justice between Spain and her revolted
colony with a perfectly even hand.
This difficulty presents itself under numerous forms in inter-
national taw indeed ahnost the only difficidt and embanassin~
questions in that science arise out of it. And as 1 shall ofteu
have occasion to show, law strictly so caUed is not free from like
difnculties. What can be more indennite, for instance, than
thé expressions i-cagonable time, ~WMOKaMe notice, MaMNaM';
diligence ? Than thé line of démarcation whioh distinguishes
libel and fair criticism than that which constitutes a violation
of copyright than that degrec of mental aberration which con-
stitutes idiocy or lunacy ? In a!l thèse cases, the difficulty is
of thé same nature with that which adhères to thé phrases
sovereigntyand indcpendent society; it arises from the vague-
ness or indefiniteness of the terms in which thé dennition or
rute is inevitably conceived. And this, 1 suppose, is what
people were driving at when thoy have agitated the very absurd
enquiry whether questions of this kind are questions of law or
of tact. Thé truth is that they are questions neither of law nor
of fact. Thé fact may be perfectly ascertnined, and so may thé
law, as far as it is capable of being ascertained. Thé ru!e is
known, and so is thé given species, as thé Roman jurists term
it thé difficulty is in bringing thé species under thé ruie in
determining not what the law is, or what thé fact is, but whether
the given law is applicable to thé given fact.
I have tacitly supposed, during thé preceding analysis, that
every independent society forming a society political possesses
thé essential property which 1 will now describe.
 In order thut au tudspendent society ma.y form a aoeiecy
potittcat, tuttst fait short <~f & Mw~- which Ciumot b& fnoRhT
HOtf
nxedwith précision, but which may be caUed considérable. or
not extremely minute. A given independent society, whose 'Se toctety
y
nambcr may b& caHed ineonsiderable, is commonly esteemed )t
K«~v< and uot a ~<<!CH~ society, atthuugh thé gen~ratity of
itmuM
its meutburs be httbttuaUy obcditiMt. or submMsive to ft cet-tahi
""nctfat)
fat
and common superior.
Let MN appose, for example, that a single fa.uiily of savages whieh-'at.-
lives in absotuto estmngement from every other communtty. ty notbe
~d let us suppose that thé father, the chief of this insulated ~"prMision,
n~ith

~btttwhi':]'
fttmity, receives habituai obedience from the mother aud cluidren.
–Now, since it is not a Utnb of another and larger community, tnay be
''yte~hdton-
nnd~
thé society formed by thé parents and children is clearly an orMot';]f.
Coli

independent society. And, since thé rest of its members ïM trewe))'

habitually obey its chief, this independent society would fonu a minute.
society political, in case thé number of its members were not )0t
extremely minute. But, since thé number of its members is
~xttetMely minute, it would (I believe} ba esteemed a society m
a state of nature that is to say, a society consisting of persons
not in a state of subjection. Without an application of the
terms which would somowimt smack of the ridiculous, we could
hardly style thé society a society ~t<Ma/ and independeut, thé
impemtive father aud chief a Mto~~ or WM~~M, or the
obedient mother and children sM~'ec~La puissance politique'
(says Montesquieu) 'comprend nécessairement l'union de plusieurs
familles.'
Again let us suppose a society whieh may l)e styled
independent, or which is not a limb of another and larger
contmunity. Let us suppose that thé uumber of its tncmbers
is not extremely minute. And let us suppose it in thé savage
condition, or in thé extremely barbarous condition which closely
appronches thé savage.
Inasmuch as thc given society lives in the savage condition,
or iu the extremely barbarous condition which closely approaches
the savage, the generality or bulk of its members is not in a
haMt of obedience to one and tho same superior. For the
purpose of attacking an external enetny, or for thé purpose of
repeUing an attack made by an externat enemy, thé generality
or bulk of its members, who are capable of bearing arnM,
submits to one leader, or to one body of leaders. But so soou
as that exigency passes, this transient submission ceas~s and
tho society reverts to thé stato which may be deemed its
 wHnttry shtte.
LRer.Vt u~tnt) Thé ~<H: of each of thé ~tmËea whîch com.
pose)
pose thé1 g!vcu s~ciety, rouders h&bttuaï (Agence to ~s
<tWH
t'ecuMar
))t'ettt! chicf: Lut those domestic soeieties m'a themaelve.~
independent societies,
or are not uttited or eompacted into onn
potitical .wdety by ~eilertd aud habituai obédience tu certmn
a
and cornmon sttperior. And, as thé bu!k of t!<e K'ven soeiety
is not in n habit of obcdieuce to
one und tho satuc superior,
thet-e i.~ no tnw (simpty or stnctty so stytcd) which
can be
cnHcd the Iftw of' that giveu society
or commmuty. Thé su-
cnUed laws which are counnon to t))c butk of tho community,
are purely aud properly custotnary taws that is to say, lawi
which are set cr imposed by the ~Hcmt opinion of thé
com-
munlty, but which are not enforced by ]e~t or poHtica!
sanctions.–TIie state whieh 1 hâve brieny detineated, is the
ordinary state of thé savage and independent .societies which
!ivc by hunting or fishing in thé woods
or on thé coasts of
New IIoMand. It is a!so t!~ ordinary state of thé
savane and
independent societies which ran~e in thé forests
or phuns of
the Xorth American continent. It was <dso thé ordiuary state
"f tnany of the Gennan nations whose manners are descnbed
by Tacitus.
Xow, since the bulk of its ntentbers is not in
a habit of
obédience to one and- the same superior, t!ie given indopendent
society wou!d (I believe) be esteemed a society in
a state of
nature that is to say, a society consisting of persons not in a
-itate of subjectiou. But such it coutd not be esteemed, unless
thé term ~<<t'<-<~ were restricted to independent societies whose
munLer~ are not inconsideraUe. Supposing that thé term
~~(t-«/ apptied to independent societiea whose numbers are
extronety minute, eaeh of the imtependent fanti!ies which
(.onstitute t!ie given society woutd form of itself politicnl
a
formnunity: for tho bulk of each of thoso fanniies rendcr!;
habituai otjedience to its own peculiar ehiet~ And, seeing that
~ch of those families wouM ibnu of itself an independent
politiea! cMnnmnity, the ~iven independout soeiety coutd )<ard!y
bc styled witit strictness a naturai soeiety. Speakinn strictly,
that ~iven soeiety would form a eongeries of indepeudent
)'oHtieat communities. Or, secin~ that
a few of its members
"tight not he monbers aifo uf those in<)ependent fatniHes, it
w..u!d iann a congerie-) of indept-ndcnt po!iticat communities
)nin~]ed with a iew individuats ]i\in~ in
a statc of nature.–
< n)e.s thé term ~t< were restrict'd to indepondent societies
wiioiie numbers are not inconsiderable,few of thé
many societies
 which are cammonly esteemed Mtm'a! couM be styted nntùra! m! ï~-r.Vt
'}Wtet,ie!twithpt'r!cct~ectiMMtaudtM'opF!et.y.
For thé rea~ons which ï hâve now produced, and for rot-

reasona whieh 1 pa'< in silence, wf must, 1 believe, arrive at

thé tbtt<wingcoM(;hMMU.–Agiven inde~ndent soeiety, who.~
number tuity be efdied ineonsidoraMu, is cotntnouly est~etHeJ a
Mf<<f«-«/, nnd uot a ~/<7<c'~ sucicty, althou~h tho geuemlity of
its members be habituaHy oMieut &r submissive tu a certain
~nd comMoa superior.
And at'ri\'ing nt that conciusion, we must proeeed to this
further conetusion.–In order that an indépendant society ïnfty
iurm a society politieal, it tnust not ffdt short of a M«m6t'?-
which may Le catlet) eonsiduMt'Ie.
Thé Jowest possible number whieh will satisfy that vague
condition cannot bc nxed preeisely. But, looking at nmny of
t])G comntunitiMwhieh commouly are considered and treated as
independentpontical societies, we must infer that au iudependent
society may tbnn a society potitical, although thc numb~r of its
members exMcd not a fnw thousands~ or <:xcccd not a few
tuuidreds. Thé nncicut ':risou Confcderacy (tike thc ancient
~wiss Coufedfmey wit!) which the Grison was connectud) was
rather an aH'ance or union uf indépendant po]itic:d sociGtics,
than ouë iudepcndcnt cotnntunity under a eommon sovereign.
Xow the number of the lar~Gst of thu societies whieh were
indcpendcnt ntmubet-s of thc aneient Gri.-ion Confedcracy !mrd!y
cxcecded a few thousands. And the number of the snm!ic'-t
of those numerous contederated nations hard!y exceeded a fcw
hundrcds.
Thc dcfinitiou ofthc t'inns ~t-v~x'.t/and </<(~.?!~o<<
YM/<<!<'f</ ~(:'<< is, therefùrc, entbarrasscd by thé diincu!ty
ibttowing, as wcU as by thé ditncultics w])ich 1 hâve stated in
a ibrcgoing departtnent of my discoursc.–In
ordcr t!tat an
independcttt soeicty may fonn a soeiety pohtieat, it n)ust not
fall short of a «"M~' whicit )nay be cnlled considérable. And
the towcst possible tnnnber which will satisfy that vague con-
dition cannot be nxc:d precisety.
Hut Itère 1 nmst brieny remark, that, though the essential
property which 1 hâve now described is an essential or
neeMsary property of i'/t</t~'H'< poHuca! soeiety, it is not an
essential property of .~M/f'H(t< p«titif:al i-oc-iety. If thé inde-
pendent society, of which it is a !im)' or member, be a political
and not a natuml society, a subottinate .soeiety may form a
.soeiety poUtiad, although thu number of its members migttt be
 ~Mp~r~tfMMtt.ty
cattett
LeoT. V! CttBed extremely minute. For example A socîcty mcorpomted
by thé statc for political or public p<a'poses !& & àociety or body
politie and it continues to bear tho chantcter of tt society or
politie
body poutic, although ita number be reduced, by deaths
F or other
causes, to that of a.sma.U iamiiy or smati domestic oommunity.
Certain et Hf
Having tried to détermine thé notion of sovereignty, with
theJttiu!)
tiottMt'tho~thc ill
implied or corrélative notion of independeut political
teM) wfc- soeiety
soeiety, 1 will ptoduce and briefly examine
~«Vt~u, a few of thé
MdoftheUehmHde8uitiotts of those notions which have been given by writers of
imptK-d .r ceIeM
celebrity.

~<
rxs~dcrtd

œcf<-<y,
i
eorretatn'e
o
term !'<M~- Dt
Distiugdshing
in 11his
Whe!]
his Fittgnient
political from M<t<K!-<~ society, Mr. Bentham,
on Govemment, thus dénués thé former:
WheM a aumber of persons (whom
we may style SM~ec~) are
whicll supposed
-~pp~ to be in thé habit of paying c~MMec to a person, or
sttppos~
{{ivenhy an assemblage of persons, of a known and certain descnption
anasst
y.)-
~M
wnter'!of (whom
cekbnty. we may call ~Mr or ~MVKM'~), such persons
altogether
altocet] (~<~tc~ and ~OM'HMM) arc said to be m state of
~<t-H/ society.' And in order to exolude from his adefinitiou
such a society as thé single fanuly conceived of above, ho adds
a second essential of political society, namely that thé society
should be capable of indennito duration.–Considered
as a
définition of indopendent political society, this defliiition is
inadéquate or détective. In order that a given society
may
form a soeiety political and independent, thé superior habitually
obeyed by thé bulk or generatity of its members must not be
habitually obedient to a certain individual
or body: which
négative character or essential of indopendent political society
Mr. Bentham bas forgotten to notice. And, since thé definition
in question is an inadéquate or defective dennition of Mi<
ycM~< political socioty, it is also an inadéquate or détective
définition of political society in general. Before
we can define
political society, or can distinguish political society from society
not political, we must détermine the nature of those societies
which are at once political and independent. For political
a
society which is not independent is a member
or constituent
parcel of a political society which is. Or (changing thé
ex-
pression) thé powers or rights of subordinate political superiors
are merely emunations of sovereignty. They are merely particles
of sovereignty committed by sovereigns to subjects.
According to thé definition of independent political society
which is stated or supposed by Hobbes in ))is excellent treatises
on government, a society is not a society political and inde-
pendent, unless it can maintain its independence, against attacks
front without, Ly ita own intritMM or unaided stn'ngth. But if
power to mamt~in tts mdepcttdeMce by its own întrinsic sttongtR
°

be a. shamcter or essential property of an independent political

soeiety, the namc will scarcely apply to any existing soeiety, or
to any of the past societies whieh oecur in thé history uf
umnMm!. Thé weaker (tf such actuel societies as am deemed
poJitical and independent, owe their precanous independence to
positive international morality, and to thé mutual fears M'
j<ialousie& of strouger camumnities. The most puwel'i'ut of
sueh actual societies as arc deemed political and independent,
could hardty maintain iti; iudependeuce, by its own intrinsic
strength, against an extensive conspiracy of other iHdependcnt
nations.–Any political society is (I eoMceive) independent, if it
he not dependent in fact or practice: if thé party habituaUy
obeyed by thé bttlk or generality of its members be not in a
habit of obedience to a detemnnate individual or body.
In his gréât treatise on international law, Grotius defines
sovereignty in the {bHowing manner. &'«??? ~o<<(M c!'t;<7M
illa dicitur, cujus actus alterius jtiri non substmt, ita ut alterius
vohmtatis humanKi arbitrio irriti possint reddi. Alterius eum
dico, ipsum exdudo, qui summa potestate utitur; cui voluntatem
mutare licet.' Which définition is thus rendered by his trans-
lator and commentator Barbeyrac. Za ~K!~<ï?tee aK<m'f<Me est
celle dont les actes sont indëpendans de tout autre pouvoir
supérieur, en sorte qu'ils ne peuvent htre annuliez par aucune
autre volonté humaine. Je dis,~M' a!«'MK< o!«<)'e t'o~M~/tKMM~M';
car il faut excepter ici le souverain lui-même,a qui il est libre de
changer de volonté.Xow in order that an individual or body
may be sovereign in a given soeiety, two essentials must unité.
The genernlity of thé given society must render habituai obedience
to that certain indh'idual or body whiist tliat individual M-
body tnust not be habitually obedient to a determinate human
superior. In order to an adequate conception of thé nature of
international morality, as in order to an adequate conception of
thé nature of positive law, thé former as well as the latter of
those two essentials of sovereignty must be noted or taken into
account. But, tins notwithstanding, thé former and positive
essential of sovereign or suprême power is not inserted by Grotius
in that lus fomial dennition. And the latter and négative essen-
tial is stated inaccurately. Sovcreign power (accordingto Grotius )
is perfectly or completely independent of other human power
inasmuch that its acts cannot be annulled by any hnman will
other than its own. But if perfect or complète independence be
of thé essettce af sov&Mtgn po~vef, there h not in fact thé tMhum
pow~f tu whtch thc cptthet ~'n'f~ wilt a.ppty with propnety,
Kvfry ~verutnent, !et it be nevcr so powerfut, rendes oecasiontti
obcdicnce to connnands of othm' govcrnnMnt. Hverygovern-
twnt dufcrs i'rcqucntty to thosc opinions and sentintents whieh
aM styted i~tet'tMtttMMt tttw. And every ~vcnutMnt. dcfuM
ittdHtuaMy tu thé opiniotts :UKt s~Htiments ni' its own subjects.
If it w~M nut in a itabit of obédience to thé coHnmunts of n
detet'Mtinatc party, (t governutunt. ha.'i ait thé indcpëMde<M<j \iieb.
a govennueut can possibly enjuy.
AccortUn~ to Von Afm'tens of CuttiH~en (thé writer on

-~venntMnt is a. govm-muent which <

positive htto.'HatMtMl law alfeadv refen'cd to), a sovereigu
not D rcceive cotn-
tnands from auy <ixtcnMd or forei~n governutent.Of thé eot)-
<:tusivG and obvious objections to this définition of sovGrcignty
thé fbHowing aro "nly a fuw. 1. If thu d~hnition in questum
wiH npp!y to sovereign govcmnMnts, it wHt a!so appJy to
.~ubordinatu. If a sovcrei~n ougttt tu be frce front thé eonunands
of tofuign govemments, so ought evury govcrnmcut which is
mct~Iy thu ereature of a soveMi~n, and which hotds its powers
or ri~hts as n. mère truster for its author. 2. Whether a given
~overnnient be or bu uot suprême, M rather & question of fact
thau a question of interuationa) taw. A govemnient reduced tu
subjection is aetuaHy ft subordinate ~ovenuuent, althongh thu
state of subjection wlicrein it i.<! aetually held bu répugnant to
thé positive moraHty wjuch obtaitts betweot nations or sove-
ruigns. Thou~h, accorfUng to that !nora!ity, it M<y/t<! tu bc
s'jvercign or iudependcnt, it is subordinato or dépendent in
praetice. It canaot be afRnned absotutdy of a sovereign or
iudependent govcrnment, that it o«~/<< uot to l'eceivo connnand~
t'rom forcign or cxtcrnal govumments. Thé intertneddHng of
indepcndcnt ~overnments with other indcpendent governments
is oftGit répugnant to tho morality whicit actuaHy obtains
between nations. But according tu that moratity w)iie)t actuaMy
"btains between nations (and to that international moraHty
whieh ~neïal utitity comnieuds), no indepcndent governrncnt
ougiit to be freeti cunipktdy from the supervision nnd controt
of its feHows. 4. In this dennition by Von ~fartcns (as hi that
w)ti(-)t is given by (rrotius) thero is uot thé shadow of an aHusion
to thé positive charaeter of sovereignty. The définition points
at thu rutations whictt arc borne by sovereigns to soveroigns
but it onnts the rotations, not less essentia!, wjtic]) are borne by
-:overeigns to their own subjuet~.
n
F
v

tu a few
l'
–1. Thc
j r.v.a. v.os,a·E.
.îhftyenowGndein'otn'ed todeterunne thé gênera! notion

k upan thu
coticise reutin'ks J Mlowit)~
t, Il

·
.subJMcts
1.'

or tlie causes of thé habituât obédience which i.s rendered

subjeet.
S\1 lJec

membet's
indepf-iideiit politicil
An indepeudeut political ~q(iciety

Thé1esovereignty
The
ion of LMi-.

!iatmf

divisible iiitj
society is (livisibli--
portions namety, thé portion of its members wiiich is soverei~n
or suprême, nud thé portion of its members whieh is jnerety
so\'erelgmy can \RIt résideiii
hardiyreside incill
LMi-Vf
JtHcal~~
sovcreigMty, mctuJutg thc gcaet-tU uoiÏo~ of utdcpcmteMt pontical
society. But in or<ter that Imayfurtherehtcidate thé nature't'ti
om;ty~l'
o)' essence of sovereignty, anJ of tite independent po!itie:tl society
M.if'tV

m- topics.

cd bv M!
tlie bulk of subjects, aud front which thé power of .sovereigns tuJ Jl¡e
compel aud restrain thé refraetory is entire!y or mainly derived.
ittto two

members
«~ théle U1em

shall not be natura!!y iueotupeteut to exercise so\'c-

exclusivcly by a very few of its members: aud even in

Jel"
!!UbM)-S
of Il society for it can hardîy !tappen that sotne of tîio.se ;!Ol',m¡.
so\'e-
t'eigu powers. In niost actual societies, thé sovereign power.-
.towcr.-
are engrossed by a sing!e niember of thé who!e, or are shared
sttftt'fd
inthf
actuat societies whose governtnent.s are esteemed popu!ar, thé
soverei~n number is a siet~der portion of thé entire puliticai
community. Au independcnt political society governed by it-
self, or governed by a sovcreign body consisting of thé w))"tc
thé

community, is not impossible- hnt thé existence of such societi).~

"("<
~,j"
which f.ov~reignt.y impU<"), 1 will ettU thé attention or Miy heareM t'et.i
MrHc~
("d

M~n
IIc,1
~i't'~t)..
[.OptCS. wttt.tt.c
variou? shapea wlticii su\'(irei(;nty tnay assutne, or thé
vanous possiMe fonns of suprême s'e''nment. 2. the rcat
1

uuasiuary limits which boMut thc pcw~r of sovereiso.-i, uud by °,'

which thé power of sovereigns i'i supposed to be boundud.
Thé migm of guvernmurtt, with thé ongiu of political society
e 0
JL
and m~

3.
tnl'lt,
[dandTh':)Mm'<
~~m.
J.m.-M.

CI 1101
f(',n

m.-t.t. &

01 ~O\'I!.

ul'I~III
~n\'P<.).<'tfM'm-
«t fM'ct

N]!f)ht)ca)

t
<'rui~Usuci':ty.
suci';ty.
net'eh'T)"Th.- fmi
~t'u)<r';Hit
<
thé'
t"<t.
ndbv°'
~-iftv-
'or.«)V.

'}!~
tho.
~).
w'
s

)n<')tt,or
tncttt, o

is so extremety improbable, that, with this passing notice, 1

throw them out of my account.~
Every society political and independent is therefore divisible Eren'u-
Eren-

rr.`,r.t.w.
into two portions
1-
namety, thé portion of its members whiel~ is
.v.
sovereign or suprême, and the portion of its members which is
('")!fevtrytaentberufanin'tc)"'))JcHt
rw
"'V"V'"
t-Ht<ixcr<:ist'.sov<-M~Hpowf-nar''))otth';
~otitiod soei':ty were adutt atnt of sound
tMnt),<!forym<m))<!)rw<)MM))eMtumt)y
md only txetnbcM <'x'')n~t'') from thf <uv-
~)yr<)Knbo')y. !)'wcad<)to<h<']ne)ttb<:]t
ri! exctmt&i by fea.ott of hittttmt iH'))t-
comtieMMt to <*x<'rcis'' enrtr&i){tt j")Wt-r:!
pf.'MM~V.
<-)'n)n.:ttt
i< <'
«

and tfwe suppose a eodety fio cnnstitutt-'i,<i, })<:t''ncy, the mctnhtr.t (worno), hr nx-
we may also suppose a soei~-tv whirh i''h am))t<;), exchdeJ without thitt nc.'M.'iity,
strictly !<! ftoventtd Ly it.setf, or m whieh
ieh we ~hatt iind that « ~'<at majunty eveu
theMpremegovertUMMtMstncttyaa of such a socMty is tncreh' in a state ut
Kf'emtBetttof a!L But in tvtty actual t)it)!iK)<jt:<;tian. Con~uentfy, thmtft' Il
society.tMitnyof the n)'-m)'er'iMe )mtM
)~Uyincompetenttoex':rcis<:MV<'fei){«
tu .j~vemtMMofoU Mnt.tin))MMiU'
!){)< <-v<'ry aL-tua) mc!tity ls goverth'tt by on!-
power and even in aH actual mciety ety of iM )n<:)n))eH, or by a nmn))er of it.<
whose gemment MthemMt~t'ahr, ~r, toembefii whi~'h HM bem'ee)) olle <U)J
thé members naturmUy ineompctent tOtU. to
238
~JOgv
7~w<'<~
LEct.Yl mercly
mM subject. Ilthat savwoiga pettian consMta of (t
eaae
MWKf~y ~ë member, tho suprême government H property a <K<MftM~y,
single
(~MMfh'
sm'ettft't'),
~t t sovereigtt is propcrty a MMiMM'eA. In c:M~ that s&vet'eign
or thé
u)'(mn''M'pOf' portion consbts ot' a number of )tM!ubet's, tho supt'emo govern-
ttK)jp:t)<:ne
,j
<M'i-«~.(ttt mettt ïtmy
meanin~of expression).–Amt
CXp)
styled au HrM~crftcy (tu thu generic tneantng of the
hère 1 nmy briefly rcutark, that a monarchy
th<:t'x))r«. ~voruntent of «Me, and au aristuemey or government of a
ifion). t.. or (,
o<her number,
mm are usseutianyand bt'oadty distmgttishud by thé foHowin~
wo~.iti!) importtmt
illll~ dit!et'ence. In thé case of & tnonafchy of government
aLgo~nt. ""t'
Metttu)' of((one, the sovereign potion of thé community is simply or
of
wM,ortta purely
SOVert). F~ sovereign. In thé case of an aristocrncy or governmcut
Mentofa of att number, that sovereigu portion is sovereign as viewed û'om
'OtMt<!<
o)te aspect, but is tdso subject as viewed from another. lu thé
CM
case of an aristocrney or government of a nuinber, the sovereign
CMe
num~r is an aggregate of individua!s,and, commonly, of smaUer
n~regates composed by those individuals. Xow, considered
collectively, or considered in its corporato character, that sove-
reign nutnber is sovcreign and independent. But, considered
severaUy, thé individuats and amaUer aggregatest composing that
sovereign nnmber are subject to thé suprême body of which they
are component parts.
In cvery society, therefore, wltich may be styled political
an'! independent, c?M of the individual members engrosses tlie
sovereign powers, or the' sovereign powers are shared by a
M)<M~(/' of thé individual members less than the number of the
individuats composing the entire community. Changing the
phrase, every suprême govemrnent is a MOKM'cAy (properly
so called), or an <t!'M~eM<cy (in thé generic meaning of thé
expression)/
)') lit every nxxtarchy, thé monarch as, in th<' Tur):i<h en)))ir' it cottSMta, or
renders habituai déférence to thé opin- consii)te<), of thé cor)M of Janizaries. tM
ioMMdMntitnent.hetd<mdfe!tby France, after thé kings had become MYe-
husuMect!. Hutittahnooteverymon- Mgt), <tnd béton' thc gréât refohttion,
!trchy, h' dcfers espcciatlyto the opininn. this inXuentm) portion was format by the
and S(-))t!tn<!)tt.<<, or he conftutts Mj'echUy ttfH)ity of thé swort), thé Mcatar atxt
thé inb-rf~ts and préjudice: ot' MU)e re~tthn' ctergy, and th': meBtbfM of tho
<'spM:i"t)v inOuentM thou~h ttttrrow jmr- ~~r)i!nn<!nt!i or higher court. ofJMtice.
ti'm of thé comtnutiity. tf the mpmr'hy Hcnee tt has bceu eoncht'ted, t)Mt
)m military, or if thé tnait) in.ftrnmctttof there are nu u'ouar''hie. prujx'rty so
ruk Le th<:swo)it,thisit)fh«:Mti!() portion e!))h-J t)Mt t'wry supr<-h<f- govenxtX'M
if thé Htititary claM f;en<-r!<))v, or a sdeet is a government of a numher thut in
)j<x)y of thé fioldiery. tf tho tnain in- '<'ry ~'otnmttuity which M~'ots ta be ~uv.
fitnmtf-nt of rule Le uot thé Mvar'). thi.s <:rn<'d t'y «ne, thé .<!over':)~t)ty n'a))y
inthtutitd jtOrtioH commonlyconsistsof resid'i h) t)M scejuiHg tnonarch or autu-
n").)t.f, or of nohtei), priests, find hm'yeM. cr~tor, with that M[x:cht))y inthtt'ntM
t'oreXtHt)p)e )n thé Roman wortd, un- thoux)' ""rrow portiou of t)t!' mtnmunity
der thc ftoYereigntV of thé prin''M or tu W)tM" OjtitttOt'S !ttt<t )i'-))t))Mt)t!! ))<)
''<)~mnyerrar.
<:mjtr')M, thit )))tf)teHtiat portion W!t! "~I,dally Tht! tli-)iigh
')<:t'fi. This, p)m'
thou~h 1)laus.
is
form:d by thc stiuxting artnies, aud, )))<')': i)'M, !tn <-wr. tf he h~bituafty ubey~t
pMieuhriy, by thé l'r.ttoriatt gtMt!) tho c</MtM'.ff<t<<uf M ttL-terttthtttte portion
 GoyerntMents which may be etyled aristocmciea (in thé !L'
generie meaning of the expression) are not Mnfreqnentlydistin- o~
guished into thé thtee Mtowing fanas: namaly, <~<H'<:&M~ 't.M ô
f(t-M<oe?'ac:'M (in thé specificmeaning of thé name), tmd (~mo<'M<ei'M.
H'thé proportion ofthe sovereign number to the number of the toi
entire community be deemed extremely small, thé suprême
government is styled an oM</<M'cA~. If thé proportion be deemed
small, but not extremely smaH, thé suprême government is styled tw
an fM'M/ecMK-y (in the speeifte tneaning of thé name~. If thé
proportion be deemed large, the supreme goverament is styled w)j
~K(~, or is styled a ~cMoc!ft<'y. But these threo fonns of {'~
atistocracy (in thé generie meaning of the expression) can haKHy Mi
be distinguished with precision, or even with a distant approach
to it. A government which ono man shall deem an oligarehy,
will appear to another a libéral aristocracy whiist a govemment
which one man shall deem an aristocracy,will appear to another
a narrow oligarehy. A government which one man shall deem
a democracy, will appear to another a government of a few
whitat a government which one man shall deem an aristoeracy,
will appear to another a government of many. The proportion,
moreovet', of the sovereign number to the number of the entire
commun ity, may stand, it is manifest, at any point in a long
series of minute degrees.
Thé distinctions between aristocracies to which 1 have now
adverted, are founded on differences between the proportions
which thé number of the sovereign body may bear to the number
ofthe
of thé community. Qn

ofthe community, theMvereigtttywouM1 the govemments deemed suprême woatd

reside in thé mismtM tnonarch, with )jo truly sovereign for hebitxal déférence
that deternnnMe bmty of his mt~aUcdttoopinioMofthecommnaity.orhabitaat
subjects or theMfereigotvw«u)'t Te.<ide e un'! espeeittt deference to opinions of Il
exclusively in that dttenninate hody, portioM of the comnmnity, ts rcndcr<'<t
whikt he would be merety !t tnittistcr oft' t'y every ariatocracy,or hyevery govcnt-
thé supreme goveniment. For <'mM)))e ment of a nmnber, as well as by every
))) Citae thé corlis of jMizarim, aeMng aïs tnomreh. Noy, )!Upren<e Ko~rnment
!tn organiiieJ body, habltually <t<MreMedt wouttt tm imjxMMMc for if thé M?e-
M)t)mM)d.s to thc TnAish snhan, thé e reij~nty rcaded in thé jMrtion of thé
Tarkish sultmn, If he habitually oboyed1 community to whose opinions and senti-
()MM commantts, wouM not be sovfrrti~nt tNeob thé sovereign especially deferred,
in thé Turkt.<h entptM. Thé iiotercigntyf it wou)d réside in a hody uneertain (t)mt
wouH resid< in thé corjs of Janimrics, is ta my, nowhert), or i)) a ccrttun hody
~ith thé ))U!ic9tt);J !!u)t<t)) or toonarch not in a habit of MtnnmMd. A cuMfusio))

or
or the soverei~tty wooid Mside excht- of hws projx'rtv so eatted with )<tw.<! int-
sitt-ty in tho corps of Jitni~hes, whi).<tt proper in)po.<e'f hy opinion, is tlie source
hf w.)uM t~e merch' thfir vizMr ~r primee ofth" ~'rror in tjucsti~n. Thé haHtMfLt
tnixMter. liut hitt~tn.tDt'ft.-r.-n'toopin. indtpt'M.h-nc!'whieh i. OMe of thé tM'n-
ions of thé habitMat a)t'tt tMti! of soYf-rt-i~nty, i< tnerely habitua)
Mjx-eM) 'teft'rexce to o[)ittion:! ûf a «ortion
M i<tJt-pf;Mjf-t)M of laws imperative and
ofthe fommunitv, comistt with t)Mt in. ]topt:r.
s l,rol",r,H)'law.nfllich
')q)en.h'i)ccwhich i.s ohé of th& t:S-.e)Mta).<
!!y!awi!whiehopinion
opinioniml'o.e~,
i))))m!iei!,
.< HYtir\' Mf-Uttjt.'r "f t-very suciety i.< hthit-
«f Mvc.Mi~nty. If it <)id not, none of u~tty d'-t~nnim'd.
<*4c' y~<Mf<'<~
Lt~.Y!
Lt~'f. Y! dhtincttOtH tetween arfitoentei
Other dhtinctKMH arfitoenteies are (bunded o!r
JtTu~* di~euces
~M beMeen thé tuode~ whereîh thé sove~gtt uumbci'
tin)!tt'may
(tétine ma slnn'e the soverei~tt powers.
twe-enari~- For thou~It thé aoverei~n number may bu a homo~enuous
tw~~M body. or (t body of mdivid.md, persan. whoso ponticiti chumct~rs
MM~ simi!ftr, it is commonly a mixed or hetemgeneons body, or a
t are
t'utUK~L'utt~t'e
dit)'rm'<).n, body of individual purs'm.s whu.SH puHticitt charaetcrs are (Ufierent.
bcnwtti
th't)twi''< ii~ Thf suvereigu number, t«r uxtttnpic, tuay cunsist ot' au uti~M~hiod
wJttrfm
t)*ewv~ or narrower, amt a 'temoeraHeal ~r largcr budy of a single
t'ig)mu!iu(.t individual perron styM an cmpcrM' or kin~, amt a body o)i-
).)<-r)!t!n-
tharet! ~archica!,
Hm' or n. body deuiocratical or of n single iudi~duat porson
<ov<;rfii<h )jM buarin~ o)H) of dtosc munns, aud a body of thc i'oruter description,
~w~. witii another ot' thé last-inentioued kiud. And iu any of thèse
cases, or of tnunberluss sinuttu' cases, thé various constituent
CU.~
tMOubeM of thé htiterogeneous and .'ioverei~n body may share thé
mM)
sovereisn
sov powers in auy of infinité modes.
Of-iuc!) Thé inimité fonns of arist'jcracy which rcsult from those
arwtu'.r'
t:ic!ia-!a:c" infinité
t,1 modes, have not been divided systematicaHy into hinds
<f,
ttytt.i ttnd sorts, or hâve not been di.stin~uished systematicaUy by
ttIK)
~eneric
~en tUtd specinc !)Mne< Hut sone of those infinité i'onns
./«' }~y'l' been distin~uished broadiy from the rest, and hâve beeu
hitve
tuarked
MM with the common name of /<M< Mo/<f«'t7<t't~.
New (as 1 hâve intirnated above, and sha!I show jnore M!y
hcreat'ter), thé dittereuce between monarchies or ~overnment.-
of one, nnd aristocraci(;s or govermnents of a number, is of aU
thé din'erences between ~ovemments thé most précise or dennite,
and, in regard to thé pregnant distinction between positive taw
and motïdity, ineontpambty the most iniportant. And, siuce
this capital diftcrence 1)etween goveruments of oue and a number
is involved m some obscurity throu~h thé name of /<Ht!7t.<~
MMtf~ï/ty, T wit! otfer ft few remarks upon t!ie various forms ot'
aristocraey to whic!t ttmt name is apptied.
In a)t or most of t))e governments wh~e~~ are styled limited
monarchies, a singte individna! shares thé soverei~n powers wittt
1
au a~rej~ate or a~gre~tes of individuah thé share of that
single individua), be it ~reater or less, surpas~iu~ or exceedit~
the share of any of thé ~ther individuats who are :dso constituent
members of the suprême and hetero~eneous body. And by that
pre-eminenee of sharc m the soverei~n or suprême powers, and .c.

(perhapii) by precedence in rank or other honorary tnarks, that

single individuat is distin~uished, more or less conspicuousty,
from any of the other individuats with wttom he partakes in thé
aovereignty.
 But ht sptto thaf pre-emïnenee, and in sptte of that
of
p!Eecd<HM:c, t!Mt fbtetuost !t).dh'i(tUitt nmtubër of thé m!x<:(t or
heterogeneousaristocracy, is not a monare)) in thé proper accept-
ation of the tenu nor is thé mixed aristûcracy ')i' whk-h )? i.~
tho ~remost Mmutbm', it ju'~Muchy ~tjcdy s'~ <tUed. Uulike
!t motMt'ch in the proper aeœptation of thf t<;rm, that smgtu
individual is not a sovcrei~n, but is on'j of a sovcrcig)! umuLer.
Uniiku u taouM'f.'h p)'"pm'!y odicd, that slug!e i~dividuat,
considered sing!y, Uv.'} in a state f'f subjection. Con.sidct'cd
sin~ty, he is subject tu thc sovcrci~n bo'ty 'jf wincit hc is tne~ly
a thttb.
Lintited tuonarchy, therefm'e, is not tnonarchy. It is ~nc 'jf
another of those infinité i'onns of aristo<;Ney which resuit from
t)ie iHnHite modes whet'ein thé soverei~n nutubo' )nay sharu tlie
suverei~n powers. Aud, like auy otherthose infinitc forms,
oi'
it bdon~s to one or auotlier of thosM three forms of arist'craey
whieh 1 hâve noticcd in a precpdin~ paragmph. If tt)G uumbcf
of the soverei~tt body (thé so ea!!ed tnottat-eh inchtded) hear to
thé numher of thé eommunity au extKnn'Iy smaU proportion,
the so cnUed monarchy is ait o)igarchy. If thé sanie proportion
he stnat!, but not extrctucly smaU, the so caUcd Htnited tnonarchy
is an aristocraticat ~ovunnuent (in the spécifie meaniag of t]tc
uame). If thé sanm pr'jp'rtion be large, thé su ca]Icd Mmited
tnonarchy is a denmcmti';at or pop~ar goventment, or a govern-
tuent of tnany.~
ANmeaning moharcincal power Hmited Ly positive taw, the
name /<H«'/< MOKf«'t7t// in\'ol\'es a contradiction in tonns. For

-y'jt
:t monarch properly su e~Hfd is sovcrcigu or suj~reme nnd, as
1 shati show hereafter, sovereign or suproue power is incapable

of légal limitation, whGther it réside in an individua!, or in a

munber of indi\'idua!s. It is truc that thé power of an aris-
tocmey, stylcd a linuted monarchy,
~areny, is
]s Hmitud by positive
umttuu t~y posmve moraHty,
morautv,
(') '~)egoventMM)tof<t)fiH~'io)t)w)i'rc'
L'h'rc' hon'cver,
)M beii~h), wit)t perfcct pKcMion,
nt'!r;it)MtthesocaU<))iuttttJ)uMMrchis
iHtht:kin~i.<)it)ut<'d, )!))<y )t)Mtwnt<;r;it)i is
n~cthxottarchy. Su<:h!tk)n,)«'Wt'v<'r,)n
.'t'v<'r,)nt-ri:)y!tMmti'it''r<)fth(.«.Y):r<;iK'L Ji<'
fhtnt(:Mtm)mt)y,tti'itrm-,h!u))urJmate
ifMtiiovt't'itiffu.butisautiMt.stct'ufhint ce
'~()K')nwhutn))yhaYt'thL')!fH'<'nti~t)M
nti~t)H)iti<:))j!W-r-ri-ia)Mit)i'-tt')'nft)t':
1"
].~w':r.' i)it)<-MV~-M}{)<b'~y:but,urj)'h<a).«)]ar'
'The):)N~w}M!<('))')M't-ri'))it)<-M
)('), isn')tt)t''<wrait:n"ft))''))~n)My<o
htMy tohk itt t)~f"!)irf))X' )~tWt-rs, urt)t)h-.<s hf
whichhatht)te))t)Wt;rio)im!tit. Th~
Th': wf: a )ncm)~;r, !i<! w~:ti as
ntini.stcr'.f
sownti(!nty,t)w-(ore,i-!int)t!ttM'!<-m-t)~
<'i''m-the))M))',)MW~H)d)t~r<t)y)j'<))t))'!i-
)~'w'ne)thttththut-ju~rtuiimit)titn.)n
)titn.)nL-ntedwitht!)<Mt!'ijiti~-nttjM)h<;uf
AMtt.)<ye&n.<)n<'ne<tht:{;ov~:tmn<')tti''m
~)tti''mûh:trt')t,M'tt)'t-M:{it};w-rM)n<-ht
)totnn)Mrc)tv,))Ht!tri!!U)t:r.t!'yor')'')tM)-f)t
)'')«')- afwhichtMKMXu'rph'aiiC-n'ahtWutt)~
cr!)L'y.Intf«;!<:<'xtr.t-')fr~n)tt')))b<i'h[
Il~Les' )mn[iyL<<ty)td!tmonar<'hy.
)))bc.'i' Lanllv L,: ,tvlcrl u ru~narrLv· 1I <<);.<)!
sL:lll
'r-'Hn- r'-vert tf th'' c)t!)[tftf'r nr ~iti'.h &f a
/,t)'i'n</<a<<,thettM''))at))tt-«ft))psu)'r''xn'r'-
~YcrMUf(:)tt.<)whi':har'iy)Mt)i)"ih-'i.i
\'fit
V0f..t. l,
Y
ttih'').t)Mti)'tim!tt-ttinou!tid),w)n-titc<tnie
)M«)<:trc))i'"i)!iW<U.statut.
)M«)<:trc))i~)!iW<-U.s<att.i). itc!))))tut, -n
itc!))))tut,t<)':u)t'-i(k!<)Mti)<ti<of.WfM{!tt~owt:r.
onut, t<)':u)t'-i(k!<)Mti)<ti<of.WfM{!tt~owt:r.
tu
M
2~2 T~f/~pr/~rc~
't
amt a!so by thé htw (~ Cod.
hfcr.Vt an Httt, thé ~we~ ot' every g<Wft'M'
ment
KM being tmtitfd t'y those t'<"ttt'atnt% tho n~me /t'mt~ w?!Mw/<y,
ttt }XMMtt)~ t~ thtt~ h'ttittt'). i. n"t <t whH tn'~f ftppUcnMo t'~
sueh
<!))( itrMtoct'itctf~ as tuv tuat'ktid with it, thtm to tnonnt'ehifs
pt'ôpfdy so c:d!fd.–AtiJ as thu u:uuG tsab~ttitt or inappi-opriatc,
n ita upplicatiuu capncious. Atthott~h it is app)ied to somc
of thé tU'istuct'acifs wiMt'eiu n .singk judividunt !m. thé pn'-
fnunent.'ti mentioncd aL~'vc, it n a!M withhctd <t''Jtu otheM t')
which it !<! pqnany nppticnbk. ftt appHcatton, in'tKf), M
couunouty detfrnuned Ly M purely ihmmtena! circumstanco Ly
thé uature of thé title, or thé nature of thc «ftntc of oOice, which
that forcuiost mcmbcr of tJtc tnixed aristocmey happtins tu bear.
If hu httppcti to bf:n' a titlu which (.~nnuonly is borne by
tttouareh.s in thé proper :teccptatio)t of thé tenn, thé supretnn
~vcnnneut wi~r~of he is a tuctubur i.=i usuaity styled a limitcd
mouarchy. (~therwise, thu suprcum ~ovenmn'nt whercof !te is a
mentbcr is usnatly tmn'ked with a diit'ercnt )tMue. l'or exampte
Thé title of /3cto't\eu< <-M, or /'<«. i~ connnottty borne by
monarchs in the proppf afpeptatMn of the tcrm and sine& mu'
own ki:)}! happens to b~ar that titto, our own mixed aristocmcy
"f king, l'mts, and conunotts, is usuaity styled a Ihuited ruouarchy.
If his share itt thc sovcrei~t powers wereexactiywhat it is ncw,
but he weru calted pt'otcctor, prcsident, or stadthdder, thé mixcd
aristocraey of which hc is a mouber woutd probably be styled a
repubtic. And for suc!) verbal différence!! between fonns of
suprenie government has thé pence of mMtkind beett frequent!y

V.tfMH'-
.h.
troubled by iguornut and headion~ fanati(:
H~
(''(Thé présent i'i!Mv.'ni'r«t)~< ~)v<:Mt;n/'f w!! f'
tnonitrch,'i" at.o
tu<)))it)K'' fort))efu))owiut;MnMt)f<upontt-n"fi. ût'tentni-aM'tK'dtothefon'tnMtitt'ti-
The f.-rm 'i.uvt'fci~n.' or '<< soy< \-i.)uu!'fMmL"<'t'ea))ett)imit~l
ufih.bt.
towinn
['rm!i:
r<:itf"Pt')"!<<iot'<:r"i{!nLo()y<t'itu')t<!)rc)'y.
'<i
]. w<f)Mt')!(!!Ov<:M~)ti~[ivtdm).
we 'U !.<
'r
uwn kiuf!. hr ''X!'M)))t<
tn.-it)i(.'r'sov';r'-it;M' Mut' 'momm'h:'
Thet<:n)t .'iuv)'!tnu'tmd')t'f'()m't:Niu*ur':Hm<!);y
-s"'
))Ut,thhmtwith.<tt[~)in~,heh!trd)yi'! ia
'.«M-< tta)i!m
h! amt Freuctt writer.s wit)i this [n<:nti')n<;d off-ner ~y hi'i ap~roptitH~
rc-i){ri,' or ~'ttfncftnttcontm'j'tiomtHt.-ttnitt~.
K'' I-ay tit)<- of khtg,' thun hy thosc inappro.
</t<- SOt't'. ~MH«x<tCtft:forfitit'r'!U)e!{')VprMtn<'nt,tM-Mt" xm) !(t)'<ted namM.
rci~ '.a)Mtm<;u;df)'«mfonu,Mt'n:~UMtth'!t
!')) 'Kt-)'ttUi'Hf'runtnMnw<;a)th,'ha'i
').)!)<"it'
Il
thf t')ih'wi)t,{«HMu~t ot)t''r nK'itoi))~
Thctfn)! snbj''etofdi«;&ur.'i<
M)
.'(th'er!!t)))fir)jMh'<'t't)tf:M)tttuuttity) t.Withhutr'-rftL'ttMtuthet'urmot'th''
'r(;pttb)i"(t)
or'corn- M ).<!thoapp)iM[im!it)'rettt)y,)'y<!<'nH!m, (;f'Vt'nt))t<M.ittt'uh"'t)')n!)i)tob)tvt
mo)f- w 'jritIl tùt'whichtgwent))i''nt!<hottht<ist. h
wnt(;M,t'j<t'i')Vof'tt;n)t)'Uv)~tMt
;sover('ii!)tnu)n))er:thou!{)tit))otuu)r~ rknatc. thcwm) or fjûo'1 ufan indfj~'ud'
w<'a)th.'9.i"i
Thet~nn <)UCMt)ysi};M))i'th''i'mr't'fthc M)tp'))itia)!i"(;i'ty:t)Mti.toMy,th):
<~
'stat<<rr j[<t)i(imttiU)J''n"tj'wh~iuca)~;iti<-s.<u'! [t~r~tte );"< "f 'c in<tn'n)'t.)t
*~i.tat.r )[!"
.rf'M')n'tsu))«r')i;t!ttft;fY'L'ntt)K'itiY't ttt'-Kibt-r. "r th~- !<~grt-g!<t~
!n.'i'jtH!ty. !!)ttt)t'iUnh')!ot')(;ii;M'i'< et ~fthcin')itHuat)tt'!Mb<:Mwho.«-w<)H'i
4.T)~:trr)n i.
'nxtiott.' ~fn<:n'; n!t)fi<' for sf'ver';iK)t )M()iviJua)'i tt't;)M'") )'y t)'e s[x':t){<:r worthy of ~~r').
itnd))odit"iti!!)Mtu))ff':ttH<'nt)yMMd'
itH 2. Without référence to th" tor"' «f thé
)t" if it were «jtproj'riate t'< t)f furttK'r
)t'i ~t'r)t)«'-))t, it deoott.f a iioci<:ty political
:)'iiiitw''r)-y)t«ny)nouswith'«MMrf!h'~tud indtjxed'nt. 3. Aoy fuktûcmcy,
in thu proper accMptation of thé tenu. org"v<;rt)mcntnfa)(UMber,which)):<s
 Ta the fbregoin~ bt-tct aHa.!ysts of tlie ft<rnM of ~np~m~ Lfw. v<ï
!!ovummnnt, 1 itppcnd a short exantitMtttMt ~f thé Hjm- M~wtM~
topics for they are fhr more inthnat~y coutioctcd with t!)~
.su~cct ttf that ititalysH ttum with any of thé ot)wt- su)~eet.i
which t!~ Mcpe of toy lectiu'e etubraces. 1. Thf; <:xet-ci.s<' oi
sovorci~n powers, by a mmmrch 01- sovet-tjin" ~<~ty, throu~ii
potitic:d subordinates or detega~'s rcpreseutiu~ thw so\-(;r<-i~M
author. 2. Thé distinction ht sovmt'ign and oth~t- putitica!
powers, into such u-s tire ~~<W«<('<-<, and Huc!< :t!? nr'j ~«-«<<t- or
m~«u<M~'«~<-c. 3. The tt-ue natures oi' thé cotunnuaties
or
goverurneut-; which are stylcd by writo-s on positive hit~ruatiotjnl
law /«<w~-<~<<<t~<. 4. Thé nature of ~/<,
a <'<w<<<<.<r/<.J
or a -<yt<t- yt-«< ~<-(;-7</M<M< witjt thé nature uf a
<)/' t'~</<«<t-~ .s<«~, .<~<-c/<«
or a ~<t-/<tf<Ht/<< c~t/M«-«c~
~«t'<?!M!<M~.
in au indépendant
In tudepenuent political society
s of thé smaUcst possib~ Ofthe
uot KMjuired thé xatftf of tt titnitcj mon. 'SN<usre)pubt)<:a;MthuiiUMdt)T.tuM],
''r<;hy,iseotn)nonty!!ty]ef)arepub)i''an ).tt)te<tpprop)-tatt-tiubj(;t'tofy<)'<<<
fjoVtit'tUMMt, or, tnom tthttty, a repMbtic. itt t)m ttctinite mtanin~of the
tcnn ttm*
M'ttthe))a<ne'rcjm)))it;angov<'no<t<'Ht,' i'!tO!ay,t)K';)ur*.iM)of!t<t«yi<~<
orthenKn)M'r<'pttb)i<tsapp)ied<:m-H'hic)ti.t't)t)';<'n«.'dM'!thpt)))ti')tcot).
phatteaUy to such of thé aristucracic!. iH (titioM.orwiththe~ow.-x.nghts.M.t
'ttteatMM as are d<m<t d<;mecraMM or dutiMo)'pt))iti<)t).sup<!ftuM.!ti)!httt~)\'
f;o<'ernmc-ntsof)uMy. 4. 'K6puMi(;'j tK'ct.s~try to tftmn'h, that thu M~~iMt
atm d':uotcii an independt-nt j<u!itiMt '.<ta<ut)eiptt))))c:f').ttott:o(-x[<n!ih'for
Meicty whos<' iiUj-t'etMe gov<:r))me)tt i.< !tMt)ytn')nswtthth<:t'xprf;s.<i<;h'<,tMMs.'
Myteu fef'ubjieatt. 'thetomtt-ri.<a~cH(-ctn'(-n:u)tphr]M.
Thé inctUting~ of state,' or fAt st:itc,' jiitMurt)nMic':om)i[i()n.M'fut()ft.
an' MUiteroM and tiiitpatutt- of which ~wm,ri~ttt.<,tmd'tuti.t;f~)itic!tl
numeruu!) :t)n) distarat<- Mte!Utinf;.< thé tnjwrMr" 'Dn'tfitterusynotjytttMM
M)owi))}{!tretheK)o.<tr<mttrk~Ue– witht))ett'nn*)Mditi~n,'n))!t<)t-nt)h~
'?'/)<'xt~t'ittMuaUysvtMtn-tnon.swith!
!t;<nvat<; condition a.<)w<))M~puJiti.t)
'</«-mvt:rcit{n.' ttd<!))ott.<th<:in<)iYi([Mttl urptt)j)ic. S.Wtx.-K'n.evf-Ki~obo.h'
[XhfoM,ur thM bo-ty of inttividualpL-r.oMs, i<ot)t))ouMdMtof)jtitiot'))Ot)it-.<<,ct'~f
wh!ch)jMrstht:fUj)remf;)owersinftn~ onei)~m-idtt))t)i<'ri)On!tnd)niM'jrhodK-,
)nth.-[)t;nU'!tttp<))itt''<tt.o';if'ty.
Thisis thost niittftt' Lodi'-f are not unfrf-rjucnttv
t)M)n(:a)titigwhichf!tMtt(;xtothet<:rnf,;
i.ty)t-J'tat<:j''jr'<tMteii.' tor'.x-
tU)tf!Mt<:)t)j)toyitcxpr("<h'~ltha.! atu)))<' B<'fore <h'- kin~s of Fran~- JM.I
'titrèrent import. ~ytheKoman) beeottn::iub.st!tntiaUyiioveh:ij;n,<h';i-ove.
)twy<:ni,th<'<:xpre.<sion'~f;<;Mrt.i~ub.; rcigmyt-Midcdittthekin~withthe
Um-'am-HMtobt!U.s<:dintw.s.i)Mes.A!t) thn'<' <-<tf«;M of thf t'eatm. 4. Au mde.
Med in ott(: of those .<t'nsM, it is .<Y)Muv- ])C-Md<;)tt jmtiticat s<i<;iety is often sty)cd
mou.s with nipubtic,' or '<;o)utn«))Wn)i(~ ai '!<ttttc,' or 'iioverei};): and inJ'!)'e]~.
ittthetirj!tof<)Mfour))tt'Nuiot:swhi.'ht<ent fitittc' a
hM-uenuntentted aborL-: thttM to sav, ( AMindt:)~c!t'ntpo)itM]ii()<'i<!tyi-.
itdt'notfsth''Wt;~tnrt.;o<"tof<tnind<<oftett f!(y)t..t a nation,'m- 'ovtr~n
MdentjMtiticatiioeicty. ~t~dm: anJin'tL-j~ttttf-txnitti~t).'
t
!t
)!utth<'t<nn
thf other of thoM fieuses, it <t<-)totGs thé 'Mti"!],'ottht:t<;rm'<ft<M,')<nM-d)nMii
itMth'MhmI or bo<h' which is sovtrtiKn in ))K)!'<-t)y whh the i'oitowin~
N)!0 society, to~eth~r with thé subjeet ) It 'tf-notes an a~grc~tte of
iNjividuûtit aud )iUbjt;t;t bodies w))o hoU cmUnf; oin~L- fMmUy, wn.o
tneaninK.
ji't-son.s, ci;.
petitMat right!' from t)mt Mver<:ign < « are Mh-
one ) 1 t)MtMtthMn~h))ioodortitK~(t)d,
ornuMber. Ur~hMgixgthfphmm)) p';r))aps, throu~h a Mnuuon hm~a~
it deuott!! thé re&fx.ettve con'UtioMa of 1Au<t, thus uoderstoo'), 'nation'
thé several }Mtiti<:a[ superiors who with '?<')M' M a or
not nMeMarih' an h)dtp<-ndent
''et-erei~t and detegitttd powers ~oy(-m )potitx'ats'x'icty.
tht:f.-ot))n)U))ityinqu<iitMh. Audthe 1
344 Z~J~w~M~~
t,)!<T.Vt K«t~nit<K!e,
t e._i~et.
tnttttbithtg tt territory _J' _n_Y_.
the smallest possibto extent,
of .L'L
MfM~Of~ and Uving under <t mouaMhy of<m cxtfemety nat'row oitgarchy,
SOVt'K'igt) aU
{ tho suprême powers brought into exercise (save those com-
powfM.by mittett
tMOtmrch't tu subjeets as private perdons) might possibty be exercise
orsot't'. directty
t by thé monardt or supMUM! body. But by ovory ttctmtt
MignbuJy,
throagh sovei-ei~n (whether the soveMigu he one Mividuid, or a mmib~r
(or uggre~te of iudividuaLs), sonie of thoso powers are exercised
puUttMd
subottU))-
ttt~Ot
· through political subordintttes or de!egates represeMtmg their
dekgatM sovereigu
t author. This exercise of sovcrcigtt powcrs throu~h '1
t~prewnt-
ingthtir political
] subordinates or detegittes, is rendered alisolutely necfs-
sovereigu
aMhor. sary, in every actual society, by innumemble causes. For
example,
( if tho umnber of thé society bu large, or if its tcrritory
bo !~rge, atthougit its numher bc smaU, thé quantity of work to .1

be dune in thé way of poHticat goveru)ueut is ttiore than eau be

done by thé sovereigu without tho assistance of ministers. If
thé society be };ovorHcd by a popular body, t!iere is some of thé
business of govurnmeut which cannot b<j doue by the sovercigu
without thé intervention of ruprcsentatives for there is some ot
thé business of government to which thé body is incompétent
by reasou of its own butk and some of thé business of govem-
taent thé body is prevented from perforniing by thé private
avocations of its members. If thé society be governed by a
popular body whose members live dispersedty throughout an
extensive territory, tho sovereign body is constrained by thé
wide dispersion of its membera to exercise throughreprcscntati\'M
some of its sovereign powers.
In most or tnany of thé societies whose suprême govern-
ments are monarchical, or whose suprone governments at'c
otigarchica!, or whose suprême govcrnmeMts are aristocraticat
(in thé specific meaning of ttte name), tuany of tho sovereign
powcrs are exercised by thé sovereign direct!y, or thé sovereign
performs directly much of thé business of govern)nent.
Many of tho sovcreign powers are exercised by thé sovereigu
directty, or thé sovereign peribrms direetlymuch of thé business `

of government, even iH sone of the societies whose suprême

t
governments arc popuhu'. l'or example In aU or most of thé
democracie. of ancient Greece aud Ittdy, thé sovereign peopk'
or number, fonnaUy assembled, exereised dircctty many of its
'invereign powers. And in some of thé Swiss Cantons whose
suprenie goventMt'nts are popular, thé sovereign portion of th);
eitixens, rf~utarty couvened, perfonns directiy much of the
business «f govermnent.
But in many of thé societies whose suprême governmeutii
 tire popular, thé soveroigh er suprême body (or aay aumerotw t'~
bodyfbrmmga.compoiMntpar<:Qftt)eyerctsesthrcmghTepre-
seutatives, whom it e!eets and appoints, thé whole, or oearty
thé whole, of its sovereigu or suprême powers. in oui- own
coutttry.fbr exempte, «ne cumponent part af thé sovereign or
supMrne body is thé nutnerous body of ~<c c«MWtey< (in thé strict
signification of thé hMUf): that is to say, such of thé eottunons
(in the large acceptation of thc terni) as share thc sovert:i~nty
with thé kin~ nnd thé peers, and dect thé memLcrs of thé
eoMtnons' house. Now thé commons exercise through repre-
sentatives thé whole of their sovereign powers or they exercise
through représentatives thé whole cf tlieir sovereign powers.
except their sovereign power of eleeting and appointiug repré-
sentatives to represent them m thé British ParHttmeut. So
that if thé commons were sovereign without thé king and the
pcers, not a single sovereign power, save that which 1 have now
specified, would Le exercised by thé sovereign direetly.
Witere a sovereign body (or any sniaUer body fornring a
component part of it) exercises through représentatives the
who'e of its sovereign powers, it may delegate those its powers
to those its représentatives, iu either of two modes. 1. It may
delegate those its powers to those its représentatives, suhject to
a trust or trusts. 2. It tnay delegate those its powers to those
its représentatives, absolutely or MnconditionaHy insomuch that
thé représentative body, dunng thé period for which it is elected
and appointcd, oceupies completety thé place of thé électoral
or insomuch that thé former, during thé period for which it is
elected and appointed, is invested completely with thé sovereign
character of thé latter.
For exampte The commons delegate their powers to thé
members of the commons' house, in the second of thé above-
mentioned modes. During the period for which those members
are elected, or during tlie parliament of which those members
are a limb, thé sovereignty is possessed by thé king and thé
peers, with thé members of thé commons' house, and not by thé
king and thé pecrs, with thé detegating body of thé commons
though when that period expires, or when that parliament is
any how dissotved, thé delegated share in thé scvcreignty reverts
to that de!egating body, or the king and thé peers, with the
detcgating body of the eommons, are then thé body wherein thé
sovereignty résides. So that if thé commons were sovereign
without the king and thé peers, their présent représentatives in
parHament would be thé sovereign in eneet, or would possess
24& T~M~Mi?~
'ut'
LMi'. thé
{.Mi', the enttfe
vtvt thé entire
(
'if ttut
tl
sovefûignty free h'out
sovefûienty h'oMt
t'ouMsoBs ttre d&tegatcd
M' oUtg&tion.Thf! powers
trust M'obi
so ah-mtah'ty tu thé members &f
thé 'tmm"t<t' house, tbat. thi~ t'epresenttttive tMitCtnHy~ mi~hc
<'o)K-tn- with thé king and thé }'eers ht defeating thé principal
'ttds for whieh it is etected nnd appointed. It might cohcur,
t'M' instance, in makin~ a statutc whieit wmttd lun~thcu its owu
dtu'ati'm from suveu to twcnty yunrs; or wh!ch would atuti-
hilnte comptetely thc actual constituttou of thu ~tvenuucut, by
tmust'et-ttug tho i~vM-M~tty to the ktng or thé peers from tho
tripartite body whei'eiu it résides nt présent.
Hut t!n)ugh thé connuons dtile~te their powe! iu thé
second of thé above-mentioned tuodc.s, it is etear titat they
might delegate them subjeet to a trust or trusts. Thé repré-
sentative body, for instance,mi~ht be bound to use those powers
consistentiy with specitic ends pointed out by thé électoral or
it might be bound, more gencraMy aud vaguety, not to aunihitate.
ur atter essentiatly, the actua! constitution of the suprême
~ovenunent. And if thé commons were sovereign without the
king and thé peers, they might impose a simitar trust upon aNy
représentative hody to which they might delegato the entire
soverei~nty.
~Vhere sueh a trust is imposed by a sovereign or suprême
body (or by a smaUer body forming a componentpart of it), thé
trust M enforced by le~nt, or by rnerely moral sanctions. Thé
représentative body is bound by a positive !aw or laws or it is
merely bound by a fear that it may onend thé bulk of the
community, in case it shalt break t)te engagement which it has
contraeted with tite etectorat.
Attd hcre 1 may brieny remark, that this last is the po-titiou
whifh reaHy is occupied by thé member;i of thé commons' house.
Aduptin~ the languie of most of thé writers who havo treated
~'t'thc Dritisi) Constitution, 1 conunotdysujtpose that the présent
pMUament, or thé parliament for thé time being, is possessed of
thé soverei~nty or 1 commoniy suppose that thé king and thé
tords, with thé niembers of the commons' housc, form a tripartite
body which is sovereign or suprême. Dut, spenking accuratcly,
th<: monbers of thé commons' hou.sc are mcrety trustées for thé
body by which they are elected and appointed and, conscquentty,
thé soverei~nty ahvays rcsidM iu t)te kin~ and the pcers, wit))
thé etc<'tor:d body of thé commons. That a trust is imposed by
thé party dehi~atiny,and that the party representin~ en~n~es
to dischar~e t!te trust, so'ms to be imported by thé corretative
expressions <f<< and ~<<<M~~i'"M. It were absurd to
Sttppose ttmt thé d~e~tinK eMtpawft'a th<* tfptfseMtuttve ptt'ty Lt
to defeitt or abtUtdon any '~f thé pm'pos<?? for which tho htttet b
appointsd to sMppoxe, for cxKMp~, th~t thf cotMMMn~ omp~wer
their représentatives m parliaMeut tu rehnquish tt<eh' share in
thé suverei~nty to thé kin~ and thé !ords.–Thc supposition
that thc powct-a of thé e'mmtMts itt-f dhtcufttt'd nb?otute!y to thé
mmnbet's of thé eommMi. house pt~babiy arose fn~ttt thé <b))owittg
causes. 1. The tnt.<t haposcd by thé c!ec-tond body upon the
bofty reprexentin~them in pnrtMmpnt, h taeit Ktthfr t)mH cxpn"
it tu'ises ft'otft the re!ftt)M' betweeu t!ie budies ns de)e~ating and
t'epreseutative parties, rathet' than froin ora] or written instrue-
tions K~'en by the former to thé !:ttt<'r. Dut .since it arisc.-s frotu
that reIatioH, the trust is ~eueral aud vftj.tuc. Thé représentatives
are tuerety bound, generaHy and vas"ely, to abstain from any
suc-h exercise of titc dele~ated soverei~n power;; as wou!d teud
to defeat the purpose!} for which they arc eiected aud appoiuted.
Thé trust is simply euforced by tuoral sanctions. lu other
words, that portion "f eonstitutiona! !aw which regards thé
dutiesof t!te rGprcscntntivc towards thp eh-ctorat body, M positive
tnnratity nterety. Xor is thi.< extraordinary. For (as 1 shaU
show itereaftet'~ ail constitutionat taw, in every country whatever,
is, as against thé soverei~t. in that predicament and htuch of
it, in every eountry, is a!so in that predieanieut, eveu as against
parties who are subject or subordiuatL- t< thé soverei~n, and who
thcrefore might be he!d from htt'riu~in~ it by legid or potitical
sanctions.
If a trust of the kind in question were enforced by iG~al
sauct~ns, thé positive law bindin~ thé représentative body
tni~ht be made by thé représentative body and not by thé
ejectoral. For example If thé duties of thé eomrnons' housc
towards thé comntons wiio appoint it were enfurced by Icj/id
sanctions, thu positive hnvbindin~ thé totnmons'itouse'mi~ht
Le tnade by thé parliatnent that is to say, by thé connnons'
house itself in eonjuncti"n with thé kin~ and thé peers. <')',
supposin~ thu sovereii~nty resided in thé conirnons without tItC!
kin~ and thé peers, th' po-iuve ht\v l'indin~ thé cointuon.
hunse nti~ht be made by t!n.' houst.- its'-]f as reprHSentin~ thé
i-overeit;u or statc.–Hut, in either of thc~ ease<, thé )aw mi~ht
b); abro~ated by its inunediatt' author witttout thé direct consent
of thé électoral body. Xor c"u!d thé e!ectoral b~jdy escape
from that inconvenience, so lon.~ a- its direct exercise of its
soverei~n f'r supretue powers was !i)nited to thé eh-cuon 'f
représentatives. Jn ot\1c-r that thé électoral body mi~ht esc-ape
from tha~meohvftno'cc, thf pusitive !aw binding its n'pre-
senMHvc~ mnst tw made dh-ect~' byitactfot with Us diruct
concurrence. For oxampto fn order that thc mcmbers of th''
cuumtutM' houtif tut~itt bc bound legaiïy "nd coutptetety to
diwhm-gc their duties to thc comntouit, tho Jaw must be made
dit'ectty by thé cutnmotH thcmsdvM in coucun~neo with thu
kin~ itnd tt)o lottls w, supposin~ thé soverci~nty t'esided in thé
conum~us withont thu )d)t~ fmd tin! pc~M, thé !aw must be madc
directiv bv the counnons thcmseh'cs as hcin~ exclusivcly t)te
.~ov~rci~u. lu eithcr of thusc cases, thé linv could Hot be
abru~atud without tix~ dit'eet consent of thé électoral body itscii'.
For tho kin~ und the lords with thé etoctofat body of the
commons, or ti)c electomt body of thé couunons as being (ixclu-
.~ivfty the sovoift~u, wotdd for))) au (ixtraordinary and utteriot'
kgi'!lature n ~gisiMure superior to that ordinary legis!aturt:
which would he ianned by thc parliatuent or by thé commons'
bcu~e. A !aw of thé partiamcnt, or a law of the counuons'
fiou-su, w!uch aftëcted to abro~ate a !aw of the extraordinaryaud
uttenor législature, Wfmid not be obeyed by thé courts of justice.
Thé tribunats wouîd entoree the latter in thé teeth of the former.
They would exataine the cotupetcnco of the oit.tinary législature
to make the abrogating law, as thuy now exatnine tho compétence
of any subordinate corporation tu establish a by-law or other
statute or ordinancc. lu the state of New York, thé ordinary
Ifgisiature of tho statM i-' eoutrotjcd by an extraordinary legis-
lature, iu thé manner which 1 hâve now describcd. Thé body
of eitixens appointing thé ordinary legistature, forms an extm-
or<.tinary and u!tcrior legishture by which the constitution
thu state was diMCtIy e.stablishcd and any law of thé ordinary
législature, which contlieted with a constitutionat law Jirpctiy
procecding from the extraordinary, would be treated by thé courts
of justice as a legally hn'a!id act.–That such an extraordinary
and uJterior législature is a good or usefu! institution, 1 prétend
not to afnrm. 1 meMiy af!irm that the institution is possible,
and that in onc pf'Utic.d society the institution actuatly (jbtain:
Front t!tc cxf-reis~ of sovereign powers by the sovereign
dh'ectty, and a!so by thé sovereign through political subordinates
or delegates, 1 pass to thé distinction of sovereign, and other
politicnl powers, into such as arc ~yi~t/ti'f, and such as are
t'MK/i' or m~'t<n'Y'<
It seenM to be suppf~ed by many writcrs, t)<at !cgis)ativu
potitical powers, and executive pojitica! powers, may he di.
tingui.shed prcuiscty, or, at Icast, wittt an approach to précision
 an<! t t
that in ovfry soeiety whose g&vet'nm<*Ht is & ~ovet'nmeht of t.ficr.Vt
auuuiher/or/attefMt,in e~rysoc~ctywhosegoverntttenti~at `
j JJtMited monarchy, ttte Icgistntivo sovereign powers, and thé
executive soven.'ijm powers, betong to distinct partie. Accord-
ing, fur example, tu Sir Wiltiam Bhtckstone, thé tegislativo
sovereign powers réside in thé purtiament: that is to say, ht
the tripartite sovereign body fonned by thé !<in~, thé tttemtjeri;
of thé house of tords, und the tuembM's of thé !(ouse of cutniuons.
But, accordinn to thé same writet-, thé executive suvereigu
powers reside in thé king atoue.
Now thé distinction of politicnl powers into sueh as are
/fyM/M<&'< and such as are M~<<<M, scarcely coïncides with thé
distinction of those p'~weM into such us are .~<'t')H<' and such as
are ~(~Mf~t for it is stated or assumed by thé writers who
make tho former distinction, that sovereign political powers
(ancl, indeed, subordinate also) are divisible into such as are
législative and sueh as are executive. If thé distinction of
political powcrs into législative and executive hâve any deter-
tainato meaning, its meaning must be this: The former are
powers of estabtistnng !awa, and of issuing other connaands
whiist thé latter are powers of adininistering, or of can'ying into
opération, laws or other commands aiready estaMished or issued.
But thé distinction, as thus understood, is far from approachin~
to précision, ror of aU thé instruments or means by which
laws aud other commands are adtninistered or exeeuted, laws
and other eommands are ineomparaMy thé most frequent:
insomuch that tuost of thé powers deemed executive or adminis-
trative are themselves législative powers, or involve powers
which are législative, t'or example As administered or
exeeuted by courts of justice, laws arc mainty administered
througtt judgtnents or deerees that is to say, through connnands
issued in particular cases by suprême or subordinate tribunals.
And, in order that thé law so administered may be administered
well, they must be adnuHistered a~reeably to laws which are
merely subservient to that purpose. Ttius AU laws or ruies
determinin~ thé practice of courts, or aU laws or mies deter-
miuing judicial procédure, are purely subsidiar)' to thé due
exécution of othcrs.
That thé Ic~ishtivc sovereign powers, and thé executive
sovereign powers, beloug, in auy society, to distinct parties, is a
supposition too patpab!y fa!se to endure a moment's examination.
Of thé nurncrous proofs of its falsity which it were casy to pro-
duco tho foltowiog will more t!)an su(!icc.–1. Of thé !aws or
rutes îaadM by t!te British ptU'HtUHMtt, ot by any suprento legis-
t~H'<t, ~my tu'~ sn~tHtU'y, «tft aï(f mtended ta he snbshtittt'y,
t" thé due executioM of uthos. ~d as Mt&king tttwx <n' mt'~s
subservient to tlint purpose, it is not tess f.<-t'N<<v than courts
nf justice ttstHttktHg t'egtttation~ of pMeedure.–2. In nttnost
(t\'ct'y socifty, y«</«'«</ powcr-), <;u)utno!t!y estcemed f.t'<'<'K~t<-t' or
«~Mt?t<~<'«~'M,!H'e uxm'Msed (tireutty by thé tupreme lu~ishtm'f.
i'r Mxampif: Thé HouMn empero~ 01' princes, who were vh'tu-
aHy sovurei~u in tht: HuuMm otnpiM m' wot'!d, not ~nty M')nu't tttc
<'</«~<f/ constitutMus which WHru ancrai l'ules or htws, but. a:!
fonning thé highest or ultimttte tribunal of appea!, they ttho issued
thu p(U'ticu!:u' constitutionswitich weru styied~t'a'f~ ot'judgMcnts.
/<t /~«- )'t~MMt'<.«, or bei'ore thé virtual dissolution of thé free
t.'r poptuar ~vemnieut, thé -suvcrcign Hont:m peoplu, then thé
a'jprotte iegistaturc, wa.s a high court of justice for thé trial of
crimin:tl L-au.'ies. Thé powo- of supretne judicature mhenng in
t!K' ttiodft'n par!ia)nettt, "r thé body t'onued by thé kit). :md ttie
upper and iower house.s, hâve ever (I believe) becu donHMtt, or
hâve uc\'er bccu Ltou~ht )Mto exercise: i'M', a~makiH~ thc t~f-
ticuhr but t' ~'o~ yf«~& statutes which are styled acts of
itttiduder, it i.'i uot properly a court of justice. Dut thé fUtcient
parliament, funued by thé M)~ and t))e barons, uf which thé
uLûdem is thé o<tsprin~, was thé ultimate court of appeal as
\veH as thé sovercigu législature.–3. The présent British
constitutiun afïbrds uot thé slightest couutetMnce to thé sup-
position whieh 1 tua now exatninin~. It is absurd to say that
thé pariiament ha.-i tlie législative sovereign powers, but t!tat
t)te executive sovcreign powers belun~ to thé kin~ atone. If
thé parHanteut (ns JUaek.stone aOinns) be soverei~n or absohtte,
every sovereign power must be]ong to that .soverei};')) body, or
to ono or more of its members as formin~ a part or parts of it.
The powers of thé king considfred as detachmt fron the ho~y,
f'r thé powers of nny of its ntentbers considered in tite s:unc
!i~ht, .n'a not sovereig)* powers, but are sitnpiy or purety sub-
ordinate: or (changing thé phrase) if thé kixg or any of its
members, (jon.sidered as detached fron) thé hudy, be inve.stcd
with potitica! power- t))at metnbcr as .-o detached i.s mert-ty a
xtinister of the tjody, or those politicat poweM are mer<y ém-
anations of its soverfignty. He.sides, poiitieat powers \vtti(.'h
-ur'ty mav be deoned t.'f'r'' are cx<'rr:ise't by ca<:h «f thé
h"ust:s; whi)st po!itical powers which sure!y )uay bc deem'
/<.<< are exeroiscd )'y thé ki))~. ïn eivi! causes, thé !)on."e
«i h'rds is thé ultiumte court of appeat; and nf a)t thé poHtical
tXtw~'a which at-o deemed executtve M' admmMtmttve.judieiaI
poweM are thé important ftH'l temttrkabttt. Theexecuttvo `
M'MhtmiMtrative pnwerswhieh restde in Uie Iù\ver houiic~are
not so weighty and obvions as those which Letong tu the upper
but still it were easy to show that it exerciset powers of thc
idud. F'u' t-xampte Excrehin~ juttictttm'e, tht'ou~h setect com-
nnttues of its tucm)jei-s, it adjudu~s that ctcctiom '~i' its tttOHho'.s
are ~aUy vatid or v'jid. Thu potitieat powers exercised ).y
thé t<ht~ which Mn'~y ttKty dHettu~d te~is~tive, Me ot' \Mt
extcnt nnd nuportauce. As c:(ptiun ~nei-a!, fur ux:tmp)n, hn
nMkc'i articks of WM- that is to .ty, laws whick K~ard cspGei-
ntty thé di.scipHne or govcrntncnt of thé soldiery. Aj} adminis-
tcriu~ ttie Jaw, tht'ong!t subo~matc cuui-ts of justice, he is thé
author of thé ruk.s of procédure which they have estabHshed
a\-owed!y, or in thé properly legislative mode imd (what is of
greater importance; he is thé author ut' that uicMuretess .ystem
ofjudge-umde ru!es of law, or ruies of !aw niade in thé judieia!
htnnner, w)ne)t bas been e~tabti.shed covertty by those subor-
dmate tnbunah as directty exercistng their judieial i'MnctHtH.
Of a!l thé targer divisions of poUtieaI powers, thé division
of thosc powcrs into ~t't «« and ~tf~</<'Mf<~t; is perhaps thé oniy
précise one. The former are thé potitical powers, infinitc in
number and kind, which, partiy brou~ht into exM'cise, aud partty
lying dormant, beion~ to il soverei~n or .-itate that is tu say, to
thé monarch property s" catted, if the ~ovemment be a ~overn-
Ment of one: aud, if thé government lie a Kovernment of a
number, to thé soverei~n body uousidered coUectiveiy, or to its
various ntembers considered a~ component parts uf it. Thé latter
are those portions of thé suprême powers which are delegatcd to

~1.1 .1.
putitical subordinates: such politicat sub~'rditMtes heinr sub-
ordinate ur subjeet mercly, or a!so immédiate partakers in thote
..wa..y) n va ua.w
-Tttis.judict!*) powcr in i\~{ar~t')(~'(')mticorrc)MU!can).Th<:)fttt<-ri.<
<'tet-tionsisfurt)t':t)Mtti)h'u))tt)tit<rdt'j
(tu)m')f)oM~t'tt)t<'h")tti<ttnt:tiMt)'t'twc<-)t
tosutM~iMittujndsM.hy'Th'-i'ttrti.t-c; '<-x<;t:Hti\'<md)t-~ish<iYf. Sa'K.tht,
tncutar\'K)'-tti<)n)i.\ctt"~<M.C. 7~)~<MM~<t'y<f<'(<it,j))'S"<û.
A
~Kiu.<~t<t<t'<t<i«/f'&<f(~
-I.'i\'muuof~Wt:rtn)h;nf.<:t';ct~)i))~)\
,V~V..).i7.t')iti',
Iv
<o~<'ttt<!t'.<)~«-(Mf))tftre)ty,Ari't')'n''y,
!tt<~))<-ni<)ct':n.y),ur/<t~,.S't.<M.M/<;7,J..V.V«'
-S'

[On)'<rrinKtoKat)t'ii'K)itwurf,'ï. tat<hft.U!)'jt'thi.t~'M))'L',not<)h!ynn
foH)ntitfiIk'ttwit))tht:)ttM-Kiu'(t)f"t.<!
'<~T'!unt')fth'-hiM)'imie Yaht~, butas
wit)tw)tit'htt])nust!t))<h.mhur't');
k.tt)ut''t!Ht!!nt"X!)J!t't)'e)M!nx'rin
~twiti'hh.mksw.-tt-~ttwithbyox'whf)
t'.MtinKoftt)ei<u))j"<t<~rhi<)..tti"nt'
).)t~Vt't-~)U[t".t!)N))'J'~tt)Uh<M.[
M)JjK.)tetnttii)f;MM')y,!t~))rb')t~).)
T)teM!tnk)':av("!iMt))'t'v''rsar.;u)«)t
«)t)tf'r"UM)t)\')'M!.t''ff4it.n)«t~]
.m't-rM)wi!)t'ra)))"i!,towhit'hh"!t['t ['t ~rf"r'- hi'-
it !<)
c~t'n xii)~ wit)) httoixou-i di.
~tttnr;t.S.A.i
r<ue'lK!mt'sdrtitiition-~ft)t'Mti
ft'ntt'iofUuvcrnn~'Ht. Th''y!HtHt.rt<:()
:<)
2~3a y~tWÎ'
LRer. ver sHptome p~wers of pfn'tiotM or s!Mres whereiM thcy
~t very <tre
~s
poMesaeda~Munisters~Mdtntstees.
Ttn't'-n' There were fonnerty ht Europo many of thé connnumties or
tHfOU't'tf govonunents
<~y which are styled by writers un positive internationat
thc'utt)- /t«/ Mt'f'rct'~ft ~«~M. lu uonsuquence of thu uuMhty chajtges
MUnHH-~
ti~w
w~vcm. wrought by thé Freoch revohttion, such cotnmuoitics or ~ovem-
)!t)-t)tt
wbichttt' ttMttt.s.
tttO httvo whoUy ur ncarly disappcarett :t!.d 1 ath'et't to thc
.itykdby truu natures of sucit couunutatiM
wnt'rsutt ur KOY~t'Mnts, uot because
th(; am iott'ittsk'ttHy of any importance ur intcrest, but because
thuy
~<itiv<!
)nt''rt)t-
tMuattitw
<('<
théle incougruous cpithft /«(/ M' wt'<'M!yM obscures t)m
of soverei~tty and indcpendcHt po!!ticnl society. It
/t«~K' essence fSS<
.t't't't/t~t~t.
iiCHins
SINI to import that thc govcrautcnts tnarktid with it are
so\re)gn
sov and subjcct at ouce.
Accor'tiug to writcrs on positive international !aw, a govern-
meut hatfor imperfcctty sovereign occupics thé foHowing position.
–lu spite of its hatf or iMpcrhict depcndcnce, it: bas most of
the poUticat and sovereign powers whic!t belon~ to a govertjment
whojly or perfectly suprême. More especially,in ait or most of
its foreign relations, or in ail or most of its relations to foreign
or fXtfmal governnx'nts, it acts and is treated as a perfcctty
sovereign government, and not as a government in a state of
subjectiott to another insomueh that it ntakcs and breaks
alliances, and makes war or peaee, without autimrity front
auother ~ovemment, or of its own discrétion. But, this not-
withstanding, t!te governnh'nt, or a monber of thé goverument,
of another politicat .society, bas pojitieat powers over thé society
deetned imperfeetly independent. For example: In thé Cer-
tnanico-Honnn or Homano-Gennanic empire, thé particuiar
('erman governments dcpunding on thc entpire immediate!y, or
holding of thé CMpcror hy tcnurc <? c~7<' were deemcd itnper-
i'eetty sovereign in regard to that général government whieh
consisted of thé emperor and themseh'es a.'i forming thu Impérial
Diet. For though in their ffjrcign relations they werc \vho!ty or
Meariy independent, they were bound (i)t reanty or show) by
iaws ofthat gcnenUgovernntent: a,Nd it~tribnnab had appcUate
judicature (sub.~tantiaDy or to appearancc) over thé po!itical and
ha!f independent eoMmunitics wherein they were hait suprême.
Most, indeed, of thé govt'nnnents dcemcd iotperfeetiy suprente,
ure govcruments which in their origin had been substantiat!y
vassal but which had inscn.sibty escftped frotn ntost: of their
fondai bonds, though thcy still continued apparently in their
primitive state of subjectioo.
.Xuw 1 think it will appear on anaiysis, that evcry govern-
mont tteemed imperfeetty suprême M renHy in one ofanothcfof L
thé ttutie tbUowm~ pïcdicttlimnts. It îs pM'ieetIy subjeet to
that other govemniteitt in retation to which it is de~mcd hu-
perfectly suprême Or it M perfeetly independent of thc ottter,
and therefore is of itscif truly swerei~n government, Qr in
its own community it is jointly sovcreign with the otht:r, and
is thercfore a constituent member of a govemment suprctuH nnd
independcnt. And if uvery ~vemment deoued hnperiect.ty
auprentG Le reaUy in onc or another of the three foregoing
predicantents, there is no such pontieal MM~rel as n govcm-
ntent sovereign and subject.–1. The potiticfd powers of t)tH
~overnmeut deemed impft'fect!y suprême, may bo exercised
(iuth'ely and habitually nt thé pteasure and bidding of thé
other. On which supposition, its so caHed hatf snverei~nty is
merely nominal and iUusive. It is pert'ectty subject to the
other government, though that ils perfect subjeetion may be
imperfect in ostent. l'or exarnptc AIthough, in its own name,
and as of its own discrétion, it makes war or pence, its power
of making either is merely nominal and illusivc, if t!te power
he exercised habituatty at the bidding of the other gov~mment.
–2. The political powers excrcised by thé other government
over the politicnl soeiety deemed imperieetty independent, may
be exereised through the permission, or through the anthority,
of ttie govemment deemed imperfeetty suprême. On which
supposition, thé govemment deemed imperfect!y suprême is of
itself a truly sovercign govemment those powers being légal
rights over its own subjects, whieh it grants express!y or tacitty
to another sovereign govemment. (For, as 1 shaU show here-
aftcr, a sovereign govemment, with thé permission or authority
of another, may posscss !egal rights against thé subjects of the
latter.) For exampte The gréât Frédéric of Prussia, as prinec-
eicctor of ]h-andenburg, was deemed hatf or imperfectiy soverei~
in respect of his fcudtd connection with t)to German empire.
PotcntiaUy and in praetice, he was thorougMy independent of
t!te Impcriat govemment: and, supposing it cxurcised potiticat
powers over his subjccts of tiic c!cctoratc, it virtnauy cxcr'iscd
thcm thMo~h his aulh"rity, and not throu'h his obédience to
its comman'ts. i!cing in a habit of thrashing its annies, he
was not in a habit of snbmission to hi.s St'onin~: feudal superior.
Thé potiu<:td powf-rs of thé .Kovcrnmen):dfcmcd intp';rfcct!y
suprême, may not bc excr'jiscd t;ntire!y and habituaHy at the
pifnsurc and bidding of thc other but yet its independenee of
t)te otht;r may not bc so c'~mplete, that thé politicat powers
 exercMed by thé othcr o\-er thc poHtieaI sodety deottted hn-
{Mfj
~rteetty HtdepetMh~tt, <tM tttftety exKtetsed thfûugh it~ pcr-
tnL~tun
ttt?~ or Mttkority. For exa.mpl~ We ut~y suppas& that. thc
eteetor of Havariit was indepfndent uf thé tmperia! novornmHnt,
ilt att or m<Mt of his t'nt'et~n, and m most of his (to;n<'stic
MtatK'HS but. that, this h~ Ht'te~ettdeHœ uotwithstnnftiny, hc
conJd nut )mvc itbo!ishe<t CMxpIftfty, without iueun'iun eonsider-
ahk (tan~cf, the appcHnt<' jttdk'aturc of thé Itupct-ia! trihuual.s
uve)' th& Ihtv&ïMm cottMHUMtty. Hut oh thé ~M}){)'<)itMtt whi'h
1 hâve uow stated MU<t exem~tified, thf s~vm-ci~nty ~f thé
soeiety dMetf)C(t imperfcctiy in'tepcndent résides iu th<3 {{ovct'u-
ntcxt dcctiied hnpM't'eetty suprouc tn~uther with the othcr
~nvenuntiut :uid, consc~ucutty, thc ~ovcrnment deemed hn-
pert'cctiy suprunie is properly a constituent meuibcr of a
~vernuttiiit supt~me and indMpendcnt. The suprême sov't'n-
taeut of thé society deoned itnperffctiy h)depeHdcnt, is one of
thé iaHnitu tonus of suprcntc ~oYcmntOtt by a number, which
Msult froni thé infinito tft'xtcs wh~'em ttie soverei~n nuntbpr
may sh<u-c thc sovet~i~tt p'~wet's. TheK' ia in the case, nothittr
extmot-diuary but tht.s: that aiï thu constitm'nt ntcmbcr. oi'
t)m suprême ~overntnMUt in fjufstion are uot exclusivc!y
tnembers of' t!tc potiticat so(;icty which it ~overns since ouu of
them is a]so sovereigu in another political society, or is at~o a
cou.-itHueht tnernber of iumthcr suprême ~verutuent. lu con-
séquence of thi.-i anotnaty, t)M intérêts and pt'uten.sions of ttte
constituent members m')t'e or ic~s auta~onixe. But in ahtM.se
every case of .suprême ~overnmetit hy a number, thé interests
and pretensions of thé members mure or lesM anta~ojfixc,
attitough thé suprême governmettt be pm'eh' dotnestie. AVtiethcr
a suprême govcrnmeMt be purcly domestic, or one of its Hmbs bt:
a).s'< a !imb of auother, thu suprême ~overtiment is perpetuated
throu~Jt t)te mntua! eonce.ssion.s of its members, notwithstandi))~
thé opposition of their interest.s and pretensiotts, and thé btu'jdy
or Moudtess conuicts which thé opposition may oceasioniuh'

.j,y.
)M~;t.–For thé Masou-i pn~tuced aud ~~ested in tho course
of thé fore~oin~ analysis, 1 beJieve that no ~'vernm'nt is
.'ioverei~n and subject at once
stytcd with propriety or
that no ~wernment can be

('')'rheapp)i(:ttMn<)fthcc{!ith<'t/M/f'

)ntmiti<<whf-r';ihtht:K<'tnMtCath"H':is
tI.
<<~t<
.'«~ /«')
~'ft))L'xtL'm!))jïov''r)<M)'ttt,'<)'atnetn)'<'t'
MHf[~tM;f-))t!)tf))x'tj)rici'nn. t'~r'*x-
Mh)~0\'<-r)m)stofth':)n))iti')t-o))t.
:t!)tt''xt''rn!dK"t- hutth'
~.)'')H)i.-at~))n))tUniti'"<,urth):iT'l'MnMic
Ls:m')tt;nijM'!ti~'<Vt'm))K'ut.<nin"t~<
iw
',r"val',ntr.n'! flstahlish.m,: rvxnr· xnmintt' tht'r''f')n-,t'y writ''f) oh int';r-
ttn-)<f<ntf<n'('ta)))i!.it<th')it;io'),
'-)t!ttif~t!t)hm,h.t)fi)t')~)')H)<;)ttor)m)f
)););i<h<iv('<tu'tjttf)i<;)n)jMW<:MMn:f-x~r-
Cb':<()yt))';rope:thati'it".S!*)',b}';iUj)Knn'. tt.'<t;tu.'it'jb<;f,)t)~~Mlby
 Befom 1 dianuss tt<M riddk wh!ch 1 hâve now cmkavoured f.
to t'esotv&t 1 HUtstr stat<} or sn~Mt t!~
M!f)wms (UHcteaee.–In `
n.UMtberIcss cases, politicat powf.'rs are <'xcrets';d ovur
a po!iti<(!
comruunity, by thé KOVcntnMHt, or a tHumbpr of thé ~ovcmntem,
of an cxtcHm! }~Htit'td conMt(M)t!ty. But thé govefMneM «f
thé fot'mct' cftttununity !< searccty denominfttc'I hidf or tm;jf'r-
ft'ct!y sovereigu, ttutcss the ~vemmcut ot' thé latter, 01- thé
tnetnber of thé ~ovemntcnt of thc htttcr, poMess those polincal
pownrs as hcm~ thé j.ïûverumcut of the htttcr, or tis beius a
tnember of its govenujx'nt. l''or exampk Thé pm-ticubu'
C''nHnu govemments whieh (tcpecdcd on thé empire immmti-
attity, are denotninated hatf sovereipt for thé powers exercisti't
by thé Imperint ~overnmpnt over tlieir re.spcctivc counaunities,
were exercised by that governmcnt as beins that vcry ~ovcnt-
ntcnt, or as being (at Icast, to appeMt'ancf) thé ~enem! ~ovcn~
ment of Uemmny. But the ~ovcrnmcnt of thé British ishmds
i!) not h)tpcrfcct!y sovcreign ht regard tu thc
go\'ern)UMUt of
Hauover: nor is thé governinent of Hanover an inipert~c-tty
sovoreign ~oveninuint in rc~tu'd. to thé ~overnment of th< BtH.Mi
Istands. For though tlie king of the Bntis)) Istands is ats..)
kh~ of Hanover, he is not king in either country as bt-in~ king
in thc other. The powers which he excreiscs t))crp, ))avc no
depGndenec whatever on his share in thé soverci~nty itère nor
hâve the powers winch lie exercises hère, any dupendeuM: on
his sovercignty (or his share in thé sovere~nty) th~re.–Thc
dinerence which 1 ha\'e now su~(;'?ted, is analo~ous to thc
dinerencc, in thé Hontan law, bctwecn «'«/ aud ~)-.<
servitudes: or to t))c resemUin~ dinereneG, in thé law of
Eng!and, betwcGn casetuent. <i<M«/!< and casetuents !t
~< A right oï servitude, or a right of easenMnt «/<-
~M/M<M<, buton~s tu thc party invcsted wit)i the right, as bein~
tim owjtcr or oceupiGi- of spccitic:dtydetertnined
_u- .t..L'
~dtydetertniuedinnd.
land. A
~thronghitsjwruti'Hion
suc)twntcrs,tt)itt,ttttv<-rypo;itn.'it!t t orauthMity.
A~
~i~
t*A))t),co)].~[U<-))th',iti<no[))t:<ar\'
eonu)Utnityc~;HpyiuKthat position, thn.~e;
pow<')'))ar<;)<tf-rt')yt:m:K'i'i')'yth"au-t
[-tosuj!)M).«'th:ttit:.h:(rt:<h!<.uVt-rt'ntY
t
thontyot'thcd"nM<ttef;ov(Tnntc-nt,or~ !rwitht)Mro[.<ot-t~m~)'):itwith(h'!
th<-<tunMi.(M~ftV;.nttW)taudt))r['())n-it-ht!:tt)t!~uùu.<,c;)ith<-t.'<fh~ttorini[.t'ct!
i
:tr.'j.)int)y!iw:r<i,:t). '.)nth':fir.<t"f~
'f~);'Mtt' )!nt()t~U);)tt)tu.t")~w.'r<t":
which)!)))!)!0!.itif'n-t)Mhr)<)'-ri'i'ttt
't';x~iu.<iYt')y<-x<;r~i.<inm~t<<'r<tri.t)y
t
!t!)t'ptr&cttysuv<:r('i~n:!tn~oht)tt:t
':<k.Msti't),sti))th<-y!trt')t-t;h)ativ'
v
)M<ofwhiehsu[~M.<itiu))!th'-hnneri-.<
i-.t)tttiUt)ina))MK'<.
ti An'th.tWi.fit it
~t)m.<ihh:tn()i.tiut!ui.<h)~ist-)y,]tutttt')'
m<:o))stiMf'ntmt')ulK-rntngot\-rtt)UL'nt)
1
.'iUpMnc-ftndit~kjx-thtent. ~)u~)ta)'e!n')y(.)c!.i:t<ti.~t],tr")t.
A<:(;t)r<)ittg,i)~kt:'),tM.'i~)m.tf.uch~ h hmttri'iwtti'har'-)<')<< th'-j~Wt-r~~f
writ<:ri!,ifth<M<it'<)W<M~-<-x''h)<h']\ yf-c.)t.si!).<.<ita)r';K't))'!t)twhic)tn")if)'!t'
ext-rcisej in tnattt'r.f).tn';tty ~cett-sinsti.:J,
),th'hurt:hshmtUwit).i,fM]Ht)ttjx)w<r.<
tho sovt.-rt.'igotv ot' )-t'rt;w)<ti~t!r';gitn<-nt(')rth'yf'.<c~
t)t<: .tont.~tt!; );~v..rn-
tu'!)tti!i)MtfM)t)ain'd))yth'(';rei<t', L',x'f<')'ff)w)m:)t'.M:u).n-!tttdj't'uf!tnL'j{()Yft'tt-
thoUjj;httMyarMt)utm':t'tycXt)'t;i.<"<t:
'tnMMti!tn:tyh!m(Ut:witho))tMn'
i
LKCT. tight of servitude, or a nght of casomcntin ~M~ ~pe? not bc!nng
Yrr tij;
to thé patty as Leing such owner or oceupier, but (accordu~ to
tu
thé current jargon) is anuexed to, or inheres in, his person.
tt..
Hetore 1 proeeed to composite states, and Systems of cou*
t'ederated states, 1 wiU try to oxptain a. JifHculty that ia cto~tly
connected with thé tuhjec.s which 1 hâve examined in thé
présent sectioti.–1 !iavc t'enuu'kcd atrMuty, nnd shaU cadeavom'
todemouttrate hefeafter, that nt! thé iudividuak or a~tf~te~
composiug u sovem~u tmmbet' tM'e subjcct to thé suproae hody L

of which they are eomponeut parts. New whcre a member of J

a body which is sovutfi~n in ouo cotumunity, is exclusivety

sovereij~n in another, how does titë sovereignty of thnt metnber
in the Natter of the two cotnnuuntics,consist with t!)o subjection ·
of that member to thé body whieh is sovercigu in thé fonuer ?
Supposing, for examphj, that our own kinjj; was tnonMch and
imtocMtor in Hauover, !iow would his subjcction to thé sovefei~n
Lody of kin~, lords, aud commons, consist with ins sovcrei~uty
in his German kin~dom ? A Hmb or mcmbcr of a soverci~n
body would. seem to be shorn, by its habituai obédience to thé
)mdy, of thé habituât indépendance which must needs belong
to it as sovereign in a foreign community.–To exp!ain thc
difficulty, we must assunie that thé characters of sovereign, aud
Mfitnber of thé sovereign body, are practieaUy distinct that, as
tuonarch (for instance) of thé foreign community, a ntember of
the sovereign body neither habituauy obeys it, nor is habituaUy
obeyed by it. For if, as monareh of thé foreign community, hf
i<abituai!y obeycd thé body, thé body would be sovereign in
that community, and he would bc merely its nnnistcr and, if,
as monarch of the foreigti community, he were habituaHy obeyed
Ly thé body, he, and not thé body, woutd Le sovereign in the
fther society. Insomuch t))at if thé characters were pmeticaHy
Dended, or, ronaining practicaHy disthict, thorough!y connicted,
one of thé foiïowing resutts woutd probabty ensue. T!)0 member
would become subject, or else exctusivety sovereign, in both
conununitics or to préserve ht. sovereignty in thé oue, or his
}M)-t sovereigtity in thé other, )tG woutd renounce his connection
with thé latter, or with the tornter soci';ty.
Wiierever a member of a body sovt-reign in one community,
is a!so a membcr of a body sovereign in anothcr, there is thé
.-=:UtK' or a simitar
dimculty. A state of subjection to ttte fonuer,
and a state of subjection tf thé tatter, may become incompatibk
.jmt as a state of subjection may becon'* incompatible with thé
independence whieh is one of thé e-isentiah of sovereiguty.
 ttnot Mnfreqttettt!y!tKppen!ttMttwoQrtnot~h)depetttt<'ttt
puHtic&IsocictiesbecouM sttb~ect to a commoK sovGrdgtt: Lut ;ut
t)t:it after their union, thro~h that common suhjfction, thcy K-y
still are ~overnKd distinctty, :md distin~ui.shf~i by thtir andent
'"t
tklës. Iti thL9 ctMc, th~t'o is n'A thc diHiculty .~u~ested a.bove.
Thé monarc!i or ~overeign body ru!it)~ the two societies, is une
and thf .Simm sovcrci~tt attd, thi-uu~h thf;h' subj~edou tu that
c~tumon .wvcreigu, ttMy :<? utw ~ctety ~ulittetd fmd ht.

t;
dcpcnJcttt.
It ft'~qucntty happons, that one society potitical an'l !i'lT))~')tMw-
T
mdcpcuJt'nt ftrisca from a Meral union of several patitica! lUt'.tt~
"<<<<
societies: or, n'thMt', thftt '~ne go\'(.'rnn~ut p"titical and 'u-urafM-
sovu-
reis" tnsG.-i froa a hid~t'al union of sevmt poUtieat ~ovcrumeuts.""f~t~~c.
BysontHufthcwritcrs on positive internatioual law,.suc)t M)t [Ot.M.
·~
hx.tcj~ndcot
Ull I~pelli. ent po Itlcu ur tttie
society, 01-
potitica! soveMi~u ~Ctveninn'nt
le SO\'l:l'(!I~n of,.wit)tt!t~
oi
tltr
govel'llIIll'lIt ')j;t[urc')t
Il
such n society, is styted a t'<M~<M<~ .~«~ ]iut t!ie sovd~igu fm.'t.M(-.ttt~
<).A.
govcruon'nt of such a society, nti~ht )~ styl~d tttm'M itptty, ~-i,~< tM
well as more poputm'!y, a M~M'f~«'y<;<«/ ;/M'<M/«cM~.
It uiso t'rc~ueutly happ<-n<i, t!mt sévirai polUical socmtiGS
whieh arc scvGt'atty indcpeudcttt, or sevemt poHtieat ~ovemmeuts ttS' n
tGSm~k.

which are scventUy soverei~n, are compacted Ly a pftmanfut !Ut'

;«.
alltanec. Hy sotne of th(.' writcrs ou positive intcrnationat taw, mr. ~tlx
'<<T"t'

thu several .soeicties or ~ovcr)nncuts, eonsidcred as thus coni-

pa.ctfd, are sty!cd a ~.s~~t f; fM/<7<«~~ .<<'A Dut titc
sevend ~oventnMnt. eonsidered as thus compact~d, nti~ht bc
stylcd more apth', as well as more popuinriy, a ~<'M«M'-M< f««-
/<;</<;M< C/' .M~'C~t ~OMfM««'
t advert to the uatut'f of a composite state, aud to t))at of a
System of confudcrated states, for thc foUowiug purposûs.–It.
resuhs from pusitions which 1 shaH tTy to t;stab!is!) hcKaftcr,
that thc power of a sovereijïu is incapable of )H};:d !imita<icu.
It also rcsutts frotn positions which J. hâve tried to establis!)
att'cady, that in every socitity political and independc))t, t)tt;
sovercign is t~Mt individua!, or Me budy of indh'iduats: that
uniess t))e soverct}!n be o?«; iudividual, or «M'; body of indi-
viduats, thc ~iven iudepcndcnt socicty is cititcr in a state uf
nature, or is sptit intc two or more indepeudent poiitieid
societies. ~ut in a poHticat society sty!ed a composite stat'
thu suvereignty is so shared by various individuals or Mies,
that thé <Ht< sovûrei~n body whereof they are the constituent
membera, is not consptcuous and easi)y pereeived. In a
politicat society styled a composite state, there is not obviousty
a~ party truly sovercign aud independcnt there is not ob-
YOL I. S
 r-
:.E<.T. Vt viousiy s?~
YtOUSiy p!H' onnatt with. potiticn! powers
SK~ party incaptMo of ïegn!
{mutation.
{mutation. Accordia~y,
Ae ladvert to thé n&tui-o of &supt-etne
l~
Memi
fedeml govemmeut,
t;overM to show that thé society wMch it fuies is
one sovereigt),
ruied by nn.1 a or is ru!ed by ft pftt'ty truly aovereign
and independent. And advertiug tu thé nature of u. comporte
state, 1 also advert to thé nature uf & system of confedemtett
states. For thé fHH:M:ious reseniblance of thosc widely different
objects, tends to produee tt confusion which I think it expédient
to obvi~te: Mtd, through compMMon or contrast of those
widely ditterent objects, 1 c:tu indicate tlie ttatui~ of thé former,
tnore coueisely nud ekarly.
1. In thé case of n contposite state, or~(~NM ~t'f~M~
~ow?-KMfM<,thé severalunited govennuetits of thé several united
societies, together with a ~overnmeut common to those several 3

societies, are jointty sovereigu in each of those seveMi societies,

nnd al.'<o in thé targor society arising from thé Moral union.
Or, since thé political powers of thé comtaon or geuemi govern-
tnent were reUuquished and conferred upou it by those .several
united ~overmuents, thé uatUM of a composite state tnay be
described more aecurattity thus. As compncted by the common
~overnnient whieh theyhave concurred in creatiug.and tu which
titey have severaHy detc~ated portions of their several sovereign-
tics, the several governmeuts of ttio several ttuited societies are
t
jointly soverei~u in each Mid all.
It will appear on a !noment'.s refiection, that thé common or 1

général govemmeut is not sovereign or suprême. It will also

appear on a ntonicnt's ref!ectio!), that none of thé
sHveral govern-
ments is sovereign or suprême, even in thé several society of
which it is thé immédiate chief.
If thé common or général government were sovercign or
suprême, thé sevemi united societies, though
cunstttutiug one
soeiety, woutd not cun-ititute a composite statu or, thoujj;h they
wontd bc governed by a common aud suprême HOYemment,their
commou and suprême government would not be
Memt. For
in fdmost cvery case of independeut poHticat society, several
po!itic:d societiu~, govcrned by severat guvenunettts, are com-
prised by thé one society which is political and indepcndent
insomnch that a govemment suprême and federaL and a goveru-
ment suprême but not fettera], are mere!y distinguished by thé
t'.Uowing différence. Where H)e suprême government is nut
t'ederal, each of thé several governments, considcred in that
ehnracter, is purely subordinatc or n'.ne of thé severat govern.
mcnt~ considered in that eharacter, partakes uf thé sovereignty.
 BntwhGrethe9Mprentegovetnmen<:Kproper!yiedera!,eftchqf
i thé sevëml goVërumetits, w~wA !<'€?'<: MtM~<«~ j~M~tes ?
yfA<v<~ <'M/)pf«'<, is, in that character, a hmb of thé so\'ereign
body. Conseùuentty,although they are snbject t<~ thé sovereign
body of which they ure constituent mumbers, thosM sevcml
~oYernments,evcn considet'ed a!} such, are not pm'ety iu a statc
d' subjeetion.–But since those sevcml govumment' evcn con.
sideM~ as such, in~ BtA ]MKty itt K smte ~f subjccttou, thu
cotnnton or général govemment wttich they hâve concurK'! in
ct'cntit)~ is nut sovereigu or suprutiM.
XM' is auy of th~sc severat noYcnuncnt.s soverci~n or
~(q~mti, cvett in thé Sf\'cml soctMty of whieh it is thc im-
médiate ehief. If those several govemments were scveraHy
sov~rci~u, t)~y wuuIJ not he t)M)nb<:rs of a composite state
though, if they wcru sc\'(;raHy sovereign, and yct were pcr-
t))ntMntty eompacted, tht;y would funn (as 1 shaM show im-
mudiatety) a System of coufedcmted statcs.
To iltustmtc thé nature of a cotHpjsite state, 1 will add thé
i'<jHowi))n rfMark tu the tor~uht~ ~uemi deseriptiou.–Xeither
+
thé immédiate tribunais of the eommon or général govemnient,
nor thé immédiate tribunal of thé scveral united govenuuents,
are bound, or empowered, to adntini~ter or exécute <M~ com-
mand that it may issue. Thé potitied powers of thé c<jmnion
"r gênera! ~ovemmeut, nre merety thoae portions of thcir scvera)
sovereignties, which thé iieverat united ~overnments, as parties
to thé fédérât compact, hâve retin~uished and eouferred upou it.
Consequentty, its compétence to make !aws aud to issue other
(.'ounuands, may and ou~ht to be examined by its own immédiate
tribuuats, and at.so by t])e immédiate tribunats of thé severaJ
united ~overnmeuts. And if, in making a law or issuing a
particular command, it exceed thé Htaited powers which it dé-
river from thé fédéral compact, a!t thèse various trit'uttals are
empowered and bound to disubey.–And .since eacii of thé
united ~overmneuts, as a party to the fédérât compact, bas
n'tinquiiihed a portion of its soverei~nty, neittter thé inimediate
tribunals of thé common or ~t-neral government, nor thé im-
médiate tribunal of thé otiier united ~ovcruments, nor even thé
tribunals which itsetf immediately appoints, are bound, or em-
powpred, to administer or exécute (K/ command that it may
issue. Sinee each ot thé united govennnents, as a party tu thé
t'ederat compact, bas relinquishfd a portion of its sovorei~nty, its
compétence to make laws and tu isiue other commands, may
and ou"ht to be examined bv ail titose various tribunaL-i. And
 .v f
ifttitcnm't
Lttct.Vt if n !nww is~HM<t ~tUt.ieMim' wnuMftttd;~ <*Xft'eMtHg
thcs
the sovcrptgn
s pnwct's which i& bas reHtfqnishcft hy ttn? p~mpftct.
all tho~M vfn'itmf; n'ibtUKtts M'c etnp&WM'od and bottmt tu dif'~y.
1~ thftt, thé 'nera! ~overmnent wcro of itsftf sovcrei~n, or
if thé unitcd governincnts \vere .'ievcraHy scvcreign, t))c unitcd
societif"! wou!d nut fjnstituif "t)p c<m)pnsitc statc. The unih'd
societies Wt'utd cuustitutf um! mtkjjcndent soeicty, wit)) « ~overn-
tttfnt supt'fniL' but )<"t tcjct'at; M' a knot of socicti~'s .s('era!h'

('<
itt<t'}"tt')c))t, wittt ~'tVft'nttx'nts ~pvcntHy Mtprt'me. Conse-
quently, t)K' Sf\'('Mt unitfd Kov''r)nncut.< <f.<yt«'/«~<y <i«t'
&o(~, or thuy and th< ~'ttemi ~ovct'tnucnt <M /~<'<i<t'/t~ « .<M<7'f<-
l

arc j"u)t!y .ovcrfi.~n iu cach ")' thé unitfd sot-ictic.s, an'!

a!s" in thé ):n'gnr .society arisin~ trunt thu uuiMt "i' at).
Xow siocu thé po)iti';at jx'wcr. < thé cuonn~u or ~(.'UL-ntI
goveDun~nt are mcrety dftci~tted to it Ly t)t<; severa! united
~ovtjnmn'nt~, it i.t not a constituant tucruber "f thc sov~rci~tt
Lody, but H merety its subjeet mini.ster. (.'uniiequeutly, th<
suv<rfi~ntyof each uf t)te tUtited societics, and at.so of thé iargt'r )
society arisht~ tf~tt thc tUtion uf :tH, resifh"? in thé united
~overmuMUts «. /f<'M <~ <M«; <<'(y«/t' &fx/y that is tu "ay, as
si~uiiyin~ thcir joint pk'aturM, ur the joint picasurc of a Utftjurity
of tht.-ir ~t~~r~~)Jer, itgrfuabty to tho tuodes ot- for)t)s dctermirh'd by
thcir t'<;d''rat crnnpact.
By that ag~Kgat~ Lwty, thtj p'~vors uf ttie }{t'nerat ~ovurn-
ment were coufen'cJ and dctermin~d aud Ly tliat aggregate
body, its powcr;! tnay hf t'H\'okcd, ahrid~f-<), or cnlar~cd.–To
that a~grenat<j hody, the scvemt unit(;'t ~"vcnnucnts, thou~It tMt
n)''rc!y subordiuatc, arc truiy itt a state or subjection. Othcr*
wisf, t)t')se unitcd ~ovunnuunts wouid be sc\'fr:d)y soverci~t or
suprême, and the united .sucictics wou)d tncrety eot-istitttte a
sv.~tctu of confederated states. ]!csides, siuce thé powcrs of thé
ancrai ~ovm'ntneut w(;re det(;nnim;d by that a~n~ate body,
and since that a~rcgahi body is conipc't~nt to entar~u tho.se
powers, it ueccssari)y <[etcr)ninf't thc powcr; and is compétent
to abridt;e thé powers, "f its own constituent ntonbcrs. For
(;crv potitical p"\vcr confMt'rfd on thc ~encrai ~ovcrnmcnt, is
suhtracted front thu StiV~ral x~veil'i~ntic.s of thé sevt'rat unitcd
govcrn'nents.–From th<j soverci~nty of that a~re~atc bo'ty, wo t'

may dudncc, as a noecssary conséquence, thé fact which 1 ha\'u

tnentioncd above nant'jty, that thc contpetencc of thé généra!
governn)<:nt, and of any of thé unitcd ~overnment.s, may and
ou~ht to be examined by thé i)n)))(;diatc tribunats 'jf thé tonm'r,
and also by thc immédiate tribunal of any uf thé latter. l-'or
 --TO'-
'.m<M thu gênerai g~vcnnucut, :md also titc nnited go\'emmeut~ L'i". L)i..f.Vf
v~

are .~tt~t'et tu thftt aggrestte

t~y, thc t~pt~Hw eowts ff .tuttictt
wtueh they rcspeeth'ely ttppoiat, ultuuatety dérive their p'j\y<rs
from that sovertii~u a))d uttimate !c~is)ftHn'c. CcnsequeNtIy, titose
cmu't~ an' tntHtxtei's nn't tn~tpe'! "f that a~verei~n itnd uttimato
It-istatnrc, ftt w~H as of t)M subjcet h'~is!ntut'<~ ~y whieh they
!H'c inntMdiatutyappuint~J.
Atxt, c'jnscquc'utly, thos<i eom-t.'i :trc
ctttpowured, and arc cven bound to disoboy, wh~rever th~e
')tt)')M<:t t~i~ann'es exctjtid thu Hmited ~wers which th:~
soy'rui;~ 'md uttimatc iM~i.~iaturc hns ~yantcd or kft. th<ih).
T)t<; suprême ~overtuncut ft' thu L'oited States of Anteri'a,
agr~~s (t LtiHcve) with the fur~oin~ ~encrât description of a
suprême fédéral govertnucnt. 1 tjbliev that thc founnon
novfi-utnunt, cr ttic ~ùvcntmc))t cun.<i.sUu~ of t!tc conp'e.s~ and
t)t6 prcsidcnt of thu uuited states, is merciy a ."u~'j~ct Otinistfr
ot'th<iunitcdstat<;s'n')YGrn!m;nt<. î))'']i';vn that nom.! t.'ft))<
lattur is pMper)y .s~verGi;tt or suprftuc, f\'en in t)a' stat~ 'jr
poHtical suciety oi' which it is t)ni immédiate chief. And, !i'st!y,
t betiev~ thttt thé s't\'<<reit;nty of ~ach "f thé ttatus, !md at'o uf

states' goverumcnts <<~t/rf/<M. << ~<

ttn' lar~nr state arisu~ fruiti tue fcdt'mt union, résides in thf
nteaoing by a
state's ~uvfrntnent, net its 'u'dinary It'i.ature, Lut thu )'<jdy of
its citizMt.s whieh appoints ita 'i\)inary Ifgis!aturG, and which,
thti union apart, i.s propfrty s'n'Mt-t.-i~n therein. ïf thf .t-r:d
immédiate chi'-fs ~f thé s~vend unit<I statcs, wcr<; rc<pccti\'eiy
.<-tnt{!u individna).s, or werc rcspccti\y narmw oti~archics, th''
suvcrei~nty of cach of thé .tate. and aiso of thc !at'ger state
arisil~ front thc fedcrat union, woutd rcsidc in tho5f .cvcra!
indivittua). or would réside in those sevurat (di~archim,
~</itM'/ « '0~«'<'t' )t'/<0/
r. A coMt~ .<f~<, and a .M < ''f<~<y' iv<<'<~ ~<<, ar<
hruadty distinguist~d )'y ttie i'oHowin~ t-scntiid ditTcrcncc. In
thé case of a c<~<M!t- .<<«<< th'' st-vcmt unitcd sociétés are one
indepcn'tcnt socicty, or are .scveruHy subject to on~- ~ov~rei~u

St!HM,<rthe 'tt.stiunitjtt irot'th.)''K'<

([thi.<t'ù).ititutiM):or.")tt)i<-t'))).)KHMn
(')'rh"C'~j;,tit))ti"))"ft)MCttit.'<[t!
Il
oi'tht'iro
u
\Yt'm).'it:tt.)~)!c!tUa')"utio!i~r
~-m't~t ~oYt;n)m<:nt,w.)'ifr.)U~t)'y.~
\~r.i)<in):!U)t"HJ)jn-nt.<:w~")'
thpnti<i)'r")t)th<s't'r:)t~t!t<i"t' ·~
l'
h)unyttt)tiMk)))<;i!)t~tr''dfr<'tnth':)'

)' t!t<t'I "<

n

f))'t)tftt!H'i,!tnd !<).«) ofthetar~-rstatt;

an<iHK
tit''Mittt"<');<'W'M't.<n'<e.'
t-uniititutiott. "<«< t.
t:)<)tm<,i)t';it)~;r~!t.ha))t)L-Ya)Mt"
htt)Nnt'L-)it.<)j'ur)M'n's"]'t"t'L).'i
tit't))~)'ti''t<th<'tth'sov<!r''i};nty"f''a!'htt
n
)t/'t<K.M(/t!th'taurth'i"y~
:<; l'

~.<vt'M!f~t)~f""M~~
1·
~'t /<Yf;t.

<<xf}/. tt/A<)- S'a)soth-t''t)t)'v'i")t'

ttit~rovuMbythat~
:tMh')<t)t~t'thf-)-m);<rc.w!K-m-Yt'i'<
.e
l~
'r<hf-tir<itar<i't<iMwhi.:ht.ti"n,).")<t''
t
it"t't)'t'')i.-it))i))tif:-<f<h'-i.)-v''t~).statt-s'
tw)'thir<t-)t'))othh"us<<.sh!t)!<)ftnit" n
:o!;o<tnm('))!tr'h;t':n<ti<h-'<tM)~h'.
occce-.ary <h'.))i )'ro)m~'a)MendM!;nt!fto~
 uu
LMT.Vtbody which, through
body: whi it~ gsnerat government, <md
mimster th~
thraMgh
thraMghitsmetMbeHtandatimstetstheseveratuBiteftgoYem'
it
is 1h~bituaHy and ge!Mr:Jty obeyed u~ eadt of thé united
ments, !s
societies, and a!so in thé !ftrner society arisin~ from thé union of
all. la thé case of a ~fMt o/* <'M{/i.<T<«' dates, thé severa!
compacted societies are not one society, and are not sub{GCt to :<
counaon sovef.'igM M' (chM~ing thé phmsc) Gttch of thé sevend
societies is au indfpcudfttt poUtical soci~ty, aud each of theit'
sevet'at govermuent~ i9 t~ty sovM-ftgtt M' supt'exte. Thongh
thé aggi'e~ate ot' thé severnl guvprMtaents was thé ft'a!ner of thé
fédéral compact, and tuay suhsequently pass resotutioMS eoucm'n-
iM; t!te eutire confedemcy, neither thé terms of that cotn~K't,
nor such subsequent rcaolutions, arc enforced m any of thu
societies by thé nuthority of that a~'egate body. To caeh ut
thé confederated so~'Gnunents, those terms and resolutions are
merely articles of a~t'eenieut wtuch it spontaneousiy adopts:
and they owe their te~d eHect, in its own jjotitical society. to
laws and other eonnuauds which it makfs or fashions upon then), )
and which, < its own authority, it addfesses to its own sltl)jeet».
In short, a System of confederated states is not cssenthdiy
différent from a uund~er of independent ~overnmcnts conneetfd
by an ordinary alliance. And where independent ~overnment-i
are connected by an ordinnry alliance, none of thé aUied govern-
tnents is subject to thé allied governtueuts considered a:! au
a~gre~te body: though each of thé atHed ~overninents adopts
thé terms of t))e alliance, nnd eomrnontyenforces those terms, )'y
laws and connuand.s of its own, in its own independent cotntMun-
ity. Indeed, a System of eonfederated states, and a number
of independent governments connected by an ordinary alliance,
cannot b<' distingui~hed precisety t)tt'ou~;h gênera! or abstract
expressions. So to))~ as we abide in ~encrât expressions, \e
eau only afnnn ~encrnUy and va~uety, tliat thé compact of thé
former is intended to be permanent, whi!st thé aHiance of thé
latter is commonly intended to be tempot~ry nnd that thé ends
or purposes wtuch are embraced by ttte contpact, are commonly
more numerons, and are commonly more compHcated, than t))o.se
which thé alliance eontempiates.
1 be!icve that thé GermaH Confédération, which bas suc-
ceeded to thé ancient Empire, is merely a System of confedentcd
states. 1 beliove that thé present Diet is !ncre!y an a'eemMy
of ambassadors from several coufederated but severaHy independ-
ent governments that thé résolutions of thé Diet are merety
articles of agreement which each of thé confederated govemments
 sur ~~1"~ ~anra vwrvr
spoataneonaty adopta r and that theyowe theip legal eH<!Ct,t& t
each of ?& compaûted cmnmnnMc~ ta tttwa and commaMds `'
which are fasitioned upon them by its own immédiate ehM.
1also believe that tho Swiss Confederittiou was and M or thé
same nature. If, ht thé case of thé German, or of thé Swiss
Coniedera.tion, tho body of confederated govemments enforces
its own resolutions, those confodefat~d governtnents are oue
composite state, mthot' than a System oï cunfedemted states.
The body of confcderated govcrnmeuts is properly sovcMign
aad to that aggrcgate and sovereign body, each of its constituent
members is properly in a state of subjection.

From thé various sltapes which sovercignty may assume or T

from thé various possible forms of suprême govemment, 1 procecd
to tho limits, real and imaginary, of sovereign or suprême power. )"
Subject to thé stight correctives which 1 sha!l state at thé T
close of )ny discourse, thé essential dinerence of a positive law ti
(or the din'ercncc that severs it from a law which is uot a posi- t'
tive law) tnay be put in thé followiug manner.–Every positive °
law, or every law simply and strictly so caHed, is set, directiy
or cireuitousiy, by a. sovereign person or body, to a meniber or
members of thé independent political society wherein that person
or body is sovereign or suprême. Or (changingthe expression) it
is set, dirccUy or circuitousiy,by a Hionareh or soverei~n numbe),
to a person or persons in a state of subjection to its author.
Now it follows from thé esseutial difference of a positive law,It1 follows
and from thé nature of sovereignty and independent politicnl ('t'ont tht*
society, that thé power of a monarch properly so called, or thé
power of et sovereigu number in its collegiate and sovereign~tivefaw.
capacity,is incapable of ~«~ Unutation. A monareh or sovereign~an'tfrum
number bound by a !egal duty, were subject to a higher or'ofMre.
superior sovereign: that is to say, a monarch or sovereign ~rci~nty r
number bound by a légal duty, were sovereign and not sovercinn.. -ptn'tcnt
Suprême power limited by positive law, is a f)at contradictionj tpotiticat
in terms. t
Nor would a political society escape from legal despotism,
although thé power of thé sovereign were bouuded by légallt'r"pt-r)y. t
restraints. Thé power of thé superior sovereign humediately~the]wvc-) f
imposing thé restraints, or thé power of some other sovereign tofasovc-
g
suporior to that superior, would still be absolutely frce from the''b.-riutts
fetters of positive law. For uniess thé imagined restrnints wereec<'))e)~a.t<~
«
ultitnately imposed by a sovereign not in a state of subjeetion~rcijptea.
tu a higher or superior sovereign, a séries of sovereigns aseend-~.pacity,
264
2~4 ?~<WM~<?/
LM'.n tag)
îag to i&th)ity \~MM ~{tvct'tit the na~ttMf! commMntty. Whieh
in''a;M)'h
is impossible and ftbstn'd.
ISIB
'Jt'Tf~ Mon~t-chs amt .sovel'eigu bodiûs hâve atteiupted to obMgc
))tnit!)ti!')).
Att.
.)t'
themselve~, or to oUi~e thé suecesaors to their suvercign powera.
Hut Ut spite ot' thé hnvs witicit severei~ns hâve impo~d oit them-
~h.
sch't~, or which thcy tmvf imposât on thé succfssor.s to thuir :)
th~tn. .sovprfinn powers, thé position that soverei~n power is incnpttbie
so\'P
~')~<,fr Otk
t.)~
tt~'oh'r~s-
of tc~tt Ihtututi'n will ho!J Huivûrsany or without exception.
T!n! ittttttc'tiate tiut!mr of tt law of thc Mnd, or auy of the
)

'tur~ M
,)“ sovet-i~n
sove suecc.ssors to that hnmcdiMt'' author, may itbt'o~te ttni
hiw at ptensm-e. Aud though tho law lie not ttbro~tcd, thé
)tiw
jiowcr-. '-ovemi~u
'-ovc for thé time bein~ i.s xot cottstfained to observe it by a
k~d
k'~1l~ or poHtical sanction. For if thc sovcreign f<r t!)G time beitt~
Wfre le~aHy bound to observe it, that présent soverci~u would
Wft'e <
bc in a state of subj~ction to a hi~her or superior .sovereig)).
As it repu-ds t))f suceessors to thé sovt-ruign or supreMc
powers, a law of the Mud iuuounts, ut thé most, to a rute of
positive moraUty. As it re~an.ta its itumedi~te author, it i.s
mcrdy a !aw by a mutaphor. For if we wouM spcak with pro-
prifty, wc eaunot .spcak of a !aw set by a man to him.suif though
a hmn may adopt a principle as a guide to his own conduct, aud
toay ob.s~'vc it as lie woutd observe it if he were bound to
obsurvM it by a sanction, ti
Thé laws which sovct-ei~ns at!'eet to impose upon thcntsctves,
"r thu laws wiucft sover~ns af~ct to itopose upon their Il)
t'~Howet.-i, lire tucrely principlu.s or maxun. which tht'y adopt as
~uid<), or w))i<:)i thny co)))U)M))(t as guides to thoir sucecsi-sors iti
s'm'ci~u power. A dcparturu by a "ovcrci~n or statc frou a
taw of thé kind in question, i-i nut i!!e~a]. If a law witich it
sets to it.t .subjucts co)tf)i';t with a hw of the kind, the fonacr is
Ie'~a!ty vatid, or !~a)Iy bindin~.
For cxatnpte The sovcr~n Honiau peoptc soh'nndy votcd
or re.s')v(;d, that thcy wou)d ucvcr pas.-i, or cven take iuto con-
.'iidcnttion, what 1 will vcnturc to dcnotuinatc a &i'~ '<<.<'<;«/
~'«f<«'.<. For thou~h, at thé period ht question, the Jioman
]~-opt~ were barbanans, they keûn!y fc!t a truth which is ot'tc))
tu)'t;otthu by Iesis!atoM in nations boa"tin~ of refiucmcnt
namdy, that punishment ought to be i)tf)ictcd a~rceabh- to
prospective rutes, and not in pnrsuance of particu!ar aud t'Mt
w~ coinmands. Thi.s soietun rosotution or vote was passed
with tho for)ns of législation, and was inserted in thé twttve
tat'tes in titc fo~owin~ itapcmtive tenus: ~-t!;i7(~ Me ~'t'oyf<K<o.
1
j!ut althou~h t!te résolution or vote was passed with thé forms
of te~M~tknt, atthuugh it was ctothed wMt t.h(} expresMoMa apprp. M. LKt.t.Vl
pt-htte to a !a.w, tmd atthou~h it wa.t tMserted as se !«w in n code
<<C

or body of statntcs, it scarcety w~s a !aw in th" proper aeeepht- t~

tion of thé tenu, aud certainiy was not a law simply aud xtrietly ~y
so eaMed. hy that resotution m' vote, ttic sov~M~u ['copie
adoptcd, nnd coooncnded to thuir succMsurs in t)i~ sov~in:))ty,
nu cthieat pnncipte or maxim. T)'e présent :ntd t'utuM .sov~'ei!
whîch t!)e t'fs'~utiuu M~ected tu oMi~e, \aa not bound o)' (.'stuppcd
Ly !t. l'rh'i~s etmeted i)i apite of it by thc .soverRi~n Honmn
pe~pte, werM not i)tc~at. Tite li~mau tribunal ttti~ht. n';t liave
treatt-d th~M as ic~Hy iavatid acts, a!thon~)) th~'y eonttietcd \vith
thé tnaxim, wcm-i))~ thé guist! of a !nw, ~if-<t-i7tjf<« «<; <)')'~«!
Agnin By thc antitors of U)<j unicm Letw~en Eu~im'l and1
Scottaud, au attentpt was utadc to obti~u thc K'gistitture, which,
in const.'quGnce of that union, is sovernign ht Loth countnus. !t
is dectared in the At'ticlus and Acts, that tht; pres~rvatiouof tho
(.hurch of~n~Iaud, and of thé Kirk of Scotland, is a ftmdiununta!
condition of thé union of, in other words, that thc l'urtian~nt
of Gi-cat Bt'itain .shaU not aLo!is!i those chttrehc! or make an
essentiat changt; in thcir structures or constitutions. N"w, .-so
!un~ as thé butk of cither nation sha!! renard its cstautishcd
church with love and respect, thc abolition of Uni church by thé
British t'arUameut woutd be an ««MC<vf/ act for it woutd viofatc
positive ntorality w))ie)t obtains with thé butk of thé nation, or
woaid shock opinions and setttiment.s whMh thé butk of thé
nation hotds. Assmuit~ that thé cimreh eAtaUis))ntent is com-
)nende<t by t)io reveated taw, thé abolition wou)d be ~7i;/«'«.<
or, assuming that thé continuance of thé e.tabh.shment were
eonnncnded by gênera! utHity, thé abotition, as gcnemi!y
pernicious, would a!.so amount t" a ~ui. )!ut no )nan, tatkin~
with a meaning, would caU a pitriiamentary abutition of either
or both of thé churches an !7/~</ act. F"r if thé p:tr)ianMnt fur
the thne being be sovereinn in En~Iand and S<:ot)and, it cannot
le Lound le~atly by that condition "f thé union which affects to
cottfer i)nntorta!îty t)pon those ecclesiasticat institutions. That
condition of thc union is not a positive law, but is coun.-ct or advice
~e
ottered by thc authors the union tu future suprême h~istaturcs.
15y thé two cxatnptes whieit 1 hâve now adduced, 1 ain Icd ~'ThemMn.
·
to c-onsider thc mcanin~ of thé epithet M/!<M<t7i<t~ as it }<jih)ti!ffth'
is i
to
contradistinguished in thé cpithet <7/t~a/, and as it is apptied to )'<'f~
conduct of a tuonarch, or to conduet of a sovercisn numbf'r in ..y ~n<t'w"
its cottegiatc and s"verci~n eapacity. Thé epith'-t t<<f't~h<<7<)'«)«<<tm't)!
meaniug ~,t!nguhht-'t
as thus opposed aud applied, is sotnetimes used with a
s
 which M tttore générât and vague, and is sometimes used with &
t
meittun~ which M more apecMti tmd deËHite. witi begm with
thé former.
t
1. In every, or ahnost every, independent politicat society,
there are priueipies or HMtxuas which thé sovetcign habittt~Uy
observe;}, and winch thé butk ut' thé society, or tho bulk uf its
inituentiat members, regard with i'eetings of approbation. Not
unfreqneNtty, such maxims are cxpressiy adopted, as well as
tmLittii~Uyob:ititved, by thc sove~igttM.' stato. MorM eotatHonly,
they ttre not expressiy adopted by tha sovereigu or state, but
arc sitnp!y hnposed npou it by opinions prevalent in thé com-
munity. Wttëther they are expres.sty adoptcd by thé .sovcreign
or state, or aro shnpty itnposed upon it by opinions prévalent in
thé CMUMUuity, it is bound or eoHstrained to observe them by
tuerety moral .sanctions. Or (changhtg thé phmse) in case it
venturod to deviate froni a inaxini of the kind in question, it
woutd nut and could uot incur a te~a! pain or penalty, but it
probabty would incur censure, and luight ehauce to tueet with
résistance, i'rom thé generality or bulk of the govemed.
Now, if a law or other act of a monarch or sovereign
number eonnict with a maxitM of thé kiud to which 1 have
adverted above, thé taw or ot!ter net )nay bo cnlled M<ic<MM<~«-
<t<MM/ (in that tnore général meanir~ which is sometimes given to
thé cpithet). For example The < ~M< /!<f<o statutes which are
styled acts ofattainder,ntay be caUed tM«'<oM<f'(M<w<t«/, thou~h thcy
cannot be ca!!ed !7~(t~. For they eonitict with a principle of
législationwhich parliament bas !)abitua!!y observed, and which is
regiu'ded with approbation by thé butk of thé British comntunity.
In short, when we style an act of a sovereign an KK<'MM<<-
<<{<<'«7<f~ act (with that more gênerai import winch is sometimes

given to thé epithet), we mean, 1 believe, this That the aet

is inconsistent with some ~iven principle or maxhn that thé
given suprême government ha.s expressiy adopted thé principle,
or, at least, bas habitually obscrvet! it that thé bulk of thé
given society, or thé bulk of its inituential tnembers, regard thé
principte with approbation and that, since thé suprême govern-
ment bas habitually observed tho principto, aud since thé bulk
of thé society regard it with approbation, thé act in question
must thwart thé expeetations of tho latter, and must shock
their opinions and sentiments. Untess we mean this, we merely
mean that we deom thé act in question generally pernicious
or that, without a definite reason for thé disapprobation which
we fée!, we regard thé act with dislike.
 2. Thé epithet !<KCM!~<w~oK~as appHed t&condttetof <t 1
s&ve~gn/fmd aa usedwit.h thé meauing chichis more spécial
and dcnnite, importa tliat the couduct in question contHcts with
CMM'~K~'<'K<~ /«?
rr
And hère 1 would hrieny t«mtn:k, that 1 mean by thé ex-
pression e«?M<t<~caa~ ~<K', thé positive morality, or thé com-
pound of positive moraUty and positive law, whidt fixes thé
constitution or structure of thé given suprême goventment. 1
mean thé positive tuorality~ or thu compound of positive tnorality
aud positive law, which dctenuines thé chamcter of thé person,
or thé respective churaeters of thé persous, in whom, for thé
time being, thé soverei~uty shtdl réside: and, supposiug thé
government in question au M-istoeracy or govenuuent of a
uumber, whieh detennines Moreover thé mode whd-ein the
sovereign powers shaU be sharcd by thé constituent members of
thé sovereign muaber or body.
Now, against a monarch properly so eaHed, or against a
soverei~n body in its collegiate aud sovereign capacity, con-
stitutional hw is positive morality mere!y, or is enibrced mere!y
by moral sanctions though, as 1 shall show hetcafter, it may

sovereigu for thé tinie or

atftount to positive taw, or may be ent'orced by tegal sanctions,
against thé metnbcrs of the body considered severaUy. T!te
thé predee<ssors of thé
sovercigt), ntay hâve expressiy adopted, and expressiy promised
to observe it. But whether constitutional law bas tlius becn
expressly adopted, or simply consista of pnncipks current in
thé political conununity, it is merety guarded, against thé
sovcreign, by sentiments or feetings of the govGrncd. Con-
sequentty, although an act of thé sovereign which violâtes
constitutional law, may be styled wittt propriety MMccK~<7«~!M!«/,
it is not an infringetnent of law sitnp!y and strictly so calied,
and cannot be styled with propriety <7/tyf(~.
For example Frotu thé ministry of Cardinal Richelieu
do\vn to thé gt'cat revoiution, thé king for thé titne being was
virtnally sovereign in France. But, in thé same country, and
during thé same pcriod, n traditional maxim cherishcd by thé
courts of justice, and motcd in thé aHeetions of the bulk of thé
people, determined thé succession to thé throne It detennined
that thé throne, on thé dcmisc of an actual occupant, should
iuvarittbty lie taken by thé person who then might happen to
be hoir to it agreeaUy to thé canon of inheritanee which wa.s
named thé Salie !aw. Xow, in case an actuat king, by a royal
ordinanee or law, had attempted to divert thé throne to his
 fmty ditughtet' itud ettHd, thttt royat MtUnMtce or h~a.' taight.
hâve beett styted wtth pcrtcct propnety an ~M~M~K~~t~aet.
Itwautdh:n't;cMtt!ictcdwitttth~tMditiMMt hMxhti wMch
tixcd t)ic coniititutiuu uf ttw m~Hitrf.'hy, :md which was ~Uttrdud
twnt inMn~cHtcnt by sentintCMts prc\'a!ent ht thu nation. J!nt
1
<7~/«/ h cuttM out havu been caHL-tt t'ur, ina.stuuctt thé actuat as ¡:
kh~wa.sYh-tuaItysovet~iguJtGwa.'iint'vttabtyindt'pt'ndcutot'
~gal "bMnatiou. X:ty, it' thu ~)VL't-)K'tt Lad t'Gsistcd t)n.' tutcûn-
stimH'~t!(t oKtihMM'e, theit' rc~istitnpe wontd ttftvp bccn iHcptt
or M brcach ot' pu~itivu !aw, titou~t cuttsonimt tu t)ie positive
htoraHty whk-h i.~ stylcd con.~titutiona! htw, and pct-haps to that
principe ut' utiHty whic)t i.s thé test uf positive ru!<;s.
A~ain Au act of thé hriti-ih pat-Hatacttt thé M- \tmn
\'t;n.'i~nty in thu )dn~. or vesti))~ th'i .sovereigMty in thu M)~
andtht~uppcr jowur huu.sf,uu)d(.;sscntia!)y atterthe
M-
-.tructure uf uur ;)resi-nt suprfun' ~nmcnt, and unght th~t'u-
"li
fûrGbustyI(;d\nthproprictyan~<<wM~<<<i'wt'</]aw. lucase
t)m ihta~itttjd statute werc aiso ~cn~ratly puruicious, and ht
c~f
it «t~th~d ttMreovei' th'* ~enem~ty nr htdk of the nation, it
tfti~ht Lu stytud <'<7<<~«.} and <'«!/«ff'«/ as well a;i <~t<t.M-
<<f/< Jhtt tu caM it <7/c/«/ wen; ahsurd for it' thé parliaoiMtt
i'M-tht3tint(iLui)~best)\'(j)-i~ttmthcunitcdkinj;!dat)),itisthG
author, dircctty or eircuitousty, ut' aH our positive law, and
uxt)usi\Iy sets us t)m ntM~uru cf If~td justice und inju~tice. c1

T).)f)t.i!t-')ttt'tttinn<-d)~'))o)J)<it))ti.,
') t<)~jMi;hitMtU')tm't;')'.)~ju'it!t.)t)':n)iMm)
in~<'t' tn:t~:t)ytf~ti..Mi.j)t~)y.-nt)nt.-ftt.<)t!tt
)n:t..t t)'yit.<)t,ittt!t!ttth"t~hit)t!t{)jtet)to)j': f
)!'<)')).< ')t!'hw~.iUt)<))))j))),t:'w)tir)tpt'u-
-)..) j'bta.<)~ta-'t[tt;')))ythejfm'ct'(!~).
;.ro[~.i- ),n
)""iti!~th:K)).'t'tt~t'"t)t~)))y!t)imy.ft<ii t't'~h'M-«<f'<Mtf'<l'<'«yM~<,
ti"Ht)~n i'utuur.t)<.r)."))ji~iuu<jK)M.i..x.
i)utu t't'm::i.ttt-rM~fn-t.ui\~at~)v!)n'i)<};int]Mt.
'no)M' i""kat<)n-j,t'i)i,;trMtti<t"iin
).)uk tW)jt-)t'riti'i)tttt;)'~)wfttt.'t')~-tt')'-
~;ut)"; w);
w)<i')titwtu-.<fr<'Y~n~t<)i'-joA':t,;<5 !)tmmtt:htt:.tnih~,iti<utt'')'twh!tH.-t.ttiun
~riM-
Hnju~t.'

/tM<,y~<t"
)A'w)tit')titi'}i))ttwti.n'h'f'.)))~M'<'),w
)A'\)w
.)~tUtih~t)t:ttt)h')!n)~')<iti"Mi.<n<-ith'-r
't"it't"rtttitt!t<hww)itct)t)«'.<)M):r
r~iU)tt'<![.-(;m')!tn)<)f<:(.mt)iari.~Ht.
r Thi<i<h)))t')!'yt.u(:)ft!!ttth'-t:)f~"f
)"r'<ici')Uri)t'<r)Mr.h!"xh'!t),Lnti<))~'r)')y
~r~«<' ~tnu.mj.utinuu~~tr.i.'dt~nn~.
1" H~<th"JiYi<:utt«)'~m'w))h-)ttiMV<!Jh.
</<i.<:t
a
ttt'~Mi)~Mu)~iMU<)yt)t)-tit!tt')t~: <.«:r(M)n)t)tytifthL'~(un';a)t<titi<,
tc)h<f)f /*«t7t'r-):twi<y'tM;/tt)tiu.t.' Au'!t)i~
'indn-'),tK)ua)))t'<-st,«H![)itt!<i)l.t:)it)~t
rt)~)tiv.- ~~ri);'))tr())MMitiM),a.<[)t'tsun~r<tof)~,
,r.-))~'ti.)<t,th.'ttittt!<)iy)t~.).-iUj.-tu.
nn·
if

~i.)var\ )si))'ti.<).ntaUytr)h. F')r)xMith').n'.'t)mrity')fthttt~r<ata)tJ v'Xt-nUt e

itt~iiu. i''th'-f!iMt.tt)i;<)rtMt~f)~~)jtMti'f)n~ttmtn.
j~rt. "'J'
i))j.~ti.K:a))<i,'oM.~jm'ttt)y,it')'"i'ith't: )!y<)t~)'it)<t~< );<)) a <)<!)(.t
).tW)n!K)tt)M)'t))yu)tju<t,j~<')itivf-
).<w -~iv'tt')t.J~rt,t')w)ji.:hw.tp~tythL-
hm'n)isht)'"nt)ju'.t:Mt)Masuf-;d«r~
hw rt'j'itit''t.a<'t')tt).<with~i;ivt'tt)!)wto
tn.~[).yit«-))'.
tn.~t fnt)nj<t«:it~<im-.w)tit'hm-t.f.;rita.-it').it<-)ft. Aud~s
)n~)mt~)yi'')!)ftwi))M.)t~t'')f-!U<th!tt
tt)Mtw)ti~hi.t'.</t:ottftjrt)t.<tu!tdet''r- f
)'<«ith')aw)<My))f;(;)~'ntiiy)<nti- -<niu!ttc):tw,y<t'<i-!t)~on)'"rt)tity~f!)a
t'MU<:th.ttistomy,)t)!<y~~ni)i(-twit)tt}!it'ft'i)~rttuthc~nt'ra!iitM).)r
t)t'')tivitMt~w~-hit:h!;t'n't:~nt!!ity fn)<MM)'tt)r~t«<)'f<:i)it))'')t)'st)r!«;ttMrm
i)f')i~tt~, Mtt'), us tnes~arc't or trit'ft by whirhr')tT('s)mnf))itot)t<itht't~.
th;tthM-,m.tvh<tm.ju<t. tf'')))));)'ttH)'t)t'tith~tf<«~«f,w)'n)<)))())!)H)~
h!n'x.[')'),tLatitai.<~tn!ty);Htfjtt!<tt){iY'-)<<i)'jw:tf')ttf'<nns)~'ttoth<r':tt
~<mMHMrttthyj)mitive)tiofatity,!t)- -iaH'. An~M)f<'t))et''n<tt'«~t'«M ix
 Hut wtx'n t atttt'ttt mat tho power of ft snyerctgn M incapahrc f.M
of I~tl HttMtaU~H, 1 (thvay;! u~n Ly a ~sovMM~M,' a tMoh~rch
propft-ïy su caM, or Il sovereign nuuibht' ht its coHegintc :mJJ'H':n'd
sovfrei~n eupacity. C'onsidurcd eoUft.-th-ch-, or co)tsi')e)'f't in~tho~ttOt. .'<t~ri)tt~.
{)~
Htt eM'ponHo ctMKtet~ <t ii'A'uteint) umuLët' is suv~tt mid J[)jtf!0faü
md~wu'kut:
Ulll~pelU eHt but, COII:lII
lntt, cou:-iidt:r~ sûv~~Uy, tho
el~l1 IIC\'eI1L lU
thé mdividuats
\'Iuua 1 Ilaud K
..wcrttK"
HUt )miy
1..1\ tm. ·
stMaHut' ng~gates coniposu~ thnt s"m'eiga nmnb''t' !H'n subjc<t ~iua''t.n"
to thé supt'ott~ )mdy of whieh tin~y Me cMxpotMut pMts. Cuu--tmtttoth.- uf!)tt)j).
sc~wutly, thuu~h tiM body is inevitably iud<;pert(tcut of tc~tti or,.)«tty,an<t
tmvth'rf-
pulitical
poUticat duty, nl1Y of tthc thc
any OF individua).s or
le 111(Il1'lClllitl3 01' it~rc~ttus
Il).I'c:!utes
bo<!y is composud umy bc k~atly Lound by la\vs of which thé
hody h ttn- :mtttor. For exatn)~~ A h)em)jM' of thé itousc f't'
whct'eof
N·111:1'E!uL tlle
e')'
j'
Cf.m)~
r"ri,

,)m)U)'t,
~t')
't~HtiM
!orf)s, or a tuuMber of thé hou-iu of eo~n~om njny be legally..Mitber-.
bouud by att act of parHautcnt, which, as onc of thé sovfrei~u .fthe
tt)j«h',))y
egls a ure, le
lugistaturc, bas COUCUl'l'el
le las coucun-udwll witt) /Cri! in
1 ototheM IIImaki)~. .ay,
rua 'lIIg,Xay, !tule)m'iuf wbh
·

may he I<ga!Iy bouud by statuts, or by rutes madc judichdty,~t~tnnh'jr. t~c

whi<;)i hâve itntncdiatcty proeecd~d from subjt-ct or subordmatu
n
te~is!atures: for a luw whict) })ro(;)'<;d. innuediately froni a
sub~ct or snbordmatM Ic~istaturc is s~t Ly the authority of t)tc
suprême.
And hence att important dii~renee betweeti monarchies or
govermuents of ouu, and aristocracics or ~overnment.s of a
nunibcr.
A~aio.st a HMnare!) propc'rty so Mn~d, or ag!UJMt a soverGi~)j
nuntbtjr ia its colle~iate aud soverci~n
sovet-~ii capacHy,
capacity, ''o~i7<cy<«/
''<MM~<cy«!/
aawaaa..v.a asa w..n wmchamc uuat m

)aet'~)yth(-mn't;<!))Othtin,{a)Mtnt(:t,it it confunnity tf; atty fletpt-mxmtt- taw. th';

!iii{hi))t:-itft''n')Mcont!~Mtityot'th';i;iv)t[t't'tu/'f.~<t))'t'vt/f~t'f)tth.'tuu')tl~"
~u'tcu)up:n'~d~)!Jt'tttC)thntt)<:t<'nnhM~ 't)~t-s<)n;)ftatitaUy,rnnf«r)jtity«t')to)t-
titH'w)tidtist)"aUtt.!)!t.sth'J!!t.t)tdar.h't'
rcuntunnityt"t))'-uhittmt.'))iMt)i)tr(;<)r
cM)f))ari'uM.–A))dtinL'<ttc))i.<tht')'t-- t<"it:)j.nt)~-)y,th'-]iwuf(;). Thisi.~ i.
tativen!t())n'~)'justice at<4ioju.<tM! thL'MMUtit)gat)n''Xt-dto~'M.<('<ht'))
ihtwan4jtt'.ti';t'<n.j~t):wh':n!t
otn;!mt!tht'Ut~'arttt<!)y)jt;jtMt!)Uti
U)tju.-ittL<triMthyditt):rJntnt~mtr);.t.)~ttiv'hmu!Utn))e).'i)<tv)'ttnju.t.
ri

'A<)<)Kht:ttiti.<)t.~t\'it)tttiis)nL-ahm~.
Or~;h!tHKiuKt)MM))r<;s'.H))t))m!n;tt)<:)y
))<!Ju'.ttMa~w:it<}{wH)ta~iv':tt)!tw, ~'ft.4 <'<< ishMu')y'~m\d!-htt!)~.i«:<
atth'~ht!M)tt;tit~t',ant[t)t'')!m-
'~<t7i'<y. ')'ht-uu)yJitrt'Mit:t.-);ftw<u
with whic)* it t~rt'os, are Luth of thc'm~thfmt;o)).~i.tsint))is:t)utt,!)saxr''eh]{;
mtju'ita'!t;'jntjHr<wit)t!nU))'r'-ntrM). itttttM'ti~tt.'tywiththt'/f'tr'
j<i~'))t!h'tfMn~rt'tta!.tiuiti.<y«.tf,'a
t'ur<'xaHtptt'h't"jjO!iitn't'tawcf)n-
ttictswith))<<Mtivrm.)r:d!ty,t!mtw)ti<;h~w)ti)<t,:L-)!t~t)t~itu)n~)i!)t~)ywit]t
'th"~t't'tt'-f/whi'))istht'U)')''xt'~t)t"
t'.just:t.tr['Utyt)t<!funn~t-,i.<n[.~)Un-
just, as tric7l ¡, Il, hntl' ur wLcrc'tawofCo't.ttMt~ivcnaMttcntutKtt~t
jM'it,M)itri')hy<h(-hMt<)-:orwh(;r~
)aw or <n')r:t)ity 'ontth'ts with thé t.tw ofr!u'ti')Mis;y<)t'<'«/~iM< A"'th';)ir.
U't,th!ttwhu:hi.<jt).'it<t.'i<rit;d)<yt)n;;itttn'it.t)Mtw!tt)twc.<)-!<-fmaL'ti.o)
hmn!tnntk-,i'!K!<oMnjtMt<t.tr)Jd))y'jtMtorunjtMt.Kenot'nttf.'tutuuuh'
thK!)ivitK'. mcanthatitisgênent!))-u.~fui M
Tho))~h!t.f)~]t;<io.t);onf~ntjityor)Mrf. pt)-))Mutt.<

~The substance ofth''t<!)naiM')'-rof s<'rte<) in thi.s <'<titiot)

ttt <?nd of ttc.
thé
t])i:tnote,a<it.t'"jt)ittt)tt:f<)n)t'-rtut.: V ({). 214, an'! MtnwinsMge.t. S';<:
eJttioM, container in thf note i)t- atsoxutc !9, 2CO.)–R. C.
L~Vt ~<t (<M 1 hâve retuttfked tdteady} is eaîorced. or proteetett ff<MH
~<t(<M J

iaMnip
iRfnniïetncnt, bymerp!y ntorat sanctions. Agmnst atnonKrch
property so ettHed, M' tt~imt~sov~t'eign numbor in its cottegiato
and sovereign capacity, eonstitutional !aw and thé law of nations
are nearty in thé satna predieatnent. Each is positive moratity
nnher than positive iaw. Thé tonner is guarded by sentiments
cuntnt in the given community, as thé latter is ~ua~cd by
~eutinMnts cut't'ent amongst nations ~euMfaUy. t.

But, considered sevcr«Uy, the members of n sovereign twdy, t

even M members ot' tlie body, nitty he Itigniiy bound by laws of

which thé body is the author, (Utd which t-e~ard thé constitution
ot' the givcn supt'mne government.- -Iti case it bu ctothcd with
a te~l simetiou, ûr thé means of enforcin~ it judiciaUy be pt'0-
vidcd by its nuthor, a hw set by thé body to any «f its own
tuembers is properly a positive law it is propcriy n positive
law, or a law strictly so called, althou~h it bc hnposed upon thé
ubii~ed pai-ty as (t tucuiber ot' tite body which sets it. If the
means of euffrcing it judieMIy bc uot provided by its author,
it i? ntthcr a rMte of positive moraUty thun !t rHte of positiv'
!aw. l!ut it wauts the essentia!s of a positive taw, not throuj~h
the chat-acter of the pin-ty to whom it is set or dirccted, but
beeause it is uot investcd with a. légal or political sanction, or
is a law of imperfect obligation in the sensé of the Roman
juruts.–In case thé law be iuvested with a légal or poHtical
.sanction, and regard thé constitution or structure of thé gh'en
suprême governtuent, a breach of thé )aw, by thé party to whom
it is set, is not oniy )<MccM<t/K<MMf< but is aiso <sm/. T!te
breach of the law is KM<MM<<<K<Mt«/,inasmuch as thé violatcd
!aw regards the constitution of thé state. Thc breach of thé
!aw is a!so <Y~(/, inasmuch as the violated !aw may be enfot'ced
by judicial procédure.
For example Thé king, as a Ii:nb of thé parHan*ent, might
bo punishaMo by act of parhament, in thé event of his trans-
~re~sing thé limits which thti constitution iias set to his author-
ity in tin; event, fot- instauce, of his prétendit)~ to give to a
prociamation of his own thc le~d eueet of a statute onanating
t't'on) thé soverei~n !e~is!<tture. Or thé metnbers of eitti<;r housc t
tni~ht be punishaUe by act of partiament, if, as forming a Umb t
ofthe parliament, thuy exceed';d theirconstitntional powf'rs: if,
for instance, they pretended tu give that I~tt effect tu an ordi-
nam.'e or rcsohttion of their own body.
WIiere, thcn, tho supMme ~overnment is a monarchy or
~ovemnient uf one. constitutionat !aw, as against that ~ovurn-
taeht. !s mevitubiy tiothiug more thtui positive moriLtity. Where
the suptttM~ govctnment M au Mtatoeracy w g&ventmeHt of tt
aumber, constitntiouat law, M agaiust thé meaJjeta of that
government, taay either consist of positive morality, or of a
eompound of positive mora!ity and positive law. Against thé
soveroign body in its corporato and soveroign chaructor, it is
htevitably uothiNg more titan positive tuoraHty. But ngaittst
thé Htoubers considered soveraUy, bo they individua! or be
titey aggre~tes of individuds, it nmv bc gumtcd Ly légal or
politicul, as well as by moral sanctious.
lu fact or pmetice, thé members considered severally, but
eonsidered as members of thé body, arc commouly free, whoUy
or pnrtiaUy, from légal or political restraints. For exampte:
The king, as a limb of thé parliament, is Mot responsible legaHy,
of cannot commit a le~al injury and, as partaking in couduct
of thé assembly to wincli he itamediately betongs, a membor of
thé home tords, or a member of thé house uf cotnuMns, is
u~t amenaUe to positive law. But though this freedutn front
legal reatimnts may be highiy usefui M- expédient, it M Mot
necessary or inevitaMe. Considered severally, thé members of
a soverei~n body, be titey individuals or be they a~gregates of
individuals, may ciearly be kgaHy ameuabte, even as metftbers
of thé body, to laws which tlie body imposes.
Aud hère 1 may remark, that if a mernber eonsidered sevur-
aUy, but considered as ti member of thé body, bo whoHy or parti-
ally free from tegtU or political obligation, that legatty irresponsiMe
agg''e~tG, or that legally h'responsibîe iudivittua!, is rcstmined
or deban'ed iu two ways from au uncoastitutionat exercise of its
legaUy untimitett power. 1. Like thé sovereig)) body of which
it is a member, it is obliged or restrained moralty that is to
say, it is coutmUed by opinions and sentiments cun'ent in thé
givcn community. 2. If it af!ectcd to issue a command
which it is not empowered to issue by its constitutionat share
in thé soverei~nty, its uncoustitutional eommaud wouid not be
legaûy binding, and disobedienee to that command woutd there-
fure not be iUegaL Xay, although it w~uld nut be re.sponsibte
Ieg:dty for thus exceeding its powers, those whom it commi.~ioncd
to exécute its uneoustitutional comnmnd, woutd prubabty be
amenable to positive !aw, if they tt-ied to accornpJish thcir
mandate, t'or exampte If thé king or either of thé houses, by
way of prociamation or ordinanee. attected ht estaMish a !aw
equivident to an aet of patHament, thé pretended statute w'-tuhl
not be IcgaHy binding, and disobedience to thé pretended statute
 wouMthcrffot-cuot
EmT.n wouht'
M.T.n wouMthcrefot-t'not

t.
huM~
huM~ wo~M
of
«t'Ct'US
v ·
beiue~t.
beinegitt. And
And «tthongh thé Hn~orthf
Hng
ttot b<t ïf8~MsMe ï~nHy ior t.h!s supposed.t vMntMU
ct'ustitutionu! htw or mondity, thosu whom thé Mn~ or thé
l.e

hou'K' mi~ht onk-t- to fnt'orce thf statutc, won!d be Uabte ci\'i!)y

tH-
criminaUy, it'thcy att.~Hptcd t~ ~xocuh' tht: oïder.
~tUrta~'t itb')\'c, ttmt, titt~n ot.- couaktcred sevcmtiy,
t
1 bave
itH thu tu'th-nhmts :md a'~fuittcs c"mp"sing a sovercign
uumbfr are subjeet to thf sufrem~ botty oF whicit thoy at'u L

cuuqjummt parts. Dy thé tUtUt~y cutitaimid in t!ic Ittxt pam-

~raph, 1 a)a K'd to ctcat- thu pl'opu.~ition to which 1 hâve now t

advprtc't, t't'otu a sm'tilin~ ditheutty.

Ctctu'KtHy spe.t)dn~, if :< !Ut;tu!jft- of a .soverci~ti bo<ty, tni~u
or considercd s<-vcrat)y, bc not inm-nabic t'~ pc.sitivc taw, it is i
ntcruty a.< a tnembcr ut' thé body thut he i.~ 'rcH iront te~d t.

obH~tK'n. Gft~raUy spcaku~, he is bound, in his othcr n

chara';tcr.s, by tegal rt.stmmts. t!ut in soun' of thf mixed
at-ist'jcmcics whictt are stykd tinutud tuunittehic.s, ttm su caUed
Iimit';d tnunareh is exemptud or absolved c<')nptcte!y t'rom !<~al
ur putiti~d duty. l'or cxamplu Accoi'dius a tnaxim uf th'
Engti~h !aw, th'j kin~ is incapabk' ot'comnntting wt-ong: that is
to say, he is not r~sponsible legally for aught titat he ntay ptca.se
to do, or f'r any furbuarance or ouu.?sion.
Hut thon~h hu is absolved eomptetely frmu !e~al or politica!
duty, it canuot he thenco inferrud that the kin~ is soverei~n or c

sttprcum, or thnt hn is not in a state of sub.jeetion to t))C sovc- t

r<i~n or supr~tae parliament of which he is a constituent ·
mcMber.
Uf thc numerous proofs uf tttis négative conclusion, which .i

it wcre ca.sy tu produee, thé foHowin~ will atnpiy sunicc.–1.

AIthough hc is free in tact fnjm thé fett~rs of positive )aw, i)f
is not incapabtc «f ie~at obti~ation. A !aw of ttie sovercign
parnatncnt, juado with Lis own assent, tninht rcnder !thnsdf aud
hia sueccssot-s le'~aHy responsibtc. But a niouarch p~perty so
eaUcd, or a sovcrf~n number in it.s corportttti :ind soverei~n lt
t-)iara<;tct', cannot be rendered, by auy coutrivance, amennble to
positive !aw.–2. If hc attcctcd to tmnsgres.s thé hniits winch c
thc constitution !)as set to his authority, disobedicnce on thé
part of thé ~overtied to his unconstitutional contmands, wou!<t <

not be in~at whi!st thu !ni)nsters or instruments of his un-

constitutionat connnands, w~uld bc h~any antenabte, for tlK'ir
unconstitutiona! obédience, to laws uf that «overeign body
witereof he is merely a !imb. But comroands issucd by )

sovereigna cannot be disobeyed by their subjeets without. au <

 ~MM~
tn&'ingement of positive law whibt thé mmisters or tastru-
~3
S tru- ttfMT. Yt
monts of auch a aoveKigm command,. cannot be legtttly respon- 'on-
sible to any portion of ttt& eommunity, exccpting thé anthott0f of
their mandate.–3. He habituaHy obeys thé laws set by thé
sovereign body of which lie is a constituent mcmber. If he did
not, he Kiust speedily yietd his office to a less reftactory
successor, or thé British constitution must Bpuedily e\pii-e. If
? he h!tbitunHybroke thé hws set by thu soverd~u body, thé other
..t
members of thé ~dy would pt'obably devise a t'emedy though
a prospective and definite remedy, ntted to tncet thé eoutingency,
!taa not been provided by positive law, or even by constitutional
morality. CoNsequentIy, he is bound by a cogent sanctiou to
respect thé laws of thé body, although that cogent sanction is
not predetermined and certain. A hw which is set by thé
opinion of thé upper and iower houses (besides a taw which is
set by thé opinion of thé community at large) constrains him to
observe habituaMy tite proper and positive Mws which are set
by the entire par!iament.–But habituaHyobcyingthe !awsof
( a detenainate a~ sovereign botty, he M not property sovereign
for such habituât obedience consists not with that independenee
which is one of thé essentials of sovereignty. And habituaUv
obeying tlie laws of a certain and suprême body. he is really in
a state of subjection to that certain and suprême body, though
thé other membet-s of thé body, together witit thé rest of thé
community, are connnMuy styled his subjects. It is inain]y
through thé fonns of procédure which obtain in thé courts of
justice, that he is commonly considered sovereigt]. He is clothed
by the British constitution, or rather by thé parliament of w!nc)i
he is a limb, with subordinate political powers of administering
thé law, or rather of supen'ising its adniinistmtion. Infringe-
ments of thé law are, therefore, in thé style of procédure, onhnees
against thé king. In truth, they are not on'ences against the
king, but against that sovereign body of king, h'rds, and
commons, by which our positive law is directly or circuitonsiy
estabtished. AtKt to that sovereign body, and not to thé king,
thé severat mem~rs of thé body, together with thé rest of the
connnunity, arc tndy subjeet.
t But if sovereign or supreme power be incapable of !egal Thenftturc
j
limitation, or if every supreme government be !cgaHy absoiute, ofpo!itM.i)
nfch-it
wherein (it may be asked) doth political liberty consist, and how Jibcrtyto-
do thé suprême govemments which are commonly deemed free, gethff
withthe
dif!er from thé suprême govemments which are commonly suj~m-t-~
deemed despotic ?t 'titt~-r'-n'
nn
between
VOL.I. T
274 7~Wf~
Ltttf. Vtf
n~~
fraa uu~f !eg~
d<i~utM
b
I amw~r, thttt politieal or civil Hberty ia thé li~rty &om
as
oNigfttion, which is left or gmnted by a soveîeigct govern.
tegal obl
oN
MMRt to any of its own sutjjoets
MMRttO ami that, since tito power of
~).'rM..
ui.m<.
the government ia incapable of légat limitation, thé government
thegove
h legally free to abrMgo their politicKl liherty, at its own
!s!ega!!
pl<;asure or discrétion. 1 say it is /<'ya~/y free to abndge their
pt<;astute
political liberty, at its own pteasure or discretion. For a
~overmuent tuay be hiudered by ~o~7tve MWK~y from abriJgiug
the poUtical liberty whieh it leavc~ or gMnta to ita subjeot~
and it is bound by thé ~w o/' Go~, as known through thé
principle of utility, not to load them with légal duties which
gênera! utUity condemns.–There are kiads of liberty fiom le~at1
obligation, which will not quadrate with thé forogoing descrip-
tion for persons in a state of nature are independent of
political duty, and independence of political duty is ono of thé
essentials of sovereignty. But political or MM? liberty supposes
political society, or supposes a wo\(! or <M'<fM and it is thé
liberty from legal obligation which is left by a state to its
subjects, mther than the liberty from légal obligation whioh is
inhérent in sovereign power.
Political or civil liberty has been erected into an idol, and
extolled with extravagant pmises by doting and fanatical
worshippers. But political or civil liberty is not more worthy
of eulogy than political or legal restraint. Political or civil
liberty, like political or legal restraint, may be generally useful,
or generally pernicious; and it is not as being liberty, but as
conducing to the general good, that political or civil liberty is an
object deserving applause.
To thé ignorant and bawling fanaties who stnn you with
their pother about liberty, political or civil liberty scems to
be thé principal end for which govermnent ought to exist.
But thé final cause or purpose for whieh government ought
to exist, is thé furthemnce of thé commou weal to tho greatest
possible extent. And it must mainly attain thé purpose for
which it ought to exist, by two sets of means: first, by
confemng such rights on its subjects as général utility eom-
mends, and by imposing sucii relative duties (or duties cor-
responding to thé rights) as are necessary to the enjoytnent
of thé former: wo~/y, by imposing such absolutc duties
(or by imposing sueh duties without corresponding rights)
as tend to promote thé good of the political community at
large, although thuy protnote not specially tlie interests nf
deterniinate parties. Now lie who is elothed with a légat
right, is also dothed with a political liberty: that is to say,
!;y, r~x')-.
1 VI
lie. bas thc liberty froHt legftt oMigation, whieh ta Hëcesa&ty
n'y
to thé c~oyment of thé right. Cousequeutty, in so far <~ t's
it attains its appropriate purpose by conferrin~ rights upon on
its subjects, government attains that purposo tht~mgh thé t.
médium of political liberty. But since it tnust. hnpose «
duty wherever it coufers a right, and should a!so itupo~
duties which have no corresponding rights, it is less through
the medium of political tibet-ty, thtm through U~ of I~al
restfaint, that govemment must attain thu purposo for which
it ought to exist. To say t!)at political liberty onght to he
its principal end, or to say that its principal end ought to
be légal restraint, M to talk absm-dly for each is merely a
mean to that furtherance of thé commou weal, which is thé
only idtimate objeet of good or beneficent sovereignty. But
though both propositions are absurd, the latter of thé two
absurdities is the least rcMote frotu thé truth.–As I shalt
show hereafter, political or civil liberties rarely exist apart
from eorresponding legal reatrainta. Whete persons in u.
state of subjection are free from legal duties, tlieir liberties
(generally speaking) would be nearly useless to themsdves,
unless they were protected ht thé enjoyment of their liberties,
by legal duties on their feUows that is to say, unless they
had legal rights (itnportiug such duties on their fellows) to
those political liberties which are left them by the sovereign
government. 1 am legally free, for example, to move from
place to place, in so far as 1 ean move from place to place
consistcntly with my legal obligations: but this !ay politicul
liberty would be but a sorry liberty unless my fellow-subjects
were restrained by a political duty from assaulting and im-
prisoning my body. Throttgh thé ignorance or négligence
of a sovereign government, somo of thé civil liberties whieh
it leaves or grants to its subjects, may not be protected
against their fellows by answering légal duties: and some
of those civil liberties may perhaps be protected sufUciently
by religious and moral obligations. But, speaking genenlly,
a political or civil liberty is coupled with a légal right to it
fmd, consequently, politica! liberty is fustered by thnt very
political restmiut from whieh thé devotees of thé idol liberty
are so fearfully and blindiy averse.~
(') l'olitical or ttvit tibt-ttiM an- left
"r j{mntc!) hy swer'?it!)t.s in two watt.
xantL-ty, through [tt-rmi.s.iot).<:on)!bt
with coMtXtandit,or through sitnt'k )<:)'' rois'' thtough
t'
xnssiotM. !f a mbj<;et possesii<'d of a
liberty t~ ctuthr-d with a t'y nfht to
it, t)M iit~rty waii ~)<t<
j'crnm~iun
thc-soy-.
couf)';J witli
ft
 From. ths nature of political or civil liberty, I tura to thé
sKppfH~dit~MM~betweufKeeattdd~potMgovorHme~
SUppfHCtt ttH
il
Every
Evetys suprême
s govermnent ia /ft~' from légat restjmmts
or (what is thu santé proposition dressed in a dînèrent phrase)
every suprême govemment M legally <<fap<'<«'. The distinction,
therefore, of government.~ into /<'<' and </<<c, can hardiy mena
that souM of thcm are freer from restrittnts tban otiters or that
tho subjects of the governmeots which arc denominated free,
are pïoteoted ag~inst their ~uvornnMnts by ~sidvc Ia.w. t
Nor caH it mean that thé govet'nmcuts whicii are denomi-
nated frec, !ea\'e or grant to titeir subjects more of political
liberty than those whictt arc styled despotic. For thé epithet
frce importin~ praise, and thé epithet <~M<t'c importing
blâme, they who distin~ush governmcuts into free and despotic,
suppose that thé Btst are botter that) thu second. But hMStnucit
as political liberty ntny be gencrally usefui or pernieious, w(i
caunot ittfer that a governnMht is botter thaM another ~overn-
tuent, because thu sum of thé libertica which tlw former leavM
to its subjects, cxceetb the sum of thé liberties whidi are left tu t
its subjects by thé lattur. Thé excess in the sum of thé
liberties which thé former leaves to its subjeets, may bo purely
mischievous. It may consist of freedom front restraints which
are required by thé conunon weal aud which tho govemmeut
would lay upon its subjects, if it fulfilled ita duties to thé Deity.
In conséquence for example, of that mischievous freedotn, it:;
subjects tnay be guarded inadequately against one another, or
against attacks from external enemies.
They who distinguish governments into free and despotie,
probably meau this
Thé rights which a governntent confers, and thé duties
which it !ays on its subjects, ought to bc conferred and im-
posed for thé advancemcnt of thé connnon weal, or with a
view to thé aggregate happiness of all thé members of thé
society. Hut in every political society, the government devintes,
more or less, from that ethical prineipte or maxim. In conferring
nghts and imposing duties, it more or less di.sregards thé
common or général weal, and looks, witli partial ancction, tf
thé pecuHar and ttarrower interests of a portion or portions of
ttarmwer int< ;1

a pefmis.im to the fiubject ject
a eommatxt
who).<e)othMtwitttt)t':)e)j'.))nf;ht,a))ttn !t)t K
Il
comment! to thé subjett er !iu))je<t.< who M'ho
an: burthcut-d with thé rchtive duty. nty.
But a tmtiticat or ''ivi) )i))t.rty left[ or
granted to ft !!ubje':t, t)t!)y )x: more!}' pro-
teetod against his ieHews by r<;hgtou.'i ioua
M't tnora! obtigations. !)) other wor').
thé iinbjeet poMCMett of the ))otitt<;at H-
)x.-rty tuay Mot bu etothed wtth a tef{"t
risht to it, A'nt, on thtt sup[)ositifM,
thé potitica! or civil !i)x:rty waa tett or
tpranted to thé subjeet through a .timpte
petMtMSMti of the sovereign or 9tat<
 ~W~M~MMM~ 277
nuty.–Now tbe
the eommunity.–Now thé ~oveïHMtettt!;whieh
whieh dévote tesit
foveHMttettt!} ~cT'
lésa ~er-Vt
t'rom that ethical prineipte or maxim, are better than the govern-
méats which devina more. Buty accotding to ~)6 opinion af
those who make thé distinction in question, thé governments
which deviate !ess irom that ethical principle or ntaxim.tH'e
-1 ~~«~ govcrnments (in the Inrgest sensé of thé expression)
'.j meaning by a ~o~«/«t' government (in thé largest sensé oi' thé
expression), any aristocrecy (!imited momrchy or other) which
eonaists of sneh f< Humber of thé given po!iti<'a! commMMity «s
) bears a large proportion to thé number of thé whole society.
For it is supposed by those who make thé distinction in question,
that, where thé governtuent is donocratical or popular, thé
interests of thé sovereign number, and thé iuterests of thé entire
community,are nearly identieal.or neariy coineide: but that,
where thé govermnent is properly ntonarchica!, or whore the
suprême powers reside in a comparatively few, thé sovereign one
or number has numerous sinister interests, or interests whieh
are not consistent with thé good or weal of thé gênerai.–
< AecortHag, therefore, t~ those who make thé (tistinction in
question thé duties which a government of many lays upon
its subjects, are more eonsonant to thé général good than
thé duties which are laid upon its subjcct. by a govemment
of one or a few. Consequentty, though it leaves ~or grants
))0t to its subjects, more of poHtical libcrty than is left "r
~ranted to its subjects by a govertnuent of one or a few, it
leaves or grants tu its subjeets more of the politicnl liberty
tt'Aî'cA eoM~«f<M ~/n' fM<Mt«K K'<'f< But, as teaving or grant-
ing to its subjeets more of that !<«~ Hberty, government
of many may be styled whilst, as !eaving or granting to
its subjeets less of that <M)/«/ liberty, a government of on'!
t
or a few may bo stykd <M< ~c<, or may be styled ~c.y~'<; or
«&.<?/«<< Consequently,a/<'(f govemment, or a ~o~ government,
is a democraticat or popular government (in thé largest sensé of
thé expression) whilst a </<t~!c governntcnt, or a govern-
ment, is either a monarehy properiy so called, or any such
narrow aristocracy (limitcd monarchy or other) as is deemed an
oligarehy.
They who distinguish governments into free and despotic,
are thereforo lovers of demoeracy. By thé epithet /<<, as
appued to governmcnts of many, they mean that govennuents
of many are comparativety //w~: and by thé epithet (~t'~e, as
appticd to monarcines or ougarchics, they mean that monarchies
or oligarchies are comparativeiy Thé epithets /<and
3/s y)~w~<'<'<
<<<~M~ are mrety, Mhink, emptoycd by
&KT. Vt <<<~M<< the lovers of moaatohy
or o!igarc!ty.
o!ij; If
the Ibvers of motMU'ehy or oHgarchy did emptoy
thO!!B epithets, they wontd apptythc cpithet~wto go~'erantents
tho!;c
-0 one or :t fcw, and tho epithet f~M~'e to governments of many.
of
For they thihk tho tonner comparatively ~oc~, and tt<o latter
companttivety ~«?; or t!tat !nou:n'chi(;a! or o!!gxreh!cat govern.
itients arc better adapted than popu!ar, to attaht thé ultimate
purpose for which govennaents ought to exist. They deny thnt
thé latter are !ëss misled than ttio former, by interests whtdt
are not consistent with thé counuon or général weal or, j~nt-
ing that excellence to govennnents of many, they think it great!y
outweighed by numerous other excellences which they ascribe
to governments of one or to governments of a few.
But with the respective merits or demerits of varions forms
of government, I have no direct concem. 1 have examined thé
current distinction between freo and despotio governMents,
because it is expressed in terms which are extremely inappro-
priate and absurd, and which tend to obscure thé independence
of political or legal oMigation, that is common to sovereigtt
oi
governments of all forma or kinds.
S
Whyith~s That the power of a sovereign is incapable of limitation,
heen bas been doubted, and even denied. But the difficulty, like
t.
(t<iM),t.t.
thattt).- tl thousands of others, probably arose from a verbal ambiguity.–
il
{tnwerot'n'p
.'iot't-n-ign
hittM~- is
The foremost individual member of a so called limited monarchy,
M styled improperly MtMMt'cA or sct't'Mt~.
Now tho power of et
aMcof
~t
Htuit:)ti«M.c)
monarch
° or sovereign, thus improperly so styled, is not only
capabte of legal limitations, but is sometimes actually timited
bby positive law. But monarchs or sovereigns, thus improperly
so styled, were confounded with monarchs, and other sovereigns,
s'
in thé proper acceptation of thé terms. And since thé power
it
oi the former is capable of légal limitations, it was thought that
of
thé power of the latter might be bounded by similar rcstrnints.
t!
Theprn. Whatcver may be its origut, thé error is remarkabic. For
~ositton ifi1 tt
the légal independence of monarchs in thé proper acceptation of
<Mi!Crtt!'[
fXpMMty t! thé term, and of sovereign bodies in their cor}K)rateand sovereign
howtin) capacities,
p< not only follows ine\'itably from thé nature of sovereign
pffjiti'a) power,
Tj, but is also asserted expressty by renowned poHtical writers
wnt"M"f of opposite parties
opj~itc or sects: by cc!ebrated advocates of tho
~tH)'tt'L"<~ governments which
are decked with thé epithet ~w, as by
s<«; celebrated advocates of tite governments which are branded wit)t
C<
thé epithet <<pc<t'e.
'If it be objected (says Sidney) that t am a defender oi'
arbitra!-)' powers, 1 confess 1 cannot comprehend how any society
3 ean be e~ttMished or subsist without them. The dineronce
~J
r
a between good. and ill guventtnent9 is not, that those ûf one sort
bftve an atbitmry power which the Qthera ha.ve uot, Jw they all.
hâve it but that in those which are well constituted, this power
is so placed as it may be beneneiat to the people.'
It sppeareth ptainiy (say9 Hobbes} to !ay understaudin~,
tftat thé soveraign power whether plac~d in one mini, as in
monttrchy, or in one assembly of men, as in popular and ans-
tocratic&U c&mmonweaMM, i& a& gt'c:tt as !nen c<m be ima~inMd
to make it. Aud thougît of so unlimited a power men may
fancy many evill consequences, yet thé consequence of thé want
¡ of it, which is warre of every man against his neighbour, is much
a
worse. The condition of man in this life shaU never be without
inconveniences but there happeneth in no commonweaith any
great inconvenienco, but what proeeeds from thé subjects'
disobedience. And whosoevet', thinking soveraign power too
gréât, will seek to make it lesse, must subjeet bnnselfe to a
power whieh can limit it that is to say, to a greater. One
of the opinions (says thé same writer) which are répugnant to
thé nature of a cot)unonwea!th, is this tbat he w))o hath the
soveraign power is subjeet to the civill lawes. It is true that
aU soveraigns are subject to the lawes of nature; because such
lawes be Divine, and cannot by any man, or by any common-
weaith, be abrogated. But to thé civill lawes, or to thé lawes
which thé soveraign maketh, thé soveraign is not subjeet for if
lie were subject to thé civill lawes, ho were subject to himsetfe
which w ere not subjection, but freedom. The opinion now in
question, because it setteth thé civill lawes above thé soveraign,
setteth also a judge above him, and a power to punish him
whieh is to make a new soveraign and, again, for thé same
reason, n third to punish thé second and so coiitiiiually without
end, to thé confusion and dissolution of thé commonweahh.
'The différence (says thé same writor) bctwecn thé kinds or
forms of commonwealth, consisteth not in a différence between
their powers, but in a dinerenee between their aptitudes to
produce thé peace and security of thé people which is their
end.'C"

0 By his nxxtern eeoMM, French, h, rmt, th~t his nMin doit!)) i! thé defenee of
GcrmM, «nd evcn EngUsh, !)))))M'i! ess monaKhicat {{ovcnmMttt. !fow, thon~h
m~in 'ksign in tus varin'M tre~tisM on m hR pn:fets <no)Mr';hi'itt, to j~putar. hr
is. nti~rchimt f!ov<:mm<'nt, !t is certain thaï
()o)i<!es, is )p'0!M)y tnd thoroughty )))).<-
taken. W!t)i a marvcnotM ij~MMnc!: of his main desi~t is thé MMUishment of
thé writintp) whieh they !mpu<)en<)y pre-
!tum<i to comtemn, they style him
he
'th'i
-tlie"
'e- thé. ee~utle~r
h'! powcr, tc/tf</<f<'
it
pM))ositMns r~.ride
)'< ff.~
n
t. Thatr.nr,
sovereiK))
on i>e
'i)t<, < 'H
apokgi'it of <fa)t))y:' meaning by that tt )i«<)t~ or a .~)f, canMot )M )imit<;d by
a8o
L)tcr. Vt
~t Bafbm ï ttiscu~a
7~<
tha m-~n of po!iHea! govet-nment and
A~tc- aocîety,
ac Ï wM ~-ieSy exMMHe ? topto aHte(t to thé liberty of
"'S" sovei'eign!!
so trotu poHtica! or kgtti i'eattamts.
govfn'
poiitH'e
t.. tM- 2. Ttmt a pMMtt or M. to tho KM"g m:Khie& of M~Mnee, ?
MbtMtttd
M govenoneat, f< o: j~twntt~fff and searcety adverted to thé mbehief!)
«f <MM, «t- (( !yMtfKM<M<<j~Mt<MtM<n- a /t«', whieh atxxttence occMioMHyenRendets. i'
c'tnuot be ditobeyed by its itubjecta cuu- And atthough his intej~-ity was ttot )es.<
i-ittcntty with tha eotnmon wea), or eon- Mnotr~biethanttM~gttntieatrettgthef
siiftetttty with thé !aw of Qod .M known< tt[!t uadeNtattdiu& wo
may HrextMM that
throuKh utility or thé ~riptureit.–That hisextretuetimiditYMtnewhateorrupted
hiit prineiM) pM~o-je h uot thé détente hiajadf('aettt,aud)MtuM!<ihj)Mt<t;M!)iot
uf mumrchy, h sufficientty eviueed by uttdtdy upon thé evils of re))e))ion and
(he faUowiog ~iKt~ frutt) hH Z<p«t.
f~Mt.
strtfe.In~tetd of directty derMng
T)M pMitpenty of people futN) thé existence of ptiticat
a govo-nmettt
by tw arMtwnmcatt or ~mocmticaU frum ? perception by thé bMtk of tho
iwsentbty, eoMeth not from (tristocMey govemett of tt;! great and o))v!oM
ex.
or dttnocntcy, but from thé obediome p<'dte)tcy, he tMehbett tho origin of l,
atx) conco)'<t of thé SttbJMtii nor do thé Kovereignty, and of iodependent potittca)
;M:o[)te Mouri!h !u a MiOtmrehy, beeauM soeiety, te a BetitioM
agreeaMat
t)n-y are nUed by ono nmn, but b<!eau«' nant. He itMgioM that théorfuture eov<
they obey him. T~ke tMY ttf a state ofsnbjectt eoveMnt with one another,
or
tuiy kind. th)-obe<Jie)t<:<aMdcons<'f(Ut'Mt)yt hat thé future eubjects coveMnt with thé
thé eotK'or') ofthe people, and they~htft future sovcreign,to obey without
ttut only not MourMh, bat in ithort time every eommaad of t)to tatter And réserve
of
Le diff-<'jivcd. A))d they thot go about <)ti!< htmgintuy
coveMnt, immedittety
by di.w)x;ditnce to doe Ho Mtofe than re. precedi)~ the <br)Mtion of thé potiticat
t'~nncthe<'<)mmonwmhh,shaMHn<tth<ttKoverntneHt aud eommunity, the re)fgiot)!(
thfy due thereby d~troy it.' In ntOM- <tuty of thé fiubjects to render untimited
!tr<-hy one man M finpf-eme and all other )f!uLt))ii!siou, and thé divine right of thé
tnen who hâve power tt) thé state, hâve MVf'eigtt to exact and reeeiM such sub.
it by his commi~iott, a~d dut'i))){ hh ) ttti.~ion, accordtng to Hobbes, Meeea.
)'!Nxure. tn ari.<to<;tacy or demoenn'y .'Mit'y andare, permanent consequenct~. He
th<'re i~ one )iUpM<ne assetnbty which ) 1suoposes, indee<), that thé mbjech)
arc
'.Mj'reme asMHtbh' hath thé sanie un. innueed to make ttxtt agreement, by
)itnited [mwer that in motMrchy be. their 1 perception of tho expedieney of
toUKhth to the tMouaruh. And whteh is }Kovernuttnt, and by their destre to
thé heat of tht;<: three tdxda of govem. ffom eseape
i anatthy. But, ptacinj; his xystem
tuettt, i< not tu )? disputed there where iimmettiatety on that mterposed ugtnent,
any of thon is ittready ei.tahtMhed.' So inittead
i of resting it (Mteetty ou Mte utti.
tnany ffimitar [Mfi.saf; oecur it) thé famt: mate
t basis of utnit~ he often arriM<
treattiie, and t!m in ht!) treatise ~e Mtv, at t ))!< conetu.siotM tM a mjthiiiticat and
that they who contidentty tftyte hint thé 'tuibbting tManner, though hu ('o))cht-
~potog!t of tyranny or ntonarchy,' tnuM siotfff
s are commontymch !M thé prineipte
))!n'f taket) their notion of hM purpoife of
c uti)!ty will warntMt. Thé religious
trotn Uierc heati!ay. A dit) hère or there ttuty
e of thé !in))je<:tsto render untimited
into either of thé decried ))ooks, would obedi''))ee,c nnd the divine right of the
h.tvo ]cd them to withhotd thcir M-nteuce. MVt-reign s tu exact nnd reçoive such
To those who tun'e r-:aUy tTitd, atthoNsh obédience, c cannot, indeed, be reckoned
it) a otfiiory mauner, these thé most tucid aotonRitt those of Hobbefi'x conc)Mion<!
t)
))))d e~y of j'rofoKnd and etabomte cotn- which v that principte will jtMtify. fx
jM'iitiutt. the current cunMptiottof tht-ir trnth, t the'inty fmd the ri~ht cannot b.-
«t.ject uud teudenr-yis otterty taug)m)))e. tnfcrrcd :) tn~icaOy eveu frnm his owt<
Th'- '-apita) ern~n in Hobbes'~ potiti- iiettotL ii For,MCc')nU)i!;tohisow))<i<tio)),
tt trea<i.'i<"i are t)t<- M)owinf{:–]. lie thét: subj<:et.< were itt~ueed to protni.
iMt))'t<f t')') a)wf)tut<'ty thé reti~oMSob- obedienc' by their perreptioo of th';
ti~ttiott of ohfdienM to prcMot "r Mtab. outility u of){ov.n<tueut: and, since their
)t!)hMt KftVf-rnment. H<: n<it):e!! not thu ittdu't))cMt
it thé
tMjui.tit'- ati'jw.mce for thé axontatous cepti~M
to promise was that per.
C! of utility, they jnrdty pronuwd
"Md '-xr<-)ttt.t ~.<e;i a-hcreia ditohedi~Me to t' f)b)-y i)) thoiie ftn'MMtotMcaseitwhttreiu
i..
i< <)ttt)~))cd
""lIlIs"¡¡.,1 hy by tlnat
that thc
Vt'ry nuty of (if
prux-ipte of the
tl evils of nuaf-hyare surpa&ied by thf
t!
'ttitity which ixdieates thé duty of itub- evijs e' of iiubtuiiiiiiot). Aud thong)t they
toiMion. Writi))~ in a Mamn «f ch-n protnh<d ]' to obey ''vcn in those ea.sf.'i, i
di~'or't, or writing in appréhension of ih th<-yarc t) not retigiouxtyobtigedto rende)
ûp;.roa.;t), he xatHMtiy hxed his attention Uttttfnitcd obedieMce for, thé priMcipIt!
ta a~
 A savMMgtt gov&ïMmMH uf one. M' a. sovereign govermucKt
of tt Bumbar itt ita eoUegiate and sovefpiga ett~eity, has tw
/ty<<~ f~A~ (m thé ptopet aeceptattun ci' thft terui) t<~M:(~
Oft'K ~K~/<'t'

ji ofMnem!utiHty)!tth9indextoreti};iot)!f Mnfaitiug toya!ty to the pre.~Ht tentporat

i QbH~ttionx.Morett~ioMoMigatioftcatt~ <ov':reign, was nhrtued aud otfended by
poMtbty tthiM from a protnne w)N« tôt- tbi< auarHhicit! pretcn<)ion aud he n"
detteyMgetteMUypernMoui). beitidet peUed it wnh a weight of reasou, nnd
t thoughthesubjeetionudeMofthepoli-! ail autncM and pMgeMcy <*t expr<;ssiou,
tieat comMHaHy were Kttgioutdy oUH~ti ~hich. thé <u:ptnuf{<md viudicttïa MiM~
by their mtwhievou!) protnise, tt religiout did bitterlv h'e! aud re.ftMt. A~comingty,
obUgatiou woutd haMty bc itM['osed u;Mn they titiMt)ed hith with thé tjoiiio)i<:d
their foUoweM, by virtueofomi~ehievouf weopoM whieh are ministered by UMHg-
a~reemettttowhiehth'iirfoUowersweKttity atut cowfn-'tice. A)t of thon twitted
stMttg':)' Thé last objcctioH, howeytr, him (agreeably to their wont) with f).tt
Li not exclusively applicable to Hobbes's ttheism whttift some of them afrected
[jecutiarBetion. That,o)'!)tt){e objection, to style him an tj'otogbit of tyrantty or
tney be ur~ed agitinitt ait thé ro))iM<:<M misrule, and to rank him with thé per-
wh)chtk'rivethee)ti!!tt!))eMOfgov<!nttt)Mt verse writers (MtchiaveUi,for Minupte)
fromtthnciettorigiutttcoNtntet.Whether who really have <t)<p)<tudedtyranny nmin-
we auppose, with HobbM, that ttM Mb- (aiutd hy ability aud courage. Uy thèse
jecb were thé only promner;), or wc sup- cahtnni)" those <;unspiri))~ and potent
pose, with other~ that thé sovereign also factions btaekened thc r~pMtatioM of tttcir
whedwr we sUl'jJosc,
fovenmttett wht-ther
cuvenllllted with common <:netny. Au't so d'!t!p and en.
Mppo!). ",ith
Hobbes, that thcy }'ron)i<td unlimited during Is thé impresiionwhieh they made
ubedt'iuee, or WM .suppuse, wHh other!), npon thé puM!c ntind, that HobMe. thc
ttmtthtir promise eo)ttainedr<'servatio))!<; Athebt,' or Hobbex thé apotogiot of
w<i <an hard~ sttppose that thé contmet
Lyranny,' is still rcgardcd with piotui, or
of thé fouu<ferii, un)<;Nt it be prc'smttty n'ith repubticat) horror, by a)t but the
nsefu!, itnpo'K'f religlous oMigatiuMs on ~xtrenteiy fcw who have veutured to ex.
thé prtseKt tMntbers of the commun ity. xnine his wntinm.
Ifthe.'ietwocapita)errombet«.')'ti)t Of positive atheiam; of )u<*rc seepti-
tHind by tha h'atter, HobtM.s'.f extrf.-mcty sbM) coucernittg tho exifte))~ of thé
eetebrah'dbut extremety xe~mted ttt-at- LMty or of, wh<t is more intRiout and
ises t)t!ty be read to great tidyatita~. miMuieYotti) than either, a rMli~iou itn-
) know of uo other writer (excepting our j pNting to thé Utity human iMt!mtttie<
t;rMt coutonpomry Jeremy Menthan)) and vice~ there M not, 1 betieve, in any
who hM uttered io tnimy traths, at once af his writingo, thé shadow of a shadc.
t)<'wan't iMporttnt,conee)'ntt~th<! It is true that he préfère monarchicat
<MC':<Mty .stftMtOM of supreme poUtiea) [thounh he !)tt)))<ate-s hii! preftren''a
};')vernm<:nt,tmd thé larger t)ft)M)t<M.<-]raretyh to popuhtr or otigarchic-tlgovent-
s.try dbtittctions !mptied by positive )w. meut. tf, thet), tyranny b<; iiyuottytnotts
And lie M M)!))tt)iy K't'tedwith thé tateMt, ~'ith monarehy, he u certainly an ajxjht-
j)eeu)Mr to writeM of gt-nitM, of incitin~ çist and f:mtor of tyranny, iuastnuch <«
the mind of thé student to active and he inctiacs to thé ot)e, rather than th<:
oriK<[tatth')U);ht. many or the few. But if tyraany )M
ThetUtthortofthettntipathywith~ tyn')))y«)ouswith tBisrute, or tf tyranny
which he M commonly remhtett, wero the be !:pe<:iat!y syMnytMous with tnonar-
p~pistica) ctetxy of the KomaM Citthotit: :hiea] )ot'<rM)p, lie M xot of thé apotogist.~
Church, thé high ehureh eh-r~y of thé tnd fautot's of tyratmy, but )nt)y rank
Church of Eutitand,and thé t'rc~byterian ~tth th' ftbh'At fUtd tuust Xt'a)ou< .~f its
ckr~y of the truc blue complexion. tn iu~.t. St.arcc)y a titf~ !tdvoe.t[e uf fri-~
XMtter!! ecdfsia.tiea) (a phm.<it' of unccr- )r j'npMiar in.-ititutiuti.'i, cvc-n m the-sf
tain tne~ning, and therct'ore of measurc- ~tt':r an't <jfM)a)'itth')y oitightent'd
tcss compasit), indept-ndoMe of secuhr t~< pL-)\'<:ivM and iucu)cat~ m c)tar)y
MthorttywMtnereor)c-Ma)fect<;dby: md <tr))f.<th' a.< h' thé p)'i)t< ip:t) <(')'
''hurehthL-noft'achofthoscfMttott. ttt ~)~~) t'r'v'-ttth'f ") tyr.(nM"u<of )ft i~v-
t't
otht-r woh)!) thev he)') that their 'm'n -n))«';ut. The prix~i)'~) )'~<M'' of tyr:))t-
ehoreh wm eoor'HtMte tfith the secntar 't')U< "r ~<v';ntm';Mt, i< i~nor.tnce, uu
governmt-nt or th:tt thé secular gov~r))- )th': p~rt of thc )ntt)titMde of sott))') ~t-
:n<'t)t wts not of itsett'suprême, but rather '<f <tf)). (in th' )tr~"<t !t~n.c of the
partout:in thé ijupretne ~)W'er'! with 'm': -'x))t'ssifjn) ih.tt is t') s~y, ~/<f'
ormonioftheeteheittorder. Hobbes'tit<:mfto«tj/, with tht two grmt btTOn !tc.s of
 vî
Lxet'. E~ery tegftt right ia thé cteat~fe of <t positive htw: tmtHt
m<~t'~ unsweM to tt
retutiva duty imposed by that positive ta.w.tmJ
)m)tth<-fitt incumbent on tt pcrson or persans other than thé person or
itteoth"
ff/itfjt, M wejt as pe<ttf< (t)t thé stnc-t <opinion!), attd fteer thé tmtitka) conduct,
ttn.Ctit'ttttitMufthotont)). A)ntit't<MchtcM tht) t<f!i pMfoUUdh fnfbMttMt,tftQUtftt
t'<'t!ieprnK'i[<dt:au!M)of tyran ))t)tM or ¡inittntcttd and rattoMt muttMe.–
batt ~venouent,tho principatt'revt'nth'e Without that knowledge in tho bulk of
ot't)t<'t'vutntMttipinthedttht.'iion<jft tho t peopte, aud without that numéros
such knowte')f;e throughout thé mass of btxty t of 'gêna ~<mt?)<'M.x,' tho goverxment,
thocoMmunity. Contparedwttttthi!),i asa tho QtMMOtKMit,wHt snrety h) bad,
thé be'!t[«t;ttca)constttutioa that the 1be it a gevcnnnentof one or a few, or be
wttt'f))Ntt<;ot)Mde~e,weresMre!yat 1it t goverumeut of ma)iy. If it Le <t
pour seemity for gowt or heneftc'int ntte. f~ovinttnMtt of oHe or tt few, it will cun.
-Now lit those departnn'uts et his <eutt exctmivetytho pecullar and uarrow
treittiset on ;X)tittM, whMt are con. iiMten'itt!) of a liortion or portions ef thé
c<rned ttith thé o~«x (or duty) of thé ceommunity: foritwitt Motbeeomtttined
)K)vere!gt),' ttobbes initist!) on thé fullow. tto thé <t4vMC<'n)ent of thé genoml or
i<)){ prujxMttioM ) !<<!< !~«<< <t<«< <f«M< teotoMon goott. by thé générât opinion of
~Mf"~tMfX< t'ï tfm~~ Of M«t)'<j/ <m~OM<4/< ttdt)tyM!itrm:ted!!ociety. Ifitb<'t);ov-
«7t/< the /)««/<tm<'K<a~ << politieal eemment of tMtty, tt may not be diverted
~'«M<<: t< ~e«')t &w </t<: tt«/' of people ffront thé advaneement of thé Kernntor
that thf butk ofthe people are <!t copabta c:ommon good, by partial and sinister
of MceM))); !ineh micacé M thé tofttMt fregard for peeutiar and narrow intmitt
and prondeiit of their su~hors it) xtatiou, 1but, being coatroUed by thé general
weatth, or tKtt'xmg that to provitte for o)t'ixion or thé society, sud that teeiety
thé tUffuxioM of sueh eciencc mroUKhout )!aot b<<!ne duly instructed, it will often
the bulk ot the pooille, muy bu chumd L,~e Mtrned from thé patbt t<adtt)gto il.*
with thé wei~hti<'<t of thé Jutieftwhieh 0tpproprhte end, by thé n-stive and tyran.
thé D<'ity txya upon thé ftoverei~ that BMM prejudices of an ignorant end a~i.
lie !:< bound to hear their eontphttits, taine Muttitude.–BMt, given that know.
and evcK to seok their adviee, in order l,!odge in thé bulk of thopeople,and givfn
that h'! may better undeMtattd the tt)mt numerous body of '<<?/t<)M')~
nature of their wants, and may botter c:ithen!),'thé geventment, suy thé Œcot).
<Mtapt hM ixiitituttont to thé adveuee. o)t))Mb), lot tlie form be what !t may, will
ment of thé gênerai ({ood that ho is t~e itronfjtyand steadily in)pe))ed to thé
hcun't to remterhis )aws as eotnj~endious f'urtherane? of the eenerat good, by thé
att't ctear <u possible, and abio to pro' ssound and commaudingmnrality ebtain.
tnutKo a hnowtedge of their moro im- )]ng throMghont thé aommunity. And,
[fortantprovisionathrou~h every possible tibr MunMfoMs and phmsiMe ftMoni!
channet that if thé bu)k of hi.t ;)eopte (whieh my limita compel me to omit),
know their duties imperf~tty, for waot t:hey aftinn, that in any society thus
of the instruction whtch he iit able and dtuty iustractett,tuonarehieat govemment
b(tttt)ti to ifftpart, ha M ref)))0)Mtb)e reH- 11would not only ho the best, but weutd
mousty for ail their breaottes of thé slurely be ehoten by that entightem'd
duties witereof ho hath left them in c:on)manity, in preference to a govern-
igooraxee. )~tMnt of a few, or oven to a govemment
!n regatd to thé respective aptitudes e)f tuttny.
ofthe s'iYt-mi fonnsofgovernmenttoac- Sach b thé opinion (stated Metty,
<'ompti.'i)t thé uttintatc purpose for which amd witheut their pecutiar j)hrasM)eg\ )
{{«VcrnmeMt ought to exist, Hobb<t')i vvhM) WM taaght by QueMttti and thé
opitiion ctoscty r<:f.c!nb)e.<! thé doctrine, 'jfther Œconomists a)mut thé n)i(M)<; of
w!)tch,aboutthen)idd)eofthe<:if;htce)<thtt:he ))Ht ccntury. And sm'h ii) airo t)M
century, M'ai) taught by thé t'rotch phHtt- ctpittien (although he c'mfeived it h"ts
sophcM who are iityted en)phat!tat!y thé e~11"'rly,
'Korty,1111.1 cotnptetcty, great
h"M COIII\,letol)',
nuitICS.i thax they)
they)
<&«)tt<m)M~tn order, my tho ŒeoH- t~'hich wait RMUished by their ~reat pr<
omista, to thé being of a good govern. e:urMr, in thé middlo of the cextuty pre-
ment, two thingt muât prcaxist 1. c:«iing.
Knowtedj~bythebutttofthepeopte, Thé opiniontanght by thé Œcononush
of thé ektMHts of poûtit~t scteuco (in t mther, j~rhapi), dcfeetive, thaKtXMi-
the largest tet)M of thé exprcxs!ot)) 2. ttwty erroneons. Their opinion, )'<'maps,
A numeroua body of eitMena vened in ib Mund, m for au it reacht'!) but th''y
political science, and not mkted by tt<'aw an osientia) considération mean- t
tntcrctt!) conMietioj; with thé common <WtMtt and norty untottehed.)) a
weai, who may shape thé potiti';at) 1)m)itiMt communitynot duty instmeted,
persons m whoni thé right résida. To every !fgat right, there
are thet'efor& tht'e& ptttt!e~: Thé sovermgh goveruuMht of une or Sitte and
a.
numheï which sets thé positive luw, and whieh througli thé(t'utf'r'-i~tt
positive law cottt'ers thé légal right, and imposes the relative ~h!n')
) j,
duty the person er pcrs&Ms on whom thé right M coH~n~d (
thé persou or peMuns on whom thu duty is imposed, or to0).r~<ttm'- )i
whom thé positive law is set or dh'ected.–As 1 shall show.Tr'-)'ttH!un
hereafter, thé person or persou'; invested with thé n~ht, are Motttt'ntf)t
MecessM-ny membet'; of thé iudepeudeut political society wherein f.

thé author of thé law is soverei~n or suprême. Thé person or~tif~cf*.

persons invested with thé right, may he a member or t~embers,
sovereign or subject, of ttuottier society politieal and indepeudent.t.
Dut (tttking thé proposition with thé slight correctives which 1
shall state hereafter) thé peison or persons on whom thé duty is
imposed, or to whoM thé law is set or directed, are necessarily
members of thé independent political society wherein the author
of thé law is sovereign or suprême. For uuloss thé party bur-
thened witli thé duty were subject to thé author of thé law, thé
pM-ty would tMt be ohnoxious to thé légal or politieal sanction
by which thé duty and thé right are respectively enforced and
protccted. A government can tiardiy impose légal duties or
obligations upon members of foreign .soeieties altliough it ean
invest them with légal rights, by imposing relative duties upon
members of its own community. A party beanng a légal right,
is not necessarily burthened with a legal trust. Consequently,
a party may bear and exercise a legal right, though thé party
cannot be touched by tlie might or power of its author. But

d'un
aKOve))))aenteoo<tandsta)Me).'),t't
ti St-ut.qu'eHe ne l'est dans les ma!)M
heheve, ttnposstMe: aud in a ~Hticat ddepIusicuM.' HutwiththiitcoMidetn-
community duh' instructed, monarchy, ttion they rare))' tneddtc. They eomn)on)y
t inctine to hpUevc, were bcttcr theu infer
ii or afsume, t)mt, since iu <A< ~«~ o;
democnMV. Hutina)Mtiti'M)conmmnin'!</)t0)-f'nf<' thé covemment ia inc~ltabty
l
Mt dMtytn!ttruct<-<t, M not popular f;"v- bad, the fonn of thé ROYerutnent,dorin~
emment, with aU its awkwattf com))tex- thnt
t state, ii' a tt)Mt<:r of contummat'
M!!i).!eMiMouvet)ientthanmoMn:hy!iindifferettGe.
i. Agtteiug with theM in
And, uxksi! thé ~vernnx'nt ))G MMbr, most ti of tlieir ptemisei), 1 arnt'e <tt a)i
cm a })otitica) comtMUKtty uot duty ui- tnference
i extM))te)y K-mote frorn th<-irs
stractMt, émerge from 'tarkness to U~ht t lMUtt:ty, that ht con))))U))ity ftitM~y
front thé ignorance of politieal science, <:)])ii;ht<)K'thc
c fonn ofthe K'tvrnntcnt
which b tht- principat cause of misrute, weMv ttcarty a matter of indifferf'm-c but
tothekMw!<:df;eof;)<)titica)M!ene<t tthat whete a community is still in <A'
which were thé )x:st!!t!euntyaf!!tin.'itif ifMt
a o~' ~MOiTtn~, thf f"nn of thé gov-
–To t))Me questions, thé eReùaomMts c ermnc'nt i< it tnatMt' of thé hiKhMt :m-
hM~a~M~u~w~~t tmrtattCt. 1
Thc political and «'Mnomifat ity.tem
of noMih)<' covemment!) for a socipty al-
ftinty entighten' f, when MM)'ared tof Quesnai amt thé other Œconnmi'.t'
i stated concisely and e)t-ar)y t'y M.
with thèse, a question of )itt]e itnj'ortau' is
The(Kco))omMb,in<tM<t,oc<:as:onany; M~ier de la RMeM in hix L'Ur-Ir.
a.hnit, ''[Ne dansM'< (fi'~tei-Mttfet'au- ) oMUt-et
1 et CMentiet des Sacict~ }")H-
torite est ptns dangereufedan:! les mains ) tiqnes.'
t~r.vt ual~
uniess Ut& opposite ptut-y~oî thé jMrty bartiteaed with tho
tebUve
Kj-bH dmy, cotdd be tonehpd by tho might of its (tathor, thé
right nud thc rchtivo duty, wittt thé !«w whieh coM~fM and im-
poses thein, were merety uonnnat and iUusory. And (taking
the proposition
p w)t!) the slight correctives wïaeh 1 shaM state
het'eafter) a person obuoxious to the sanction uMforcHig n positive
het'ea
law, is necesiKu'ity sut~ect to thc author of thé law, or M
n<ieessarity a mcmber of thé society, whe~m tho author is
suVM'eign.
It t'ollows froni thé essentials ot'a !c~al t'i~ht,that n sovereign
gowrnmcnt of or n sovercign government of a numbet' in
oNe,
its coHt~iatc and sovereign capacity, !ms uu legal rights (in tht!
proper acceptation of thé term) against its own subjcuts.
To evct'y ÎMgaI right, there are titrée several parties namely,
a party bearing thé right n party bnrthened with thé relative
duty; and a sovereign governmont setting thé law through
winch thu right aud thé duty arc respectively couferred and im-
}'uscd. A sovereign government caNnot acquire rights through
hnv~ set. by itseifto its own su~ects. A man is no moro able
to confer a right on hitnseK, than he is able to impose on hirnself
a law or duty. Every party beariug a right (divine, leg&I, or
)nomi~ lias HeceMarity acquired thé right through thé might or
power of another: that is to say, through a law and a dutyy
< propc-r or improper) laid by that other party on a further and
distinct party. Consequentty, if a sovereign govcmmont had
tegai nghts against- its own subjects, those rightii were thé crea-
tures of positive laws set tu its own subjects by a third person
o!' body. And, as every positive !aw is laid by a sovoreign
governHtent on a person or persons in n state of subjection to
itafif, that third perton or body were 'iovereign in that cont-
jaunity whose own sovereign governmt'nt bore the légal rights
that is to say, thé conummity wcre subject to its own sovcreign,
and were n!so subject to a sovereign confcrnng rights upon its

'RiKhtis
i, C)!th(t-
_Z_
own. WJnett is impossible and atmn'd.~
0 It hff often )Mcn ~tiinne't thM.<)i'!)nnt)<er:))!)m<:ly,th'-at)thorofth<'
miKt't.' 'ri~ti.tM). 'Jitwbywhiehtttenghti'ieoot't'm'd,
'ri)!i<ti)!M)~ht,'orth!tt'tn)f;)tti.'irijf:ht.'i1
Uns fitr.Mkxiut) pmjMMition (il j!Mt rand tjy whMh thé (tnty answcrio~ to thé
HuttMs.t'itr
Hut
f.n'Mnt<-with<.haUfW!«:of)frsattJbuf-
f.n'Mritewi rit;ht!.<)ai')u))«thtr<)!unt distinct Mt-ty.
fouMijist'it
fouMi) is fither
Amt<tnrki\'
t M
1
tlat trui~Mt a)t'<<tcdty StMa)<in);
SJ,oaking
fttttt darttiy ''Jt)'r<"M!t, or it thorou~hty ctoth')
(
({''uctatty,
Kith a n~ht
a
~IIel'Rll)', a person
is
persall who
wmh rathef
ts
w 10than
t)):m
t's'- fnnt tibsn~t.
tf it nM-an that it jarty who ~o!Ht;s.(-s )r'M« WnM by th': might uf th'i anth'~r
a ri)!)'t toss<:si!f9the ri};ht thton~h )))it;ht'<f thé ri«ht, h'* w'ouM )iv< by reason of
~r pow<'r~f )fi< own, tho pruposition is hi') <t't'akn''M, in eMsc)es'< in'!<'cMrity ax't
t';)!«- KtMt at'snr<t. For « pnrty wh.~t !t)!)m<. F"r <-X!t)))t'te Sm-h x thé pr'-
~f~!M~<:9 a right MectSfiarity jws.«"HM di~u'K'nt of t~rsoux ctoth'") with h'ftiti
thé right thtough tha «n~ttt or powcrr rights, who )<)'< !))erp]y iiu~JMt tnembets
 But so Ru* as thay are boundr by thé taw Mf GeJ t~ ~t~y LKet. Yt
their tetnp'Mttt .t&vereiga, a sovereign governmentttas nyA&;
itgiunst its o\m subjeets: tight~ which M'c conïen'ed upon itsett',
of M tMdependettt potitica) tiotiety, attd other persons gencraHy, or lies upou thc
who owe thcfr temt rtght< to thé tnight ~o)-M lit htge. Kow they who pmctisc
and plcasuru or tHeir Ho"on:i¡~II. thé torboamuce to wMeh thave '<t rif<ht,'
condutt then)!ith'a
tfitmeattthatriKht<'ttduu(;htuM th':r)'JM rishttyor
o)n'aMdthe~)MethtMg,orar':mere)yjuatty. Or )!0 fur as thty [tritcthJ thé
ditt'ereut mn<< for one aud thé same forbeamnce to which hxve a rtKht,'
object, thé proposition in uueittion is also theirconduct i.s 'right' or just. Ur
bhtt! aud ftbsurd. My phyticat aMUty far as they ~<a<!tiM t)w f'trt«-amn< .m tu
totMOYeabout.wheumybodyisfreHwhich havi « right/ they arc ob«.-n'-
from bond! tnay bu catied tt«'y/<< ur n)tt «f 'ri)!))t' or justice.
~OM'ef,but cannot ho Mtted a n'/A< tt htnatnfMt thttt 'right' .'ii~ttify-
thfUj;hmyabit)tytQntovettbout«'t'</oM< tMg 'facutty,' <m'l 'ri{;ht' M as
si{;nit'yin!{
Ai'i«<tMH<c/Mj/<i'K,nMyd<'Ubt)<i))w 'justice,' itre w!d<.4y ditterent thouf;h' Mut
stykd « ~A<, with pert'eet preciMon and utteotttMcttd t'rnts. Kut, n<'vtrth<tt<'<,
})rot'n<ty, if 1 owe the ability to a law th'i teruMare contbunj'd by ))t:tMy of th'!
ttntiosed upou you by tmothf). writers who attoopt a detittitiott uf
tf it mMtn that every right )!! t <;re:t. 'right:' ttttd thMratHmft!' to d':teruti)t"
ttt<'('<'f))iig))tot'powcr,t)t(:t)roj)<itio)it)m tn<:ani))t;of that vcry p' rutexing t'x.
M tncrch' a truiam tttxgtused in t~nt. press!oti, arc, theMfbrc, fih'-erj')r);on. Hy
(tnxim! MHguaf; For every right (di. tnany or th': Gtnfmtt writers ou th<
vine, )eg<t), or mon)) n'i.t.s un a retative .'Mieoeetofhw and ;nnra)i<y(iMby Kattt,
dttty;t))tt!to!ay,aduty)yiuf{oua a for <;xan)j'k. Ht his ~tetephyiiica) t'rih-
party or parties other than thé ~rty or ci~tMofJuMprud'-ncc'), 'nght' in t)~;
jmtttM !H \vhom thé rigtlt Ksid~. Attd, nu': <(!tH': hM~n'~d with 'ri~ht* in t))<;
xmnift-stty, that rctttiM duty wontd Mot other. Attd throngh thc ~is'jUMitiun oM
tjeadutysubittimtiatty.iftht'titwwhich 'ri({ht'or 'rights/which occurs iu ht;.
ott'ttt;) to irutx'iie it were not sustained 'Morat t'hilosobhy,' Pxky obviottsiy
bytuipht. waver<! ))(:tween thé diMimihr mt-anu'g*.
1 wttt brielly rcnmrk before 1 eoot.-tude An attc~uate deHnttiou of '« ri~ht,' or 'Kitfht'~
thé nott', that riRht has two tneanitfgs of richt <u sigtnf)'itt); facntty, ea!] ttot, nhMuius
whteh ou~ht to bedxtiuguithcdcarcfuUv. indeM, be rmd<:r''<t casi]y. fn order to 'ta'ntty,'
Tiie noun st))Mtat)t!ve a right' sign'i.
fies thnt which jurists deMouitXtte 'a
a d<'th)itiou of «rij;ht,' or of right af 'n);)tt'n
!)i);hifyinf; 'faeutty,' we )nMt detertuiiK- ox~oixg
faeult%, that which residea in a deter- thé respt-ctivedit]er<'))M$of the priu'riptd 'jnttiM,
miMte' party or parties, by virtue ot' a kinds of rights, and also thé rmp<m'<' Md'h):ht'
given taw tmd whieh a~i! «gain.st ft tneattinp of many iutneate terma whieh~mMt~s
Ktrty or parties (or antwfM to a <htty
Iving on a t'arty or jartiM) other th'm are itn)))i<*tt by tht tern) t" )x' detittt-d. 'hw.'
Thé ttatian 'diritto.'theFretich 'droit.'
the ;)arty or parties tx whom it rcsittt'i. thé GefUMM reeht,' and thé En~tish
'risht,' simify 'right' as meatn)~ 'fa-
And thé noutt iiob~tantive rights' is th'i
ptnritt oftht! nom) substantive 'a rixht.'
en)ty,' aMU t]~ signify 'JM.stief th'UKh
Hut thé expr<'s<ieM 'right,' wheu it is cach of tho'c severa) tn))gue.< ha. a
N!<:d as an adj~ctivc, is t-quivalent tu thc
na)ne whieh is aj'prophatc to 'justice,'
!'djectivc'ju!!t:t.thcadverb'ri};ht)y' aud bywhich it Mdenotedw:thont axt)))-
is eqniva)M)tto tho adverb'justty.' And gttity.
wheM it is Uised as thé ab'itra<;t nan)e tn thé Latin, ItatiM, Frenrh. and
corrmpotxting to thé adJMth-e 'right,' Gt-rtnao. thé namewhieh NfnnfiM right
thé noun subittautive riKht 'i.t fiyoooy- ai: tncaMin); faeutty,' also siKnifi''s !aw
mous with thé nom oub-itanth-t 'justice.' 'jus,' 'diritto,' 'droit,' or 'r<teht,' denotin~
-If, for example, 1 owe you a hundn-d inditTert))t)y e!thcr of thé tM'o o))ject!f.
poutt'ts.yotthaYe'ftright'tothf-pay. AcconUn~ty, thc reeht which fiif;nitit's
txent of thé tuet~y a right importiHf; ')aw,' and thé 'rc~ht' which sigtutM~
tn oUigation to pay thé tnoMy, which 'right' as nx'iinittg 'facnity,' are con.
b incumbent upnn me. tfow in <<u!c 1 founded byGtrman writers on thé j'hito.
make thc payment to which you hafe a iiophy or f'a/i'c'/f~' of )aw, and t-v<-n hy
right,' t do that whieh M'hght'orjtMt, (!erma)) t'xpositor. nf jartkntar aysh-tns
or do that whieh coMist.t with 'right'1 of jurisprudence. Xot ~reemnK that
or JMtiee.–Again t hâve a ri~ht to thé two names are nantM rMpeetiveh'
thé fjniet tt~joynMntof my house: a right for two dbparittc objects, th<'y make of
tmportinf{adntyt0!forbearfromdis-thé two ot'jteti!, or make of th<- two
turbing my enjoymeut,w)nch tie!i upou names, OM recht.' Which one r<:cht,'
[ thrangh (ttttMs w!t!eh ate laid Mpon tta sut~ects, by ta~ of <t
comm sHperior. Anct so far n? thé mombcM of it~ own com-
common
munit are aevcMHy constï'ainett to obey it by the opinion of
Munity
thé cumruunity at litrge, it h~ tt!so M<«/ /y/<~ (or ri~hts arMin~
trum positive mondity) tt~tMt its o\vu subjects suvuntUy co~-
~ntcred rights which are conferred upou itself by the opinion
ot' thé contmuutty tit !arge, and whieh ttnswer to reitttive duties
laid upou its sevëral subjects by thc gcuend or prevaleut opituon
of t)te stuuo indoterminate body.
Consequently, when we say that a sovei'eign government, as
against its own subjeets, bas or bas uot a )'iy/<< to do this or
that, wc uocessarily mean by tt <'<~< (supposing we speak exactiy),
a right ~<t'ty«; or wto~ we necessarity meati (supposing we
speak exaetty), that it bas or bas nut a right derived from a law
of God, or derived from a taw improperly so called which the
~eueNi opinion of thé community sets to its metubers severany.
But when we say that a govermnent, as against its own
subjects, bas or bas not ci ~t< to do this or that, we not un- ]

comtuonJy mean that we deom thé act in question ~Kc/'a~

«~/«/ or ~nuct~M- This application of thé terrn resembles t'<
an app!ication of thé term~M~'M to which 1 have adverted above.
–An act which conforma to the Divine law, is styled, emphatic-
atly, just an act which does not, is styled, emphatieaUy,unjust.
An act which is generaHy useM, conforms to the Divine law as
known through thé principle of utility: an act which isgeneraUy
pemieious, does not conform to the Divine law as known through
thé same exponent. Consequent!y, 'an act which is just or
unjust,' and an act which ia generally useful or generaHy per-
nieious,' are nearly equivalent expressions.–An act which a

M forming a yotM or !<ind, they dh'He dinde ;tttd 'y<t'A< in thé .<K~'c<<ft'e tenNj* de-
into two ~KMt or two sorts namtty, tmtty, noting by thé formt'r of those unapposite
the 'recht e<[MH'at<-nt to hw,' and thé0 phMiKS, 'hw;' !tnd denoting by thé
ndthe
'recht' e'tuiv<t)cnt to 1 right'as meaning
L'aning tutter, right a~ meMtit)); 1 faculty.,
faculty.' And since thestronge~tand ~tand Tho confusion of 'taw'Md 'right,'
wfthMt minds ara often ensnarerl ed by uar own writers avoM for thé two dis.
~mbiptoo!! wordo, their confusion on of jarate objects which th' tem<s rfftjxet-
thoM db~ar'tte objcetjf M ft venial error. n'ety signify, are f-om«)0)t)y donoted in
Some, ho~rever, of thèse German writersvnter.'i onr 'jwu timgmtxe by jMtj~My di'itinct
ar': guilty of « )p~ve otfence a~htiit
{pittiit )H!tr)<!f. fty ttmt tht-y MM «~~Mt~
gond sensé and tafte. Thcy thicken en thé ~note(t in our "W)t )a)));f; hy p!')pab)y t
)ne.<a which thttt canfuiiiun frodUMa.
dUMs, distinct ttxtrt: for thé mottent KngtMi !j
with !t )ui.<amj)icationof terms borrowed
Towed right (winch probabty fot))M from thc
frotn the Kautia)) phifomphy. T]K'y Att);)o Saxon, tt))') thorcforu )< tdticd t"
<MM «r th" Ot-romn 'n'cht') meaMi), in a f':w itt-
divide r':f;ht,' a'i f'jrtfting thf y ;<
k!nd, into *ftf/<( in thé «'t'r'' i':M!(' J!tfttt~<'S, 'htW.
s':M!<
'H«!e ttntt Htfttkttone (ns 1 hfn'e ttfy TfiUxMte~'MpGMOMarutn et renttn,
IIIl'utioued ilà the t)utlin0) am- niisletl h)" "<'f'<<~of)Mr<onfat)dthin,{!t:"whte)tiii
ttt''MtmM<tintheUHtti)t6)<tremMed))y li
[ttudouUemeMing'f thé word ~K! merujMgox.)/A'«(<
soveMign government: basa Divine riglit to do, it, emphaticaMy,
hM a right to do: if i~ hM ttot a Divitte right, it. emphaticaHy,
has not ft right. An act which were generally usefu!, the Divine
law, as known through the principle of utility, has confen'ed ou
thé sovereign government a, rig!)t to do: an act which were
generally pernicious, thé Divine law, as known through thé
same exponent, bas not conferred on thé sovereign government
a right to do. Consequent!y, an act which the government bas
a right to do, is an act which were geud'ally useful as an act
which thé government bas not a right to do, is an act which
were generally pernicious.
To ignorance or negtect of the palpable truths which 1 have
expounded in thé présent section, we may impute a pernicious
jargon that was current in our own country on thé eve of her
horrible war with her Xorth American chiidren. By thé gréât
and smnll rabhie in and out of parliament, it was said that thé
govemment sovereign in Britain was also sovereign in thé
colonies; and that, since it was sovereign in the colonies, it
had a nyA< to tax their inhabitants. It was objected by Mr.
Burke to thé project of taxing their inhabitants, that thé project
was Mt~~tMt< pregnant with probable evil to the inhabitants
of thé colonies, and pregnant with probable evil to thé inhabit-
ants of the mother country. But to that most mtional objection,
the sticklers for thé scheme of taxation retumed this asinine
answer. They said that thé British government had a ~7t< to
tax thé colonists and that it ought not to bo withheld by paltry
considérations of t~~MM~, from enforcing its sovereign right
againstit refractory subjects.-Now, assuming that thé govern-
ment sovoreign in Britain was properly sovereign in the colonies,
it had no légal right to tax its colonial subjects although it
was not restrained by positive law, from dealing with its colonial
subjects at its own pleasure or discrétion. If, then, thé sticklers
for thé scheme of taxation had any detenninate meaning, they
meant that thé Uritisit government was empowered by the law
of God tu tax its American subjects. But it had not a Divine
right to tax its Atnerican subjects, unless thé project of taxing
them accorded with général utility for every Divine right
springs from thé Divine law; and to thé Divine law, gênera!
utility is thé index. Consequcntly, when tlie sticklers for thé
schone of taxation opposed the W~< tu <'<cf/i'?iey, they opposed
thé right to thé only test by which it was possible to détermine
thé Ktdity of thé right itself.
A suvcreign government of onc, or a sovereign govemment
2~ ?~~nwM~o/
t of ? muMAcf ia ita coUegiate and. wvcfeigtt eapttcity, may ttppear
t~t~VtM g
i»
in thc character of defondant, or may ~ppenr tn the chnmctcr of
ttttW ~f a
$Mcn:it;" demandant,
de before tribunal of it~owH appointmeat, orderiving §
f~vfnt- jurisdiction
J" fmm itself: But from such an appearance of a
MMtH
bft'W!) gQ sovoreign government, we cannot infer that the government lies
tt'tbunatuf
tMuwn, underH~ tegnl duties, or has legal rights against its own subjects.
wc'umnut Supposin~; thttt the ctaim of thp plaintiffHgtunst thé sovereign t
int'trthKC
th<uv. de défendant
le were truly fouuded on n positive law, it wet'e founded
et'tUtt~ut ~n a positive law set to thesovereign défendant by a third person
on

t
U<Utnt~-r r
k~t or body or (chauging the phi'ase) thé sovereign détendant would
<tit;!),or be in
t~k~t W a state of subjection to anothcr and supcnor sovereign. !`

"t'n
right.~

ownsub-
Which is impossible and absurd.–Aud supposing that tho
daim
<
i of the sovereign demandant wero truly founded on a posi-
j'-etA tu
tivc law, it wet'e founded on a positive law set by a third party
to a member, or members of thé society wherein thé demandant
is suprême or (changing the phrase) tho society subject to thé
sovereign demandant, were subject, at thé samo time, to another
suprême government. Wilich is also impossible and absurd.
Besides, wherc the sovereign government appears in thé
character of défendant, it appears to a ctaim founded on a so
called law which it has set to itself. It theretbfe may defeat
tho daim by abolishing thé law entirely, or by abolishing the
law in thé particular or specinc case.–Whero it appears in tho
character of demandant, it apparentty founds its daim on a
positive law of its own, and it pursues its daim judicially. But
aitttough it reaches its purpose through a général and prospective
rate. and through thé medium of judicial procédure, it is legally
free to accomp!ish its end by an arbitrary or itTegutar exercise
of its legally unHmited powor.
'l'he rights which arc pursucd against it hefore tribuuals of
its own, and also thé rights which it pursues heforo tribunals of
its own, are merely f</«<~MM to légal rights (in the proper
acceptation of the tcrm) or (bormwing thé brief and com-
modious expressions by which thé Homan jurists commonly
dénote an anatogy) titcy are légal rights <~w<.M, or légal rights
'<<Thé rights which are pursued against it before tribunais
of its own, it may extinguish lsy its own authority. But, this
notwithstanding, it permits thé demandants to prosecute their
claims And it yiclds to those claims, when they are established
judiciaMy, «.t t/'thcy were truly founded on positive !aws set to
itself by a third and distinct party.–Tho rights which it pursues
before tribunals of its own, are powers which it is frce to exer-
cise aecording to its own picasure. But, this notwithstanding,
 i6 prosecuttMt its cMMM ttn-ottgh medittm of jadieM pro. t
cedm-e, (M they were truty t'oun~d on positive laws set
the parties détendant by a thh-d person or body.
to `

Thé ibregoing exptftnation of thé seemiag iega.1 rig!tts whieh

are pursued against sovereign govermnents befbre tribunal of
their own, tatties with thé style of judicia! procédure, which, in
all or most nations, is observed in cases of thé Hnd. The object
of thé phuntHr.-i chin) is not demamted as of right, Lut is bcg"ed
nf t!)u sovereign JeR'nJftnt as tt grâce or faveur.
In our own country, etain).-} pursued judicially against
our
own king are presentcd to thu courts of justice ia thé same or
a similar style. Thé plaintif//t<<<<M<.< tlie royal défendant to
gnutt him his so called right or he .f/t««- to thé royal défendant
his so called ri~ht and injury, and prnys thé royal défendant to
yield him ntting redress.–Hut where a elaim is pursued judici-
ally a~inst our own king, this mondicant style of prescnting
thé c!aim is merety accidentai. It arises froni thé
mère accident
to whieti 1 have adverted aiready: narmcly, that our own kin",
thongtt uot properly sovereign, is comptetely freo in fact from
lega.! or political duties. Siuce lie is frce in fact from
every
lega! oUigation, no one bas a lega] right (in thé
proper accepta-
tion of thé tcnn) against thc king for if any had légal right
a
against thé king, thé king were ncccssarily subject to
an answer-
ing !egal duty. But seeing that our own king is merely !imb
a
of thé parliament, aud is virtually in a state of subjection to
that sovereign body or ag~regatc, lie is capable of tegal duties:
that is to say, duties imposed upon inm by titat sovereign body
or aggregato in its coHegiate and sovereign charaeter. For the
same reason, lie is eapaMe of legaj ri~hts that is to say, rights
conferred upon hitn by that sovereign body
or aggregate.'and
answering to relative duties imposed by thé same body others
on
of its own subjects. Accordingly, tho king bas légal rights against
others of Iris fellow subjects: though by reason of his actuat
exemp-
tion from every legal obligation, none of his fellow subjeets hâve
tegal rights against tuni.
Though a sovereign government of one,
or a sovereign govem- n-Thonghit
Th Il
ment of a number in its coDegiato and sovereign eapacity, cannot Ut
.!iov<-r<-ig;)
hâve legal rights against its own subjects, it goYcm.
entent
may have a legal "'e of
right against a subjeet or subjeets of another sovereigtt
govern-~iovtri:ij{n
mont. For sceing that a legal or potitical right is not of
.S. goven)-
sity sadd!ed with a tegal or political trust, thé positiveneces-
s"~
law
W numberi))
"A gomt government M-i)) not arbi- fen-ed. And, wh<MpossiMt,willnccom.
tmnty (or hy ~HM<~«. comman~) plish its ends by MMpMtive tn-
ro~te~tt~nghtswU.hithMton.~&.Y~.
abro~te .;)t<~ ngt~whi.h it h~ton. ~& rut~-
pcu~eruiM.
~l
VOU. J,
p
conferring thé tight m~y nôt be set to thé govetnmcnt Mi which
tho right H conferred. Thé !aw eoa~mg tho nght (a& weU E

as thé relative dmy tmswenug to thé right) may ba l~id or

imposed exclusively on thé subject or subjects of thé govemment
by whieh tho right is importât. The possession of a légal or
political right agamst ft subject or subjects of another sovMtMigtt
government, consists, thercfore, with thttt indépendance which ia
one of thé essentials of sovcreignty. And since thé !e~ftt right
? acquned front {mother ~vet'nmeMt, and through a !&w which
it Sets to a subject or subjects of its own, thé existence of thé
légal rigitt iniplies uo absurdity. It is neitlier ncquired through
a positive law set by thé government wlucit acquirfs it, nor
through a positive law set by tmother government to a member
or tumabers of thé society whercin thé acquirer is suprême.~
1 now hâve defhMd or detentuucd thé général Motion of
sovereignty, includiHg thé général notion of independent political
society And, in order timt 1 might furtiier elucidate tite nature
or essence of soveteignty, and of thé independeut political
society wldch sov~Mignty implies, 1 have cousidered t!te possible <

fonus of suprême political government witli tlio limits, real or

imaginary, of suprême political power. To complete tny mtended
disquisition on tlie nature or essence of sovereignty, and of thé
independent political society that sovereignty implies, 1 proeeed
to thé engin or causes of thé habituai or permanent obédience,
which, in every society political and independent,is rendered by
thé bulk of thé conununityto thé ntonarch or sovoreign number.
In other words, 1 proeeed to thé ol'igin or causes of political
government and society.
The proper pu~ose or end of a sovereign political govern-
ment, or the purpose or end for which it ought to exist, is thé
greatest possible advancement of human happiness Titough, if
it would duly accomplis)! its prf~per purpose or end, or advance
as far as is possible thé weal or good of tnankind, it commonly
must labour directiy and particularly to advance as far as is
possible thé weal of its own community.
co Thé good of thé
!n our ou-n courts of ha' sod (-'[Mity ht
nHr.'ittnmtTiousuuti~ru.t. j
itM)t<:)dMundoubt<th!)tfuMf{nK< K<:)'"rt.'i. XewsmM.p.Sl.CiML-oftin:
t.
itovcretgtM, wh<-ther in namc mMM~h-t Unihid StatM of Autericit <
Wngttcr,
tl,
or repubU' P"H "u& in their seren'ign Cr
Court of Chancery, M«y 29, Jun<: !7,
c!t[NCtty; and they are rMo~imt as t8
t867. Ju<tf~nent))yLontCh<mccUor
Chettntfont aud ï~rd Jtisttces Tumet
)))!nntiff< in our murt!) of law and t~ttity CI
w thé aune name itnd '.ty!e uo'terwhieh M an't Cairns.)
tff'yore recn~Med by ourown mtcreis)) Ax to thé tMtSMMtity of t ioverci);))
(that ii), nontinfUy, hy Her ~tajaty) )n be beine Mthject to another mTeK-if! <o
dir'totnatio iutercoaMe:–(Case of thé ce certatn timitett effecta, SM eonctnttin}! ex-
K)ng of Spain, jadgment by Lord Lynd. ptaMtioMinthbchapten–H.C.
p!
[
uui versai society fbrmctï by mattkint!, is thé aggtegate good ofLKcr.V!VI
tlie particuÏM aoctetiea tMto which Btaakiad is divided just as
M
thé happiness of ally of thèse soeieties is ttt& a~t'egste happinesa
?~t
f
of its single or individual ntumbers. Thoug!), then tiic wc-at of
taan!<iHd thé proper object of ttgovemment,
or though the
test of its condnet M thé prineiple of genenti utility, it eommonlv
ought to consult dn-ccUy aud particularly the weal of thc
particular community which thé t)eity bas cotnmitt~d to its
rule. If it truly adjust it& conduct tf* the principe ~f geMemt
utility, it commouty will aim immediatuty at thé particutar and
more prucise, rather than thé gênera! and less detcrnnnate end.
It were easy to show, thnt the général and pai-tteular ends
never or rarely conllict. Uuh'ersatly, or nearly uuh-eMaUy, thé
ends are perfecUy consistent,or rather are inseparaMy connected.
Au eniightencd regard for thé common happiness of nations,
implies an enlightened patriotism; whilst thé stupid and atrocious
patnotistn wjuch looks exetusivety to country, aud woutd further
thé interests of country at thé coxt of all other communities,
grosaly miaapprehenda and frequently cesses thé interests that
are thé object of its narrow concem.–But thé topic which I now
have suggested, belongs to tlie province of ethics, rather than
the province of jurisprudence. It belongs especiaHy to the
pecutiar dcpartment of ethics, which is concerned with inter-
national moraHty which affeets to détermine thé morality that
ought to obtain between nations, or to détermine thé international
morality commended by gênera! ntitity.~

(*)Th<'propt-rpUt-)mMorcn<)ofn.OT<-
c' snattst j~oMit~e advonecincnt of Me
eTh<i))r<))!<')
reignt'o)itK'a)Km\'rMtnt'ut,orthft'Ut-))oa
M<'<H~/t~tA~~t'~f~~j'<<'t~tjK-:unne~*
or<!tMtforM'hichituushtto';xist,McoM -pnrjxjtc~t
'*dMf!'rf')ttty))y'th''(.otuu)Ot)!tft;~t)nt's<t'r
ceiv't) i)m'k')Uit<t-)y, or is conceh'ett oh''w<t),'theM)t))no))h:tj))<inc.'i-iorw<)tof rot~ot'ji.
suurety, by n~st or mauy of th<' spN'ttht-itsown)MrtMt)ur~))anmti<y,ort)~f')tt.
f!itic!tt{{uv-
'crnîntm
tor.'iOtt)o)itica!f;ov<-rm)tt-))tatt't.M'if'ty.ttiott ha[)pint;M or wf-.t) ot' tire univcrsa)titnd'iu-
Ton'h'auce as farari M j)M.'i.ih)e thc WM)tcMmttUtttty<!f))<ahi{i)t~. (HL-r')!M\-
''<)<ty.ot
or good ot ttm)i):!t)<), is mure ~encrai!v ))U!ttroMrh.thatittxn'fourthi~ture.t'rntn 't)Mpur-
tnoM v:tf~K-)y it.t projxr purpose fjr'<)td :))!){!<* tMto]S9,tshorth'ex!nn!tfedaRtpON-or~M't
To tuh'tUM; as far as M {'0!"ii)))t' the w~t t'MrreM )))i.scnn''<;ption of thé theory oft')urw)ti.)t
of it-t own tmmnnnity. is more jarti'-n ancrât utitity att't thnt thc bn<.t'~)j!. th':v
larly :m't ntot'c ')';tenf)it~t<-)y tt)t purr-};<aitio)tsw)nchIth<;)lt)ir<.woHt,)MV;m.sht<
Se or cm) tor m'hich tt ou~ht to t-xxt.t. eMih- tje titMd tn thé topic on which t<:xi.<t.
Xow if it wuuht ~;<:omp)i.<h the
Ct-n~mIl now )mv<: t~ut~t.)
objuet. it (.'oumtontyiuui.< tabour tttrM.t))y Toatt\'aMe~f!tra.<i!i))os!i)))ethc
tu !tc<'u)))t)ti:.h thé partieutar: And f! weal or g<M<t of h)!<))kh)J, or to aJvaH;
)tar<Uy will ~(.uoxtj.tisjtthé particuhr oh a.thra.s ifi jjc&fi)))~- )))': wcat of
its mn)
j<;ct,UM)tN!itt-t'Kttntthef!tMt:ntt. Since, eontnntnity, h, tt~-n, ths
thtn,each('fth'f)))jeft.)s)Mt-p!)t~bh absolnte en't f.)r which patamount or
y StfM-niigt) gov-
connectMt with the other, Mthf'r )Mav txle emment fo~ht to <-xi.-it.a W.'
(ktit)K-(t thé ~ramonot object for whict h of the ~ovt'mmc-nt 4t:!etf, whatmay Mv
t~teoti
thé foveD.-ign ~oventtncnt ought to exist.t. says of thé )aw which it sets its snb.
We thereft-MMay say, for the sitk.; ofccn jeet<! Fh)ii! et to
cisettess, t)mt its proper ~ramount xur.r. htt, stojtn!! <jM<m intueri ')<
tton ati'ts Mt.fjtMtn ut civc feliciter
t~c, or ih pro~r absolute end, is thee degtnt.' Thc w~v, indeod, of thé gov.
Len'.Vtt Ftom purpose or e~t of a eaveMga poUticut
thé ptaper
guvotnmcMt, or &o!n thé ptttpose or cnJ tbr wfuch it ought to
exist, we may rendily infor the cunses of thM hnbittmt obédience
emment to tho attainment of Ht aboo. abxo. tion wonM etitmt thMt: ~The cfeittiftt
wonM et)tmt creittiftt
tutc';Hd,ti<'9throHghtht'ntM)MMte))tof~and protMtioMoftejjft) rightif ofdotMinion,
t')td< which )nay b<i !.ty)td iiubotttiuatofi~thet'ndor<;VMry);oVt;r)t)w;ttt:uutth'
ocrMtiouofttsatnght.twhirharettOt
oriu'jtnMxehtithOriHor'torthattho~
got'ru'M'iMt«Myacco'np)bhit!tprop)!r] rnght!tof')omMiott(tt.th'g<dri)!htt,fw
exKtuph', wttich on- prop~rty f'tftct.t uf
!t)Motut<'e)td,t))Ot;m'crMMK')tt)t)Ui!tae'~
mtoptbh end.t sttbsen'ittg thut ab~otuteeeotttra<;t.s),isnotpttrc''tofit!)<'Mt),or
).-))d,or«frv!H){'<toit.')')';co)u.i t'a)!'i Mot withtt) !t!i .sco))' Cunst'~ttent); t'
t- their propotittun «mount.-i to <)n<: 'To
ptiiihnMtit. Hntthesubor'thmteoritt.stru-
ttK'nMt euds through whieh thf goverh-~<;ont<')'ottit<ubJM<l<;gn)ri{;)'t'
infriu~'
!r tu préserve thoem rights frotu
Mn'nt tMUst ac<o!n)')i)ih if! [mm))t<'u)tt or
ttn)<'nt,isthccndof<'Mrygw)<nm)e<)t.
a)jsotMtMetid,wnt)Mf(Uytntmit<'ftt!
cotopkt'' description, or a dMeri['tiou M KowthepM)'ert)!<nt)Mouut
purpoiteofitIl
<H'[)ro!M:))iM); ta comptth'MM. CertaiHty y sovercign j'ofitict't f;ov:rm))et)t, M uot
th';y are not to d'-tenni))~, "t)<t aree thé cr'ttttan axd pruteetiott of ]<:mt
not to be susKf.stcd justty, by a short
'tri};ht!!Mrf)tfm!tiM,or(i))t!teter)Mo)'tttM
Nt)d.w<'pinsd'!t"'it' t'or,ai!))Ut))- [- propositiox) thé
iiutitntiott attd prote<
mt; that thé govertmx'nt accotm'tifhfdd tion of prolierty. tf thé ercation au~
thorot))j)t)y itt jMramouMt or obsotutee protectiott at' legal rif!))t. wert! its proper
purt~e, itit car': wouM extend (as il pftramouutjturpmc.its propcr pattunount
Uaeoti
atk'tu~tttty attirntt) ad MKK«f cirea )jen<i<ipMrpo!!(-))tij;htbuthM!nH'«nc'!Met)tof
CM); ciyitat).') its can' woutd <:xt':ud tooniiwry.mtkcrthtnitheadvancemcxtot'
<r« the meant thtonsh whi'-h it j'robxMy y hitopioe.')!); Mttee tnxny <tt thé legal
))))j;ht txiubter to thé furthcrMee of thee n~tts which governments hâve creitte't
eurnmenwefd. <m't pmtf<;t'xt (as <)t'' rights of MMtc'M,
Hut, by most or many of thé t-
qMettta- for Mmtupte, to Mtd o~in.ft davc.t),
tors on jfo)iti<;<tl govcrntMfntand Meiety, are getteraUy pfrni''ioMit, rath'-r than
one or a few of thé )tMtrM)MUMt ~cenendtymefut.Tea'tvahcetL'i~ra.
t'Mi!'
throufth whieh n );ovM))meHt tnust ac- !-Mpos!!ibtetheeot)Uuonhappi)n-si!or
eompiMt its protjer absotHte e«'), are<: weai, a gwenttxent MnMt coMter oit its t
MtMt«):eufor that pamntouut purpose. subjectt tega) ri~hts: that is to My,
For exampte tt )* said by toatty of<f n {{ovcrnmext must coofer ou its sab- t-
thé iipeeutators on poHtiad govenunent it jccts ~t~«;M< teg~t rights. or iHtch
and s'Moty, that thé Md of ewry gov- tfga) rights ait ~Mt utifity eommends. '<

trnmeMt h to iuxtitut<! "ttd protect pro-)-Atn),httvingeoHft'rre<tonitsmbj<;<:t'< )

perty.' AndhereItMHtrexmrk.byth': c ben'-titettt t~at right; tho jtovcmttfent,
by, thatthe propouttdeMofthb~bsurttity y tnoreaver. )uui:t prti.crvc thu.'K: right.
);n'c to thé tenu propcrty an extremetyyf)'omi))fhni;<!tnt't)t,))y<!ttforcingt))e<'or-
hrge and not very detiuite i.i~titicatio)).L rMf!{0)KUn); mucttutM. But the !nst!tu-
Thoy nK-an {{enernny by thé term pro. )- tion and protection of beueticent h-git)
perty,' tegat right.'i, or leftMtttttMt: righti), or «r the kin't'' of propt-rtv that
And they mean not Mrticutttrty by thée nr<; commf'nd~'d by gênerai utihty, i<
tenn propcrty,' thé )e)ptt rii;ht<. or )e- tuerety K tnboniit~te and iostrnmenta)
)ptt fttcuttt's, which are dtno)Minat<sl d end throuj;hwhieh the govf-rnmentmust
Mriet)y 'nght.tofpropertyurdotKiMiou.' .'Mcotnp))!'hit'!p!)N)nountora)Moh)t''
If they Hmited thé tenn 'property toopMrpoxe.Asnt)'Mti)igtodet<:n<)iH':
h-gat right~ of domicion, their proposi. i. thé absotuh: end for whi';h a tovertign

~Theni&iuteHanceoftheKighh .< thoMgh they tniKiiiter tn that uttixxtt~

whieh are ve~ted !n privât): iudh'idua)!! purpose for which Ri~htt thent!i<:h'<"i
't8houM<[bt:fii!.thc{;ncnt)wct[-
(t.<. in thé ftovcrnett) )it nut thé only end )
for whi''h fiovrntueMt ou){ht to exist. beinj; (<y. t'ewert to coustruct roK'tii,
tt is often expédient t)mt it shoutd be in- etc.) See Hugo, ~</<)'~K<A <~ tVa<«)''
vested with powers which noither di-i. )'<-f/< p. ]S3.)/.& J\'c~.
rectly nor tnJireettymbserre thnt end,I,

[' !?equ<: tamen JM pnbUcam ad hoc re)!g!onent et arma et dMeiptixan) et or-

)- ttameuta et opeii, (~Kt'~tM <«~ </«<)«« <f~'«
Mnt'ttn tpcctat, ut addatur t<m')m'tn eus-
t"s juri privato, ne )])ud violetur at~ue
m ttH~t! Kfi<)i<;ivit<tti!).&h-Wt.]
cessent it'juniB sed extendituretiam ad d
wMchwoMHbep~Htothesoverotgnbyth&btttkofmeatight.~<~
eued ttociety. S~ppoatMg that<tgivea societywercadequatcîy1
instructed or onUghtened,thé habittttti obédience to its goYcrn-
tnent whtch was rendered by thé bulk of thé community, would
exclusively arisc from t'eftsoas bottomed i)i tlie principle of
utility. If they thought the government perfect, ot' t!tat thë
government nccornplished perfeetly its proper purpose or end,
this their conviction or opinion would Le their ntotive to obey.
If they deettted t!nj goventment faulty, a fear that thé evil of
résistance might surpass thé evil of obe<.Uence, woutd be their
inducemcnt to submit for they would not persist in their
obedience to a government which they deemed imper&ct, if they
thought that (t better govemment nu might proMnuy be
îMg<n probably goi. by
oe got uy

goverment ought to exist, tlie proposi. tht ~hrough whi':)) It txust attain to that end,
tiooitK~estiouis.therefore.fahit.And.or )r (in Hacou'.t figurative )<mgu«);t) are
eot)!'ideted M a définition of thc meaos tht thé «fft-M of the eottunoh we:u.
through which thé MvereigngotWXtnent Thé prévalent Mnstake which )mw
)HU3t r<'<tch ttmt NtMohte end, thé pro[o- ha' MVN stated sttJexMnt'ttiiett.iscommitt<t
sition m qwstMn is defective. If the by ~y e<:rt<'itt ftf thé wrtteM ')H thé sciex'e
government would ttnty (tecomptah ih of jf potitMttt (t'-otxxfty, w)<enever they
proper parnmount purjOK, it must xot r)K-ttdk incHentaDy with thé cottMeeted
m<:
co)ttit)e it3 care to thé creation of te~d .sciicicnce ot' tegithttioH. Whenevcr they
rh;ht.s, aud to thé création and euhree' ste .tep frotn thcir own into thé adjoiniox
tm'MtoftheMSWeru't;M)at!<'eduti<:s.pr< tjroviMM', they tuake ex)')'t"!fty, or thcy
There are absolute Jegal duties, or fe~t nM ~nake taeitty "M't unconseionsty,thé fot-
dnties withoMt corre~pottdit)}! rights, towihj! a.'i.'iUtMption that th! pr'<:)'
lov
that are not a whit )e' re'jnmte to thé a))! ~hsotutp cxd "f xoVt.-Mf{tt j~tit~'a)
itdvMt'ement of th'' générât Kood thM) {{o' t{o\'<:rM)m'nt )< to furthfr a.< f<tr M iH ]")<-
t'igainfihti'thcm.'ietveitwiththé relative si)]sit'te thé Kruwth "t the nutiona) weittth.
dntic~ which they intp))'. Xer woutd Il !f If they thitt): thttt a potitim) ittstitutiutt
{pjvenotx'nt !tcc<ftnj)tii)h thoron~hty itt fo~t''M pro()u~iot) atfd a~'cnmutftimt, or
fb<
]tropcr))aranMMMt))t)r))Oi!e,ifit!MetTtyth! that
li~
« [mUtmt tMstitntieM da)n}' pro.
conterred and protected thé renuisite du
(tu~tion U!«t tccMtnutatioH, <h''y ~ro-
rights, and int[M.<ed and eoforeedthé re- noutx'f,
no without more, t)mt thé insUtu-
<)UMitea)Moh)<dMtiM:that)!<tf)!my,u'tM tion i.< t{ood ar t~d. Th~' f<'r);ct <h:tt
it))ter<;)yt-!)t!iUMh<;dtmdi&!Uedther<th thc Wtatth of thc foxnnuotiy ii) uot th<
'[ui!)it<-HW.<!M'tcntn)ua))d)),and)fm):<dWt WM)! uf thé commurtity, th<A)}:h WMtth
toth''irdneMMHtiû)). Tht:.mmoftheis is ot)<: of the XK-aus requhitc tu thé at.
xttbonHnatc cnd< whieh may xutLwrw tainmetit ta! of htppitK'ss. Th<-y forf;t that
it< aLsotute t'xd, ))! scarcety eompri~d a
a {'o)itic<tt htstitutiou o~y furthtr the
by a ~joud tegisfittion aud a gond adtMin- we:t)
w* of thé tomtautitty, theu~h it <:hect:s
).<tratioM of JMtieu: Thou~h a ~)od th
thc Mrowth cf i<< Wt.-ahh a)~t thftt a
t<;i!:is)!ttionwit)ta){o<M)admtttMtratio)tof]'o])otit)<at ixiitituticM whi<:h (juiettc-ns thc
juftice, or Koo-t tawft well adminiaterett, {{rowth nf its wealth. tmy hitider thc
arcdoMht)'Mthe<:hiefoftht:)tt<aMiiad n.t,r..r;r~ «~t.t
{{r

[Mtiitakcs like those of ~titieat ftco-

o- a~reeaUe.'
a Theirc-tnin<;ntutnity. Thé
no)nMt< aro ma't' hy Htihtanim!), onh'kwisd'fmtobcgot
1 front j~MM. Gh'<-
of<t)))ore~"<a)tMture. tniitt~tnft v. ex,nn/,Ies.)
nf<;x!)ïn)))<'ft.)
c
confoMnJing (<;)ecit)C!tUy) aonte sMtmnHn. 'rMiijtttrtMvit.-wofhMMitntMj'pinc&t,
vicve oC lnunan haiulninrss,
ate cxd nf {:m<'nt with thé a'orot't))<-an'!tow!tr~tsit,H'iUa)M'!)y<ib';
~m. t
tnount end of th<: sutM, they take a jartrt tahf'n
t till a m'st'm of ethica! tf)<'o)')~
')fhutMKh!t[')'tne!<i),f<raM)rtofthet !te hc
1 toMtntctM ).< an atXttysi.t of h&)'-
)u<t<n!)tow~r~a tt, for thc whofe of human
m 1MMM, thé mmos towan)* it, and therc-
Jhetth'
hap[')))MS, or thé
(<.j~.
whoteof thèse M)fM9.! bre
arts, or thé (h'gradmg tttcM] to the
i
Thé exclusionof tMttry or thc Sne <fc* f~f
thé etn!!to1)o pUMUM)
t
L~T. Yt K'9Mt(HM
resistance, &od that tho probable godd <tf the change ontweighed
its probable
proba mîscMet
M!t.n every aetual society ia inadequatety instrùeted or
Since
enU~Iitened, thé habituât obédience to its govM'nment which it
rendered by thé bulk ofthu couimunity, M partly thoconseqMMtee
of custon They partly pay thttt, obédience to that présent ur
<;stab!is!)edgovernment, because they, and pethnps their ancestors,
hâve been in a h~bit of obeying it. Or thé habitua obédience
to thé govermuent whieh M ruudurcd by the bulk of the cotn-
tnunity, i~ partiy thé conséquence of préjudices nteaning by
préjudices,' opinions and sentiments wbich hâve no ibundation
wlmtcver in thé pt-ineiple of général utility. If, for exaniple,
thé governtnent is nionareincal, they partiy pay tlmt obédience
to that présent or estaHished government because they are fond
of monarchy inasmuch as it is monarchy, or because they are
fond of thé race from which thé monarch bas descended. Or if,
tbr example, thé governmont is popular, they part!y pay that
obédience to tliat présent or established governmeut, because they
arc fond of democracy inastuuch as it is democmcy, or because
thé word repuMic captivates their fancies and anections.
But though that habitua! obédience is partly thé conséquence
of custom, or thou~h that habituai obédience is partly thé con-
séquence of prejudices, it partly arises from tt reason bottomed
in the principle of utility.~ It partly arises from a perception,
by thé genorality or bulk of thé community, of thé expediency
of political govenunent or (changing thé phrase) it partly arises
from a préférence, by thé generatity or bulk of thé connnunity,
of any government to anarchy. If, for specifie toasons, they are
attached to the established govermaent, their général perception
of the utility of government concurs with their special attach-
ment. If thcy dislike thé estabtished govennneut, their général
perception of thé utility of government controls nnd masters
As Muuected with thé proper par- j un<t)t;. t:m ftowever jxnect atKt Uttt-
pose or eud of [totitic-itt~overMM~ttt «xd v<ifNt the inetitmtien to act up to rtiles
socicty, may mention <jne cause which te)t<)itfj{tot)M)~MeratjioM),iti.tin)))os-
iii)))eto~)!!))<:Mti<)tnth!tK'K"'
ahvay!) will înitke patitiat) goMnttuent ~uirlïu~ dis\'eliliO \I;tb a g{¡\'cflliug 01'
(or political KO~'erxntcnt ~t«Mt) ncet~ary gUtt))M){t)'M).
or tti~)tty <:x)));(tient namely, thé Uttcer- (Uncertaioty of existcn' of poiiitit'e
tainty, M'a)ttiuf'f<, an't imjterK-'ctifM of moral nt!M M'aHt of thé preti.tton and
posittt'e nfom) mtes. Henee thé nectit. (tétait Mftttire't by dbMititMns n'~arttinf;
aity for a cotnmou ~eKMt'nijt (or cotnnfon thé objecta about wtnch positive )aw iit
~«MtMjy) head to whom thé communityconveMant. Hence Go<Mt), t'i''hte, a))d
rn!t\' in eMt<xf< def&r. othen ))ave made a great tnistak')
ft i< poMibte to conceive n Moiety in In nMny';aN:<,howcver, t)utwit)Htan<t.
which legal aanetiotMwoatt! lie ttoroMtnt, inf; it.t defeetivcntM, it h <)ec''Mary tu
or itt whieh ~tMfirt govemment woxht abandon actt to pofitivemornlity. (Sce
mercty tMommend, or utter t<m-9 of <))). Note, t). ]99.)–~& fMyM«~.
~<r/<<< cMJj~att'Mt(it) thé tonse of Roman
4
-nu.-
theif distike. Theydetest thé estatMished government: bnttf bnt if t~cT.Vt
they wotud change it 6a- another by resorting t~ MHStMce, they
ce,th<:y
must tmvet to their ot~ect throM~h ttft in~r~ening anaîchyy whieh
which
they detest more.
Thé habituât obédience to thé government which is rendered d
MtdtK'ed

J every society, from thé cause which 1 now hâve

uamely, a pm-eeptioa, by thé bu!k of the eommunity, of thu
-t.ahnost
by thé bulk of thé community, partly arises, theret'ore, m Lahnost
described:

utility of political Hovcratutint, or a préférence by thé bulk of

thé eommunity, of any govenmient to auarchy. AnJ t!us is thé
outy cause of thé habituai obédience in question, which is
common to all societies, or nearly all societies. It
therefore is
thé ouly cause of thé habituai obédience in question, which thé
présent générât disquisition can proper!y embrace. Tlie causes
of thé obedience in question which are peculiar to particular
societies, belong to the province of statistics, or thé province of
particular history.
Tho oniy general cause of thé ~'m<!K<'Kc<' of political govern-
ments, and tlie only général cause of thé M-i'/m of politieal
governmonts, are exactiy or nearly aHke. 'nwu~h every ~overn-
tnent bas arisen in part frotn speeinc or particular causes, ahnost
tite following
ever~' governmont must hâve arisen in part from
gênerai cause namely, Utat thé bulk of thé natural society fro)n
which thé politieal was formed, were desirous of eseapin~ to a
state of government, from a state of nature or anarchy. If t!)ey
liked specially thé govenunent to which they submitted, their
général perception of thé utility of govennnent coHeurred with
their special inclination. If they disliked thé govermnent to
whicit they submittcd, their général perception of thé utility of
government coiitrolletl and mastered their répugnance.
The speeinc or particular causes of speeinc or particular
govennnents, are rather appropriate matter for particular history,
than for thé present général disquisition.
According to a current opinion (or according to a current
expression), thé permanence and origin of every governnient are
owing to thé people's cMMe~ tliat is to say, every govemment
continues through thé f~MtH< of the people, or the bulk of the
political community aud cvery governmcnt arises througtt thé
<wM<-K< of tite people, or thé bulk of the
natural society from
whicli tite politicai is formed. According to thé same opinion
dressed in a dînèrent phrase, thé power of thé sovereign nowa
from thé people, or thé people is thé fountain of sovereign power.
Now thé permanence of every govemment depends on the
 habitua! obédience whfch it receives fïom tha bu!k of thé cent-
`-``-'
~r*Mm~ üauui
munity. "For tf t~8ttuH{ et' the commmtitywerc Mtydetw-
feopte't nuned to Jestroy it, and to bl'a.ve <md endure the evik tttrough
;)ttttC
<WNMMt~,
t~m~t which W"M they must pass to tlieir object, thé might of thé govern-
<
))!atu<;tt.
ment itself, with thé tuight of the unnonty attaehed to it, woutd
ment
searcety
searc
BCtlTC sufHee to préserve it, or ev~n to retard its snbvcision.
Aud thou~h it were aïded by foreign ~overuments, aud therefore
were more than tt match for thé disaf!cted aud Mbe!!ious pe(.'ple,
it hardiy could reduce theln to su~etton, or coM9tn<iM them to
permanent obédience, in case they hated it mortaUy, nnd were
prepared to resist it to th<? death.–But aU obédience is ~<K/f<~
or ~'M, or every party who obeys c~i~H~ to obey. lu other
words, every party who obeys M'!7/s tho obédience which ho
renders, or is detcn)tined to render it by some w«'<n'<' or another.
That acquiescence which is puruly invotuntary, or which is purely
thé conséquence of physical cotnpulsion or restraint, is uot obedi-
euce or submissiou. If a man condemned to impnsonment were
dragged to thé prison by thé jailers, lie would not obey or submit.
But if hc were liable tu impriiMMuneut in thé event of his refus.
ing to waik to it, and if he were detenuined to watk to it hy a
fear of that further restraint, thé nmn would render obédience to
thé sentence or commaud of thé jud~e. Moved by his dislike
of thé contingent punkhnMnt, lie would e<MMtK< to thé inftiction
of thé présent.–Since,then, a government continues through thé
obédience of the peuple, aud since thé obédience of thé people is
voluntary or free, evcrygovcrnnMnt continues through thu ..wM<«<
of thé people, or thé butk of thé politicat society. tf they like
thé government, they are determined to obey it habituaHy or tu
cfM«t< to its continunnee, by their special inclination or attach-
ntent. If they hate thé governmeut, they are deternnncd to
obey it habituaHy, or to fo/<-«'M< to its continance, by tlieir dread
of a violent révolution. They consent to what they abhor,
because they avoid thereby what they abhor more.–As con-eeth'
or truly apprehonded, thé position that cvery goventment con-
tinues through the people's M~fH~ merely anMunts to this:
TImt, in every society politieal and independent, thé people arc
determined by tnotives of sonte description or anothfr, to obey
their government )tabitua!!y and that, if thé bulk of thé com-
munity eeased to obey it habituaUy, thé govcrnment woutd eeasc
to exist.
But thé position in question, as it is often understood, is
taken with one or another of thé two foiïowing meaning:
Taken with tite first of those meanings, thé position amounts
t
ri
ta thM:That thé butk o~ cvety eommuaity. without incoRveai-
M- LKCT.yi
eaco to themseîves~ caa abotish the estttNished govermnent and
nd
thtt~ behtg Kb!e t& ftbotish it withont inconvenieneeto themsehTs,
PS.
they yet cousent to its continuance or pay it habitua obédience.
Or, taken with thé first oft!tose meanings, thé position amounts
J tu this That thé bulk of every community approve of thé
estabtisited govet'nntout, or prefer it to every govenutMMt which
could bc substituted for it and that they consent to its cou-
? tmaance, or pay it habituai obédience, by reason of that their
approbation or by reoson of that their préférence. As thus
undcrstood, thé position M ridicu!ously ftilse the habituai
obédience of thé people in most or urnuy communities, arising
w!totly or partty ft'om their fear of the probable evils which they
inight suH'er by resistauee.
Taken with thé second of those tneauiHgs, thé position
tttnounts to this That, if the bulk of a community dislike thé
cstab!is!ied governtneut, thé govemment M<<< not to continue
or that, if thé bulk of a community dislike the established
govemment, the goYcmment thereforc is bad or pemicious,
and t)ie général ~ood of the comntunity requires its abolition.
Aud, if every actual society were adequately instructed or
enlightened, thé position, as thus understood, wou!d appmae)t
nearly to thé truth. For thé dislike of an enli~htened people
towards their establisited governntent, would beget a violent
presumptiou that thé govemnient was faulty or imperfect. But,
in every actual society, thé government has neglected to instruct
thé people in sound political science or pains have been takeu
by tite gnvernment, or thé classes that influence the govennuent,
to exclude thé bulk of thé connnunity from sound political
science, and to perpetuate or prolong thé préjudices which
weaken and distort their undertakings. Every society, there-
fore, is inadequatcly instructed or enlighteued And, in oost
or nmny societies tito love or hâte of thé peoplo towards their
establishcd government would scarcely beget a presumption thnt
thé government was good or bad. An ignorant people may
love titeir establislied govemment, though it positively crosses
thé purpose for wltich it ought to exist though, by cherishing
pernicions institutions and ibstering mischievous préjudices, it
positively prcvents thé progress in usefui knowledge and in
happiness, whicit its subjects would ntake spontaueousiy if it
simpty were careicss of their good. If thé goodness of an
established govemmeut bo proportioned to thé love of thé
people, thé priest-bestridden govemment of besotted Portugal or
LKM-. vti Spait!
SpaiK is probaMy thé best6f govemmonts: As woig!ted against
Migùo] and Ferdinand, Trojan :md AuroHus, oc Frédéric an<t
Migùol
Joseo!) were foob and maHghant tyrants. And a~ an ignomnt
Joseph,
people tnay love their estabtished government, though it posi-
tivety orosseft thé purpoao for whieh it oughb to exist, so may
an ignorant people hâte their estaMished guvernment, though it
labout-s stremtousiyaud wiscly to furthor thé gênerai weal. Th*;
dislike of thé French people to thé tninistry of thé godtike
Tut'~utt amply evitices thé tuelancholy truth. They stupidiy
thwarted thé measures of then' wannest and wisest friend, and
tnade coauuou cause with his aud their enenHes with thé
i-abble of nobles and priests who strove to uphoM misrule, and
to crush tho rofornmig rnimstt'y with a load of calumny aud
ridicule.
That thé ~t'M/«Mft' of every government is owiHg to the
peopte's consent, and that thé M'~t/t of every govemment is
owing to thé people's consent, are two positions so closoly
aIHed, that what 1 have said of tlie tonner will nearly apply tu
thé latter.
Every govennncnt has arisen through thé <'wMc?<< of thé
people, or the butk of thé natund society from which thé
political was formed. For tho bulk of t!ie natund society from
which a political is fomied, submit ~'cc/y or r'«?!<o' to t)ie
inchoatc political ~ovemment. Or (changing thé phrase) their
submission is a conséquence of Mo<w), or they «'? tlie submis-
sion which they render.
Uut a special approbation of thé govennuent to which they
freely submit, or a préférence of that government to every other
~overmaent, nmy not bo their motive to submission. Although
they submit to it fredy, thé ~overnment perhaps is foreed upou
them that is to say, they could not withhotd their submission
from that particular government, unless they struggled through
evils which they are toath to eudure, or unless they resisted
to thé death. Determined by a fear of thé evi!s which wouM
follow a refusa! to submit (and, probably, by a gênerai percep-
tion of thé utility of political govenunent), they freely submit
to a governtnent frotn which they are specially averse.
The expression that every government arises through the
people's <'cH~cn< is often uttered with thé Mlowing meaning
That thé bulk of a natural society about to become a political,
or t!)e incitoate subjects of an inchoate political govcrnment,
~M'wKt'M, expressty or tacitty, to obey thé future sovereign. Thé
expression, however, as uttored with thé meaning in question,
w
con<onnd~ c<MMn!< and jM'<M?K'M, and therefore is grossty incorrect. f
3t. LKt-r.Vt
That thé tnchoate 8ub)ects of every iHcItbate govermhent ~f
y

or e<MMM:< to obey it, is qne proposition thnt they promise, ?.

f expressly or tacitly, to reuder it obédience, is another propusi-:i-
tion. luasmuch as they actually obey, they will or consent t~ to
obey: or their will or canseut to obey, is evinced by their
i actual obedience. But a will to t~tider obédience, as evinced
4 by nctutti obédience, M not of Mecessity a tacit promise to render
it althou~h by a promise to reuder obedicace,a will ot cousent
¡ to reuder it M conunoHiy expressed or intimated.
That thé inchoatc subjects of every inchoate governmeut
~'cMMc to render it obedieuce, is n position invoh'ed by au

<
an
hypothesis whieh 1 shall examine in thé uext section.
j In every comtaunity ruled by a monarch, thé subjeet T) hvp".
Bet Thé
-~f
[), th('si<at'
jnctubers of t)te cotamunity lie under duties to thé monarch~theoft. `

and in every community ruled by a sovereign body, thé subjeet ECt :fM'<
,.<M)<t<«rthe
tNembers of tlie community (ine!uding thé several hiembers of 01 /t<~<
thé body itself), lie uuder duties to thé body in its collective[vomm<«~
t aud sovereign eapaeity. In every coummnity ruied by &
monarch, thé monarc)t lies undcr duties towards his subjectsts:
and in eveiy comumnity ruied by a sovereign body, thé collectiveive
and sovereign body lies under duties to its subjeets (includiug
its own tnembers conside~d severatly).
Thé duties of thé subjeets towa~ts thé sovtircign governinent,
are partiy religious, partly legal, and partly moral.
Thé religious duties of thé subjects towards thé sovereign
government, are creatures of thé Divine law as known througli
i the principle of utility. If it thoroughiy aecomplish thé
purpose for which it ought to exist, or furtho' tite général weal
to thé greatest possible extent, thé subjects are bound religiousiy
to pay it Itabitual obédience. And, if thé genfral good which
probably would follow subtnission outweigh thé général good
whieh probably would follow résistance, thé subject-s are bound
religiousiy tu pay it habituai obédience, although it aceomplish
imperfectly its proper purpose or end.–Thé legal duties of thé
subjects towards thé sovereign government, are créatures of
positive laws which itself bas imposed upon them, or which are
incumbent upon them by its own authority and might.–Thé
moral duties of thé subjects towards thé sovereign govemment,
are créatures of positive motality. Thcy tnaioly are créatures of
laws (in thé improper acceptation of thé tenu) which thé général
opinion of thé community itself sets to its several members.
Thé duties of thé sovereign govemment towards thé subjects
Me partly religious aad pMtty mora!. If lay. under lega!
duties t<twa)tb the subjcets, it were noC <t snprenrej bat werf
mercly & auhotdiaatc governnMnt.
UMtoly

thé Divine !aw as knowa the

Its religions duties towards the subjects, are créatures of
principle of utility. It
? bound by thé Divme law as known through thé principle of
utility, to advance as fur as M possible thé weal ot- good of
manktnd and, to advauce as far as i.t possible thé weal or good
oftn:mkittd,)t, comtNOtt!y mt~t tabom'dtreetty and particularly
to advauce as far as is possible thé happiness of its own com-
muHity.–Ita momt duties towards ttte subjects, are ct-eatures of
positive moratity. Tttey maiMiy are creatures of laws (i)i thé
improper acceptation of thé tenu) which thé genemi opinion of
its own conununity tays or imposes upon it.
It Mtows from thé ~bregoiug auatysis, that thé duties of
thé subjects towa~ts thé sovereign government, with thé duties
of thé .sovereigH govemment towards thé subjects, originate
respectivelyin three several sources: namety, thé Divine law (as
iudicated by thé principle of utility), })09itive law, and positiw
morality. Aud, to my uuderstauding, it seems that we accouut
suSicieutty for the origiu of those obligations, wheu we simpty
refer them to those their obvions fountains. It seems to my
understanding, that an ampler solution of their origin is not iu
thé least requisite, aud, iudeed, is impossible. But there are
niany writers on jMliticat govcrnjuent and society, who are not
content to aeeount for their origin, by simply referring them to
those their tnanife.st sources. It seems to thé writeM in ques-
tion, that we want an ampler solution of thé origin of those
obligations, or, at least, of thé origin of such of them as are
imposed by tho law of God. And, to nnd that ampter solutiot~
which they betieve requisite, those writers resort to thé hypo-
titesis of thé M't~i/M~ K«-<<«M< or <<t~, or thé /«)«/aM€H<('<
fn':7 ~«-~
By thé writers who resort to it, this renowned and nf.t
exploded hypothesis is imagmed and rendered variousiy. But
the purport or ef!bct of thé hypothesis, as it is imagined and
rendered by most of those writers, may be stated generaUy thus
To thé formation of evcry suciety pf~itica! and independent,
(*) «y)': thé support cuv'jnont 'th'; projt-rty Mt caU<'J, i.< s com'ftttion whi'.h
onpnttt <'<KxwfK< or <efnv<t<t'û)f,' rather Mn')-) !t;g!t))v th'- pMt))t''i))K [mrtv "r
thM thé or!jpnat cM<)f«< Kvcty )M)-tiM. !!at tutmittinn th< hv~ot)!<a-
conventiou, nf;r'-t-fttt:))t. or [met, is Mot it the supposeU 'M-fyftM~ covenant' won).)
contr!tet)Mt!('r)y!m<t))e<t!thottgh':Y'-)'vnot an't )-oH)'t not tn~thtcr tf~tt or
fontraet ))n'j)':r!y M fn))~ !:) a vo)n-<-))-tn))iticut thtt)';<.
tion, agttexxiMt, or ~L't. A contract
M- tho iBstitutien of every w~M or et~e% aH it-; future
to ttUM tLt!CT. Vt
mombeM thon in being arc joint or coaptu'rht~ pattîea for traH
all
are parties t& an ngt-eement trt wjueh it. thett M'tginatcs,and
and
which is a!so thé basis whercon it afterwatds rests. As bein~
the necessary source of thé independent poîttica! soeiety, or as
being n condition nccessarity preeeding its existence, this ugree-
ment of ttU is styted thé cny<H«/ t'ct't/<«/<< as being thé necessary
basi!; whcïcon thc Ct't-tht.'i afterwards rests, it h stykd ~e~<?<t
~<<w~~<<lu thé process of makin~ this covenant
or pact, or thé process of fonhin~ thé society politiea) and indu-
pendent, there are three several stages: which thre~ several
.stages tnay bu dcscribed in thé foHowin~ mauner. 1. Thc
future ntembers of thé community just about tu be created,
jointly resolve to uuite themselves into au iudependent political
society: signit'yi))~ and determining withat thé pammount
purpose of their union, or even more or fewer of its subordinate
or iustiitmeutal ends. And here 1 must brieity retnark, that
the paramount purpose of their union, or thé pnritmount purpose
of the eomttntmty juat about to be ercated, is tho paramount
purijose (let it be what it may) for which a society politicai and
independent ou~ht to be founded and perpetuated. Hy the
writcrs who resort to tite hypothesis, this paraMount pur[Mse or
absolute end is conceived dif!'ercntty their scveral conceptions
of this purpose or end, dimirin~ with thé sevcrid natutes of their
respective ethica! Systems. To writers who admit thé system
wj)ic)t 1 style thé theory of utility, this purpose or end i.s the
advancGment of human happhicss. To a multitude of writers
w]M hâve flourislred and Hourish in Ciennany, thé Miowine is
thé truly nmgnificent though somewhat mysteriou~ object of
political govemment and society nameh', thé extension over
thc eart!i, or over its human inhabitauts, of thé empire of right
or justice. It would seem that this right or justice, like thé
!ood Utpian's justice, is absohtte, eterna!, and imhtutable. It
woutd seen! that this right or justice is not a créature of !nv
that it was anterior to every law; exists independentty of every
law; and is thé measure or test of all law and moratity. Con-
sequentty, it is not thé right or justice whicit is a créature of
thé taw of God, and to whieh thé name of 'justice is often
apptied emphaticatty. It rather is a something, pcrfeetly self-
existent, to which his law conforms, or to which his law should
contonn. I, therefore, cannot understand it, and will uot atTect
to explaîn it. Mere~y guessing at what it may be, I take it for
the right or justice mentioned in a preceding note 1 take it
 ë~at
LM.YI for geHsrat Mtittty thH'klyctmeetvctt
Mtility thu'kly ttud expt-essett.
eMoeetvett ttud expt'esf t. Let it
b<~
r.
be what
1
z expilese
it may, it do~bttpss is exce!!ent!y good, or M super.
!ativcty fair or high, or (in <t breath} M pre.emitMHtty wofthy of
pnuse. For, compared with thé extension of its empiru over
mankind, the inere advancement of their !mppiness is a mcan
and contemptiMe object. 2. Having resolved to unité thctu-
selves iuto (ui indépendant political society, all thé membGrs of
the inehonte connumiity jointly deterntitM HM constitutiou of its
soveKM~H ptt!itict(! government. Jn other words, they jointly
détermine thé member or Hietnbcrs i!) whout thé sovereigHty
shalt reside and, iu case they will that thé sovereiguty shall
réside in more than one, they joint!y detenniae thé modo
wherein thé sovereigu number shn!t shure thé sovereign powers.
Thé process of fonning thé independent political society,
or
the process of formiog its suprême political government, is cotn-
p!eted by promises given and aecepted Hamety, by a promise
of thé inchoate sovereigu to ttte inchoate snbjects, by protuise~
of thé latter to t!te fomter, and by ft promise of each of thé latter
to aU and each of the rest. The pronnse made by the sovereign,
and thé promises made by thé subjects, are made to a commoH
object namely, tlie accomplishment of thé pammount
purpose
of thé indepeudent political society, aud of such of its subordinate
purposes as were signified by thé résolution to hrm it. Thé
purport of thé promise made by thé sovereign, and thé purport
of t)ie promises made by thé subjects, are, therefore, thé follow-
iog. Thé sovereign promises gencraHy to govent to thé para-
mouitt end of thé independent political society aud, if any of
its subordinate ends were signified by thé résolution to fonn it,
thé soverci~t morcover promises specificaUy to govern specifically
to those subordinato euds. Thé subjeets promise to render to
thé sovereign a quidined or conditioual obédience: that is to
say, to render to thé sovereign all thé obédience which sh:dt
consist with that pammouut pu~oso and those subordinate
purposes.Thé résolution of thé members to unité themsetves
iuto an indcpendent potitical society, is styled ~f«'<«M M~'<MtM.
T!teir détermination of thé constitution or structure of thé sove-
reign potitieat government, is styted ~f<f<;<M c'M!<7M<«)/(M or
~:<M~t <i'tM. The promise of the sovereign to tlie
subjeets, with thé promises of the subjects to thé sovereign and
to one another, are styled ~fH-<Mm A-«&/<;c<M{t'N for, through thé
promises of the subjects, or through thé promises of thé subjects
coupled with thé promise of thé sovereign, thé former are
placed completely in a state of subjection to the latter,
or thé
re!atto& of8MbteetMn a&d sovereigMty arises betweea thé partie. f
Kat of tho so-cttHett p<?<~ o/* wMMw, tho so-ctttted eoK~MfK~,
Mtd thé so-eaHed ~<M< e/* «K~w~ tha tast <Mt!y M property tt
convention. The so-eaUed pact of union and t!te so-called pact
constituent nre properly résolves or déterminations introductory
to tho pact of subjection thé pact of subjection heing the original
covenant ur thé fundamental civil pact.Through this original
covenant, or this fundamenta! pact, t!ie soverMgn is buund (or
at! least is bound re!tgiousty} to govern as is mentioned above
and thé subjects are bound (or, at least, are bound religiousiy)
to render to thé sovcreig!i for thé time bcing, thé obédience
above descri))ed. And thé binding virtue of this fundamental
pact is not confined to tho ibundo's of thé independent political
society. The binding virtue of this fundamental pact extcuds
to thé following members of thé same community. For thé
promises which thé founders of thé community made fur them-
selves respeetivciy, import sirnilar promises which they make
for their respective successors. Through thé promise made by
thé originat swcreisn, following sovereign'! nre bound (or at least,
are bound reii~iousty) to govern as is mentioned above. Through
tlie promises made by thé original suhjects, following subjects are
bound (or nt least, are bound re!igious)y) to render to thé sove-
reign for tho tirne being, thé obédience above described.In
every society political and independent, thé duties of thé sove-
reign towartts thé subjoets (or thé religious duties of thé sovereign
towards thé subjects) spring from an original covenant like that
which 1 now Imve delineated And in every society political
and indopendent, tho duties of t)te subjects towards thé sovereign
(or thé religions duties of thé snbjucts towards the sovereign)
arise from a sinular pact. Uniess we suppose that such an
agreemeut is incnmbent on thé sovereign and subjects, we cann"t
aecount adequatciy for titoso their respective obligations. Un!ess
thé subjects were hctd to render it by an agreoncnt that they
shatt render it, thé subjects would not be obtiged, or would not
be obliged sufncicntly, to render to thé sovereign thé requisite
obédience that is to say, thé obédience requisite to thé accon)-
ptistnnent of thé proper purpose or end of thé independent
political society. Un!ess thé sovereigtt were held by an agree-
ment to govern as is mentioned above, thé sovereign would not
be oMiged, or wou!d not be oMiged suflicicntly, from governing
despotieaHy or arbitrarity that is to say, governing with little
or no rcgartt to the proper purpose or end of a suprême political
govemment.
"'°°'
Y!
MMtM
Such, 1 belîeve, is thé genemi purport of thé hypothèse a& tt
Mat~inett tM~t Mttderett by tuent of tha writers who resort ta it.
]But, us 1 Imve ïemarked above, thé writers who ï~mt to
thé hypothesis imagine and render it vtu'iousty.–According, for
Mitmpte, to some of those wNters, The origitmt subjects, eove-
tMntin~ for themsetves and their foiïowera, promise obcdtGHec to
t)te original anJ foUowin~sovcreigns. I!ut thé on~uat .'inverei~n
M not a protnising party to the tundtunental civil pact. The
Mi~uml sovereign doos Mot a~reti with tho subjacts, that the
suverei~u powers studi )~ used to a givun und or eud9, or
that th'jSM powers shaU be us''d ht a ~iven mode or modes.–
And by tho diiterent writers who rcnder the hypothesis t))us,
thé purport of thé subjects' promises is nHa~ined. Forexampte:
SouM suppose that thé obédience promised by thé subjects, i.s
thé (tuatHied or cottditioMal obédience brie{!y described a.bove
whilst others suppose thnt the obedience pronused by thé subjects,
M an obédience passive or UHthnited.–Thé writers, iu short,

who suppose an original co venant, think varionsty concerning

tite uatu~e of thé end for which a. imprmne govemment ou~ht to
exist. They think moreover various!y concerning thé exteut of
thé obédience which a suprême ~ovemment ought to receive
fMu its subjects. And to his own opinion concentin~ thé nature
of that end, or to his own opinion concernin~ thé extent of that
obédience, each of thé writeM in question ondeavour.-) to shape
thé hypothesis.–But though thé writers who resort to thé
hypothesis imagine and render it variousty, they concur in thi'i
That thé duties of thé subjects townKts thé sovereign (or thé
religious duties of thé subjeets towards thé sovereign) are creatures
of thé original eovenant. And thé writers who faney that thé
ongioat sovereign was a promising party to thé pact, tdso concur
in this That thé duties of thé soverei~n towards the subjects
(ùr the religious duties of thé sovereign towartts thé subjects)
are en~endered by the samo n~reentent.
A complete though concise exposition of thé varions forms
or shapes in whieh various writers imagine and render thé
hypothesis, would fill a considérable volume. Desides, thé
ensuin~ strictures apply exactiy, or may bo tittcd casily, to any
onginal covenant that bas been or can bc coneeived although
they are directcd more particularty to thé fancied origiua!
covenant which 1 have denneated above. 1fy statement of thé
pnrport of thé hypothosis, I, thercforc, eonclude hère. And 1
now will su~gest short!y a few of the conclusive objections to
which thé hypothesis is open.
 1. To aceount for tlie duties of snb~eets towards iheir L
sove~ign govemment, or for tbose of thé soveteign govoHtment
towarfis its sub{eet9, or for those of eaeh of thé ptttties towards
thé other, is thé scope of every writer who supposes an originat
eovonttnt.–Bu~to account for thé duties of subjects towards their
sovereign govemment, or for those of thé soverei~H ~ovcrnment
towaitls its subjocts, wa need not re~oft to thé hypothesis of a
fundantcnhtt civil pact. We sufiictently account for thé origin
of those Mispcctive obligations, when we rofer thetH simply (or
without thé supposition of an original covenaut) to their ah-
parent and obvious fountains namely, thé law of God, positive
taw, and positive momtity.–Hesides,although thé fot'mation of
an indépendant political society were really preceded by a
fundamental civil pact, scarce any of the duties lying thereafter
on thé subjects, or of thé duties lying thereafter on thé sovereign,
would be engendered or innuenced by that foregoiug convention.
–Thé hypothesis, therefore, of an original covenant, is needless,
and is worse than needless. le affects to assign thé cause of
certtun ptMeo<Mnena: nantely, thé duties of sub)ects toward~
their sovcreign government, or thé duties of thé soverei~n
governtnent towards ita subjects, or thé duties of eaeh of thé
parties towards thé other. But thé cause which it assigns i.s
supernuous inasmuch as there are other causes which are at
once obvious and adéquate And that superfiuous cause is
inefncient as well as superituous, or could not hâve produced
the phmnoMem whereof it is thé fancied source.
It will appear from the foUowing analysis, that, althongh
thé formation of an independent poUtical society were really
preceded by an original covenant, scarce any of thé duties
lying thereafter on thé subjeets, or of thé duties lying thereafter
on thé sovereign, would bo engendered or an'ected by that

hardiy oblige (~
foregoing agrcement. In other words, thé covenant would
/'<7fi'(~M~, or <«~v<) thé original or
following subjects, or the original or foUowing sovereigns.
Every convention which obliges legally (or every contrnct
properly so called) dérives its légal efHeacy from a positive
law. Speaking exaetty, it is not thé convention that obliges
legally, or that engenders thé legal duty: but thé law obliges
!egaIIy, or engenders thé legal duty, through thé convention.
fn other worfis, thé positive law annexes thé duty to thc con-
vention or it détermines that duties of thé given class shall
follow conventions of the given description.–Consequentty, if
thé sovereign governntent were bound ~«/~ by tlie fundamental
t.EC1;t civil pact, thé légal duty lymg on thé govemment wero thé
CtvitpiK't,
cn'tttttœ of K positive law that is t& sity, tho legal dttty lying
crettt'tœ
'tuthegovt
"n thé govorumMtt wero thé ereatut'e of a positive litw am~xin~
thé duty to t!M pact. And, seoing that a law set by Un;
government to itsolf were merely a law t!)mngh a motaphor,
thé positive law nnnexing the duty to the pact would be set to
thé soverei~a govemmeut by another and supenor sovcrci~u. ;t
Con~quentty, thé so\'et'eig)t govfmnMnt !e~aHy bound by the .1

paet w'KtM b~ in a state of sabjeetion.Throagha positive !<tw t

set by their own sovereign, thé subjecta might be bound legttUy

to kecp thé original covenant, But thé Icga! or political duty
thus incunibent on thé subjects, would properly proœed from

the
ttie law set by their own sovet'eign, and not frotn thé covenaut
itself. If they were bound Jegally to kecp thé original covenant,
without a positive law set by their own subjects 1
t~
would be bound legalty to keep thé original covenant, through
a positive law set by another sovereigtt that is to say, they
t
woutd be in a state of subjection to their own sovereign govern-
ment, and also to a sovoreign govcmmont contwrring rights
upon their own.
Every convention which obliges (properly or improperly).
derives its efficacy from law (proper or improper). As obtiging
legatty, a convention derives its enieacy from law positive: As
oMiging religiousiy or morally, it derives its efficacy from thé
law of God or from positive morality.–Consequontly, if thé
sovereign or subjects were bound M~/MM~ by the fundamental
civil pact, t)te religious duty lying on thé sovereign, or thé
religious duty lying on thé subjects, would properly proceed
from the Divine law, and not from the pact itself. The party
J
bound religiousty would be bound by thé law of God through
thé original covenant or tha religions duty lying on thé party,
woutd be annexed to thé original covonant by tho law of God.
Now thé proper absolute end of an independent political
society, and thé nature of thé index to the law of God, are
conceivcd dinerently by different men. But whatever bc thé
absoiute end of an independent political society, and whatever
hc thé nature of thé index to thé law of God, thé sovereign
would be bound religiousiy, without an original covenant, to
~ovcm to that absolute end: whilst thé subjects would be
bouud religiou.-ily, without an original covenant, to render to
tite sovereign thé obédience w!)ich tt)e accomplisinnent of thé
end might require. Consequently, whctiter it consistcd or
condicted with that proper absolute end, thé original covenant
 woatd not ttbti~} R'UgioHsIy eithcr &fthe t\vo psrtte&–H thé
ot't~tna! eovemtttt eottsbtcd with tho,t abso!ute end, thé ori~M:d
<f~vemtnt wotdd tje super(ttto<M, and therefore wou!d be mopem-
tive. T!ie reUgious duttes !yi)~ ou tiio soverei~n :md subjects,
wouîd not he eftects or consequuncea, ))te't!atn!y or nmtM'.tiatcty,
R uf t)M fundameuta!civil paet. lua.sjnuch as thé Di\-înc titw
) would impose those rctigiou.s duties, atthough the pact hn't Mot
1 tjcun tuade, th~y wmdd not )? Mf~ets ur cun.'jequcuces atmexcd
to thc pact by the taw, or wouM not be tmposed by thc }aw
ttirough thé pact.–If the ot-igind cov~naut eonMiet~'t with t)mt
nbauhttt! end, it woutd (d.-j<~ cunftict with thé !aw winch is thé
souKe of t'c!igtoni} obli~tiuns, aud would nut oblige Ktigiousiy
thé sovereîgu govemment or its subjeeta.
For exemple Let u-! suppose t)iat thé priucip!e of utility
is the index tu the law of God nnd that, siuce thé prin<;ipte of
utility is the index, to thé law of Uod, thé gi'eatest possible
ndvaneement of thé comuion happiness or weat is thé proper
absotute end of au independeut potitical society. Let us
suppose, moreover, that the aeeo)np!ishntent of this absohtte end
wns thé scope of the original covenant. Xow no religious
obligation would be laid on thé sovereign or subjects througtt
thé fundamental pact. For thé sovereign would be bound
retiglousty, wit!iout the fundameutal pact, to govern to thé very
end at which its authors had aimed whitst thé subjects would
he bound retigiousiy, without t))e fundatuentat pact, to render to
t)te sovereign thé obédience which thé aecomplisttntent of the
end tnight recuire. And if thé aeeontp!ish)uent of this same
end were not the seope of the pact, the paet wou!d eonftict with
thé )n.w as known throu~h the princip]e of utility, aud would
not oblige retigiousty oither of thé two parties. To make a
promise which générât utility condenuM, is an onenee ngninst
the law of (.}od but to bt-cak a pMinise of a generaHypenncious
teudency, is thé futHîtnent of a i'Mhgious duty.
And though thé onKi~~a~ sovereign or the original subjects
tni};ht hâve been bound re!i}{iou.s)y by thé original revenant,
why or )iow shouH it bind rc)igious!y thc Mlowin'~ soverei~ns
or subjects? Duties tothesubjects for thetimcbei))g,wou!d
be )aid by the law of (-'od on a)t the following sovereigns; and
duties to thé soverGign i'or the tim'i being, wonid be laid by thé
!aw of <od on aH t)ie followin~ subjects: but why shou!d those
oMi~ations be laid on tho.~ Mtowing parties, throu~h thb
i'undinnfntut paet ? throu~h or in Cftn.se'juenee of a pact made
without their authority, and even without ttteir knowtedge ?
 t Legttt
Le~I obtigMions oftcu
r~-f.Vt lie upou parde'} (as, <br exa!np!e, upon
hèu't
!tèM'K)ï MttHHHStKttO~}, thtOUgh Of in eoMS~U~MC~ uf p~ttUSe~
made by other parties w!tose légal représentatives fhey arc
HMt~U
whose fitcuhies or means of fuMiling obUgations devoh'e or
descend to them by virtue of ~sitivc hw. Aud t })f!'ceivf
readity, why the légat oh!igations which aro conséquent on tho-<n
prombes, exteud from thé tuakers of thu pronuses to thé pttrtK's
who le~aUy Mpresent, thon. It ta cxpediont, for varions reasons,

certain promises and for thé or

that positive law should impose oLU~tious 011 thé malcers uf
nearly thé same, reasons,
it is expedicnt that thé legal duties which are laid on thé
tnakers themsetves, shoutd pass to thé parties who legaUy
represent them, and who take their faculties or means. But t
ttm unable to perceive, why or how a promise of thé onsinn!
sovereign or subjects should Mnd reH~iousty thé Mtowitt~
sovereigns or subjects Though 1 sec that thé cases of legtd
ob!igatiou to whieh 1 now have adverted, probnbly suggestfd
thé groundtess conceit to those who devised thé hypothesis of a

If thé were
fundamental civil pact.
bound Mo)'f<</ to keep thé original
covenaut, thé sovereign would he bound by opinions eurrent
amongst thé subjects, to govern to t)ie absolute end at which
its authors had aimed And if thé subjects were bound Mwa/
to keep thé original covenant, thé subjects would be bound
severaHy by opinions of thé community at large, to render to
thé sovereign the obédience which the accomp!ishtnent of the
end might require. Hut thé tnorat obligations thus incumbent
on thé sovereign, with thé moral obligations thus incumbeut on
the subjects, wou!d not be engendercd or anected by thé original
covenant. T!)ey woutd not he imposed by tlie positive nmraUty
of the community, through or in conséquence of thé pact. For
thé opinions obHging thé sovereign to govem to that absolute
end, with thé opinions obHging thé subjects to render that
requisite obedience, would not be conséquents of thé paet, but
woutd hâve been its antécédents inasmueh as the pact itself
would have been tuado by thé founders of thé contmunity,
because those very opinions were ttetd by all or most of thent.
We may, if we like, imagine and assume, that the iancied
original covenant was concoived and constructed by its authors.
with some particutarity and précision that, having determined
the absoluto end of their union, it specified some of thé end-
positive or negative, or some of thé means or modes positive or
négative, through which the sovereign governatent should rut~
pendent polittcat

monstrons
nn

lINIIIStI'rlllS LIniI
r
n_
te that nbsohtto end. Thé fouMdet.~ for exemple, or th& inde-
society (like tl<a Roman peopis who adopted
th~ Twelve Tttbies~, might hav& adverted speciaûy ta the
pitlpi6l~le tniscinefs
and palpable e.c ~<
rnischïefs of c..c ~xnst /«cff
and therefore thé fattcted covettant might hâve determined
specially, that thé sovereign govornotent about to he formed
should iorbear fi'om législation of thé kiud. And if any of
~icrtu législation

those positive or négative ends \v<;re specified by the ohgiHnl

lebislatïou
l

<'nveM<tnt., thc pfUHMse oi' the subjeeta to render o~dieuce to

t)te sovorei~H, was made with special rescrvatioHS it was uot
extended to any of thc cases wtn'rein t)te sovereign might
deviate from any of thé suhordinate ends which thé covenaut
determined specially.
Now t!te bnik or geuerality of thé subjeets, in an inde-
pendent political eommunity, might think alike or unifurnuy
coneermng tite absolute end to whieh theit' sovereign govern-
ment ought to rule and yet their uniform opinions concernin~
that absolute end tnight bind or control their soverei~o vet'y
imperfectiy. Notwithatandin~ thé HhifM'HHty of their opinions
concerning that absolute end, thé bulk of ttie subjects nnght
think variousty eoneerning thé eonduct of their sovereign since
the proper absointe end of sovereign potitical government, or
thé absolute end for which it ought to exist, is inevitab!y con-
ceived in tt fonn, or is inevitabty stated in expressions, extretnely
abstract and vague. For example: The bulk or generatity of
thé subjects might possibly concur in thinking, that thé proper
absolute end of their sovereign political government was thé
gt'eatest possible advancetnent of thé général or comtnon weal
but whether a positive law made by it t~ ~<t-~ did or did
not comport with its proper absolute end, is clearly a question
whieh they might answM' variously, notwithstanding thé uni-
fornnty of their opinions eoneerning that paramount purpose.
Uniess, then, tlie bulk of thé subjects thought alike or uniformiy
eoneerning more or fewer of its proper subordinate ends, they
itardiy would oppose to thé government, in any particular case,
a uniforni, simultaneous,and effectuai résistance. Consequently,
thé sovercign goverutnent would uot be atrccted constantty by
thé fear of an enectual résistance from t!)e subject members of
thé commnnity and, conscqut.'ntly, their général and uniform
f'pinioo.'i eoneerning its parantount purpose w"nld bind or control
it feeMy.–Hut if thé mass of t!te subjects thought alike or
unifornuy coneernixg more or fewer of its proper subordinate
pnds, thé uniform opinions of thé )))as. eoneerning tho-:e sub-
 ordinale cntb, woutd probaMy contt-ot it potently. Spcatdng
get~ïaUy,
guilrà
gtttl~N tue propft subm'ditMtte eud~ of <t govM'etgn pot:Uetd
govermnent (!et those t-nds fa' means bf what they nt&y) u~'
Le hnagined in form- ur may be stated in expressions, wttich
are neithef extretnety ntMtKM't, nor exttfmety vft~ne. C'otMc-
quetttty, if tim govermnent vcntm'cd tn t~viate ft'Mn any of thé
subut'diuato t'uds to w)tic)t those UHtfonu opinions wct'c decuteUty
t'itvourabk', the butk or ~HMttHty of tho sn~ccts woutd probably
uuit<j in t-es~ntit)~, uud uvdu in t'usi~tinn its MMttStn'os for if
they tried its ntGHsutfs )'y oue and thu satue standant, <md if
that standard or test were dctenHinatc and not dttMous, th~ir
rf~p~etive (jpittiuns coueerning its Mteasurcs would exactiy of
ttcat-ty taHy. Conse'lUGntty, a fear of cncountering au effectuât
rcsistauee, in case it !i))uuld venture to deviate froni any uf thusc
end!}, wuuld cnnstantly hold the ~overumettt tu ail the suhor-
'Unate euds which the uuifbrtu opinions of the mass decidedjy
f~n'<jured.–Thé exteut tu which a governntent is Lound by thé
opinions of its subjects, and t)tc eMieacy of the moral duties
which their opinious impose upon it, thmetore depeud MMuIy HH
the two foHowing causes First, the number of its subordinate
ends (or the nutuber of the ends subservit)~ its absolute end)
coucerning whieh tite mass of its subjects think atike or uni-
forntïy: second!y, the degree of clearness and précision with
which they conceive t))<i ends in respect whereof their opinions
thus coincide. The greater is that number, and the greater is
that denrée, thé more exten.sivety, and thé ntorc enectuaUy, is
t)te ~overnment bound or eontroUed by thé positive )Mora!ity of
t)te community.
Xow it foiïows from what t hâve pretnised, that. if an
ori~inat covenant had deternuned clearty and preeisely some ~f
thé subordinate ends whereto thé sovereign shoutd ruie, ttK'
sovereign would be bound ef!ectuat!y by thé positive moratity
of thé community, to ru)e tu the suhordinate ends which th';
coveuant had thus specified supposing (I, of course, understand~
that those same subordinato en(!s were favoured by opinions
and sentiments which thé mas. of the subjects for thé time
bein~ he!d and fe!t. And hère (it might be argued) the
sovereign wou!d be bound nioratty to ru!e to thoso same end-,
through thé fundamentf)) pnct, or in conséquence of the fnnda-
mentai pact. For (it tni~ht bc sai')) thé citicacy of the opinions
binding thé soverftign govemment wou)d main!y arise from th<;
ett-ameM attd précision with which thosc same ends were con-
ceived by thé mass of thé subjeets, whiist t))e eteantess and
précision of their conceptions wouM mtt!n!y anse from thé L
eh~n'nes~tHnl ptecMoMwîthwMch those stUue ends had beea ri
spectfied by thé original eovenant. It will, however, appear on
a motnent's refieetion, that tite opinions of thé genera)ity of thé
sKbjfcts, coBeerning thoso same ends, woutd not be engendered
by but rather would ha.ve engendured thc eovenant For if most
of thé subject founders of thé independeot political society hnd
t)ot t~ecn aii'ected by opinions exactiy shuilar, why w~'e titose
Stune ends spcciuUy d~t~muned by thc covenant of which thosc
subject foundeM were the principal authors Aud, gt-anting
ttmt the chitu'ness with which they were specified by t!t(!
covenant would impart un answering ctearness to thé conceptions
of thé foHowiMg subjects, that effect on thé opinions hdd by thé
following subjeets would not be wrought by thé covenant as
Leing M CM~M~ f<' /'f«'< that is to say, as being K ~M~~c, «)'
m!<<««~ ~w<M' ~M~ H)~ f<K'~<t< That effect would be
wrought by thé covenant as being a huninous statcment of those
Sinae subordinatc ends. And any similar statetnent which might
circula.te widdy (M a similar statement~ for exampio, by a
popular and respccted writer), would work a similar effect on
thé opinions of the following subjects. Stating dearly and
precise!y those same subordinate ends, it would naturally give
to their conceptions of thoso same subordinate ends a corre-
sponding ctearness and précision.
The foiïowing (I think) is thé only, or nearly thé only case,
\vhcrein au original eovenant, as being a covenant or pact, might
generatc or influence any of thé duties lying on thé sovereign
or subjeets.
It might be betieved by thé bulk of thc subjects, that an
agreement or convention (or a promise profïered and accepted)
bas that mysterious etticacy which ia expressly or tacitty ascribed
to it by those who resort to thé hypothesis of a fundamental
civil paet.–It might bc betievcd by thé butk of thé subjeets,
that untess their sovereign government had ~fOMt! so to
~ovem, it would not be bound by thé law of (!od, or would not
lie bound sufncientty by thé law of God, to govern to what
they esteemed its propcr absolute end. It nii~ht be believed
moreover by thé butk of the subjeets, that thé proni.se made by
thé originat suvereign was a pronusc made in en't'ct by each of
tho following sovereigus, and therefore it ntight be believed by
the bulk of thé subjeets, that their sovereign government was
bound religiously to govcrn to that absoiute end, t~ther because
it had ~'OfH'~ to govct-n to that absolute eud, than by reason
LEct.Vtofthe
ofthe itttHHsic worth bûtohging to the end ttseM–tfaw, if thé
masse of the abjects potentty bette ved thèse positions~ the. d~ïes
mnss 0
~ft~A
of thé government towards its subjects, winch thé positive
nntmîity of thé commmuty imposed upon it, would be
engen.
dere~t or ttnected by ttte origiml covenant. They woutd be
imposed upon it, wholly or in p<u~ because thc on~inal covcnMt
itad preceded or accompfmied thé institution of thé independent
political society. For if it departed frotn any of thé ends
determined by thé original covenaut, thc mass of its subjccts
woutd be moved to anger (and perbaps to eventual rebellion),
by its breach of its ~-oKM~ reat or supposed, rather than by
that misrule of which they esteMned it guUty. Its breach of
its protnise, as being a breach of a promise, would be thé cause
of their offcuce, wholly or iu part. For they would impute to
thé promise, real or supposed, {t proper and absolute wortb
or
they wou!d care for thé promise, Mal or supposed, without regard
to its scopc and tendency.
It appears from thé foregoing anaiysis, that, although thé
formation of thé independent ppiitical society had really been
preceded by a fundamentat civil pact, nono of tite legal
or
<<~t'<'<M duties lyitt~ on tite mveKiign subjects could tA'
or
engendered or inituenced by that preceding convention titat
there is only a single case, or are only a few cases, whcrein it
could engender or innuence any of the Mw~ duties lying
on the
same parties. It will appear from tlie fotlowing analysis, that,
where it might engender or influence any of those M<M'<~ duties,
that preceding convention would probably be pernicious.
Of thé duties of thé sovereign towards the subjects, and of
thé duties of thé 8u))jects towards tite sovereign, it is ouly those
M'hich are moral, or are imposed by positive ntorality, that
any
original covenant could possibly attect. And, eonsidered with
référence to those, an original covenant would be simply useless,
or would bo positively pernicious.
An original covenant would be simply useless, if it merely
'letennined the absolute end of thé soverei~n political govern-
ment: il' it merely detennined that thé absolute end of the
~'tvernment was tl)egreate.st pussi))ie advancement of tite conunon
happiness or wcal. J-'or though th'- covenant might give uni-
formity to thé opinions f'f thé nta&s of thé subjects, it wouh!
oniy affect titbir opinions concernmg that ab.solute end And,
a';
1 hâve shoM-n a!ready, thé tnnformity of tlieir opinions concernin~
thé paramount purpose, would hordiy influence thé conduct of
thuir sovereign political governtaMtt.
¡ But thé covenant might speci~ some of t!te meaus, or some Ï.MT.
ï.' VI
of thé saborditMt~ or instrumenta ends, thtongh which thé
government sh&uld rule tu thut ita absolute muL M' throu~h
which it should so rute as to fm'ther the common weal. And
as specially determining any of those means, or any of the
subordinaM onda to which thé govermnent should nde, th<*
original covenant would be siH)p!y useless, or would be positively
pernicious.
For thé opinions of thc foUuwing mombers of thé indopendent
political community, concerning thé subordinate ends to which
the government should rute, woutd or would be not nffected by
thé covenant or pact of thé founders.
If the coveuant of thé founders of thé eommunity did not
affect the opinions of its MlowiMg tuembers, th6 covenant would
be simply useless.
If thé covenant of thé founders of thé comMunity did anect
thé opinions of its foHowing members, tt)e covenant pro~bly
would be positive!y ])ernicious. For thé opinions of thé following
tneMtbers ~ould probably bu aifected by thé coveMant beiag
r
a covenant or pact nmde by thé ibunders. They probably would
impute to thé subordinateends specified by th<i original covenant,
a worth extrinsic and arbitrary, or independent of their intrinsie
merits. A belief that tlie specified ends were of a usefu! or
benoficent tendeney, or were ends tending to thé furtherance of
thé common happiness or wea!, would not be their rcason, or
would not be their only reason, for re~arding thé ends with
respect. They probably would respect thé specified ends, or
probably would partly respect them, because thé venemble
foundeM of thé independent political society (by thé veneraMe
t'ovenant or pact which was thé basis of thé social fabric) had
detennined that t)t<xe same ends were some of thé ends or means
thn.'t~h which thé weal of thé connnnnity mij.'ht Le furthered
by its snverei~n novennuent. Xow the venemNe âge or times
wherein thé community was founded. woutd probab!y be less
entii~htened (notwithstandin~ its claims to vénération) than any
"f thé ensuit)~ and df~enerate a~es through which titt' community
tni:j:ht endure. Consct~n-nth', thé foUowln~ pernieMus enect
would be wr(~u~ht hy thé original covenant. The opinions held
in an âge comparativcty ignorant, cottcerni))}; thé suhordinate
c-nds to whieh thé government shou]d ruie, would innuence,
more or less, through th'' ntedium of thé covenant, thé opinions
he!d, conceming those ends, in a~c< compamtivpjty knowin~
ï.et us suppose, for examp!e, that thé formation of thé Briti.<h
(~connnntutywasprecededbyaiuudatttMttttUpact.
t Lctussuppuse
'H~tÙMRn'eed' ~MppoMtiun), that thé ignMKmt tbuadets of
ttK; c'unotunity deerned fm'eigtt cuimuetcc hm'tfut to dmnestic
indnxtry. Let tts, theret'ure, sujtpose, ntoreover, ttfat thé govern-
tneut ttbMH tu bo funned pt~tttt9G(t tôt- ttseit and its successot-s,
tu /M-u/t~ thé induttry of it< ~wn !M<'iety, by furMddiug an't
pi-eventh~ t)M importatMi 'jf t'o!-di}{)t jfumufaeturcs. Xow if
thc i'Hnditmctttat pact tnadc t'y our worthy nncest'jrs wotu
dtjvoutly Mvcrcucëd Ly u~uy uf Mn~tves, it. wottttt hinJet' thf
diffusion ot' sound (~couûhtit.)I duetrincs through thé présent
cotniuunity. Thc pM~nt sovcrci~t ~ovfnnnent woutd, t!tet'tiforu,
be prevented by thé pact, ft'Ma Ifgidating wiscly nnd u.'iefuHy
in rc~tud to our connnereiat inmrcourse with othm- iadfpendcut
nations. If thé govennueut uttempted to withdraw ttte restric-
tions wltieit thé laws of prccudiH~ ~ovemmeuts havo laid on our
t'ureign coMMM'cc, thé fallacic~ which How arc eurreut, and thc
ncu.'iett.sf which Huw is in vo~ue, woutd not be thé ouly fitUacie-s,
nnd wouM ttot bu thé only uottSfnsë, wherewit)) thé haters ot'
Utiprovemunt would Ldabûur thc audacioua innwKtors. AH
who delighted iu'thin~s aueieut.'wuuM certainly accusa it of
iufriuging a principe which was part of the very basis whereot)
thé conumuuty rested which thé wise nnd veueraMe authors
of thé fuudamentat pact itself !Md formerly adopted and
eonsecrated. Xay, thé loyers of darkne.ss assuredty would
aiHnu, and probably wou!d potently believe, that the govemment
was tM<'<«~t'<<'K< to withdraw the restrictions which thé lawa of
preceding governments hâve !aid on our foreign commerce that
beit)~, as it were, a ~)'<py of thé first or original ~ovcrnment, it
was M<<~<~ by the solemn pronuse whictt that government
had ~i\'en.
remises or oaths on the part of thé origina! sovereign, or
promises or oaths on thé part of suceeeding .sovereigns, arc not
the efficient securities, MOM/ 0;- /'(7t'jy)'«~, for heneticent govern-
ment or nue.–Thé best of M<~i/ securities, or the best of thu
securities yielded by positive moratity, woutd arise frum a widf
diffu-sion, through thé tnass of thu subjeets, of thé soundest
political science whieh thé h~hts of thé a~e could aftbft. If
they eonceived conectiy thé paramount eod of their governtnent,
with thé means or subordinatc end'i titrou~h which it must
accomptish that end, none of its MMsures won!d he grossty
footish or wicked, and its conduct {'Mitive and négative wou!d
commontyhe wise and benencent.–Thé best of <'t7<y<securitie<
or thé best of thé securities yie!ded by ru!igious conviction:
wouM tu'iso from wottlty opmions, heM Ly ruicrs ttud subjceis, J
coHwnmtg: thé wishes and pttrp'~t of thé Cood and Wiw
Momn.'eh, iind eaueerumg tint nature uf thé duties which Le lays
upon earthly sovereigns.
2. ît appears front thé foregoing strtctures on thé hypothesi"
ttf thé original covenattt, t!*ftt thc hypoth<H 19 MfcJtes'), attd i-
worse than ue(.'dtcs;i that we at'c abte to accounc .<u(!i(:iciit)y,
without rcHortu)~ to thé hypothcsis, for thé dutic.') ot' subjects
towtn'ds thoir scvere~M ~vM'HmeHt., with thé duties of tho
.sovctfign governiueut towfn'd.'i its subjfcts and that, titoug!) thc
formation of thé iudependent political society had really beeu
precedcd !y a fundamental civil pact, scaree any of those obli-
~ations woutd bt;engend(;re(t or h)t)uunc<;d hy that p~ccdit)~
agreement. It will appear ft'ont thé Mtuwiu~ stnctures, that
tt)G hypothesis of thé fundamentat paet is uot only a fiction, but
is a fiction approactung to au imposstbttity t!fat thé institution
of a wo\tt or Mt')7<<, or the formation of a socicty potiticat and
indepeudent,was never prccedcd or accotnpauied, and eould
hatdty be preceded or accompattted, by ttt) ofigh)~ covenaat
properly so eall<d, or by aug))t rescmblit)~ thé idea uf a proper
originat covenant.
Every convention property so caHed, or every paet or agrcc-
ment properly so called, consists of f< ~«-<Me (or tnutuat promises)
~'<~t/w/ «/«/ f«'cf~< ~terevcr inutual promises arc profiered
and accepted, therc arc, in strictncss, two or tnorc eouventions
for tlie promise prouered by each, and accepted by thé other of
thé agreeiug parties, is of itscif au agreeuient. Hut where th<;
performance of either of the promises is tnade by either to dépend
on thé performance of thé other, thé sevemt conventionsare cross
or implicatcd conventions, and commonly are deemed, therefore,
one convention.–Where one only of thé agrecin~ parties gives
or passes a promise, thé promise which is proftered by thé one,
and which is accepted by thé other, is, in thé tangna~e ofjurists,
a convention «Kt7f< Where each of thé agrecing parties
gives or passes a promise, and thé performance of either of thé
promises is made to dépend on thé performance of thé other, thé
severat promises respective!y proffered and accepted, fue, in thé
languagc of jurists, a 'convention &<7~t<-< Whero each of thé
agreeing parties ~ives or passes a promise, but thé performance of
either of thé promises is n"t made to dépend on thé pfrformanct.'
of thé other, each of thé sevcral conventions is a separatc uni-
htera! convcntio)), a!t))ough thé severa! conventions be mn'te at
one time. For example If 1 promise you to render you n
.i.service, and if yen Mcept thé prouem! promise, thû promise
pr&Heîed&mt aceeptett fortHta ~mvmtMfL nmitttemt.
promise ~<t to render you a. service, md yuu promise Nte to
Ift
rendfr !ne a service <A<~yM', thé promises respectivety pronered,
if they are respective!y accepted, fomt ? convention bihienu.
H' each of ns promise thé other t~ rendM' t!te othor a service,
but thé Muder of eit!)et- uf th<! services i~ not made to dépend r
f'n t)w tender of thé other, thé pt-omiscs p!'of!cred nnd acceptfd 9
are sepamtc unilutcral convenHot~, tdthough they be ptf~ëfMt
aud accfptcd at one and thé same tiuie.–Since, then, a conven-
tion bitateritt is formed by thé implication of sevem! unHatem!

or « ~)'<w< ~<
conventions, every convention is proper!y a uni!atcmt convention,
«K~ aet'~<t<
Tf)e essentials of a convention may be stated genera!!y thus.
r
i

1. TtM pt-omisor, oi- thé party who pronets thé promise, promises
thé promisee, or thé party to whotn it is pronered, t!mt lie will
<)o "r perform sonte given act or acts, will forbear or abstain
t'rom sume ~iven aet or acts, or will do or perfonn and aiso
furbeM or abstam. And tltu act& or ibrbeamnees which he
protuises, or the nets and forbearances which he promises, mny
be iitykd thé objeet ot' itis promise, and abo thé object nf thc
'onvcntiou. 2. Thé pronnsor ~<</t'M to thé promisee, that )te
«t<t<M~ to do the aets, or to observe thé forbearances, which fonu
thé object of his promise. If he siennes this his intention by 1

spoken or written words (or by signs whieh custom or usage

has rendered equivatent to words;, his pronëred promise is e.<
)
y//v.M. [f he signifies this his intention by si~ns uf attoth'r
nature, his pronered promise is still H ~nuine promise, but is
/tfW or ~<c!'<. If, for example, 1 reccive goods from a shop-
keeper, teUing l)im that 1 mean to pav for them, 1 protnise
expressty to pay for thé goods which 1 niceivc for I signify au
intention to pay for thon, through spokHtt or written ianguage.
Agnin: Having been accustomed to reçoive goods from thé
.shopkeeper, and atso to pay for the goods which 1 hâve becn
accustomed to receive, 1 receive goods which thé shopkeeper
fk-Hvcrs at my )touse, wit)iont signifyi)~ by words spoken or u

written (or by signs which custom or us~ge )Mts rendcred équi-

valent to words), any intention or purpose of paying fur thc
goods wtncii he dctivers. Consequctttty, 1 do not promisf
t'xprcssiy to pay for thé particular goods. 1 pronnse, howcvcr,
tacitty. For by receiving thé partionar ~oods, under the variou."
'-ircnti~tances which hâve preceded and sceompanied thé récep-
tion. 1 signify to thé party who detiveH them, my intention of
t~yin~ ibrtthegcodi~a)}
thé gcotk, as deoided!y sh~uM sttMtff
deoMed!y M 11 sh~uM i~ 1L t.i'cr.Yt
stgMtij' it if
tottt Mm that ï meant to pay. The only dtnercftpp tMtweptt
tho express, attd t!m tacit w impued prf~nse, ti<'a in thé dt{tft"
enee between thé natures of thé signs through which thé two
intentions are respeetivetysignified or evineett. 3. Thé promisee
ff<'<y<-? thé pronered pro!n!?e. ïn other wotfb, he .«yK~'t.; to
thé prontisor, expfessiy or tadt)y, his M</ or M~f~«~'o<t thnt
thé latter will do or forbear a~recaMy tu thé intention or pur-
}x~e whioh thé !atter h:~ expressed or intimated. Un!f'!<! the
jûtjmise be accepted, or sucit a bciief or expectation be signitied
<jxpress!y or tacitty, ttie promise is not a convention. If thé acts
or t'orbearanceswhich forni thé object of thé promise be after-
wards donc or observed, thcy are donc or observed spontaneoush'
by thé promising party, or not by reason of thé promise con-
sidered as such for thé promise woutd not bc enfbreed (te~a!!y
or morally) by a rationat suprctne govcrnment or a sane pubhc
opinion. In thé technical !angua~e of thé Homan jurists, and
by n)ost of thé modem jurists who are i'amiHar with that teehni-
ea! tangtmge, n protuise pro<fore<t but not aceepted is sty!cd <r
/M//M!<f<<M.
Consequently, thé main essentials of a convention are these
I'*i)'st, a .<MyM~'M<i'wt by thé promisin~ party, of his ~<<fM<<f/K to
do thé nets, or to observe thé forbearances, which he promises
to do or observe secondiy, a .w//t</?t(~<Mt by thé promisee, thnt
he (.(~cc~ t!tc promising party will fulfil the proOered promise.
And that this signification of intention and this signineation of
expectation are of thé very essence of a proper convention or
agreemont, will appear on a moment's reHeetion.
The conventions enforced by positive law or moMuity, are
enforeed tegauy or moraHy for various rcasons. But of thé
varions reasons for enforeing any convention, thé Mlowing is
aiways one.–Sanctions apart, a convention MH<«~<y raises in
thé mind of thé promisee (or a convention <««~ to raise ht t]te
tnind of thé promisee), ail f~t'f<f<M< that its object will be
aeeompHshed: and to thé expectation natum!)y raised by thé
convention, he as NaturaUy shapes his conduet. Xow, M much
of thé business of human life tums or movcs upon convention:
fréquent disappointments of those expectations which conventions
naturaUy excite, would render human society a scène of t'amed
hopes, and of thwartcd projects aud labours. To prcvent disap-
pointtnents of such expectations, is thercfnre a main object of
thé légal and tnorat ru!es whose direct and appropriate pm'pose
is thé enfbrcement of pacts or agreements. But thé promisee
tt~r. V! ~f<uM
~n uot entett:tin thé expectation, untes!) the eorrespot~ing
mtctttiott wero siguiM by thé promiam~ pi~y tmd, ~niess thc
~xistt'tx.'u of thé expeetation werc signitied by t))e pt'~t)us<
thé prontising party woutd not bc HpprM of its cxistfnce,
tttthongt)thop~f!oK'tt }wmMohitd(tcttMt!iy)fM!!edit. Wtthont
t))e sigui<M<tttt)n of ttm intcnt!oi),ttn'M wcro no promise propody
~u eutt(;d witlloiit the si~tnftcatiou of thé expectation,t!tet'c weK
no suftieicnt reusou f< enforch~ the ~ettuine promise which
t'~Uy m:ty iia.v<i bccu ptoifered.~
tt foUows from the bregoixg statOHentof thé main esscntiais
'jf n convention, that an originiti covenant pt'o]jedy so eaUed, or
au~ht res~tubling tho idea of a proper original coveunnt, coutd
ha~Uy pt-ucede the formation of un indcpend'nt political society.
Aceor<.tin~ to thé hypotttesis of thé original covcnant, in so
t'ar as it regards thé promise of thé original soverei~n, thé sove-
t'fign protui.-ics to govcrn to tho absolute end of tlie union (and,
ptjrhaps, to inoM or fewet' of its subottUnate or in.strumeutat
cn<)s). And thé promise is pronercd to, and is accepted by, a//
thé onginal subject& lu case the mettoatt gQVcrum~tit be n
government of one, thé promise passes front thé monareh to all
thé members of tho conimunity (exeepting thé monareh hmtse)f).
In case thé iuchoate government bo a govemment of a tunaber,
it passes from thé sovercign body (in its collective and sovereign
capacity) to all thé subject tuembers of the inchoate community
(includiug thc members of thé body considered severttlly).-
Aceording to thé hypothesis of thé original covenant, in so far
as it regards thé promise of thé original subjects, they promist'
they pfMnise
promise to reuder
"n& 1"
to reuder to thé sovereign a passive and uniunitcd obédience, or
reuttcr to thé
tho sovereigu
so\'< such a qualified obédience

(') Thé inci~ental statfmettt, in thé <MHt'x<whi(:h MofthccMem.'e «façon-

the,
orv'nti')",i.
text,ofth~t'!i.t')tt)a).ofaconv<ntiottor formel ot'thé Uttc-ntioo
!M':siKni)Md))yt))<'pro)n!or,at)doftheeor'
)'a';t,i.<<nffi<;icnti'orthe)intit<!<t)<urtXM':
tuwhi':))t)KH'eth<'r<ijt)Ht;cdit. ]t'tt'trt<poM'tiug<'X)''<'tattonsif!nM'*d!'vt)M
1
wftt: t'xt~u)tdi)tg<tir<t)y th'' <tt<i'MM~<;of promisce. Thx iatctttMn w!th t)t!i Mt-
thé 't'thue of<:o))tr.n;ts, 1 shoM)') .mu''x
h'x~<tationixsty)f-<tth';<'MM'M<«oft)h'
t'jthct!Tt''tat<;mentw)tic)tt))a.v<!
n'<i )atti<'s, hceaM. ())< inf'ntion !m<t <-x))f.ct-
)!):tC(:dittth'-tt;xt,MMmYcx[)!a))ftti'))t.'i
))t.'it<ti<j))t:tiim<;t)rt!"to){t;thcr,urb<M~'
!)sa<)h-y!)r't)Mh'')ton'n)ttt)t')nMbj"t;
!ttntrt:!)tntti"t<'iw)ti<;h)t'<wt)MU<tp!)sa
i)tsi)''t)(f. AKO"'t~t'<'sitioMf)ft))at Mttnt)ttt-)y,))tc~:t.<firf')t)"'ar;m<<wiiit.')i
Kichrmth<:o))it'<afthet'nnv))ti"t). )!'tt
<Vt<mit'<& (M-)ti'-t) J!)r~)U OH') ))!)!) tc~M
t)~-(;tMn'Jtou.<)y))er)!)t'x''tt!md'!)i. !)i.th''ttn)tt'<Mt)st')twithawittt'r
M-urMt)wuuh)ittvotv<'tt.'<<;<tr<;)un~tum)y'
)y' m''tUH)K. <t!{))i)ie< any K')ttt[~i~)t<e wit))
''i'it't)M)'<nowiMt!it)tr)c.tt<*).-j:)'rt'ssiut)!
)!!
<Uty wish of «n~t))t')'. At'd. tak!nt{ thc
Lt'- tenu Mth thi.')wMer tneaninK. subj~t~
t'rf<tni<)MUit;i<.ui')n;<'uuv<-ntiutt,a!{rLt'-
<:t.(<M!h.tt'<h"))a)rM'h')''Mt-N~ tu
)~t-tjt,urjHf:(;f'o)jH.)t;t;'ju.'t<i-<;uMt)'ft<:t.~
):tttïwi))!tddtotht-.<tat';t«.nti))t)u!(
)u! ~)''y t)«;ir snv~M);)), wh<-t1t<'r timy pM.
i't- «)).<" t'r n'tt to fuJt')' oh''(!ttcc, aud
tt'xt,b<-hrt.tt-onct)Kt<'t))et)')t!th'-fu)-!
[isw)tat''v'-t')<-t))!'mUtn'')t't)tL'))totiv'tty
)(mins;r'-Mmr)<'tMt)ttttm)).~it<'w))i'-his¡.
"t't)t<'(;m-n<:<*of'N<:onY<:utMt. mtwhh;hth'-y~h'nHi)tedt~rnni'rit.
Ttmt
us shaH consist with a givea end or with giv~n ends. And thé
pmnttiie of t!w sùbjects passer ft'MM «~ thé attbfeets: front all
and eaeh of thé subjeets to the motturck or savere!g& body, m
ircm each oftho subjects to a!I and each of thé rest. In case
thé inchoate govermneMt be M government of one, it passes fron)
all thé members of thé inchoat'j coMnattmty(excepting thc mon.
nreh). In case thc inchoatc ~overutUMUt be a ~ov~mttMUt of a
ntuuber, it passes from aU the monbers of thé inehoatu t;<j)n.
ntunity (mctujiog thc sevemi memb~M of the Rovetei~n b<~ty).
New it appears frotu thé forcing statement uf thé main
essentials of a ecmvention, t))at thé pronuse of thf sovct-HJ~H tu
thé subjects woutd not Le a covenant properly, uute9.-i thé sub-
jects f'<;c~<<~ it. But thé ~ubjects cou!d Jiar~My accept it, unicss
they appreheuded its object. Uniess they apprt;)Mttded its
object, it hard!y could mise in their minds any duterminatc
expectation and unless it raised iu their minds a determinate
expectation, they hai'dty couid signify vu'tuaUy any determinate
expectation,or couM har<)ly accept virtuaMy thé proHered protnise.
The s'gos of acceptance which might <M:tnaHy faU ft-orn them,
wou!d not be signs of virtual acceptance, but wou!d be in reaMty
nnmeaning no!se or show.–Xbw the ignorant and weaker por-
tion of the inchoate cotmnunity (thé portion, for example, which
was uot adult) could hardty apprf-hend the objeet of the sove-
rei~n's promise, whether the promise were gênerai or special
whether the sovereign promised generatty to govern to ttie
absolute end of thé independent political society, or promised
moreoyer specially to govern specially and directiy to certain
subordinate ends. We know that thé gréât majority, in any
actual community, hâve no determinate notions concerning thé
absohtte end to which their sovereigti governrnent ougjit to rule
that they hâve no determinate notions concerning thé ends or
means through which it shoutd aim at the aecomptishment &f
that its paramount purpose. It sure!y, therefore, were absurd
to suppose, that ail or many of the members of any inchoate
conmunity would hâve determinatc notions (or notions approaeh-
ing to detcrminateness) concerning the scopc of tlieir union, or
concerning the means te it.s attainment. Consequently, most 'jr
many <~f the origina! subjeets wou!d not apprehend thé object
'tf the original sovereign's promise and, not apprehending its
object, they woutd not accept it in enect, although they might
acccpt it in show. With regard to most or many of the originid
subjeets, thé promise of thé origina! ~vereign were hardiy
.t
covenant or pact, but were rather a poUieitation.
Httr.yrf Thé tet)M<'t{s
M which Ï now hâve tnade on thé p~mitë of t!w
Oft~MMtl
oftgitMtl s~w~ign,
8W w!U )tpply,with&{ewft<Ïaptat!ons, to t~pM-
of thé origioa! subjccts. Tf rea!!y they prof!ered to thf
nu.<!('pfth<
mise
In if rcalty they proftëred to une another) that promis
c.nsniinn (or
sovereigo
to n'nder obettience which thé hypothesis supposes or feign.t,
they wou!d ~< cxpressly or tacit!y an tM<<;H<<t~ of MKHin~
it. But suc!) tt si~uMeatiuu of intention could not be made by
all of ti)em, ur evun by must or tMauy of theni for by most or
many of thûm, thé objcct of the i~ncied promise would not be
apprehendcd determinatety, or with a distant npprcaeh t'j
determitMitcuess.–Ifyou i'ei~n that thé promise to oLey passes
from thé subjccts to the subjects, you thicken t!i8 absunUty of
thé fiction. You fancy that a promise is proHered by parties to
whom thé object of thé promise is nearly or quite uuiMteltigible
and, seeing that thé pronusors are also thé promisees, you fancy
thnt thé promise is accepted by parties to whom thé object of
thé promise is eqttally incompréhensible.
If you would suppose an original covenant which as a mère
hypothesis will hold water, you must suppose that thé society
about to be formed is composed entirety of adutt members that
all thèse adult menibors are persons of sane miud, and eveu of
much sagacity aud much judginent: and that being very
sagacious aud very judicious, tliey also are perfectly familial', or
at least are passabty acquaiutcd, with political aud ethical
science. On these bare possibilities, you may build an original
covenant which shall be a cohérent fiction.
It hardty is necessary to add, that thé hypothesis of thé
original covenant, in any of its fonus or shapes, bas no founda-
tion in actual facts. There is no historicat evi<tence, that ttte
hypothesis bas ever been réalise'! that thé formation of any
society potitical and independent bas actu:dly been preceded by
a proper original covenant, or by aught approaching to thé idea.
lu a few societies political and independent (as, for cxampte,
in thé AngIo-AmericanStates), thé sovereign potiticatgoverument
bas been determined at once, and agrecab!y to a seheme or plan.
Dut, even in thèse societies, thé parties who determined thé con-
stitution (either as scheming or planning, or as simply voting or
adopting it) were merely a slender portion of thé whole of thé
independent commnnity, and were virtuaUy sovereign theremIl
before thé constitution was determined insomuch that tbt-
constitution was not constructed by the whole of an iuehoate
community, but rnther was constntcted by a fraction of a co)n-
Munity aiready consummate or complète. If you would show
 me an actuat case exacttysqwtaagwith th&ide&of & proper
originat covenant, you tatHt show me a soehity puUtfea! and
iadependent, with a government potttiea! and sovereign, which
a!I thé members of thé society who were then in existence jointjy
founded and constituted. You must show me, a,!so, that aU thé
suhject or sovereign aut!tors of this society and government
werc parties expressiy or tacitly to a true or genuine convention
t'csemUiu}; thé original covenants which 1 have meutiou<idabove.
–In most societies political and independent, thé constitution
of thc suprême government bas ~WMt. By which i'ustian but
current phrase, intend not to intimate that it hath corne of
itself, or is a marvellous somethiog fashioned without hands.
For though we say of govennnents which we mean to praise,
'that they are govennuents of laws, and not govemments of
tnen,' all human govennnents are governments of men And,
without men to make them, and without tnen to enforee t))em,
tuunan laws were just nothing at aU, or were merely idle words
scribbled on paper or parc)nnent. 1 intend to intimatc, by thé
phrase in question, thnt the constitution of the suprême govern-
ment has not been detennined at once, or agreeably to a Mhetne
or plan: that positive moral ruies of successive générations of
the community (and, perhaps, positive laws made by its successive
sovereigns) have determined thé constitution, with more or less
of exactness, slowly and unsystematicalty. Consequently, thé
suprême govenunent was not constituted hy tlie original
tnembeN of t!)e society: Its constitution bas been thé work of
a long series of authors, comprising thé original members and
tnany générations of their fûUowers. And thé same may be
said of most of the ethical maxims which opinions eun'eut with
the subjects constrain thé sovereign to observe. The original
sovereign govemment could not have promised its subjects to
govorn by those maxims. For thé current opinious which
actually en<brœ those maxims, are not coeval with thé inde-
pendent political society, but rather have arisen insensibly sinee
thé society was fonued.–In some societies political and inde-
pendent, oaths or promises are made by ruiers on their accession
to ofnce. But suc)t an oath or promise, and an original covenant
to which thé original sovereign is a promising party, have little
or no resembtance. T!)at thé formation of thé society political
and independent preceded thé conception of thé oath itself, is
commonly imptied by thû tenns of thé latter. The swearing
party, moreover, is connnonty a limited monarch, or oeeupies
some position like that of a limited monarch that is to say,
~32 T~'jP~Mm~
t.t. vt thé
t.~T.Yt tha swearing
swearuMî
a pmty soveteisa. bat
amtv MM not aovereign, tMtt M
is. metety
meMty a t
Hmb or
tacmbefofasovereignbody.
taemt
And if aetual original covenants might be detccted inhistory.
they would not sustain thé hypothesis. For, according to thé
hypothesis, an ongiutJ covenant M«'t'AM~7y preceetes thé forma-
tiuu of au independent putit!cal society. And in numeMtts cases
of independeut political socioty, thé formation of the society, as
original covenant:
we know froui history, was not ptticeded by an
Or, at least, tho formation of the soeiety, aa we know frotn
history, was not preceded by an e~'<'&t original covenant.
It is said, however, by the advocates of thé hypothesis (for
the purpose of obviating thé diMcutty which these negative
cases présent), that a <<M~ original covenant
preceded the forma-
tion of the society, although its formation was not preceded by
an f-~t'-M covenant of thé kind.
New (as 1 have shown above) an actual signification of
intention on thé part of thé promisor, with an uctnal aceeptancc
of the promise on thé part of the promisee, are of the very
essence of a ~KMtMc convention or pact, be it express, or
be it
tacit. The only difference between an express, and a tacit or
impued convention, lies in this That, where the convention is
language,
express, the intention and acceptance are signified by
rendered equivalent to
or by signs which custom or usage bas
tanguage but that, where thé convention is tacit or implied,
the intention and acceptance are not signified by words, or by
si"ns which custom or usage has
Stgns nas made tantamount to words.~
(,) Qua~i.contracti,or contraeb' ifi«M'
!«M< oMtfjatiou, and not thé crMtiot) of !t
or <<<<, ought to be dbtinguiithedcareMty
tttty future oMifpttion, h thé fico~ or dMign
from tacit or implied contractf). A taett
ae!t of thé transaction betweeu thé Myor
imptMd contmct Mt:
tftmgenuineeontmct: and payée. B<tt smee thé nMMey h not
or tion oM<t, and iii not given iM a gift, a teffd
t)mt )f to itity, a geottiM convention
ttve oMigation ta rctunt it iieif N~n th<:
wMeh bin(ti) t<-f~Uy, or to which positive
law aHUMes an obligation, But <)UMt- t Mi- payée from thé MOtnent of thé erroneous
ion, t'<'y"nt. Atthough ho M not o)))ig<:<<
contract b not a genutna conYentMn,
ami, t'y coMequence. Is ttot a genutne ~ine ex tC)t<n!~M, hu is obtiged ~tMt<m «n<-
ha<t cotttm~t t~)
contraet. It M nome fact or event, not <m<<t<, as if he truly ThejiftyeeboMiKe't
te which positive
tivo rttumthemoMy.
a {{enuine convention, tKMt to retum it, «< ho might ))Me )x:)t
)))W annexes an obligation, <M if (~tKMt
ion. oMij;<-< ~he h:)'! proM)i<ed to Mtun) it, t,
or )<<<' it )f«'<: a gennine convention.and
aud a))d tho )M't acKej)t':J hif) protni.sc.
An't thé analogy between a contmct ~yor
merely lies n)
it) tM th'r )an~Mge of KuKtMh jurispru.
a cantraet }tKMt nr M<t,
));)!. 'lence, faetx or evunts whieh an: mntraet<
the reMmhtanee tjetween thé two ohti.
gâtions which are annexed vety ~'«Mt or «<f, are etytmt )'Mt~u<<mK</n<
r<t;)tetivety
t') the two facto or evfnb. In otherfrc- re- or MK<)~x'h«'A)'fAthe /foe t'M~M: that
For M to say, eoutract;) ~K<M< or K<t, and
specta thé two fact-< are (tiMtnttar. ~nuine thoof;)' tacit fonttMt~, an' dt;-
exitmote: Tho t'!<y)Mnt an<t receipt t of
re't,
owe't, xotmt by a comtnon natue, or )<y n!tt')''s
money erro«eMM)ysupposetl to be atike. A't'), coxse'~tntty, con.
)< a faet or event ittnounUng to a contract
mut nearty
'««Mt. Ther': )-. nothing in thé t or tmets,
fact ymMt or titi, an't iMptif) or tfM-it
convention ) or contraf'ts, ar':
eommo))!y or fre'ttt'-nth'
uvnt that .'avouM of a of existing ting <:onfouM.)<:flby Engtish tawyeK. S):e, i)t
pact for thé Mtihnent an
 Most or thereforo, of thé tMMnbet'a of thé inchoate
MMMy, t~ Vt
~te t~v.
soeiety, eouM not hâve bcen parties, as proniisofa or promisecs,BC.%

to tacit original coYMMmt. Most ot' Bttmy ttf the metMbeM

?!'?
could not have signii!ed virtually thé requisite luteutton ot'
necoptanco for they could not have conccived the objeet (as ï
hâve shown above) with which, according to thé hypothesis, an
origmat covenatit is concerncd.
Besides, in many of thé uegfttivti cases to which 1 uow ant
adverting, thé position and deportment of thé onginat sovereign
government, and thé position and deportment of thé bulk of
thé original subjects, exclude thé supposition of a tacit original
covenant. For exampte Where thé original govemment bcgins
in a violent conquest, it scarcety pi'otnises tacitly, by its vio-
lences towards thé vanquished, that it will make' their weal
the paramount end of its ru!e. And a tacit promise to render
obédience to the intrusive and hated government, scarcety passes
from the reluctant subjects. Thcy presentty will to obcy it, or
pfesently consent to obey it, because they are determined to obey
it, by their fear of its military sword. But the will or <wtMt<
to obey it presently, to which they are thus determined, i;i
scarceiy a tacit /MWM.M (or a tacit manifestation of intention) to
Mrttcuhtr, Sir WtttiaM Mhchiitone'a! 'a are,
1 in that respect.tMth:y<MMtocoM-
Commentarics., B. tt. Ch. 30.,aud H. Ht. )
t.tfMts. 2. 'Dteontyrcsembhnccbt.
Ch.9.
A!)thermJtr!)My.Me!))thet)tMex<:d)
twcett their .t«
ot- ~r~, tie" in <h<'
'dreiiemMaucetMtwecn
t theubtigattotM
out)ine(])p.<},53),rightf)ofonegrfati tt which arc res;xfctivdyaunexod to th':m.
t;hmar<:tight!ft'<t~'Me)MMt<c<'<«t<t.' thnttt Cottfiequetttty.thc
< common Mame of~KfM)'-
is to say, rights which ttvaU exdtMtvety coxtmctt is tppUed to thé ~tfH or ~'M(<.
IIOrsol19
1I1,'IIllIst
against t'eraotM ttetertuinM)
detormll/edtllnt hot', )<for
NpecifieaUy, 1i %rant of a geuerie term fiinre apt an't
or whieh amw-'r to dutiM that lie ie si~itteant.–As
t thé expression t.< en)-
fxettMivety ot) t'eKous detennioed spe.«.) utoyed
1 by thc K&tmn hwyers, oUig:t-
cifically. TothedutieiitiMweru'gto! :o tiottes
1 }tM.< ex <;ot)tMctu is e~uh'tttt-ttt
sneh righb, thé RotnM) )M-)'eM !)n)!t !t to
t 'f!)MM!Mt/OMtobligations,' or to *)itt'.<-
theexp)'Mi)Muot<<'j)m<«)MM;a)td~it)ee< 'e M~MM«'<MoHigatioM:'
c that h tosty,
they have )M name apt'ronntto to t-t'itt << oM~«<t'MK«,
c ornKhtstx~owxon, whieh
of thé class, they apply that ex~resMoo )t are
t annexett to fach t)mt are Heither
tothenghtsthOMetve.'iafiweMastothcf te m)t<m<'<ft
( oor fMf< auf) which )j<'ittg
aom'eno~dutiMwhich thé rJKhtii im~rt. t. M)M-Ktt
t to fnet.s ttMt are nc-tthcr coM.
Xow n);hM t')t p<:)'M)f«))t, or <~<<<t<t'Mt)<
t, tracts
t )t«r <)e))ct!<, cannot )x! brought
atite j'rm''i))!t))y from <a''ts of two undert-ither
'o 1 of thosetwo princtpa! classes
classes: uatuety. Mttuine mM<Hte~ ex. c- into
i wh!ch ri);)tts )'); p<fM;M)K are aptty
))H)!H or tacit, «))'! fMM.' or Injuries. divhiHe.
s. ( 'OUigatione!i(iiaytheDigMt!i
Itut )Mi!)J<t con tracts and <tci!c< there 'e aut
a ex eontra<:tu namuntur, aut ex txate-
ar):<act!!oreve!tti!,ttu<c')Mtraet!!or) )r ticio
1 fsh'< 't'')icto), aut ~n~w' ~t'Mftm
<)'')iete,to which t'oath'ehwannexM~' 'S ~'tfM <X tV<i't't'j f'tM~t'MM ~«fM.T)t''
<.Mt'i~t<tM)M. By thé Kotnan )a~r!i,s, t-ot<t''t!!iot)
t nf f)nasi-t-o))tract.< Mith tacit
these fx'ts or events are 'itytcd yx'<!)'- )yytt gt'nnixe coxtmcta, is <~rta!u! ))f!t im-
o putahk
<;untra<:t.'t:ortheo)))it!attun.t!tmt(!X('dto) 1 to t)M RonNtt juri.<t& )!<)t Kith
thèse fa'tts or event' ate stykd o)))ign- im'ttcn)
t tawycrs (how, t can))"t co)tj('<
tiotM~tM~'&t:e)it'<)*"< Th'it'fa''t.sor 'r tun'),
t this ~rnM confuaioM of i~Ms is <-x-
<;ve))t'! arc sty]e<t ~M<Mt.contractii, for 'ttmnf-)yfrt't''nt.ttis,indte't,th<'fM.<e
t
twor<)'-w!. l.fnasMMeh«.<th'*ot))t-'] i- aof mo~t of thf nonsensfan'! jtr~on whi~'h
j;!at)oMtmK<:Xtdt')th<:)nr'ctnb)(.'thet e hav<}
1: covere~) thé uature of mttVextioMs
oMigationt annt-xcd to eontmcts, they y vwith Mcarh' itBpen'tr~Ueobscunty.
Ï~CT. VI retMtof
t'CH it futureobédience. For they mtitaate prctty signi-
Hcandy,
Hca by tttc rduetauce with whïeh they obey it, that they
wouM
WOt Mckmth all their might agtunst thé itttrnMve govern'
ment, if thé mintary sword which it bmndishes wero uot so
long and ïearM.
Dy thé récent and présent ttdvocates of the !typothesis ot' t
thé original cfvmMnt (wh« chieny are German writers "n t
political government f'nd society), it coHttuoHty is admitted that <

original covenants !tre not hMtoncat facts: that an nemat

original coveuant never pMCcded thé formation of any actuat
society political and indepe~dent. But they zealously Htaiutaiu,
uotwithstandiog thia swee]~i)tg admission, that the onty suiHcient
basis of an independeat political society is a fundamentat civil s

pact. Their doctrine, therefore, touching the original covenant

amounts to this namcty, thnt thé original covenant hath not
]

preceded thé formation of f<M~ society political and independent i

but that though it hath not preceded thé formation of f«ty, it

yet precedeth inevitably the formation of CM ~y.–Such is a taste
or sanip!e of thé high ideat philosophy
which the Gertnans
oppose exultingly to thé philosophy of Bacon and Locke to
thé
earthly, grovemng, <u'«'<!< pliitosophy, which deigns to scru-
tinise facts, or stoops to observation and induction.
It would seem that thé propounders of this tucid and
cohérent doctrine, mean to insist on one or another of thé tw'j
Mlowing positions. 1. That an t~M original covenant ha=.
not preceded thé formation of any society political and independ- r

ent but that a ~t!< original covenant (or an original covenaut <

irnported by thé fact of thé formation) necessarily précèdes thé c

formation of every society of thé kind.' 2. That thé formation

of a society poUtieat and independcnt M«M< have been preceded1
by a fundamentat civil pact, if thé sovereign political govennnent
be )'~A(/'M/, ~«'/< or.<wenn es )'<<~MM<!f~ sein so! :·
Meaning by rightfuL' tawfu! or 'just,' consonant to thé !aw
of God (as known somehow or other), or consonant to thé right
independ-
or justice (mentioned in foregoing pa~es) wiuc]t exists
cntly of law, and is thé test of aU law.
On whieh of thèse positions they mean to insist, 1 cann'A
détermine: for they waver impartiaHy between thé two, ot )

evince a perccptiUe inclination to neither. And an attempt t"

détermine thé position on which they mean to insist, wen;
profitless labour: seeing that both positions are fa!se and
a)jsurd.–As 1 have shown above, a tacit original covenant
could scaree!y précède thé fonnation of an independent political
society. And, gttmtia~ ths secoad of thé two posMoHS, ao
sovereigs govcl'umeut bas beett or cn& be !awhtL For, acoording
to thejr own admission, thé fonmtion of a seeiety potitiefti aad
indë~udent was Mcver preeeded actUttHy by a fundamenta! civil
ptMt Aud, M 1 hnvc s!iowh above, a prupet' onsiutti covenant,
précède the
m' au~ht appi-oachiug to thé idea, c'mH scttrccty
ibnutttMn of <my society of the kind.~
3. 1 close my strictures on t!
hypothesis of thf ot'tgiua!
covenant, with thé foMowing remnrk
It would seem that the hypothesis was suggested to its
autiiors, by one or another of thèse suppositions. 1. Where
there is uo convention, there is no duty. In other words,
wlioever is obli~ed, is oMiged throu~h a pt-ojnite given and
accepted. 2. Every convention is ncees~arity fotlowcd by a
duty. In other woi\!s, wherever a promise is given and accepted,
thé promising party is oH[gfd through the promise, let its object
and tendency be what they may.–It is assumed, expressiy or
tacitly, by Hobbes, Kant, and others, that he who is bound has
uecessarity given a promise, and that he who has given a
promise is nHcessariiy bound.
It foUows from the nrst supposition, that unless thé sovereign
and subjects were bound through a paet, neither of thé parties
would lie under duties to thé other. It foUows from thé second
supposition, that if the sovereign and subjects were parties tu
(.') For thé notions or hnKuaRe, ron- v~enant (meanin~ thM same doctrine
ft-rnin); thé origiM!~ cnvenant, of rtetnt t<ouching thc urij{iuat covenant) i<! thé
f.enMn writeM on potitiea) ;{<er"t wpt-v baa.t of thé science ef potiticii
.'tthout thé
that,
mi-
!tn<) soci'-ty, 1 refor the curious r<:tt't''r w a correct eoncepticnof
to thé Mtowit)j{ book!t. Kant'< MotH- )<!inai covenant, we cannot jtt')~ 'mu))t)ty
physicat t'rindple') of Jnri.<t<)-ndet)t.e. «;n ~ny of thé questions or pro~tem~
For the origitmi eovenMt, see thé h~d wbur thesdell,'e
.-hi':hthe of \,olitics
s<;ienkC of présenta.
)'o]it!LS ~,ayx he)
~H,S''<M~f<tf.–2. AWt!U))Mt)':H)U<]- n'r gc-<<-)]!i';))!tft)ifhe Vertritg ('y.'i he)
.<(t))hi<:at Uictif))!U'y tht four octavo isit die Hfsis <ter Hnf;meinet) Staat.K-is-
\'<)tt))t)<), hv Professor Kn)g of thc s<c-nMhaft. Kine richtiae Vor'teUunf; vou
L'oiversityof Lei))!!)}!. For the oris'"a) d icjem Vertrage ixt 'tas erste KrforJer-
'"v<!Mat)t, M-e t))'!artic!e.~w~)'f~K''?. M~)!< xu einem ront-t)
Urthc-ite iiher <t)tf
An Kx;'o.sitton of the h'titieat F 'r~n nntt AMff!tt'fntter l'olitik.' Xay,
.'<<:it't)''<-< (.?<<M<h~'M<ii)t<t<t<'ffit', by t'ro. hle think.< that this ~me doctriu'- tnucit-
tt-Mor )'!i)itx of the s~nx* University M hMK thé ori~in") rovfuant, is pro)~)<)\'
t'tatjontte and H!fut w«rk in iivt- ocMvo t)h' hnp);ie<t r.-sutt of tht- newer Gernmn
v~utncs. Fortheori~intt!'w<:n:mt, p~hUosoj~hy in.sumunh t)Mt thc fair~-st
thu h<nt .?ff«!h A7')~i')'t'<'A< p~ro<t')ct«fth' ttL-Wt-) G'-nnan j'hitnsnphy,
).Thet!istoric!t)Jour<mt(fHrXov.17M) M< thf t.onecit of an original cù\'<:na))t
of Fr. v. !t)tz i <;e)ebMte<t servant of \yrhich )~'t'r wt.'i tnade anywht.-r' but
wrhMh b thf n«fary basi'i uf
th'- AMttrifm ttotennnent. political
t'or, in Rt-rmany, the hicH !*ntt .'0. 'ov~rtnm-nt Mtd )!oeifty.–Wi)rmty att-
heMtt <h)<'triu<! to whirh hav<: t~h-c-n~) )'HirinK f!e''maM titt-ra'tnrt', !tn't )~n.
in the text. ia "ot )tmintaine<t excht-h'~h' f'~unttiv res})t-<in}t ("'mmn sch~tarship.
tty n)':r'- tnctaphysicat ~icetth~tori.. an<t i cannât )'ut retfft thé prun'-x' "f
)n';re Hniv''t!'ity-I'rof'<s')r!i, of [~)Uti~ f!!):rman phito'ophy to ~ngHe
an misty
an<) tttn~j'rndenc' We are Kr~'Iv ))!itracti';n.
xurt<t by tteoti!, that thé origtM!)! '-n.
326 Z%<M~p~
~<t:m
JL.Ë<.r.t ~&(n'!gnt!tIcove!mnt(Mtherimmediftt~ytM'
:m origmal covenant (either immedittt~Yt M' as repreaenting thé
~MMtf~H~ of
fot
fomtders ~tf thé <ttVfthci
f~HM~tt~ttf\ eaoh
~ttt~ community), ~f thé
thn parties
l~nMt WMtM be bound
to thé other, assuttxUy and indnM&tuMy. Afi. thé d~tie~ &f e<tch
towards thé other wouM be nnposed through a paot, they would
possess a certain saeredness whic!t perhaps they might want if
they were imposed otherwise.
Hut both suppositions are gross!y and obvionsiy false.–Ot
l'etigious, !cgaJ, and moral duties, sotne tu'e imposed by thé !aws
which a~ th~h* fest~ctive sources, through or in conséquence of
conventions. But others are annexed to facts which have no
resmnb!anee to n convention, or to aught that can be deemed a
pronuse. Consequcntty, a sovereigtt government might lie
under duties to its suùjects, and its subjects might lie under
duties towanb itsdf, though neither it nor its subjects were
bound through a pact.–And as duties are anncxed to facts
which are not pacts or conventions, so are there pacts or
conventions which are not foUowed by duties. Conventions are
not enforced by divine or human law, without référence to their
objects and tendenoies. Thero are many conventions which
positive mornlity reprobates There are many whieh positive law
will not sustaiu, and many which positive law activety annuis
There are many whieh conflict with the law of God, inasmuch
as their tendencies are generally pernicious. Consequently,
although thé sovereign and subjects wore parties to an originai
covenant, neither the sovereign nor subjects would of necessity
COVCM
bebo
be bound by it.
The.)i.<- From the origin or causes of political government and
T
tinctionoft..w)nt
society, 1 pass to thé distinction of sovereign governments into
sovereigx
"<" K~
j;ovt;m-
govetn.
govcrnments
gOVCr </< ~«'e and governments ~c facto, For thé two
topics are so connected, that thé few brief remarks which 1 shall
topic'
tn<ttt'!</< make on thé latter, may bo placed apt!y at the end of my
<!i~"Il
disquisition on thé former.
I(O\'em..
Utent-
'¡
I respect of thé distinction now in question, governments
In

j~
/M<«.
a~ commonly
are c divided into three kinds: First, govemments
which are governments ~c yKM and also de
wt*!<'t secondly,
govemments which are govcrnment. <<'< y«r<; but not ~c ~!<<«
thirdty, govemments which are governments <<'<'~tt'~ but not
y«)'t. A govemment (le y«)'e and also < ~tc~, is a govemment
deemed lawfu], or deemed nghtfut or just, which is present or
estab!ished: that i.~ to say, which reçoives present!y habitua!
obédience from thé bulk or generatity of thé members of thé
independent political community. A govermnent de yKM but not
~<'<K, is a goverment deemed lawful, or deemed rightful of
just, which, nevert.hdes~ lias been sapptanted ordisptaced that
? to say, wMch rec~ves not prcsently (althougît ît ïeeëived ved
formerly) habituai obédience frolu thé bulle of the commnnity. itv.
A government facto but not (~~M'< is a government deemed
unIawM, or deemed wrongfu! or unjust, which, neverthetess, M
présent or established that is tu say, which receives presontly
habituai obedience from thé bulk of the commnnity. A
government supplanted or displnced, and not deemed lawful, M
neither a govemment (le /w<'<o nor a ~overnment <~cy«~Any
govemment deemed lawful,beit estaMished orbe it not.is agovern-
ment (~ ~'M~. By a govemment, however, de yK~, we often mean
a governmont which is deemed lawful, but whieh, nevertheless,
bas been supplanted or displaced. Any established govemment,
be it deemed lawful or be it deemed unIawM, is a govemment
~c~c<o. By a govemment, however, de facto, wo often mean, a
govemment which is deemed unlawful, but which, nevertheless,
is established or présent.–It scarcety is necessary to add, that
every government properly so caUed is a govemment de /H~o.
la strictness, a. ao called govetnment <~ j!M'<; but not de facto, is
not a governmont. It merely is that which was a govemment
be a
once, and which (according to the speaker) ought to
govemment still
In respect of ~o.K<M'<- /aw, a sovereign political government
which is established or présent, is neither lawful nor uniawfui:
In respect of ~oM<t<!e ~:< it is neither rightful nor wrongfui, it
is neither just nor unjust. Or (changing the expression) a
sovereign political govemment which is established or présent,
is neither /c'/<~ nor ~c~.
In every society political and independent, the actual posi-
tive law is a creature of thé actual sovereign. Although it was
positive law under foregoing sovereigns, it is positive law
presentty, or M positive law, throngh thé power and authority
of thé présent suprême govemment. For though thé present
government may Itave supplanted another, and though the
supptanted government be deemed thé lawful government, thé
supplanted government is stripped of the might which .'e-
quisite to the enforcement of thé law considered as posi-
tive law. Consequently, if thé law were not enforced by
thé present suprême government, it would .want thé appro-
priate sanctions whici) are essential to positive law, and, as
positive law, would not be law imperntiv e that is to say, as
positive law, it would not be law.–To borrow thé language
of Hobbes, The legislator is he (not by whose autl~rity the
 t law
LxM. VI !awwRshrs6 NMde,bMt)bywho~anthontyit co&tînueato be
hw.'
wxa
!ttw.'
fn~
Conseqnontïy, an estaMished sovereign governinent, in re-
spect of thé positive law of its own independent community,
is neither lawful nor uahtwM. If it were tawM or uniawfM!, <
in respect of thé positive law of its own independentcommunity,
it were lawful or unhwfut by law of its own making, or were
tawfut or untawM by its own uppoiutment. Which is absurtt.
–Aud if it were tawfnl or uulawfnl, iu respect of thé positivu
htw of another iadependeMt community, it were lawful or un-
tawfui by thé appointment of another sovereign that M to
say, it were not an actual suprême, but an actual subordittate
governmont. Which also is absun).
In respect of the positive law of that independent commu-
nity wherein it once was sovereign, a so called government </<'
y«!'c but not (le /f<c<o, is not, aud cannot be, a lawful govern-
tHent for thé positive law of that independent community is
now positive law by thé authority of the governmout ~<f<e~.
And though it now were positive law by the authority of thé
disp!aced government, the dispJaced government, in respect of
this law, were neither lawful nor un!awful for if, in respect of
this law, thé disptaced governtnent were lawful or untawfu!, it
were lawful or uniawfui by law of its own making, or were
lawful or un!awM by its own appointment. The truth is, that,
in respect of thé positive law of that independent community,
thé supplanted govemment, though deemed ~~«M, is un!awfM!
for, being positive law by thé authority of thé government
~<c~ this positive law proscribes t))e supplanted goverMHent,
and {detemunes that 'attempts to restore it are légal wi-ougs.–
In respect of thé positive law of another independent cotmnu-
nity, a so <;a!!ed government de ~'«~ but not de facto, is neither
lawful nor uniawfu]. For i~ in respect of this law, it were
lawful or uniawfu), it were iawfut or untawfui by thé appoint-
ment of thé law-mnker; that is to say, it wore not an ousted
suprême, but an ousted subordiuate governtnent.
In respect, then, of ~t'~M'c /a;K', the distinction of sovereign
governments into !awful and utuawfut is a distinction without a
meauing. For, as tried by this test, or as measured by tins
standard, a so called govemment </<: y«n- but not de y«' caunot
be lawfui And, as tried by thé same test, or measured by thé
same standard, a govemment </e /«'~« is neither !awM nor
unlawful.
In respect, itowcver, of ~~t'e Mf'</<7y, the distinction of
 s~veïeign g&vernmenta iut<~ !ftwM and untawM.isHut. adis- j
tinction without tt meaning. For, in respect of positive momuty,
<t g&venmient not f~ ~<<c M nat of necessity untawfut. And,
in respect of positive morality, the tenn 1 lawful' or 1 uulawl'ul,'
as applied to a government de facto, is not of necessity jargon.
A government de j~«'<o may be lawful, or a government </<*
/m-~ may bu nntawfui, in respect of the positive moratity of
that irxtependettt coHniuaity whereijt it is establishet!. ïf thé
'~pini'MM of thc bM!k of thé CMttMMHity favour thé ~cvet'HMMat
y«c<o, the govemmeut ~c ~f~a is moraUy lawfui in respect of
thé positive moratity of that particular soeiety. If thé opinions
of thé bulk of thé community be adverse to thé govenuuent de
/«< it is tnoraUy uu!awM in respect of thé same standard.
Thé bu!k, howcver, of thé community, may regard it with
indinerence or a large portion of thé community may regard
it with faveur, whiist another considerable portion regards it
with aversion. And, in either of thèse cases, it is neither
moraUy lawful, nor tHoraUy unlawful, in respect of thé positivee
momtity of that independent comtnMnity wherein it is estab-
lished.–And witat 1 have said of a govemment (le /<M<o, in
regard to thé moratity of thé eornmunity wherein it i.s estab-
lished, tnay also be said of a government not a govemment
f~f<t~, in regard to thé morality of thé community wherein it
formerly ruied.
And a govemment </< facto, or a government not de /a'<
may be morally lawfui, or morally nntawfut, in respect of thé
positive morality which obtains between nations or states.
Though positive international morality looks mainty at thé
possession, every govcrnment in possession, or every govemment
f~«c~, M not acknowledged of course by other established
governments. In respect, therefore, of positive international
morality, a government ~f«:~ may be uniawfui, whiist a
govemment not ~c~c/c' may be a government f/fy«t'c.
A govemment, moreover, de ~«c~o, or a government not ~f
facto, may be !awfnl or uniawfui in respect of thé law of God.
Tricd by thé Divine law, as known througi) thé principle of utility,
a sovereign government (~ ~ac~ is !awfu!Iy a sovereign govern-
)nent, if thé genernl happiness or weal requircs its eontinuance
Tried by thc same law, as known through thé same index, a
sovereign government <~ /t«~ is not lawfuUy sovereign, if thé
gênerai happiness or weal requires its abolition. Tried t'y thé
Divine law, as known through thé prineiple of utility, a govern-
ment not f/c /«<'<') is yet a govemment de jKt-e, if tlie gêner!)!
330
ï-Kcr. vt happineM
hap]
!t~w,
7~w~
or weat reqmïfs ita Mstomtion Tried by the same
!t~w, as knowa throMsh thé san'e exp&neat,agoverMment not
Ite
s M a!so not </e y<< if thé geuemi h&ppiness or weat
requires its exclusion.~)

.tn'fat A positive law may be deiined generaUy in thé followin~

'ktmititMt
ofah~.ti- manner: or the essential difference of a positive law (or thé
tn'ot.m': dincrenee which severs it from a taw not a positive law) may
0)!)
a be stated geueraHy in thé foUowing manner.–Every positive
~M~
sttth'XK'ot law (or overy law simply and strictly so called) is set, directly
ot'ttM
feMti')) or cireuitously, by a sovereiga individual or body, to a member
(iitf'jr'tfce
t'Ywhich or members of thé indépendant political society wherein its
ithi. author is supremo. In other words, It i~ set, directly or cir-
.wv<)rd cuitously, by a monaroh or sovereign number, to a person or
t'rotttahw
ttOtit~U~. persons in a state of subjection to its author.
th'thm'.
T~
titUtiottof
This définition of a positive law is assumed expressly or
tacit!y throughout thé foregoing lectures. But it only ap-
<tjjodtive proaches to a perfectly comptete and perfectly exact definition.
hw M
a!i.tUtu~tl It is open to certain correctives which 1 now will briefly
expn'Mty suggest.
ortaciUy
throu~h- The party or parties to whom a law is set, or the party or
omt)M parties on whom a duty is laid, are necessarily obnoxious to
t'or'oui{;
t'-ctUM~ thé sanction which enforces thé law and the duty. In other
Hutitohty words, every law properly so called is set by a superior to an
a~M~M
t~a~'r' inferior or inferiors It is set by a party armed with might, to
fo~ttycotn'
t'tctoand a party or parties whom that might can reach. If thé party to
)n:rf<:cth' whom it is set could not be touched by thé might of its author,
exactes. its author would signiiy to the party a wish or desire, but
ttition.
And.mtt- would not impose on the party a proper and imporative law.
f~tuetttty,
th':<)ct'-r- Now (speaking generally) a party who is obnoxious to a tegat
)uit)!)tiott sanction, or to the might of the author of thé law which the
ot'thejtro-
vi«eeef légal sanction enforces, is a member of thé independent commun-
jmiit~m- ity wherein the author is sovereign, In other words, tt party
d~hce,
w[tic))M
i~s who is obnoxious to a légal sanction is a subject of thé author
atH'mptcd
in tht
of the law to which thé sanction is annexed. But as none but
f.M)),{ rnembers of thé community wherein thé law obtains are ob.
)'tU)''r<, noxious to thé légal sanction which enforces a positive law, the
ot))ya;)-
j'rM~-hc'f positive law is imposed exctusively on a member or members of
(~) tt ttppe&M frotn thé Authot-'sMe. ant~Mf~tby Divine!aw.' A!M on 'Sove-
)n"nt))(h that he intended to ittMrt hère reif~tty ofthe Pcoptc.' tt ap))«trit that
Notes on t)oven<tnent9de /~<'<o and de he thten'ted to MOttect this subject with
~'«-t; «ntt on Rights of Sovoroign Gov. that treated oftt thc ccoctusion or L'"
emmeatt and Govemmenta hwfnt or turc U.–S. A.
that mdopeadM~ eotmutUMty. Atthough thé posttive !itw may
affect to oblige stmngers (or parties wha are not members of
that indepeMdent commHttity), nan& but membeis of that inde-
pendent community are virtuaUy or truly bound by it.–Be~idcs,
if the positive law of onc independent community bomtd legalty
the memhers of another, thé othcr iudependent cmmuunity were
not an independent community, but were merely a sutjordinat'
eommuuity formiug a liittb of the first. If it bouud thé so-
vereign govemment of thé other independent connMunity, that
sovereign govemment would be in a state of subjection to thé
sovereign author of thé law. If it bound the subject metubers
of t))e other independent commuaity, the sovereign author o!
thé law would usurp thé functious and authority of their own
sovereign govemment or their own sovereign government would
be disp!aced or supplanted by thé foreign and intrusive law-
giver. So that if the positive law of every independent c'tH-
nmnity bound iegaUy thé members of others, thé subjects in
every comtnunity would be subject to all 8overeig))S, and every
soveroign government woutd be sovereign in all societies. In
other words, thé subject members of every indepeudent cent'
munity would be in a state of subjection to every suprême
government; whi!st every suprême government would be thé
subject of thé rest, and, at thé same time, would be their
sovereign.
Speaking, then, generally, we tnay say that a positive law
is set or directed exclusively to a subject or subjects of its
author or that a positive law is set or directed e~etusively to
a member or membera of the community wherein its author is
sovereign. But, in many cases, thé positive law of a given
independent community imposes a duty on a ~'HM~o'; on a
party w!t0 is not a member of thé given independent community,
or is only a member to certain limited purposes. For such, m
thèse cases, is thé position of thc stranger, that, though he is
properly a member of a foreign independent community, and
therefore is properly a subject of a foreign suprême government,
he yet is obnoxious to thé sanction by which thé duty is en-
forced, or to the might of thé author of thé law through which
thé duty is imposed. And such, in thèse cases, is also thé
position of thé stranger, that thé imposition of the légat duty
consista with thé sovereignty of thé government of which he i.<
properly a subject. Aîthough the iegat duty is laid on one of
its subjects, it is not laid on thé foreign government itself: nor
does thé author of thé !aw, by imposing thé légal duty, exereisc
t<M. Y< sovereign
sovereign 1power in thé cothmunity of thé fbreiga govermaettt,
ot
ar mer tMM bf its stit~eets us being eue of tt.f sttkteets.–For
bver ohé
unf
exMnt'Ic:.A party lot a member of a given independent. com-
example
muuity, but living within its territory and within the juris'
diction of itft sovereign, is bound or oHiged, ta a certain timitett
extent by its positive !aw. Living within thé territory, he is
obnoxious to tho légal sanctions by which tho law is enforced,
And thé legal duties imposed upon him by thé taw are consistent
wi~]t thé soverciRUty of the fui'Mgn govornment uf which he ii)
properly a subject. Far the duties are not imposcd upon t!te
tbreign govemment itself, Of upon tt party wit!nn its iudependent
cotHtuunity nor are they laid upon thé obliged jmrty as being
one of its subjects, but as bein~ mernber, to certain titnitud
purposea, of thé community whet'ein he résides. Again If a
stranger Mot residiug within thé given eomumnity be thé owner
of laud or moveables lying within its territory, a convention of
the stranger, with any of its members or a stranger, may be
enforced against Inm by its positive law. For if he be sued on
thé agreement, and judgment ba giveu for thé plaiutiff, thé
tribunal may execute its judgmetit by resorting to thé land or
moveaMes, although tho defendant's body is beyoud thé reacit
of its process. And this exécution of tho judgment consists
witL thé sovereignty of thé govermnent of which the stranger is
properly a subjeet. For thé judgment is not exeeuted against
that foreign government, or within thé independent community
of which it is thé chief: nor is it executed against tho de-
fendant as being one of its subjects, but as owoing land or
moveaMes within the jurisdietion of thé tribunal. If thc
judgment were exeeuted witinn tho jurisdietion of tho foreign
suprerne government, thé exécution would wound the sovereignty
of thé foreign suprême govomment, unless thé judgment were
exeeuted through its permission and authority. And if thc
judgment we~ executed through its permission and authority,
thé duty enfbreed against thé défendant woutd be imposed in
en'eet by thé law of his own community tho law of his own
c'ttnMunity adopting thé law of thé other, by reason of a special
convention between t)te respective governmeuts, or of a rule t'f
internationa! morality whiet) thé ~overntnents aeknowtedge an')
observe.–In aU thé cases, t~~ereto~'e, which 1 now have noted
and exoaplined, thé positive law <~f a given independent society
may impose a duty on a stranger. By reason of thé obstaeh'-
mentioned in thé last paragmph, the binding virtue of th'
positive law cannot extend generalty to members of foreign
commuaities. But m thé cases whieh 1 now hâve noted aud
exemptMied those ob8tae!esdo <Mt iMtervene. For thé stran~r Knger
is obnoxious to thé sanctions by whieh Utc law is enforc~h n'c~h
and the enforcementof the law against thé stmttger is not in-
constatentwith the sovereignty of a foreign suprême govemment.
Thé dennition, therefore, of a positive law, whieh is assumed
expressly or tacit!y throughout thé foregoing lectures, is not a
perfectly complète and perfectly exact definition. IB thé cases
HOted and exemplified in tho last ~ta~ph, a positive law
obliges legaUy, or a positive law is set or directed to, a ~'H~«-
or ~~M~/M'~ that is to say, a person or persons M«< of thé
cotnmunity wherein thé author of thé law is sovereign or
sup~nte. Now, since the cases in question are omitted by that
definition, the definition i. too narrow, or is détective or
inadéquate. To render that définition complete or adequate, a
comprehensive summary of these anomalous cases (or, perhaps,
a full enutueration of t))ese anomalous cases) must be tacked to
the definition in thé way of supplément.–But positive law,
thé subject of tue deSuition, M the subject of thé foregoing
attempt to détermine thé province of jurisprudence. And since
thé detinition is détective or inadéquate, aud is assumcd
expressly or tacitty throughout the foregoing lectures, the
determination of thé province of jurisprudence, which is at-
tempted iu those discourses, is not a perfectly complete and
perfectly exact détermination.
But 1 think that thé foregoing attempt to determine thé
province of jurisprudence, and thé definition of a positive law
which thé attempt assumes throughout, have as much of com-
pteteness and exaetness as the scope of thé attempt requires.–
To determine the province of jurisprudence is to distinguish
positive law (thé appropriate matter of jurisprudence) from the
varions objects (noted in thé foregoing lectures) to which it i.s
allied or related in the way of resemblance or anaiogy. But so
numerous are thé tics by which it is connected with those
objects, or so numerous are the points at which it touches those
objeets, that a perfect détermination of the province of juris-
prudence were a perfect exposition of the science in all its
manifotd parts. An adequate exposition of thé science (the
oniy adéquate détermination of thé province of jurisprudence) is
really the ambitious aim of the entire Course of Lectures of
which thé foregoing attempt is merely thé opening portion.
But a perfcct détermination of the province of jurisprudence i.-i
not the purpose of the attempt itself, Its purpose is merely to
 ~4
<7JT
U!tT,t~sK~<(with as tauchof
with
W
1Y
7~Ma~~
1 1
completeMeasandexactaesa~aseoMsiat
genet-ality and btevity) thé stibjeet of that adeqttate
exposition of the science of jurmprMdMtw, or thé attb{ect of that
adéquate détermination of the province of jurisprudence, which
is the purpose of thé entire Course.–Since such is t!ie scope of <1
thé foregoing attempt, tlie definition of a positive law which it r

assumes throughout bas as much of completeness and exactness t

as its scope requires. To t'ender that definition cotnpicte or
adéquate, a comprehensive snmmary of the anomntons cases in
question (or, perhups, !t fun enumeration of thé anomalous cases
in question) must Le tacked to thé definition in tho way of
supplément. But thèse auomatous cases belong to tho de-
partments of my Course which are conoorned with thé detail
of thé science. They hardty were appropriate tnatter for thé
foregoing general attempt to détermine thé province of juris-
prudence for the foregoing attempt to ~<~M< thé subject of
thé science, with as much of completeness and exaotness as t

consist with generaUty and brevity. Accordingty, thé définition

or notion of a positive htw whieh is assttmed expressly or tncitly
throughout thé preceding lectures, omits entirely thé anomalous
cases in question. And thé truth of thé positions and in-
ferences contained by thé preceding lectures is not, 1 believe,
impaired, or is not impaired materially, by this omission and e
defect. a
And though thé definition is not complète, it approaches
nearly to completeness. Allowing for the omission of the
anomalous cases in cluestion, it is, 1 believe, an adequate
definition of its subject. 1 hardiy could have rendered a juster n
definition of thé subject, in brief and abstract expressions that
t to say,
i'! unless 1 had descended front thé gênerais to thé detaii
t the science of jurisprudence.
of
A)fxp!!t- Defining sovereignty and independent political society (or
natiMttot' stating their characters or distinguishing marks), 1 have said
~f-tning
.M.'tiu that t a given society is a society political and independent, if
thfff<f):'
~"iMX
tho bulk or generality of its members habitually obey thé t
~-m-Ml')'ccommands of a determinate and independent party meaning
finition ft't1·by
C

iu'[c)~;m)- 'a detenninate and independent party' a déterminât~

'ntj~iit. i:individual, or a determinate body of individuals, not obeying
icat habitually tho express or taeit conuuands of a dctenuioat'j
-i..tv.
hurnan superior.–But who arc thé membërs of a given society
Il
1Hy what characters, or by what distinguishing marks, are its

nmmbers
n severed from persons who are not of its tnemhcrs i
Ur how is a given person determined to a given community ?–
 un- U 00 un n.-n.
By Ûte fotegciag genÈial dûamtioM indépendant poHt-Mat
of
socmty (or the forcgomg genend statement of ï~ chat'acte~ w
distinguishingmarks) the questioM which 1 noW have suggested
are not resolved or touched And it may seem, therefore, that
thé foregoing général definition is not complète or adequate,
But, for thé following reasons, 1 believe that the foregomg
definition, considered as a gênerai definition, is, aotwit~taudmg,
compteto or adéquate that a général de8nit!on of independent
political society (or such a deBnition as is appHcttNe to every
society of thé kind) could hardiy résolve thé questions which 1
hâve suggested above.
1. It is not through ono mode, or it is not through one
cause, that thé members of a given society are members of that
community. In other words, it is not through one mode, or it
is not throu~h one cause, that they are subjects of thé person or
body sovereign therein. A person may bo a member of a given
society, or a person may be determined to a given society, by
any of numerous modes, or by any of numerous causes as, for
example, by birth witMn the territory which it occupies; by
birth without its territory, but of parents being o~ its members
by simple résidence within its territory; or by naturalization.('y)
–'Again A subject member of one society may be, at the same
time, a subject member of another. A person, for example, who
is naturalized in one independent society, may yet be a member
completely, or to certain limited purposes, of that indépendant
society whieh he affects to renounce: or a member of one
society who simply resides in another, may bc a member eom-
pletely of thé former society, and, to limited purposes, a member
of thé latter. Nay, a person who is sovereign in one society,
may bo, at thé same time, a subject member of another. Sud!,
for example, would be the plight of a so called limited monarch,
if he were monarch and autocrator in a foreign independent
community.–New if thé foregoing definition of independent
political society had anected to résolve thé questions which 1
have suggested above, 1 must have discussed the topics which 1

(~) The Mtom!nK brief t'x[))a))atio)t soeKtv) of a deMnn<n<'tt territory, or

)My be p)ac<:<t pertineottyhwc-.
ficnendty !!pMkinf;, a fioeiety potiticat
Mtt indt-txndeMt m'cnpi'a s 'tt-tcrmixed
territory. Con!ief[ueutly, wh~tt we itxa-
jtine at) inJet'etutcttt tmjith'a) iioctety, we
CHmtuunty inMgiM )t to th«t fhght i
An'), accontitt); to thé ttetinittottof ix'te-
~endeut ~titica) society whieh M M-
tUNMtt expre~y or tacitty by ))N)<y
write)" thé oecutMtion (by thé ghftt
scat, M of thé very <;Menee of a socittyof
the kitttt. But thi!i M an enor. HiMoïv
prient;! M with societtM of thé )dnJ,
whieh ttavi Leen, as it Wttt:, w <)~t.)~'<K.
Many, for example, of the ))a)')Mrou:;
nMiotMt which invadtd M)'l sett~t !]t
thé Romait EutjMrf, weM not, for omoy
year~ hofore their filial MtaUiahtnent,
Mccn~nt.'i of J';t';)')nit)':dMat.
 $36 7~AlM'MM~<
1. .1- .t. -u, .n.I..
.séance.
i Ire have touched in thé présent pamgt~p!).
t~cr.Vt 1T. must: have gone from
8"f'l.UD" t"ft.~1'.I.
th&j
th& geaeïMÎs into the. détail ofjm'i~udence; and thcretore 1
<aust hâve wandered from thé proper purpose or scope of thé
)au9.t
foregoing gênerai attempt to detennine thé province of thé
t'OH'~
~r.iwn,
2. By a genemt définition of independent political society
(or suett a deHuitiou as is applicable to every society of thé
kind), 1 could not hâve resolved eomptetely thé questions sug-
Mestcd above, a.lthou{{h 1 had discussed the topics touehed in ttM
last paragmph. For thé modes through which persons ar<-
metnbet'!} of pftrticuhu' societies (or thé causes by which persons
are detennmed to particular socicties) differ in different cont-
tnunities. Thèse modes are fixed differently in dinerent
partictdar societies, by their didereitt particular systems of
positive law or morality. la somu societies, for example, a
person boni of aliens within thé territory uf thé community, is,
<~Mo yMM, or without Mt act of his own, a perfect metuber of thé
community within whose territory he is bom; but, itt othcr
societies, he is uot a, perfect member (or is merely a résident
atien) uutess he acquire the chat'acter by futfiUing certain
conditions. (See thé rrench Code, Article 9.) It therefore is
only in relation to a giveu particular society that thé question''
su~gosted above can be comptetely resolved.
)!tric. 1 have assutned expressty or tacitty throughoutthé foregoin.~
ti'j<t!"rn' lectures that a sovereign government of one, or a sovereign
[j!t)t.ttiutH
ofthetwo government of a nuniber in its collective and sovereign capacity. IJ..
toUmvitt);
~ositiutM: cannot
be i!'oK<M< A'yf< In thé sense with which 1 hâve
tt!ttnc)y, assumed it, thé position will hotd universa!Iy. But it needs a
ttuttaIl slight restriction, or rather a slight explanation, which tnay b~-
!i')V<;r''tK"
}{')V':rM- p!aeed convenicntly at the closo of my présent discoure.
1:
Xt'fMt
c.tnn"t)'e It is truc universaHy, that as being the sovereign of the
~««<< community wherein it is sovereign, sovereign govenunent
/y;)/,rt, cannot be bound tegatly And this is athé
!tM')th:tt sensé with which 1
it~<;t)f~t have assumed thé position throughout thé foregoing lectures.
)t!tVe~<<
t't~/t~f But, as being a subject of a foreign suprême governtnent (eithcr
a~titMtib generatty
"wn.sub- or to certain ]hnited purposes), it may be bound by
j.t. taws (simply and strictly so called) of that foreign suprenK- t

government. In thé case which 1 now am supposing, t)m

sovereign political government Ijound by positive laws bears two p

characters, or bears two pcNons naniely,thé character or pers"n

of sovereign in its own indcpcndent. society, and thé character
or person of subject in the foreign independent community.
And in order to thé existence of thé case whieh 1 now an)
 fil" .F-
sappostng, its two chttMete~ or tw<~ pN~otta must bo dtstinet m
tn ~-r. Ht
pmct!ce, aff wetî a~ m nmne nnd show. Thé îaws whieh are te
Mtt upoM it by thé fbreign suprême ~fovernmcnt may really be
hth! upon it as chief hi its own society aud, ou thit sup}«jsi-
tioH, it M subject (in that ehamcter) tu thé sovereigu ttuthor of
thé !&ws, m case the obedientc which it yidd.~ to thêta amomits
tu n /<f<~<< of obédience. But if thc law.'i bc exctusivety hud
up~n it as subjeet tM thé forei~u comjttunity, its fioverei~uty is
tK)t itnpaired by the obédience which it yietds to them, ahhough
i)te obt;dieuee nmouuts to u /«//«7.–Thé M)owh)~ cases wiU
c.mply iHustrate thé meaum! which 1 hâve .stated in genfral
expressioM.–Let us suppose that our own kiu~ is properly
jnonM'ch in THauuver attd that our owtt Mu. as Umited mouarch
in itritain, is uot ahsolved ecmtptetcty i'rotu le~tl obligation.
~ow if, as chiei' m Hanover, Ite be not iu a iiabit of obédience
to thé sovet'ei~n Uritish parliament, thé tegat duties inctuubt'ut
u})CH hitn consist with his s~'erei~nty in his Genuim kit~dom.
l''or thc duties are incuntbent upon hhu (not as autuefator theye,
but) us Ihuited inonarch het'e as metttber of the soverci~u
body by which ho is iegally bound.–Heture thé French Hevo!u-
tioa, thé soveMigtt govenauent of thé Canton oï I~ern liad tnuney
in the Engtish funds And if the Eogtish law empowered it to
hoid lands, it mi~ht be thé owner of hutds within thé EngHsit
ten'itory, as weU as thé owner of money in thé English fuuds.
yow, assunung that thé govennuent of Hem is an owner of !ands
in En~Iand, it <dso is subjeet tu thé le~id duties with whieh
property in land is saddied hy the En~lis]) Jaw. But by its
subjeetion to those duties, and its habituai observance of thé
taw through which those duties are hupMed, its soverei~nty in
its <.twn Canton is not annuned ur impaired. For thé duties are
iucumbent upon it (tMt as ~overuin~ there, but~ us owninn lands
hère: as beiu~, to Hmited purpose-s, a monbei' of thé Jh'iti.sh
eommunity, and obnoxious, through thé lands, to thé pt'ocess of
thé En~Iish tt'ibuuats.
1 hitve said in a preceding section, that a soverei~n ~overn-
mcut of one, or a sovereigu government of a number iu ita
eoHectivo and sovct'eign cap:n.ity, eannot hâve /<«/ /<< (in thé
proper acceptation of thé term) against its own subjects. In thé
.sensé with which 1 have advanced it, thé position wil! !to!d
universally. But it needs a s!i~ht restriction, or r:tther a slight
exptanation, whieh 1 now wiit state or sugaest.
It is true uni\'ersa!!y, that against a subject uf its own, as
bein~ a subjt'ct of its own, a sovereign politieal ~overnnicut
 t
ï<ttt:T. V! CMtttOt tmvc
cMtttot tMYClégat nght~ Aud thts is tho sensé wMt wh!ch t
advancf thé punition. Hut agninst <t sK~ect of its owtt,
hnve advanced
aa 1being genoratty M' ~rtiitiïy & fmbject of tt fottti~n ~ovofMUtCMt,
a sovereign potitieal g'jventumut tnay hâve légat rights. Fo!'
exampic: Let us suppose thftt (t Husaittn merctMnt is résident
and df.'nticitcd m England: that he ngrecs with thé Russmn
ettt~t-or t'~ suppty ttm )atter with ttttvat ston's aud that the

1.
!aws of Eugland, or thé EngHsh tribmiuts, !cnd thdr i-anctions E

to thé a~entent. New, accordit~ to thf~ .~upposttiotM, tt~

en)t)Ct'or bears tt right, givett by thc tnw of .Hngland, against a
Hussian subject. But t)te etupuror !m.s not thc right thmugh a
taw uf ht. own, or against a l!ussian subject in that eapacity
or character. He betu-9 thé légal right against a subjcct of his
owu, through the positive law of n ibreigu indepeudent society
and !te bears it against itis subjcct (aot aa being his snbject, but)
us bcing, tu liînitcd purposes, a subject of tt fot'eigïi sovercigN.
An<t thé relative légal duty lying OH thé Kussian Murchaut t
,f'
consista with thc cmperM-'s autoct-acy in aH thé Hussias. For
since it !ies upon thé merchant a!! t~sittent and dotnicitett in
Engtattd, the sovcreign Jiritistt parlianteut, by imposing thé duty
upou Itim, does not interfère wit!t thé autocrat in his own
\¡

commuaity.
ittdepeHdent cOllllDunity,
illltepel1l1ent
}

XOTE TO PACK 251.

In a note at p. 251, 1 hâve referred to Ta Mes drawu out in
the bhmk leaves of Kant's Kntwurf xum ewigen Frieden.
They are in penei!, and were obviousty constructed by Mr. 1

Austin sotely for his own satisfaction.

Thé reader is desired to observe that thc opinions embodied J

in thèse Tables are not given as ~Ir. Austin's.

g, In thé note t"
TaLle II., as we see, he questions one impM'tant assmuption.
Thé Tables are Hot numbered, so that 1 itave bt'en guidcd
in their arrangement mainly by t!ie order in which they futlow. [:

–S. A. I-
i't
'[:
 VttV Vi llttitiVt'.1.

On thwtivMMt), M MpotuhM tu KMt't text, Mr. Amtin retnarkii:Thé

mtkiug of a )aw, aud thé <:x<:<;utiou of a hnv, are )M<santy 'titfcn-nt ~roccssM.
)!ut huw M it ))t:ct-iiMt-y that thé two proœiMc~ ijhoutd be ~rfonnej by diO'cteut
[KMott. P'
t Thé powcr uf f~~Tointixg r<;['n'sentath'M, ia oft<:n caHot [fotitieat titxirty ;<
a tortMtt ht thé Swuft.-igxty.–Ki'ut.
Thé ~ssaKe in Kant'.< )~ok M which TitHe tl. rtfcr~ <)<).< ns fojJoK-s
'Thé sort or motte ut'fuvemnMUt (&y«.vt<My!t<r<)is b.-yottd !<)) c'))))))arisonjnore
hujmrtaut to a ))';u{)to than thK t'orta ot' a Soverci~nty(.y<ff«~i'«)) atthou~h H
gf~t d<ia) also <te'))etMb on thé gfeater or )'« a<b)'tahi)ity of thf )att<:r t') attain by
mmtuat reforMs tu thu t'har.K'tcrot'a[~-rt'Mt if<;jiKb)ic. Tf< that <;)«), h'~wvet, the
K':j<n'K:))tative Syatetn is absotutety indis[jt'nsa))h'j withoat it ()~- tht.- forK) of th''
So~rci~tty wimt it tttay) th<: i{ovt.-rt)tn<-))t i. th-s~)tic att() art'itrary. Xoxe of thc
attt.MMt .'o-catkd repubhcs kttewot'thts, aH't thc'yth<:n'torc m<:vita)~y.u))i<i<)ntinto
dM[iOti.«tts thé toost eu'turabte funo ut'whh'h ).<, th<: suVft'ei~)) rule ofenf:Kat)t,
Knnvurt' p. 29.
ht a «otc, Kattt rffefii huM to thé ofteu 'jUutu') )h)' of r'tpt', whith he tmn.)at'-s,
''<M<<<M/tf;«t ~t' tf.!h' tfthat,' .ays h' 'is 'Miv.tttttt tu Mtyh)}; thxt the
I"t
t)c.stadtaihi.st<'n;d isrevrnrrled
admil.i.it"re,!is lcitu teitli n1'010'
th< tM'st a'hhhustMrv't, Po~M' (t~ (¡t¡OkSwil't's
(10quot~ on!
vxprciMion} Hest
Swift's cxpres.,ion)
< nn'M a ttut whUt r''war)t<:<t hi)« with a tua~.)!. t!ut if it toMOs that thé be.t
a~XMoistcrmt, is tdso thf );<:<t coustituttU }:')Vt'rnmet)t. it i.< utMty h].se (;jfr«)t<
/f</«A) for ''satnph'!) of g't'xt ~nv<'rt)«)''Mt prove nothint; i)) fa~'our of th'* f~n)).
t
W)m evt'r ~)Vcntcd )x;tt<:r ttmn Titui! or ~tan Hs ~Hrt;)iu.< :uh) yft thé one h'tt a
DomitMn, th<' other a Cotnttt'xtus, as hifi Mcct's.'ior. A.
 D<:Mi~;ra':y, or thé govertuot'Mt ofttiï, i.< ntct-~anly aut<x:)')ttiml or Jespoti'
–Ktttt.
t t.<'t~<)ative ~ow~r.t = Sovt'r':ij{ttty Conscfjuentty,in no repuMicau (or!!yn''r~-
th:;<t) ~t'ermoent is thé ~-(.-aUf't N'~er'i~M, mvf:r''iKt). It i.< tn<:n')y co-'mvcn'i~t
wittt t))'' actn'e t~rtion of thé eitimhi).ft Kt-K'-nt (wt~-)t <:«tffhtMH:d by it.wtf) it if
subJM-t-)miMMt<:rof thé joint ~Vt-M~t).–Xote Ly Mr. ~u.stht.
jn thé text, Knnt ~yi', AOe, ')i<- ')')';)< nicht a!)f siod retiirriHg hht-ion'ity
to the extcptton.s ïuâdt: in ait ~(;hcm'i of univf'r.'i-i) .'iutt'tngt:S. A.
 Z~c~T?~ &y ~~z~'p~~ic'jK

ANALYSIS OF PERVADING NOTIONS.

--+--
LECTURE XII.~
AXAf.Y~!S 0F TMK TKKM KIGHT.
1 UAVH endeavoured in thé prcceding Lectures to aeeomplish !hr,t:cT.xn
1 I
thé foUowing objects: Ist, To détermine thé essentiats of a
Ztfw (in thé targest signification which can Le given to thé le
term ~f/y) 2nd!y, To distinguish thé laws proper which :h
are sut by God to Man, and thé laws proper aud improper
which are sanctioned or oblige MM-f< fm)n thé laws proper
whieh arc sanctioned or oblige ~«~y, or are established
directly or indirectty by -Mt'f~:< authority.
Havittg attempted to détermine ~encraHy the nature of
Law, and to marlc the boundat'ies of thé ne!d wttic)i is occn-
pied by thé science of Jurisprudence, 1 shati now endeavour
to unfold (as brieny as 1 can) thé essential properties of
Jti~hts: nteaning by Ri~hts, /f</ ri~hts, or rights which are
CMatures of Law, strictly or situpty so called.
There are, indeed, Hi~hts which arise from other sources ~S:XtHur!)t
Mmety, from thé laws of Uod or Xature, aud front taws which-t. :unt
î Moral
~'M~~ur "r
are sanctioned moratty. But thé pecutiarities of thesc may be be Kight-i
t
L'asily co]tected, by considerin~ thé peeutiarities of thé sources i
from which they now. Aceordingty, 1 shalt not panse t0<cti<'n<:<tto <
examine them in a direct or tonnât manner, although 1 shall ~religions!)'
ût-)uora!)v.
advert to them occasionaMy in thé course of thé ensuing
ng
factures. At present 1 disniiss them with the following ns
ronarks. lst, Like thé Obligations to which they id,
correspond,
uaturnl and moral Rights (or ri~hts which are merely sanetioned ~,1

Thb tertur'- w<MttMrhud xii. tM thK the.fiun'tmmbcrin};. Thtr<:it,!)owever,

htmer editton. )x:inj! thé ttvetfth )<;fture nn Afo~x.t )x'tw''en t))i'' "o't thé last)<
in MM of thé cu«rK'"i af ~tivcf-'t tu' th<' <ur< whi~.h in f.t~t .ontaitM't the n)att<-r
anthor. t ht<Y<- th'<M~ht it «'h'isntjt.- hr of.M'fr.))of thé t~tun-s ora)))' <!<tiv':n:<l.
th< [)U)'[m.'it"i of rt'ft;r<;tt!;v t') !nU)'-n' t" –K. C.
 344 ~A~<MM~j~
MOt
t.m-)'.XttH.!igi
ïeHgiousty or HtomUy) are M~t~. ht other w~rda, they tt~

lj.
Mot tMMtfd with thé k~tl sanetton, or cannot ho pntwecd
judiciaUy, 2ndly, Thé Hights (if sucti they c<m be eaHed)
judtc
which are eonfcrred by positive morahty, partake uf thé nature
of thé source front whieh they etniUMte.–So far as positive
MtM-nHty con~Hts of I~ws tw~n-, thf ri~hts which nre saitt tu
mi~ irmu it aM n~hn «'«// ot' <tM«~
For cxamplp, rights which aru dct-tYcd froin thu Law ff
Xa.tmus arc rclatcd tu r~hts which ttM tknvctt frMn positive
ï.aw, by {t rcmotu or iaint rfse!ub!ancc. They are ncittMr
NDued with thé h~at sanction, uur arc they ercatur~ of Luv
estab)is)tut( by </t/t<-M('/)«<<supcriurs.
Strietly speakiti~, there arc no rights but thosc which arf ¡

the creatures of taw aud 1 slieak of any ottter kind of ri~hts

on!y ill order that 1 tnay conforni to thu rcecived tan~ua~f,
whictt co-tautty dws atiuw us to speak of tuorat r~itts not
y
sauctioned by law; tftus, for exampte, wc speak of right-i
created
1.1~
by trenty.
Me.ttt~ in tUttiMpUMjL! to exptain thé H&ture of n iegat Rt~ht, t
!tMh'i!f)jt'),n1
.thaU inevitabty advert to thé huport of thé following
~wh~ is tertns
inL-vita)!)y Ist, Law, J)uty, and Sanction. For, ttiough every ]aw ()ot.
)tn-~tvc<t
it.OMt'.t not croate a fi~ht, every right is tho créature of I.aw. Aud,
ri~tt. though every obligation and sanction does hot imply right,
thoi
a
every
CYC) right impHes an obligation and & sanction.
2nd!y, Person, Thing, Act and Forbearance. For rights `
are exerciscd by persons or if not
<)? '<<~ by persons, iM<(/
iup
in ppersons. And persons, things, aets and forbcarances,
are thé
.«&«/.< or «t/t-~ uf rights and oMigations, ur (changing the
shape of thé expression) are thé Mf<< about which they are 1
conversant.
Srdty, ïnjury ;–Wrong ;–or IJreach of Obligation or Duty
by t-nnission or omission. For as rights suppose
or ih)p!v
obligations and sanctions, so do obligations or sanctions suppose
injuries or wrongs. In other words, their ends or purposcs art' r
the ~-<'K):<t of injuries or wrongs, and thé !'t'<
damage or tnischief which is eommonly thé conséquence or
eftect.
4thly, Intention and XegHgence (inctuding under ttie htter
i~
of th' ¡.

t1

of thèse terms what may be called rashness or temeritv). j. r

For every wrong (whcther it be positive or négative, or eo;).'ii.-it
of a ffMmission or umission) supposes intention or négligence
on thé part of thé wrongdoer. fi.

5thly, Will and Motive. For the hnport of thé expressions

 '«~' and 'NM~'f' i~timpIM m thé import ofthsexpMasion!! f
'~<'M~<' «nd '!t~~M<-t'/ And, further obHgatton ftnd sanetMn
opérai Mpon tho «~ of thc <j'b!i{;cd, attt~ KM tht'reby dM-
tinguished from t!te fu~«/~?t oy n-~w' whieh (for want of
? botter name) may be sty!ed nierely physica!. Xothing M
more fréquent ta jurisprudence than thé cunfusMU ui' tu'jth'G
with intention; and of this confusion thc law of Kt~!fU]d
affbrds nagmnt instance, wheu it !ays down that nmrdcr rnust
bc eommttted of Ma~'cc tr/M-c~M~ Hy this is naerc!y ntcantt
that it ïuHSt be ecunnuttud intentionalty. Malice is pro~t-t'jy
t))<} nanM of a motive namdy, thttt of ma!cvo!euce f)t- iH-wiU
)'nt it is not by any meana nceessary in thé law of l'j~Iand
that the act sttoutd Itave beeu comntitted froni i!t-wUI on thc
eontrary, tho gréât tnajority of tnurdcrs are committed froni
tnotives altogether diubrent–such as that of obtaitti))~ the
property of the murdered person–: it is oniy necessary that
thé murder should be intentionat. Therc is one case of
pecu!iar absurdity, that of murders said to be contmitted "ut of
malice or iH-wiH to aM mankind. For examp!e, if a workmatt
tin'ows rubbish from the top of a buiMh)~ without ~ivin~
waming to thé passers-by, and if he consequently kitis one
of them, it would Le too obvions an absurdity to prétend that
he acted front ill.wi!! towards the particuJar
person, whom in aïï
probabitity he bas never before seen or heard of, but ite is said
to hâve acted front malice or iIt-wiU towards a!I mankind the
reat ground for his punishment bein~ that he has aeted with
gross and mischievous négligence that he ha.s shown a want of
regard for thé tivcs and safety of others, which ou~ht to sut~ect
hirn to le~at punishtncnt. He iias connnitted thé onencc uot
from a pecutiar motive but from thé want of a certain motive,
and his state of mind requires to he distinguished from inten-
tion, as intention and négligence both require to be distinguished
from motives.
Finaity, Politieat or Civil Zi'y.a terni which, not
unfrequent!y, is synonymous with <t< but wiuc!t often
dénotes simply c.<'tM~<i'«M ~wK oMt~t'Mt, conferred in a peculiar
manner naniely hy the indirect or circuitous process winch is
styicd 'Tm/t'oM.' For it wi)I be shown m tho sequci t!iat
when the !aw onty pemiits, it as c!ear!y confers a right as
w!ien it commands.

Having attempted to explain thé iinport of the term 'Hight,'

and having touched upon thé hnport of thé tenns which 1 hâve
 346
t.tM-. XH How
T~y~a~
fnunMntted, 1 shuU mtvctt: ta tite ambi~ities by winch
now
.~mc ci' thèse exprcasion~ ttre obscur~t. 1 sttuH pohtt piu'-
.~me
of
tit:ut(tt!y at thé vtti-ytttj.r signittOttiont ~Law,' 'Right,' and
'UbH~ttion.' lu attempting tu unMd thé notions whic!t are
siguified by thé terni iMght,' :ntd tu indicate thu !ntport of the
tfrms with w!dch it i:i insepamMy commctcd, 1 .shall scarcdy
tiud it possible to avotd rcpetitiut). For Ga'~h uf thèse expression!)
H so impticat~d with thu rest, that ttm explication uf any of
them mvoh'cs allusions to thé others. For tho snine reason,
thé parts of thé anutysis will probaMy be ubscure though 1
hupe ttmt thé whdc may express the iatended tncaning, ur, nt
)N)st, )nay su~mt it tu thu heurcr.
Hitvin~ bricity pointed at thé purpo.se of the following
aualysis, att'.t apulo~ised fur its rcpctitious and ubscurities, 1
;M\v procecd to the subjuct 'jf it.
u~

ObH~. Every Law (properly so caHed) is an express or tacit, a

tiotMOt
UmiMMe
direct
). or circuitous 6'<~M/~f<
tmftttvaorr Bye~'erycommand, nn OM~<&~ is itnposed upon th< party
Hâtive.
to whom it is addresscd or inthaatud. Or (c!<anging thu cxpres-
siun) it «Mt~/M t!iu party by virtuo of thé corrcspondiug sanction.
~L

Every Obligation or Duty (tcrms, winch, for the présent, 1

eonsidfr a.'< synonytnous) is ~Mi'<tt'c or K<f<<i't'< In other words,
the party upon whoni it is incumbeut is cotntnaudtjd to do or
pert'ornt, or is eonnuanded to forbear or abstaiu.
Itt or'ter to the fulfilmeut of a positive obligation, thé act
or acts which are enjoined by thé Command must be done or
performed by, or ou the part of, thé obli~cd. lu or<.ter to the
fntfilment of a négative obligation, he must forbear from thé
act or aets which thc Command pro])ibits or forbids. In the
one case, thé active intervention of thé obliged is neeessary.
lu thé other case, tim active intervention of thé oMi~ed is not
on)y neediess but is inconsistent with thé purpose of thé
obhj~ation.
An obligation to de!iver goods agrecaMy to a contmet, to
pity damages in satisfaction of a wron~, or to yield t))e pos-
session of land it) pursuanco of a judieial order, is a positive
nbtigation. An obligation to abstain from kiiliitg, frotn takin~
t)te goods of another without his consent, or frou entérina his
me~oa'
!:UMt without !tis licence, is a négative obligation.
hmdwi)
observe that ~'<'<'«~'f«tCt'.s hâve been styied by Mr. Hen-
"i~
Fwt~r.
n«tuc
1 <~
thata~' )«''yf<<tt'e ~n'/<'<M. And, if wu like, we may catt them
thata~"
=' TmitM 't*; L~!if)ati"o, {'. ]!t.
 by th<tt, or by any other nfttne. Dtit wttditer estabt~ed
titugua~ atHhorise thf expressions seons to be dottbtfn!. tf Tf
"!ityMw:th 1
youabstainfrom knoeking Meonthehead.orfrotntaking !HK)"My
m'«~'Cc
my pnrse, or ff~n Mackening my réputation, it ean scarceiy S'y <f<;f<i'e«.
be said with propriety that 'you ronder tuo a service.' ht
ordinary tanguage you foi-twar h~m ttci))g n~ a Utit-chici' it lt
wouht seem that Mr. Hentttmu bas transterrcd to th'' f~'m< of an
obli~ttioti, au exptt.iuu whicit app!ius c')rr<-ct!y to tl~ otjiigatiuu
it~K A ibrbcanutcû, iu pursuatto; uf MU ubH~atio)), t!} ixn'dly tt
u(.ati\'c A'f/'nff,' though t)te oMi~ttion of witic!) it is thé ubj~ct
is property a négative «M<<~tOM.*
Obtigatiot). tuay al.so bu distinguished into )'<«<t't'< aud
f~<«/C.
A relative oUigation isîncuHtbeut upononeparty,and
corre!at(;s with a ri~ht residit'~ in another party. Changing
thé expression, A relative oUi~atiot) corrcspMtds or answers
tu a ri~))t, or imp!ie;i, and is imptied by, a J~~ttt. Wt~Tu :m
oUigatiun is absolutu. there is uo ri~ht with which it con'etatcs.
T!tm'(; is no rinht to w!iieh it c~rrcspunds
or answers. It ncithcr
implies, nor is itnpjicd Ly a ri~ht. Here, as nbewhcrc, thé term
absuhtte is a négative or privative expression. Hère,
as e).se-
wht't'e, it dénotes thé «~wc of !tn object to whieh thé speaker
or writer expressty or taeitty retors.
Mut, in order to thé cotttpiete cxplanation of a ne~ati\'e or
privative expression, WGmustth-texp!ainth('cbjectofwhich it
dettutes the absence. Conséquent~ 1 simH begin with rights,
and with tiie obtit!ations which arc impHed by rights; and 1 shaH
then proceed to thé obligations whieh hav~ «« corresponding
ri~hts, or which (in a word) are M~«/t.
Sinee rights réside in /'<Mt.<, and .«'/< /<<-<, //< < ft<
objects of rights, 1 tnust j
and ~M'~<ï)'f<M' are the snbjects 'r
advert to thé respective significations of thèse varions retated 1
expressions, before 1 address htyself to ri~hts and to thé
oMi~tions with which they ccrrelate.
l'ersons are divisible into twu classes :–physieal or natund ]
persons, and légal or iictitious persons.
In this instance, *(y.<t'f< or 'M~iu' bears thé sig-
nification which is usua!)y attached to it in thé ~n~uage of
Jurisprudence, and (I believe) in thé !at)~uagc of othcr sciences.
Its import is négative, Tt dénotes a j-erson not fictitious or
Jegat. and is used to di.stingui.sh persons, pr<~per!y so caUed, from
persons whicii are such by a n~mcnt, and for thé j-ake of brevity
in ()i.scourse. Conscquent)y, wheu we speak of '~<r.;MM simply,
 t and w!thout

~fmuitt~ot'
MM~
JHy
< them to !egat or ScHHou~ peNOH9, we
tH~tt~i.'Moa~ pt'o~r~y .so e<dted, or pcfsont physicat or natnFn!.
t pifysical ur uatHMtt /w/< or, by /jt't'~<t. cimpty,
'phy~! I1 me
mean/tMW), or a H«! in thu hu-gest signification of thé term:
ixrit))), ur
')M~n' tJMt that i~ tu say, as inehtdtnH<fy bein~ which can be deetned
A~.
A!t«w«. T)m is thé tueatnu~ which is ~h'cn to thc terni pet-son,
ui famituu- dtscuut'st;. And thi-s, 1 Lctieve, if thé xx'anh~ which
is ~n'cn to it ))Y thé ïtonMtt I.~wyGM (front whose writiti~s it
has beeu bort.-uwcd by modeth jtH'Mt*} wt~tt thfy ttenote by it n
phy~ieat or tMlund pur-ion, aud not ft ic~d or Hetitiou. one.
~Luty of thé htodem Civitium !tavc !tan'v<d thé import of
thé terni po'son as mfaning tt physical of natund person.
They (iethM a per'sott titus: '/<c<«~, cu)u .f<<M suo cunsi'e)'a-
tus a 'humau beitJK. itn'Mtcd with n condition or .~<<«.<
And, in this dt.'ttnition, they use t)te tft'tu .</<'<«< in a ynstt-ictfd
sfUM As hiehnH))~ oniy those conditions whicit eomprisc <'<<
:tnd as cx<tudirt~ conditions which are pm'e!y onm'ous or
burtiienaomu, or which con.si.st of duties MCK!y. 'Aecordit)! to
tius duimUioM, !mnMm bein~ who hâve no n~ht~ are not
~t;M«.'<, but ~/«'/< bcin~: c!as«'d with other thin~ w))ieh ImvG
no ri~hts rfiiditt~ in themseh\i, but are murcty thc subjects of
ri~hts residin~ iu otiifrs. Such, ill the Ifoman Lnw, down to
the âge of thé Antonines, WM thé position of the .~r< In
respect of his mastM', and a!.s') in respect of stfangers, he was
subject to Obligations or Dutie.-i. But he had no Itights as
itgainst his ma.~tt-)', or even a~ against stMn~ers. Ris !nastcr
nii~ht ttoat witit him, as if hu had beea a ~< of which his
ntaster was thé owner :–rni.'At use, abuse, and even destroy
him, without stint or measure.nnd with absotute impunity. ]n
case he were kiUed or mattreated by a third party, thé act was
not a wron~ agahtt thc slave tnniself, but was merely au ofïence
agaiust tini dotninion or property which resided in t!te htaster.
In a word, thé siavc (Hke a t)tin~) wa~ susceptible of ~«/«~t',
but was not suscfptiMc of M'/«~. Servo ipsi nu!ta injuria
inte)Ii~itur fieri sed dotnino t~t fieri videtur.
Agrecably to this définition, as understood by thé modem
ci\'i)ians above ntentioned, ~t is a htunan bein~ invested
with /'('<<. Or a /~MMi. ia a hunmu bein~ capable of ~/</s-.
Hut this, 1 atH convinccd, was not thé notion attached to
theterm '~CM< bythù itonMn I~awyers thonselves, whcn titey
denoted by it a phy.sicat or natund pcrson.
For, nrst, in all their divisions of periMns, or tn ail their
3' Citii !n'ititationuM)Cn)ntn<'nt. nt.§2~.
 (htiftbattONS <~f peM~ns htt& var!ût)s c!asscs, slave. who had tm L"
rights.are eonsidet'sd as~o~,and ~/«';M(<t'fmd'~«t'tH'e
synonymous or equivatent expressions. Sununa dh'isio de jure
~c)w<t«.r«M, huic est quod cunnes /«//<!u<M aut liben sunt aut
.%<'ft.' Ag<nn: 'Sequitm't!ejm'e~<««-<Mft<Jitt<IivisM.Xam
qHiMtatM ~cfWK<c sui juris sunt; qu:edam ntieuo juri subjeett);.
Scd nn'sus earam jt't'fwi<!r«t/< qutc n!icno juri subjectif; sunt,
atifc in potestate, ttHin iu toftnu, a!hn tu tttnHcipio sunt. Vidca-
!uus nunc du iis qu:).- ntieno juri subjuctif suut Ac prius
dispiciamus de iis qui in {tU~M pot'statc sutit. lît pote'itate
itaquc sunt ~t-t dMHiht'rmn.'
In thèse passades froni thé iMstitutes of Oaius (and in
varions corresponding pt~sages iu thé Institutes and Digest t)f
Justiniau) s!a\'es (who had no ri~ht.-i) are trcated as tt chtss tjf
~<M,and '/«'M«' attd '~t/ïM«<' are apptied indifterent!y,or
as if they were cquivatent expressions. And, in punninn ttte.se
passage, thé attention of thé authors must !ta\'e Leen piu--
ticularly directed to tite just Je~n! import of the term 'person.'
l'or the purpose with which they were occupicd \as thé
division of peMons, f't' the distribution of perscns into ~<M<~Y<
and ~t'<-<t'<.
Seeottd!y, AIt)iou~h thé slave had nu ri~ht< t)t<:rc are
numerous places in thc Institutes of Gains, in the Institutes of
Justinian, and also in his JMgest or l'andects, in whieh a ~«/<<
or condition is ascribed to the slave, or in \vhic!t ttie slave is
spoken of as bearing a .<<< or
spokfu or condition.
¡
Gaii In<!titutio)tU))tComMK'))!. Lit). that tenu wouH apjth') nti~ht ))t' tnoraity
Ï.S9.4S-M. Atth<'taM!!ci~t)cat<-d nr h-ii~iousty *]~fs<;M,' but )jf'tM}{ eutJ-
t)Mfe)Iowm);not<;i.K'ritM)Lyth<: j'-ctt~h«'))~.ttiu)f<,ittt'J'HJwi))~)to
M()tOt'<)t!ttfJi))th')tt)arj;itfof!)i.<ow)tt')Kht!i/M~~t'<i«))<'<<'u)t';f~,wou[J]t'j{:t))v
cop .s)K:.tk)t<g)ju '/<(M<('<M')tt<t<y.)At~/t'<(«/
)!)!H'f!)<tr''ntt)ke<t))y(.!ti'HanMt)gst.Vo~
ptH()H.< !t'<)M<uj/M«<<ti/'<'<'y/ty.t)M Attd !<?):)), at )<. Lib. § 220,
tn.«"i:tr)' to s~tisiy th<* tenu, tt ti)!tv; (in <' .K~ is thé fu))"wit<K:–
thé Mf)i<;r asM of RMm<~ waf n«< !t )!fr- s~n'u (as t)M subject of pt'~))~r<y)
soo, but Il thtttg. tt'mA/M/tun h'<M<«. min' )M; thtn~ti ).ut <!M tMVtttM hu
<M<t!iMtti<:Mto<'ot)!itit«tc:t))t'r<m),a
a )'i):"t~)i<t)""Mctt'.stti'c'-['tiHt.-o)'in-
rtas.jury (<«~ t. § M, C"t).stit)tttMU "f Anto-
s]~e without ri~ht~ ))<-)o))~i tn t);e
o)))erm)tX. j))tt))et)Keot'Caiu<i)aw. xinc.) Th': nxht.<, hawcvcr, whKh an:
werc t)<:r.on.< in e\'<-ry .s)-)).«.' ut')))'; h-rnt th''rc .s~"k<-n of wcre ffiv<:)i tu t)n: stavt:'

,u
«tttœ,by<;t'rt:tittCf))).titntion.<t)ity M a~dust hi< )<a<t<:)' a)~) ~otu!tf:<; or
,1"lh illfliole.111\,ollthe fol1uer1,
Wt'n< )'r')tf';t<;d tôt' M<t'f M<f« <t'h'!Utta~J, '-Y''Mt)Mtthit!ttictt."tu)<jnthtfutHK-rt!y
<'YenaK!)))).stthtirnMmt':r! 'Apef'iun' :Hhi~tj.t-r<"tt))Hy)fti))h~'r)).:en<:oh.
<tf)\vt)i''t)'coMditiott'or'.<<atMsist))'' si')t:n.t .t.s ut) injurv ~un'* to thé proj't-rtv
<;on'f.<jif)m)in){ .ttMttact tct)))) et'OtM to ofthe httt.;t- (r.W< Ht. S 213). Thc C.jh-
bt! Mwfjttibte of only two (tt-tittitions stitntiùit, hutt'o'c), of Atttotthxi wms tu
thehftrr«K<;r, '<thUM)!m)x-i))!c'))f<i<tet~t int[!t\- thttt tht- .r!m.«:)<"4-i ):iUi«f: ot
os en joying or inve~ted with Ki~t'ts thother'x s)an' wa-s ahf~tty a c~«;)e;
thé tnure <-xt''t)siv' 'a htuuau being amt, by c')n.st.jK<'))(f-, that t))f iiiaYc wa.<

Mc)))ivit))!withoHt a };<t
without uny -'ootmou .u[~nuf tu u'hich
('<. stmns'r-)/ .f.
f'otbMcrett as su)<jcete<t tuObU~tioM.' Hot without ri~tt. t-ven as o~tin! a
~tt HvM~t!tet'~tttM,it' we it'thHt ttMttth~dttttHittohitt~ttestitth
~),
will itpp!y tf thé tenu ~n-r.ww,' ftmt thftt « ppMon H n humitM
bMH~
bM) betn'iu~ a Houditiun ur ~f<«.<. it will ttot. tottow that tho
tt.'rm
tut't '<< is cxclusivety applicable tu sm:h human bchtgs as
OK* itU'fStMt ~'tth 7'i/S'.
If me tKhttit thu <tefinition, white wc tnok at the truc im-
purt ~t' tlie term .~((~ thc tnc:u)i)~ ot' '~f<w( is this Htt)n'j)y,
:( htttnuM bem~ cott.shtcrctt as <«'</< K'<7/t ~'<~< of cunsMcfm.!
t(S ~«~<'< f/M/«'.t~~
Ttddng the tcnH in thut muMiin~, it would apply to every
hn)natt creatut-e, if a mcn~'cr of n po!itic:d Mcifty, and not
sovft'ei~u thft'eit). tt cuuM uot Kppty t" n hutntm buitt~ mjt
mumber ut' any potitical socicty, fut- n hun]:m heing in ttint
situatiou bas uo te~a! n~!)t' and is fKu imm le~d uHj~atious.
Xut', takcn in that mcinuo; eau it apply to a monarch, for as 1
hâve but'ure ubst:r\d, wu caunot say with con'eetmi.ss, that
soverei~tLs havf tc~d rights, not' that they are tu ic~id
sl su)~
obligations. OUi~ations am itnposed, and ri~hts cont'en'ed hy
A'f<'<. He, theretore, who has n~ht~, M' wh~ !)< ttnder ot'ti~a-
tiuns, tjccupics a pusiti'ti whcrciti .w\'er<'i~ns are uot. Ito is iu
a state of subjuction, or i)t a itabit ~f obcdion'u, tu sonie (le-
tcnninatH s).tperi"r f)'u)u wimtu he rcecives thé !aw.
Hut, accot'tting to thé meaning witich wa.s attached tu it hy
the I!o)nan Lawycrs, neither of thé si~nificatiuus in <~m.stiu)i
Lcluii~ to thé tena '~Mw; T)tcy neither contmed it to
hutnan Leiti~s, confiidercd as invested wit!) rights no)' did thuy
M\'fu rcstrict it tu hmnan boings, considercd as subject to
uhtigations. The nu-anin~ which they attaehcd to thé tenu, is
thé familiar or vutgar mc.tttitt~. Wit)t thftn '/«)'«'/<?' denoted
'<«'),' or «/ bein~ which can be sty!cd ~<f<
Th'i Xto'tcrn Hhtitation of th~ tena '~u'M' to *AMM«<t
y«'H~ <M<-4<«' o.t !<)''< )(-<< <<
appcars to hâve arisuu
thus Ist, A ~t.<« wus dcfittcd by tuany of tttc uioderu
Civilians.'a human bci)~ hcaritt}; a'<<
or condition.' 2ndty,
The authors of the définition uscd tho tenu 't~M' in a
peculiar and na.rrow sense. They assutncd tttat (i\'cry .~«<«<
1
*'Hugn,Mtt')'Ut'h')<'rjunsti'i<'ht'<t wife ill th" hll$I"11II1,et' tlwl'O i. III'om-
twiffittt)t':h)M)Mn'),<;t't)n-re)!n'')M]-
1
Eney'tojodif.vot.i.j'.SOO.Mr.AM.stUt's s MtNtiun of ~)H !'<< with ~M< ~m,'
cr)])y of this ))o«k ie tiUM) with t~t'<tff,!t-t!~ti)')!t<'th<'r)<'r~)<,y"'
marginat
)Mt(" !<<'<m,!M!tjpitt!itt)~t'"))twh'ji<
Th<:h)towi);,{ii!fr'jt)ttiK['tgf;
<ct':rrf:dt~(.'?'t'<);– '<Mi~tt'i~-rt'urtttth<<rvi'i. A)!
\V)tf;f('t't')' a t~at) )t!t.t a right t'~ t!)' t~H~ to y«m ;'j'M/'MM,'
)!Ur)t ng)tt<
'icmeM of another, whethcr it )'e tm- ~.<. thcv ,MttfM.<t/«'yN~
t~'t-
ttMit<;d,!).<. in tho <:<<'«fuMqtttttiti~t
o

-ih"t)';crtituit'-d,ittth(:ri~htut'tf)': ~Sc<:[).2S!<<.
fiUt)))'Mt-

hn<)Mt)'tit< <h''w!ft-,t)«;n!:)'t')f<h'
CMn~îMes ~/t~,M',at teast, coH~rist's eapacHies to «c~tmu or
take nghts~. Thpy asSamed thttt ~M~M M* condition couM not
be nficnbed to any &M6 who was exchtded ft-otn tt!t ri~~ts, amt
wus simp!y subjcct to duties. Xow there is no clussicat
authority for denning A person, 'a hnman being beann~ a ~a~M
or condition.' And furth~r, 1 cottht c!tc numurous pns~ngf"!
ft'ûtn thé CtassMat Juti.sts, in whieh a .~«<«.t or couditiott is
a'icnbed to the .~f«v; Thttt is t~ say, tu a huruat) bemg who is
pxfluded ft~tH H~ht. «od wh~"f c~ntitiMt w ~«/~ {<) thM~tut~
pm'ely oncrous, ot- coMsists of dutms thM'ety. Tite truth app''ar3
to bo that the (mthoM of thé dcfhtîtion considcrcd thé tenu
*~<~<M' its e~uh'tdent to thc t~na *tn//<'< word dcnoting
conditions of a particutar t:!ass: conditions which f/« compt'isu
rights, and comprise rights s'~ numcmus and important, that the
conditions or .s'<«/)M of which tho.i,e t-i~hts are constituent ports,
are marked and distin~uished Ly a name importing pré-
éminence.
For tho purposc of' ascertaining thé meaning wJtich should
be assigncd to thé ternt <f~<M, 1 hâve seaK'he<) thf nKftnh)~
which were annexcd to it by thé Honmn I.awyers, tin-ou~h tite
Institutes of Uaius and Justinian, and through thé more volu-
ntinous Digest of thé latter. And thé resuit at which i hâve
arrived is this: that .~<<M.s and <f~<~ are not synonymous ex-
pression' but that the term cf<~i<< signifies certain conditions
which are <:«~</ or principal which cannot be aequired and
cannot be lost, wit))out a jni~hty and conspieuous c))an~e in thé
Icgtd position of thé party. Such, for instance, are tife statu.s
/t'f<<M and tite ~«~M- <:«.'t7t~<<: that is to say, the condition of
thé freeman, its opposed to ttte condition of thé .sh(\'e; and the
condition of the citizen or metnher of the politica! socicty, as
opposed ta thc condition of thé forei;.{"er.
Whatever may he thé ntGanin~ of tih'se terms as they are
used by thé !{omtm Ltwyers, it is certain that they are not
synonytnons. For a conditio)) or .«~< is repeatedty ascribed
to thé slave, and yet it is atnrmed of the s!a\-e t))at he bas
K«~«/<( <M<<
Jt is tnneh to he wished, that thé dif)erL-nœ between thon
coutd be ascertaincd. For of ait thé pcrptexin~ questions which
tbo science of Jurisprudence présent- the notion of .~«/M.s- or
<K~<<'«ft is incontparaMy thé tnost ditticutt. And mnch of thé
obscurity in whieh it is invoh-ed, arises from tho !nanner in
whieh it bas been treated by thé modem C'omncntators upon
the Roman Law Particuiarly front their iiabit of restrieting
gS~ /<Mf~j!Vp/KWy<MMr~~
JJ'*·
n
LKM-.X!: thé iMtpot't of ~«<<M/ <md of Msiug it as if
~-àit wet-e équivaut ?
tho tMtru'wer expt~ssion e<ty«<
i think, ttien, that 1 Mn JustiM by authority, as we!! as
bv the coMvcnieuce which résulta f~om it, in impMting to the
tcrnt ~'wt (Kf denotin~ a phyM~l or tmtuMd pera'M)) tho
f:uni!iar <'r vn!gar meaning; or in considcring & physie~t or
n~tural ~tT.~ iM exnctty équivalent to
UMU (iu thé hugest
sigHttication of the tent)).
If ~t<M (aft me.mn~ M<~t) bc equivalcat ta /MtHO, and bu
not exclusively applicable to meu t'<t<'c.~t</ <ci'<A it't/t~ it
foMows that thé slave is a yf~/t, thou~h he hc exchtdcd tront
ri~hts. If, indccd, wc couaider him from a certain aspect, we
tuay, in a eurtam sense, sty!e him a ~<t~. But
atmost every
peKon tuay bc cunsi'tered i't'om n shnitar aspect, and may aiso
<«'
be sty!ed a with ef;ual prupricty. As t shaM show !tMM
t'ulh' whcu 1 ~t t'urthct' ou, pcrsoM tnust be consid'ed ft'om
tht-ee points of vicw As inveiitMd witit t'ights as lying uttd(;r
ubii~ations or dutie3 and as being thé subjects or objucts of
nghf and obUgtttiotM.
righta
't'<;M"
'c 1 hâve hithcrto cousiderfd thé c~fM.f«//( of thé tcrm '~«'.w/t'
<r~t'iy as denotit~ a humau bcit~. And iu t-e~ant to thé extension of
.')yuuuy-
'<' thé ttcrn), <M '/«t'~< ? /tMM«f~ &tM. 1 believe that Classical
«fuMs\nt)tt)tet
.),.
'&tatu.'s'or, Jurists, when they used it with that meanin~ used it with thé
Juns<
hu-~e si~nificatiou which it bears in fatni!iar discourse:–as
hu'~e
bein~ synonymeus with /«</««,' or as apptyiug to evcry bein~
beim:
which can be styled /<KS)aK.
Hut, instea.d of denotin~; mcit. (or human &<:M:~), it some-
tittiM dénotes thé f-M<t'<<t-f or .<~«.< with whicli mon aK
invcsted. And taking thé tern) in this si~niiieation, cvery
hurnan bcin~ who bas ri~hts and duties bears a M!<N)&t'' uf
Ùnus honto sustinet ~<~M personas.' For exatuple,
persons.
every human bein~ wh' has ri~hts and duties, is c<<t or
/M-<t/ that is to say, he is either a member of & .«-Mt in-
dependent soeiety, or he is not a member of that giveu
indûpoident soeiety. He is a!so a .f~t. Probabîy, !to M
/t~«M'/ and /tc/ It tnay happen, moreover, that he is
His ~?'~MM/t or <'<M'/ may ~ive hini
y/««/«~ or
distinctivn ri~hts, or tn~y sub.;tict hun to distinctive duties.
And with thé varions conditions or .~«~M of citizen, sot),
hnsband, father, ~nardian, advocatc, attomey, or trader, he may
combine thé condition of jud~f!, or of member of the suprême
)~islature, and so on to infinity.
Thé t<-nn '~«-«~ as denuti)~ a condition or~<<«9, is there-
ibte eqmvak~ to H ~nt6ed OKghtttt!y, ?m.~ worn L.
by a ptayer, MKt ttistingnishing -n L)!o-. XH
chanteur which he rept-c. ?-
sented from thé o(,!MF ehamet~ ht thé pièce. Frotu th.'
nutsk
k
which expressed thé character, it
was cxtended tu thé char- r-
aeter tt.?e!E From characters repmsentcd by ptavera from
dramatic ehamcters, it was furttter extended by a' or
metapJMi- to
conditMHM 01- f,<<K,M. For
nien, ns subject.s of law, dhtiu-
gmshcd by theh- respective MwW< just player: are
as performin"
a p~y, Me dMtiMgMiahed by thé sevcMt ~<-<M~ whic!t the~
respeetivety enact or sustain.
Hy thé Greek cojnmeutators
ox thé Homaa I.aw or by
those who hâve tmn~atud thé expositions ot' thé
Houau L~w
!Hto Greek (as Theophitus),
~v~« is trau~lated bv thé word
wpo~wof, which signifies a visage
or face, and is' obviou~y
meant to dénote charaeter or .««.<, and not m thé otiiet-
nuport.
Thé term 'M,t' bas, therefore, two MGMu..gs, which
tnust be carefnUy distin~uisiied. It dénotes
t~t~; or tt, a~tiRes some <'w~~t'oM borne abyM«~ ur A«~««
a maa. A
person (as Meaning a man) isoneor indindual: But a~M<<-
or M«~W.M/ persou ()neaMing a inan) may sustain a M«,,<~)-' of
persous (meanm~ cou<titi<~ts or atatus). Thé erroneous <~H.

t.
tution of a to whieh 1 hâve ah-eadv adverted, prubably
arose m part from a confusiou of thèse signi)icatio))<i Every
.~<M or condition c-msists of rights or duties
of botit. And if we impute to a or it cousists
person (as meani~ a ~<r<«)
this essentia! of a persou (as meanin~
follow that a person (as meaning ntan)
a cwt</i-<<w), it will
must be defiued thm-

<
a
A tHan iuvested with rights, or subject to ob!igatio)ts.

)-
Thé furttier limitation of thé term
2cilla
't<
tu 'a tuan
probabty arose (as 1 intimated before) from
an erroneous htuitation of thé tenu fi-om thé striction
of the tenu to certain c«~ conditions, whieh consist of .-M/t~
as weU as of duties; and wherein thé ri~hts are thé more
sptcuous and distinetive constituent.s con.
or co.up<,nents. A Roman
Ctttzen, for instance, was of course distingtu.shed fi-om
forei~ner
chtef)y by thé nuMerous ri~-hts w)deh t)e enjoved:a
freentan from a slave insomncit that he who so was a
was reduced frotn
thé more advanta~ous of thèse situations to thé other was said
to ttndo-go <«/~7M~t~<~t«<,< so pred.'minati))~ thé idea of
thé nght-s whic). he lost over that of thé dutieswas from which he
became freed, aithough by t).e
satue event bv which lie lost thé
nghts he beeame frecd from thé duties a!so. This last
mentioued
VQ!-
 t ft'tor, in short, tttoso from tMO confusion of ~«<«.<'(tha tat'ger or
~cnettc
..r
expMssmn~ with tap~ (thé narrower or speeine}.
1
t'MMtitUi. FtutitioMs m' tegat persMts ar&of Htt'eo kinds: Ist, SonM
or~itt colletions or aggregates of physical persons 2ndty, othcrs
~r'MM". are
il
are
i) <Au)~ in thé proper signincation of thé ternt r 3rdty, otheM
a collectiuns or aggregates of rights an't dutics. Thé <M//<M
are
of thé Hotnan Law, and thu corpumtionii aggre~atc uf thé
English, are instances of the Rrst thé ~Mt<h'~w ~w/<t/(«M an<t
.t~M~M of thé i{o)nMt Law, M fm instance of thM fécond
thé /<aTt'<~<M y«M/M of the Roman Law, is an instance of thé
third,
It is hnpossiUf that 1 shoutd enter here upon thé con-
sMeration of le~al peraons. For their natures are various
thé ideas which they stand for are extrentely eomplex and
they, therefore, Leion~ to the dotait, rathor than to thé .<'M<«i:
of thé science. At présent t will merely remark that they are
pet-sons by a ngmcnt, and for thé saké of brevity in discourse.
AU rights réside in, and all duties are incumbent upon, plrysical
tu- natural persons, But by ascriMn}? them to
feigned persona,
and not to thé physical persous wtiom they in truth concern, we
are frequently ab!e to abridge our descriptions of thent.
To take thé easiest instance; this is thé case with thé
;M'~t«M <~MKu«M.s and ~f?'M'<'?'~ of thé Homan Law. A ;!()'<«.<
or easement over one ~«'<«!)t résides in every persou who
occupies another ~w</<'«w mcaning by a ~'<'K~')<M< a given
piece of land, or a given building with thé land on which it is
ereetcd. The servitude or easement in question (as, for instance,
a right of way) is ascribed, by a fiction, to one of thèse ~-a'(/«t
and, by a similar notion, an oMigation or duty to bear t!te
exercise of thé servitude is imputed to the other. The nrst is
stykd (/</M) t'KHK.! the îatter ~f~M. Or (as we should say in
English Law-tanguage) thé yfM ~<'M<«~M or easentont is appur-
tenant to thé lands or mcssuages. In truth, thé right résides in
every physical person who successivcty owns or oceupies thé
~M-~n<m styled f/Mitu««M. And thé right avails against every
physicat person who suecessivety owns or occupies thé ~'<E<~M
styled M/'n'tK~. But by unputing thèse rights and obligations
to thé ~'fc~'« themselves, nnd by taïking of thon as if they
were persons, we express thé rights and duties of thé persons
who arc really concerncd, with gratter eonciseness.
To take another instance. //<we</<<<M ~'HcoM was a tern)
emptoyed in thé lïoman I~aw to (lenote thé whote of thé rights
and obligations which, at any instant of time during thé period
whieh tutM voues b~weett thé (tettth of thc testatot- of tt~state,
ttttd thu heir's accoptonce ~f thé mhci-ftttuce, \von!d hitVM Jo-
VMh'ed H~m tm t~h'ftt thttt it~tttMt entérina
npon thé itfhct-ihmee.
This mttss uf nghti) ~md ubii~tiuns wa-s by tictiou styled
il a
puMM!, although clearly aot a person m thé pupuiar sense of
thé word, nor cven c~n.~tsti)~ uf H)ty dct<'nninate thing, but
beitt~ !t
meM collection of n~hta and ubti~ttions. It
tent~d by way of expre.ssitts titat Huy benefit ucci-uiugwas t.)
so
thé
tnheMtan~ during thé above penod, would ettmë to thé heuefit
of thé heir.

t'RAGMKXTs.
/.<!? i.1 <M~t~<t'<- (i<- ~fnHf'MM'e.
Law, coosiderod as a rute of conduct, prescnbed by thé
Leps-
lator or Judge, is neceMarity huperath-e, since it imposes oUigatioM
to act or to refrain from acting in a given macner.~ an
As confcn-ing a right, it M permissive. Considered
prcsston of the will of the L.gish.tor Jud~c, it is imperative as an ex-
permissive. For it may consist in thé or removal of restrnint.
t~-
Pena) Laws are setdom directfy imperativu.
Sanction is not of thé essence of p<.nni.<sib]e law. Fo)-, by
such
a law, an obligation, instead of hei))g imposed, may be simply
moved. (&</ ~«(n c. ) t v re.
It has hitherto been assunted titat
gation. Appan-nt exception in thé every law imposes an Obli.
case of Permissive Laws Thé
exception M~ apparent. Taking uH-
an Obligation, it confers a
Htght, and M imposes an Obligation con-espondin}!
to that right.
With reference to such parts of eonduct thé positive law of
thé community does not toucit, thé mcmbersasof political
a society
are in a state of nature. (~
liberty by thé State. Such Hberty wou)d
For they are protected in that
coaferred tn thé way of permission.) seem to eonsist of rights
Law is absotute or eonditionat.-is to take enect
at all evonts,
oniy m
or only m d'~fautt of (t)spositions
tKtautt ot dispositions by thé intcrested parties.
~!)<!Mhan),'t'rit)~)))t.<;tc.).).<'2t
32S-9,mae~ton. M. Thi~ Sy~' '"itt'-t)Mrg.'M~-rtw.-r')'n)<ann,wa.<
)I)t))!t)tti<)<rf:<:hnh.-ot)t:t-VerhoteMn-

t<~'tnsofet-nwirMntt-rGesftxcn.'tic~ Il
t-rtmbt ixt,' etc.
t. etc.nM-, ./)f,-fs(.
~K'w<t'.3!.
J
m)t f~r N<«(;~<)<-<~< .)en L'u~rthanc-tt If t'y LitWt Le tut-aht MM<')a~<M'tt
twa<a:A<-M«M)tK<;p);)u veMt<'h'n, i.st or
f.s
'-in).:uchtMi.t,dt)MMindiMs<-mSi)fUt-hur~ MM<ft't<~t{utM,I~w.s<tr<:t-itherf«!-
~'6t<'ff;«~: un.) tw4t'j{~. (:)~t.tj;~ u), /)t~<
p (<-t)ttH)t!))).Uttf{ .'i-'tnt-thht;; whic))
)t)M<)) ))<; (fo:n'),')r prut)i))ith-t'
keinesweg.f <~<K<<)j,<< f.eaet.'t: m:t)ett i))Kf.ont.:<)ti))f; (coummtKt-
kanM. D'itUtmMehttngaufdnecr.tj1~uut il whtch shall not ))e done),
tM))ttiMH!t)<.)!)))),M))t;darfMk<itM-t-J num'~t )x; ~'t'.)iw)'tt'M<ti't)M<
1
A'«<f.
UMOtxtern bei.tittttttMog, dtt
KM t~-tu
 Freodom, Ltbprty, arc négative mtmM,(tenoting~hc absoicei of
t~sH'funt.
CivH, PoMtKat, or Lpgat Hbet'ty, is thé absence of Légat Re-
~tmiut, whether such restraint bas never been imposed, or having
beett imposed, has been withdrawn.
Mt gênera! or particutar: <.< itextends to all or it ia granted
to one or some, by an oxctuptMU or ~'i't'(7~tt<M (seu Priviiege').
Lib~rty and Itight are synooymous Mttec tho ti~rty of acting
ttccording to one's will would bo attogether Htusory if it wero not
pt'otcct~d frtOM obf!truet!on. There )s however this dift'erenee be-
tween thé tenns. In LiLerty, thé prominent or lending idcit is, the
absence of Joga) restraint whitst thu sccm'ity or protection for thé
enj~yment of that Hberty is thé seeondary idca. Kight, on thé other
hand, t/<;note!i thé protection and canotes thé absence of Restraint.~
If thé protection at!orded by thé law be considered a~ atfofded
against prh'ate pesons, thé word Right ix commonly emptoyed. If
a~aitMt t)ie Government, or rather against some member of the
Covenunent, Liberty is more frequentiy used e-y. tho Liberties of
Engtisitmen. Liberty nnd Kight are not however aiwayft coexten-
sive, since thé security for tho enjoyment of thé former may in part
b~ teft to thé moral aud rougious sanctions~
(.SM ~<(frf.) Whether Liberty can ever mean anything but the
right to dispose of one's porson at pleasure Liberty or Freedom to
deat with an external subject seetM, however, to be equivalent to
Right to ded with it.'
On tho whole, Right and Liberty seem to be synonymous
either uf thom tneaning, Ist, permission on thé part of thé Sovereign
to dispose of one's person or of any external subject (subject to re-
strictions, of course) Snd!y, security against others for thé exercise
of such right and liberty.
Wherevet- there is protection anbrded, 7?f~/<< is the proper word.
As against thé sovercign, thore can bo no right.
Physicat freedom is thé absence of external obstacles; t.e. thé
absence of causes winch operate independentty of thé will. Morat
freedom is tho absence of motives of thé painfut sort.
"Ptr rapport aux nctions sur )ef<- foMttM mr «Mi~tion~ Cetxmc'nt
')ci)
')'«'))'"< te h-~Mtat'-urne pruttonee ni )))<* confere-t-ot) Mn f/M't'< <)c propnttc sur
J<-t'<:n!ietiiit~an<:tio)f,!t)tecr<'uMcu)) UMt'rnmt! C*e.teH!)n)M.sant:ttoU!i
dftit.ftucuttehbti~ation, aucun service; )et atttft'.< )'o)<t)t;atm)t df )«' )Mt.< tot[c))<;t'
~~t<Aï~t< t7 wM~t <*û~<rv «~ c~'r~~t </j~ a «'.t ~ruduit.s. CoonHent ai-je le </)w'<
c';tuit!c.f'<eou'te<t</xM/'ftt't',t<'tond'a))urt'tvt'nirt!'m!ituute!i)t;!inx'stt'mm
t'«~< ~fo~M !-«~tM.7'<-f«7~< 'fe ~'i/. Ynh-' (."('.<t~'t'i)tt'<-]:i!itejn)i)ttd'ob)i.
v«Li.p.t5G. gittiuM ~ui tn'fM t'tojmchc.7'<t«'M<, t~
Then~!htofJoiu~th!ttw!ti''hi<uot An't t)«:t' f~< exii.t «h oUi~tto)) on
[)ruhi!'itc<t, im)j)0.w~ at) obtif;ation on othtr.-t to r&fntm from oh~tmetin); tue.–
other;} ont to obstruct. See t'rit<cip)e.s,' J/<t/yt't<«<~'n<f.
etc. p. 222.–J/f«-~t')M<.Vu;< For Uberty, as tneanutt; fiban: in
On peut intp-Met- <t('it obti~tiofjx sans SoMtt'i~nty. Me Kant, 'Xtmt ewi~tt
'jO'il en reautte dM (troit-f mfti.f on ne FmJen.' Set a).«) <ï)t<< p. 273 <'< &'?.
)<out ~XM créer J<< droito qu'Ut M'' imient
 LECiUiΠXttt.

t'EKSONAXDTHtXG.
Ix my ]Mt Lectun-, 1 distinguis!ied OUigations or buttes into
ttoLMT.XtH
t.
~M'/«'c and M~~tM; aad iadieated generaHy and Lrieuy thé hc
nature of that itnportant distinction. Il

1 also distinguished Obti~ations into <-<«<«-<; and ~<«./«<t 't.'

that is to say, obligations w!uch corrcîate w!tL, or <<jn-uspund or
answer to /'ty/< and obligatious wtuctt ncither iniply, nor an;
itupUed by, ~/t<.<. And, for thé reason which 1 titen assigued,
1 began with t)tG analysis of rights (and of the oNigations hu-
plicd by ri~hts); and deferred aU fm-thcr ren~rk upon the
nature of absolute obligations, tiU that anatysis should bu cont-
pleted. ·
But, since rights réside in persons, and since /7<'< //u'<,
<!<<, and ~M'~aiwMCMare thé snbjccts or objecta of ri~hts, it
was
ueces~ary that 1 shoutd advert to thé significations of those
sevural retattid exprussions, before 1 couM address tuy~If tu
rights and to the obligations with whieh they corrclate.
Accordingty, 1 distinguished persons into physical or naturat,
and légal or fictitious: that is to say, into~t, properly and
simply so called; and persous which are sucit by a Setion, aud
for the saké of brevity in discourse.
1 then stated the meaning which 1 attach to the tenn
person,' as signifyiug M ~/<~i'<-f</ M' i'M~t'nWM~ /~wM. I
en-
deavoured to dononstratc, that thé extensive meanin~ which 1
attach to the term, coincides with thé meaning whifh was
annexod to it by the Homan Lawyers. And 1 distitfnuished
that meaning: from another und a very di(!erent mcaning in
which they freqttently employ it: namety, oo< as signifying
physical or individnat persons, but as signiiying the conditions
or <!<H<<M which are borne or sustaincd by the former.
In conclusion, 1 cnunierated the kinds of peMons which are
persons by virtue of netions and 1 a!so pointed at the design
which those notions arc intended to unswer. But inasmuch as
netitious persons are of wide!y dinering natures, and inasmuch
as thé ideas which they dénote are for thé most part extremely
comp!ex. 1 deferrud aïï furtiter eonsidenttion of them titi 1
sttoutd descend to thé détail of thé science.

Having considered thé import of ~w<, 1 pmeeed to the

signincations of 7Vt< and ~-&M)'f<M<'<
 ï&tM~t su'o SMctt ~w« Mbjects, &f<~ ~eM!MM, tts <u'e
scnsibte or pereeptib!~ thr~u~tt tint .ensf~. Or (ciia.n~tMg [!t~
expression~ thingsarMSuch~</<<<<</<f<<~t'xtërna!ubjeet.-ia!Sai'e
«t'<<<(/<. Such(t'orexftmpk}isane)d,tthoustt,ahorst),a
tt
cannent, a pièce ot' cointid ~uh). Snch is a ~uantity uf coined
or uncoined ~o!d, detcmnned or a.'icm'tained by nuniber or wei~ht.
Sttch is K ~«~/< of cjoth, cotu, oy witic, dctcrnxjjcd M' aseer-
t.tmfdbyuMasm~.
'nm~s m'e thc une hund, to y~w-'i theniselves,
op})us~I, un
:md :n'c eoutt'adi.sm~ui.shud, on thé other, fro!n thé «c~ ot' thé
peMons, and t'rotn thc t'fst et' thu <<'«/<.w/<< ubjccts whieh m'e
don'unnatcd/!<c~ M'«'<'«/.<.
Things ht this 'J'hat tticy arc pPt'maHcnt
re<!M)))b!c pcr.-ious
<;xtem:d objfcts 'u' ubjeets which aru pL'nuaucnt, nnd sensibiti
'jr pt'i'Ct;{Ai)')f throu~h thé Sëtt.ses. Tin'y diffcr fi'ont pursons in
this That 7'«'.t"«. are inv~ted with ri~ttts and su~jeet to
utdi~tiuf). or, Ht least, arc capabtc of both ?%< nru ("sen-
tiaiIyin<i(}MbIeof)'i:ht;!0)'uUi~!ttiun.tIthMt~h(byitf)ct)M~
ilt~y tu's'jui~tin~.s c'ju.'il'.kred as pfr.suns, und ri~ht.~ or uMiga-
t!'jn-s arf a.s<t'ibt;d or uuputed to thon accurdin~y.
Titey tf.sentb!e i'aets or evcnts io this That they are inca-
pabkoi'rightsorfbii~ttiuns. Thcydiit't;rtroMtfaetsor<cnt'!
in this That thm~.s are /A <'<««?«/<< externat ubjects whitst f:tct.-}

hr evcnts are ~-««.!««/ objects, and consist of detemunations of

thu wit), with other aHections of thé mind as wuU as of objects
pfrecptib~ throu~h thc sensés.
ïn drawing thé tine, t'y whicit l'crsons nnd Thiu~s arc
Stjparatud from Kvfnts, 1 content My.sdf with \'a~m cxprussion.S)
and ani ff<r fi'Mn asph'ing te ]neiap)tyNicaI preoMion. If 1
attonptcd tu describe thc boundary wit)t tncta])))ysicai ))rGcision,
1 should run into enouirifs whieh my limits imperiousty tbrbid,
and whieh wfrt: 'icarcety con.si.<tc))t with thé purpose of thèse
discourses, If 1 endeavoured tu denne exactty the meanm~ of
permanent object,' 1 siioutd enter upon thc perpkxin~ qucstiott
of satncm"!S or idextity. If 1 cnd''a\'out'ed tu dctim! uxactty thc
jucanhtK of sensible object,' shouid enter upon t))e internnn-
abie question about thé dinerence betwecn inind and ntatter, or
percipient and perceivcd. And, in either case, 1 shoul'i thmst
a treatise upon Intellectuul l'hiloMphy into a seric-s of discourscs
up<'n Jnn.sprndence.
Accordin~iy, !iow that 1 ttave iudieated rather than deter-
mineft thc boundary, 1 mnst !cav' niy hearers to settte it for
themselves, accordin" to their own fastnon. 1 nmst teave theïn
ta ~istmguish, a~ef their awn fttshioOf between objecta whieh
are pereepttHe t!ii'ough thé sensés, ttttdobjcets whiek are Hot~4
bptwccn sensMo objecta winch arc pft'KtttMent, and are ~M~"
(stnct)y so caUed), aud sensible objects which ure transient, an.d
are ranked with /«<-< or fM;«~. Thé discrétion which pro)npt<
)ny réserve wiM bc underistood by tttofe who hâve tHi'ued t(
porthjttof their attention to thé Phitosophy of thé Hmnan Mind,
aad wi!I jucet wittt approbation rather than CHhsut'e. Those
who aro ignomut of what is styled Mctaphysic frcqnentty run,
without knowiug it, into iit-timed tnetaphysicn! speentation.
Those who arc verscd i)) ~fetaphysic, know t)t<' occa.sion'! for
abstahti)~ fron) it, as weU as thc uceasiuus ou whidt it enu bc
npp!iMl to advantage.
But, in order that we tnay kecp elfar of a very perplexin~
ambi~uity, 1 wi!) rextark for a moment upon two tUstinct. si~ni-
ticatious of pertuaucut' and 'transicut.' A)id thii! r'uuark 1 an)
eompeUed to interpose, ina.stuuch a.s it rc~n'd~ a distinction wbich
strictly betong:! to </«~y;t/«-< whethur it bti h~tfq<)ty.<iea!
or not.
Sunsibte objecta, or objccts perceptible throu~h thu sunscs,
arc permanent or transient. Thf former ar'j pcMons cr thin~s
the !attcr rank with thu objm-ts which arc denonunatM<) facts or
cvent!
New wheu it dénotes a ~«~ us coutradistin~uish<-d from
an <t't'M~, the hnport of thc expression '<«M<?!< sensibh' object,'
is (I think) this: It dénotes au obj~ct which is pcre(.'))tib!e
<tf<<t'< and which is considercd hy thuse who r<;p<:atcd!y
pfreeive it, ai! bein~ (ou thosc scveral occasions) one and thé
same object. Thus, thé horse or t!M house of to-day is thM horsc
or house of yesterday in spitf "f thc intm'vunin~citantes which
its appearanee tuay hâve under~one.
Th~ ~v</Mt' sensible objccts which rankwith facts orevents,
are /<«< pcreeptiMe repeatcdty. They exi.st for :) ntoment di.s-
appcar and never rccur to thé scust', atthom:h thcy may be
reea!!ed by thé ntemory. Such (I think) is the distinction
(indicated in very gênerai expressions) bctween thé tem) 'y"<
«t<tMCK~ as appiied tu ~/<< and the tûrm'f<~K/' as app!iL-d
to sensible t'<ï«/.s'. And, taking thé tenns in thèse si~nincations,
aiï ~/i! are~t')')«<~M' and no //<u<i< are /)'ft«.si'<
]!ut, tahittM thé tenns in other si~nitication.s, thin~ may be
distin~uished into ~~<'M«M«!< and ~v</)-</t?, or into such as arc
more permanent and such as are !ess permanent. For sone are
more enduring others are less endurin~. In other words, sotae
 t.fcr.XM rettun
f.wT~fTtTC t-ettt
t*M~<Y?ttthe
T~y~
f-
fbnns which
~tt~t~tM~~ t~ ~t
M~!ntt g!v& thant thoir actuel Hamea <L
ter (~ loBgef
pet'iod some retain thèse fonns for <t ahofter petiod, 0F comtp~
{jet'i
dect~y, aud perish .<~c<t/y,
deçà
Thé purpose of this distinction will appear c!ear!y, when
1 eonsidt'r thé kinds and sorts into which things
are divisible:
especiftHy the of things which hâve been sty!ed /:<My;M<
aud thé ~c<'< uf fungible things ~«œ «.f« <'m<.M<M«~M'.
Kc!;u!ning thé dennition of n thin~, t MK'nH by a ~(N'/ (as
contt'aditttUtgMMh<Mth'om aM e<'t~<<} at(y ~ntXtHfttt external otjjeet
MO~ a pcKOM. Or (ehan~ing tt~ expression) 1 mean by a thing
(as contradistinguishcd ft'om au evcttt) any sensiMe abject, not
bMn~ a pcr.soH, which is capaMc uf beittg pereeived )'<tf</M//y,
or is capable of if'ft'«!'<'<M~ to thé sensé.
Mttinc. Thé distinctions btitwen Things, or the varions y<'K<')-<! and
tiom ~f<;t<< undcr which they arc distributed, will bc con.sidered heru-
hetween
Thittgs. after. Fur, though thèse distinctiotts arc derived (iu part) frunt
thé physicat difierences between things, thoy are atso det'ived
(in part) frotu the difterencc.s ))etween rights and obligations
tmd arf just as f~cttttMM, or ast eomptetety thé work of Law, af
t!te rights and obligatiotM of which things tu'e thé subjueb!.
C(~nsequentty, a statement of the distinctions between Things
(as subjects of the seieneo of Jurisprudence) tnust be preceded
by a gcnfi-al statement of thé distinctions between rights and
Juties.
Froot the ituport of t)(G term </<ùi~ (as opposcd to ~<r.!Wt and
e)-tK/) 1 proceed to certain ambiguities by which it is perpkxcd
and obscured.
Thinjpm.. And, nrst, i-~ or thing (as used by thé J!oman Lawyers)
Mgnifyitts
<tCttMtt is frequentty extendcd frotn ~/<!My.< (strictly so caUed) to f«~ and
forbear- ~y«Y<KCM considered from a particutar uspcct name!y, cou-
ances. sidered as the objects of obligations,and of thé rights correspond-
ing to obligations. For example. If you are tjound by virtue of
a contract to f/o certain acts (as to perfonn work and !abour iu
repairing a house) or if you arc bound by virtue of a coutraet
tnj~~7«f~- from certain acts (as to forbeitr ft-cm cxercising a tmde
witttin certain limits), the acts or forbcaranees to which ~« are
«Mi'/<'< and to which tite opposite party bas a con'e!ating or
correspottding ?'t~/<<, are )'<.< or <A<M~ (in thé sensé which 1 am
now considering). Strict!y speaking, thé act or forbearance is
not a <i\ It is not a permanent external objcct. Strictly
speaking, it is the ohject or end of thé right, and of the obliga-
tion which corresponds to thé right or it is thé purpose for the
acconiptishmf-ut of which the right and the obligation exist.
 A more tenfKH'ka.Me and a more perptexing smbigmty is thé B
&IIow!ng. C
Things are divided by thé Homan LawyeM into eorporea!
)rea! ¡¡;
and tncat'
T
and incorporcat.
Unde).' t~wK'«~ ttungs arf induded,
Ist, ~My~ (strictly so ca!Ied): that is te say, pennanent
nent
externat objects not persons. 2ndty, /~<K~ as considered i'rom
t'rom
un aspect to which si~H advert innncdiatety tttnt i.s tu say,
1
not Ks having fights, or as being bound by oMigation! but as
thé subjects or objects of rights and ob!igatiot)S residinjj in, or
iucumbeHtup<m others. 3rdly, Acts and FM'bcamoces, ccmsid<;t-ed
from thu aspect to which I hâve aituded ah'eady that is to say,
as thé object of rights nnd oMt~atmns.
By ù«-M'~M't«/ //<K~ thuy understood not thé subjeuts of
rights and obligations, but rights and obti~ations themselves
E:t quiti <M j'<«'<' cansistuut vetut '«.< hfrcditatis,' utctidi
frueudi,' 'y'M servitutis,' oM~«~'M«' quoquo modo contracta.
By <.My~c«/ they tneant soisible or perceptible through
thc scnsfs Or (in that phitosophica! .jargon which they borrowed
i'rom thé Greeks) they mennt by eorporeat,' tangibtc. F'r, in
thé language of thé Stoics, and also of thé Epicureans, all thé
varions sensés were considered as organs of touch or all sensa-
tions, as Modifications of thé sensation of toucha"
And takin~ corporeat and tangible in that sensé, i'M t-M'-
~w«/M or )'M ~««' ~!K.t//f/</< will not on!y comprise ~<
(in the strict signincatiou of thé tertn), but aiso f(c< (as thé
objects of ri~hts and obUsations). For every net whieh ean bu
thé object of a right or obligation, is an tiet ~«'M~/ or ~'«~<M'
A'tM.«'. To forbearances, indeed, thé terni ~< ef)~a/M wiU
not app!y strietly. For aU forbearanees are mère detcnuinations
of thé will. But it was probably extended to forbearaneeswhich
are thc objects of rights and obtigations, partty for thé saké of
convenience, and part!y because thé nets to be foi-borne are
tangible or sensibte.
tn thé !angua~e, thé)), of the Jioman Lawyers, thé term 7'M
bas two significations which are wi<)e!y difierent. Ist, It dénotes
Things, Acts, and Forbt'arances,as t)t6 snbjeets or object.-i of rights
and obligations, and it sometimes deuotes persons eonsidered from
t'nx'tm uti '.axw, calor ignihu'i,
ti~Mor a'tuai
C"r)""is 't
extr)~ .'«:.«;
~Mus, v<l cuni t\-<

T:«;<u.'i <;or;~of]bui! cunf'tiit, intaftn'i tusimMt, vc-t ctttn Mit, qua: ia

t))tt)i.* n)r~)r.: )nM c-it.'
'Tinjtuf cnim, Tactus, ~roh Divum La~r'tiH' Li)'. t. & t!.
«omioa mncta 1
 t thut sttme aspect. My. It dénota B:g!tt~ <m4 OM~ttots
t.fer.~tMtt
theuMe!v~.
t)
In Ennïish L<w, we hâve t!us stuno jtH'~on a~M~tC 'tucor-
t!n!
poreal thin~ (derived frtun the Stoicat I'hiiosophythr<~h
thé Homan Law), appued less cxtcnsively. Wit!< us, «~ rights
and obti~ati'ms arc not «tn«-~<'<;f</ ~/tht'f but certain ri~hts itre
sty!ud w<-w-w</ /tK-«~Y«/«t/< fmd fu-e upposed by t)~t nante
to ~f<-t'</t7<t</t«(~ f(«'/w<-t'«<. Th:H is to say, <<~ Mf a certaht
speuies, ut- mthfr 'jt' munut'ou. aud very dif!urt-ttt spectea, ara
ftbsm'dly opj)f)sed to thé //<~<y (stt'ictty su eaUcd) whieh arc thé
.t<~c<N (jr <itf<~t' of right.-i oi' anothor spucifs.
Thc wot'd /«<'e'~7«~c/t/< is evidunUy takcn in two sensés, m
thé twu phmscs w!ndt .st(uid to dctK'te thé species of heredtta-
tuents. A cot-poreid het'cdttament is thé t)un~ itself which is
thé subject "f thé t'i~ht; an ineorj~ot'citt hcreditameut is not thé
subject o<' thé i-isht, hot thc ri~tt itseff.
1 ubsen-c-d, in hty !ast L(;Hturu, t])at the slave is stykd by
the Homan LawyeM a persun.' Attd considered as btiatin~ a
conditiou, aad a.~ boumt by obligations, hc is a persou. t!ut
eunsidct-ed as thé aubjeet of thé f/(//xt?tMM which résides in ttie
master (a ri~ht which tite master can assert H~aiMst thé rest of
the wor!d), )te is sotxetinMS styled a <t«~. Fur exampk', In
case he ))<- unjustly detained by a third party, thé master may
recover him by that pcculiar action which is styled )'<:< <'Ui'«/<f:
aud
au action which wns eonfincd to thé rceovery of ~«~<;
which cou!d not he brou~ht by tha fath'-t- for the purp'JM of
recoverin~ his son, a)th"unh thé /M~'<'« /~c.~ (or rigitt of thé
father itt thé .«on) was c!o'ic)y ana!o~ous to thé dotninion of the
toaster.
This is utterly capricious. For, if the s!avo is a thing (as
thc subject of thé otaster's ri~ht), so shout't every persnn he
considered as a tt)i)~, where he is Utc subjcet of a ri~ht residing
in anothcr. In this sensé, ahno.st evcry perron is a thin: For
therc is scarce!y a person who is not t)te subject of a rig)it,
whiett résides in another person, tnid avails a~ainst the wor!d at
ht~e. l'or
htr~e. instance: A servant, in our own country.is thé
For n).<ta))ce:Ascrv.u]
")!)tM'k.-itut)~Voi.ii.):.3. ;)ftth';rNtit;t)n'-nt,–f')rt]My<)evoh\'))ot
Thf 'tnmrj'orM) H'iMtitatnent.f' "fr upon/<«')'utthi))!KO'"f;t'x''cM.
)h'-Ht~H<t)f~w!tr"))utt'MHyt-'tU"-t')r!t«r!t't<"ini''tr.ttt<o)'t<)t)m'it:wh')
~')tttfti'M't{'-Mtht;orjMMt<ftth'''aM'titt'tt<)ti'!tt«tfi~ti.V«~<)t«<W~
~oofku. Thc<)itf<)'ft)~i!iorL'MimMdt <<f/«;jM;y«'t/<<w<<<
)tyth<Htrt'M)'i)tt)«'K!'j.!)')')!'w~- A))')tnw-t'<t')Wtt(s.u)M;)a~:m<
·.')tr'))M.-rtv'(the)n'))t!xt''))<iMti){)'t)
twf!cn th" <)<"M'nt f'r 'tf-votation of tnw- is !K't'))<i''ti~')Mtn<a)td,)y
aM"<n')innnov't!')'"t:i~-)M~)"Ki"<h'= it <«)«"
)ir<t~i'<<'r)M')')t')f t))'')"..qm'nrc,h!tsno<<t)"H}{oriMit)';t't
/A<-i-t'<<<'<t< or o'y<t'~ = !t)t inr~rjn)rf!t), ';ort\"i)")n')itt~tu it.V'tt'y<ttM/)Mf<.
mtbject of nght~feMtttMg hthis tuatter; fot only of thé rigtits t'"
which thé taaster enjoya by ëotttt'act over thé servant tmaself,
but of r~hts !)) tuni avaitih~ a~ainst the wotM. If a third
party were to seduce tht~ servant from his tnaster's service, or to
nmitreat him, so as to disable him frotn performm~ his service,
this would Le an onence a~ainst thé ri~ht of thé tnastur in the
sm'vaut. Suett, a~nu, itt thé c:~ "f a husLan't and a wttc.
There iti'e in aH sueh cases two distinct ri~'ts, that of t)~ rule
pMt'sMt a~ninst thc othct', and that cf thu on'~ pet'son in thc ot!tG)'
as n~tin'it third parties. Such cases are very nutnerous, as will
Le shown hcrcafter. Right-i may Le had in p~Mons, just as
they ruay be had in things; nn<t thcru is no din'cr'm.'u between
thé cases, except that ill onc case thc .sut'jf't is il p'rson, in thc
other thé subject is a thin,{. In thé samn MC'nsc, therefore, in
which thti slave is so)heti))]L's catled a thin~, all persons what-
ever might lie so styled. Thero arc, however, very few cases in
whk-h thé s!avf is stytcd a thin~ (t;vcn whcn 1~' is considereft
as the «;&<('< of thc ))]astcr's domini"n~. UencraUy spcakin~, he
is styJcd ~i<<t~, or ~/<'f7<i /<<'< (cven wh'n consMo'~d undur
tlmt aspect) For instance, whcn he is consid~rcd as tLe subject
of thé ancicnt and format eonvt.'yanee ca!!ed /««?«-</<ff<<'</ (Gains,
I. 120).
shalt
1 take this «ccasiun of rccaUin~ your attention to thé
doubtc meanin~ of ~<s~f« in thu H"man law as si~nifyin~,
sometitnes a physicat or real person, and sontt'timcs a .'i/(f/<~ or
condition for thé purpose of ob$~rving that thé ]ast acccptatiftn
of ~T.'w!H, cornbined with that of n.f as denotin~ in certain cases
rights and obligations, throws consideritbie !ight on thé ce!ebrated .)u
distinction betweeny«.! ~'K«t andy<jf/t)-.<t.'Mf<< phrftse.< which
hâve been translated so ab&urdty by B!aekstone and others–
f;
<t~ ~t'fo<t.'i and <7<~ of ~/<t!A J)M ~wMfo-MHt did not
tnean law of persons or ri~hts of persons, but law of .</«/M.< or
condition. A person is hcre not a physical or individuat person,
but thé .</<t<~ or condition with which he is invested. It is a
remat'hable confinnation of this that (!aius, in thé tnargin, ])nr-
portinK to Kive thé titte or headio~ of tliis part of thé law, has
entit!ed it thus, 7~ fo/f'/i' A«</ft'K<~«~ and Theopinlus, in
transtating thé tnstitntfs of .în.stinian from Latin into (!)'eek
!tas tran.s!ated yi« ~'<M</i–~ TM~ w~oo'M Trù)f 8«ttpeo'<t–
Divisio personarunt: understanditt~ evi<tent!y by ~«-~M« or
~o~Mwof not an individua! or physical person, but thé ~<t'
condition, or eharacter borne by physica! persons. This dis-
tinctiy shows thé tneanin~ of thé phrase ~M ~MMn'Mt, w]uch
364
3&4 /<wy<M~
hf~ 6wn
LtM-.XHt ha~ involvet! )M MMptinetmMe «bsourity by Bhtd~tone and
tM
Hâte. Thc ~w <{/«/~ tho !&w Mf ~<<<M M- condition thé
~««'
~<t«' < ~<<< h tht: hw of rîghts and obngattons, considercd
ht a ~encrât maHner or as distittguishcd from those peculiar
cnUccHons t'f rights nnd ubit~tiona which m'c styled conditions,
aud cousidorcd apurt.
l-'i-utn thé smnc tnnbiguity :n'os~ thé tuistake of supposing
dtat y"« «t F-fm umst !ia\'e sotnetinn~ tu do with things w))(}fGns
t!te phrase really denutex rights w!nc!t itvfui ~/<('«~ as distin-
guish'id frum thuse wtach avait ouly a~ainst s<~no detMnninato
iudividual.

LECTURE XIV.
ACT AXn FOKBEAHAXCH: JUS !X ttEM–!X t'EMOXAM.
LECT.XtV Ix thé last Lecture, 1 nutcrud upou thé anaiysis of thé tenu
Risht.'
But, since ri~hts t'csidc in ~t'«.<, and since ~)'(.<, </<('M~,
«' an't y~f«''tMM.s are thé subjucts or objects of right~, it was
uecessary that t shuu)d advert tu thc uteani)~ of thèse scverat
rcinted expressions, beforc 1 cuutd addrMS.s mysfif :««/a'~t'«~ to
rights and theh' cotTMpondi))~ duties.
Accordin~ty, iu thé last Lecture, 1 cottsidered thé tenu
PeMon,' and t!tc t~nn Thin~
lu thé present Lecture f shatt point at thé respeeth'u signiti-
catiuns of Act aud I-'urbearauce,' aud shati consider hrieuy an
important distinction which chtains between rights ttictnselves
–A distinction of whieh wu must seixe t)te ;;eneral scopc or
import, before wc caft nnderstand, and can express adequatety
and CM-rectIy, that nature or csscnt~ wtticit is continon to «//
"s"Pc
ri~hts.
l'ersons and Thinn:! are objecta M<(nM/ and ~<!MfM~. Or
~n.
Pt-Mona
rinrl
Tliln'-s. persons and things May be distinguish<d frotn other objects, in
I)ersoii~
theMI
thé Mtowing manncr:
A person or thing is a sensiMc object, or an object
lst.
181
pcrceptiblH by seusc.
2ndly. A person or thing is perceptible <M<tW~, or is
capable of <'t'<:«r<'<M. to ti'o scuse.
Srdiy. A person or thing nicun-ing to thé scnsc is considered
by itirn wtto repeatcdty percen'cs it us being, on those sevemt
occasions, ~K<: and thé s«Mte object.
 Things KM such permftnent external objects as are w< t
Fersous, that. b tu sny, as arc no~ phystcal M' md~'td~t pMsoH~; j;
t'eitttM
as are not men (in thé !argest signifîcation of thé tenn) or~M'rfhmgt
(using the terni men iu its narrower itMport) as are Mut nien,
''guMtM).
wurnen, hr ohitdren.
~«;~ F~t~, or 7ttct~t~,mayLe distmgui.s))ed from Pet-son~~Hv<:ntjt.t
and Things iu thc foUowiug tuanuer. lst. Ev~ry persou or
thiHg is a stMMc otjtj~t. Uf cvents, 5«w< are pet-eepttbk Lyy
HeusH; but Mstf are dctenmmtiQHs of thé will, or otiier j
aHëCtions of thé utiud.
2udly. Evc)~' persou or thiug is a /'«'M<!K<M< sensible object.t..
But an event perceptible by stiuse (Uke every uther eveut) iss
~'t<MSt't'<t<. That is to say, an t-vent perceptiMe by
sensé, is not
't

`
perceptible <'<~a~-<y. H exists for a moment: Theu, eeases to0
exist And M<;r<)' w«:i to thé sensé, although thé mctnory may y
recul it.
Events are sitttpte, sin~!c, or individuni or they are corn-[-ËY<:)ttf:U'<:
t
plex. A simple event is incapable of anatysis or is eonsidered j'.itn;))'-or
'umjftt.t.
incapable of aualysis. A complex eveut is a tmmber of simpisR
events, markod (for the saké of brevity) hy a coHeetive name.
The importance of this distinction will appear clearly, when 1
consider events more in détail especi:d!y, wheu 1 consider then)n
as c«K.~ of rights and duties, and of the <«-?)ttM<iwt of rights:s
and duties,
Before 1 proceed to thé tenns Act and Forbearanee,' 1J tmj'ortof i
will on'er a brief rcnmrk upon thé ternis which are now 'ineMt-nt.' iu
question.
Thé terms 'fact* and 'incident* are sometunes .synonymous:S
with the terni event.' But, not unfrequentty, fact is restricted d
to hunian acts and forbearances, and mcidettt emptoyed in a
sense to which t shaiï advert hereafter. Cunsequently, thee
objects whieh 1 am en<teavouring to distin~ui.<h from per.sons
and thin~, are best denoted by thé terni cveuts.' Event is!.S
adéquate and uuambiguous It will atways npp!y to r<~y of thée
objects in question. Fact and incident are anibiguous.s.
Taken in one signification, each of theni wiU itpply tu f<M~ of thée
objects in question. Takcn in another signiticatiot), it applie;- ?
exclusively to events H <7f<.«.
Thé on]y class of events to which 1 advert at présent, ai't-'t'Aft.'i~nd
/tKM<t<t «<:<.< aMf/t«~'f<M'<.<.
Xow iaunan acts ur actions are internat or externat. In)).\(t.
)!ut u))s)-r\'u t)~' con~ctiott (~. -mo. wi)t thpt-o ))"
j''o~) of th<' t<:nni)M)('{! u.'ie<t hcrc. tt furth'f
!) ftd~'t.<thc «athor
r<:t)cc<io))
<)mt
th<-
oh
!)t
phrMt
 othm- wordi), thcy are M(~ pereaptih!e by sensé, or they œ'e
LKe~XtV other
pcrcopttMe
pCfCOt by senso. tnterttftt Kcts are detcrmintttMnt ~t' thé
will,
wtH. HxtMtmt acta M& snob motions uï thé body as are cMt~f-
~«~«'
<~«K(< << <M~«'M«~~ "'?. Déterminations of thé
win,)
will, and such motions ot' thé body as are eottseqHcnt upon
déterminations of thé wi!t, arc (I cotK-eive) the onty objects to
deteft)
which thé t<'rm 'act' eau Le appiM with pr'tpricty. It is
body which are
scarcc appticitbic h) th"-se motions of the
scarccty
~n~~w<~tt~: ttMt M to ~y, wM<'h Hm invotuntat-y (m tlie !argc
acceptation of thé terut), or are /w< consequeut upou détermina.
accept
tiotts of thé will. If (fof cx:unpte) you plungcd into thé water
ttOttS~
~«~<the
~<«y'. tnotion-! uf your budyMM.ynt~ M~f'f(t-<~yot~'
t''<7< woutd be c~nsidered an <ft- 0!- a series of nets.
t''<7<~ But if you
feit il
feU into thé water without dMi~u, thé desceut of your hody
into t1thé water would thu-dty be stykd an act, att)tout{h it would
mtot!
beea)
be ealted an n'tv<
~or is thé tenn act' applicable to those an'ecti'jus uf thé
mind which are frequentty styled passive tttat i.s to say, which
miud
are ~o~
tire M determinfttmn9 of
thé will. Whether it will apply
</tt'
</tt-~< without a so!ccism, scetna to be dnubtfuL Hut we
certainty
readfand
read r hear of'f<t-~of thé will and 1 think that thé tenu
will, consistenUy with
!nay 1be extended to déterminationsof thé
tnayt
leave to cousider
gêner: usage. At all events, 1 shall take
gênera!
theui as bekt~inn to thé c!as. of «f/.< Mty!i!); t!tem, by way of
them
distin
distinction, aets o/' ~< 't'
ot- acts t'i~c<f/
Forbear. A Forbearatice is tt detenniuation of ti'e wiU, «<'< to thé do
notious which
"=' sotne given extenml aet. Or (taking thé
sorne
ternt iuchtdes in a différent ortler) a turbeamuce is thé M<
tenn
doint~ sone ~iven externat act, and thé M6'< <toius it ut cM<eM<:
doin~
uf « (/<'<<-«t<«f<oM</
<{/* H <
"'< Thé ituport of thé term is,
theref
therefore, double. As deuoti)~ thé detcnniDation of thé will,
its itnport is /w;t<«;t'. As denotin~ thé iMactiuu which is
conséquent upon that (tetertuination, its hupurt i~ M'/f<<t<'t'.
Titis doubte import shoutd hc tnarked aud remembered.
For mère inaction hnports much lésa than /&M)-<tM< or absti.
nence front action.
tn popu!ar and luose hu~ua~e, a et~MMe forhcaranee (or a
forbearanco which is a violation of some lnw or rutc) is not
styled a
forbearance.' but is ranked with omissions. But an
omission (properly so eaUed) is widety diti'erent front a ctupaMe

'.t.-tur..ti)mtiu.<orth.-wm'!MmfMct.t ttcrtued
.nu 'txtenta)
'Mh' ~'note w).at
act.t. t..
)~K
t'. tt<-t."t<- w)tat are in-r.' tcnt~.t int'n)!')
–K.
act.'),' "od rextncts thé tm~nit'K of thé
fbrbettrauce. A cutpitbtc forbearunce M aa aet of thé wiU, ur
SM~~se~ ttn Mi' thé wit!. Au omi.'MMti M uot tha
eott.
sequeM~ of au net of t!m will, but ot that ~tittc of th<t miud
which is styied ne~Ugenec,' and impties thé «t~/t'-t- of wii) and
intention. Accordingty, i appty thc tcrm 'ff.'r~f'amttce' to a!t
~KM~<~ inaction, or to tt!t inaction which i.t c'~equent upuu
votitiott. Those forbearanc~s which are viohti~ts of laws or
rntes, ïnny be styled, by \ny of distinction, unhtwfut, unjust, or
culp~bic,
And Itft'e 1 disotiss for tho preseut thc tenus 'Act.'und
Forbearance.' Before w<j can Sftt!e t)te huport of thcse
expt'essions, we rnust settJc tho intport uf thé tenn Wil!/ and
of thé htseparabty coHtMcted terni Intention.' Hut tttMC t
shaH coHsider (in eonjunction with X~gH~enee aud Hashucss *)
when 1 uxdeavour to détermine the nature of Injuries'and
'Sauttions;' nnd to distingnish thé comput.sion and rcstridut
w!uch are stylet) Obligation,' fron) thé cumputsiun and restraint
whieh operate not upon thé will, and may b(.' sty!ed merdy
physieaj.'
Ffoni rcrsons, TItings, Acts and Forbearanccs, 1 procced tu
analyse, in a gênera! and concise manner, an important dis-
tinction which obtains between Hi~hts, and butwuftt thé duties
or obligations which are impUed by rigitts. But in orfter that
you may Mlow this analysis with ~reater ease, 1 introduœ it
with thé M]owing assumptions, and wit!i the t')'win~ exphuM-
tory reinarks. TJM truth of thc assumptions will Le pruved
hereafter. 1 introduce t))em hère for the purpose of facilitating
apprehcnsiot).
lst. Exterual Aets and Forbeamnee-s (or, b)'iei)y, Acts and
Forbearances) are the o&K<< of duties. Changin~ thé expreMion,
thé ends or purposes for which duties are impo.sed are thèse
that thé parties oMiged may do or p<'rfonn «c~, or may forhear
or abstain fi~m «' Thé acts or forbearanct"! then to whicit
thé oUiged arc bound, 1 style thé f&«~ of dutie-
2ndly. Thé objects of )'f~</«-e f/«~< or of dnties which
answer to rights, may atso 1)e styled the ~< nf thé )'«/ iu
wltich t))ose duties are impHed. In other words, aiï ri~ttts
réside in persons, a)td m'e rig)tt. to acts or forbearanec.s ou thc
part of t~/<n' persons. Considered as <rre.<pondin{f to duties,
or as being rights to «c<.< or~M'~w~tf' ri~)tts may be sai'l t«
avait ~tt'M.< persons. Or, changing thf cxpre'.sion, they arc
capabte of being Gnforct'd judiciaUy '/y'«<<~ ttie pcr-ons who
are bound to those acts or forbearances. The act~ or forhear-
L~r. XIV {mces.then.to
{mCM, which thcso porson9 a~ ~Hnd/nmy t~cfttM
th~~
th~ objëcts, ttut onty of fhë dnties themsolves, bttt of thé rights
corp'sppnding
COl'P'SjJ to thèse duties.
3rdty. Of rights, ~Mf are nghts f.'w thini;t or persons.or
w or <o thinga ut persons. M&< Mu Mo< rights over things or
AH righta over things
pM-sons, or in or ta things or persons.
whieh avail a~inst pemons
ur persuns nro of that ch'-ss ot' ri~tts
~encmUy, or (ia other wordi}) which avaU against thé worid
ut lnr}{c.
Ot'rights whiuh are M~ ri~hts over things or persons, .wme
the class ot' rights which avail ngaiust persons generaUy.
are of dctcrmina.te,
0<Ae<< avail exclusivety agaiust persons certain or
individuaUy.
or n~td)).~ persons who are dctormined
Where a right is a ri~ht over a thins, or (chaugin~ the
shape ot' thé expression; t'M or <o a thing, 1 style the thing over
whicti it exists thé ~<< or nmtter of the right. 1 thus
distia~tu-s!) it frota aet;} and forbGfn-imces, considered as tho
tA/'M~ uf ri~hts.
ÂVherc a ri~ht is :t ri~ht over a person, 1 a!so style thé
M~(-< of thé right, For n.
pet-.Mtt over whom it exists thé
is p!aced in a position
person, considered front this aspect,
resemUing thé position of a ~«'~ which is the subject or
niatter of a right. Considered froni this aspect, he is not
considered as invested with rights, nor is he considered as
lyin" under duties or obligations. He is considered as tho
subject of right which résides in «M< person, and which
a
</t!(< persons.
answers to duties or obligation!! incumbent upon
F~r exampte, thé relation of master and servant impHes <<w
n"ht-; which are utterly distinct and disparate. Thé master has
a~-ight, which avails against the servaut specialty, to acts and
foi-beamnces un the part uf thu servant hhnself. Tho master
has at.so a right << or ~t the servant, which avaHs against
°geneKdly,
other persons or agidnst ttte worid at targe. With
under obtiga.
respect to the tirst of thèse rights, the servant lies
tiens answering to thé t-ight of the master. But with respect
position resem-
to thé second of thèse rights, he is placed In a
bting thé position of a </u'~ which is thé subject or nmtter of a
right. With respect to ~/M< right, he lies under no obligations.
11~
is merety thé subject of a right which résides in his master,
and which avails (.M< against /<t«~) but agaiust persons.
Tu résume
rights réside in persons, and ure rights to acts or
t'orbearances on the part of other persons. And acts and
fbrbeMtmce~, eonsMered from tt~s aspect, T wonM styb thé RfK-r.X~V
î,f!<-r.:
o~e~ofnght~andof thé correspondhtg dattes or obHga.tîoMS.
But some rights are rights over persons or things Or (changing
the shape ci' thé expression) they are rights or <o persons or
things. A~d persous and things, considered from this aspect, t
would styte thé M< of thoae rights, and of thé duties which
answer to those rights.
And hore 1 will briefly rcmark, that thé term 1 subject,' as
applied to a ~M<M:, is sotnewhat amMguous. A person it
subject <o a duty, when lie M bound by thé duty, or thé duty ii!
incuuibant upon him. He is (lie subject </ a duty, when thé
duty is not incurnbent upon himself, but lie is merely </«<<
about which thé duty is conversant. To recur to thé example
which 1 bave just cited As between himsetf and his master,
the servant is «<&/«!< to a duty: that is to say. & duty is
incum~ent upon him. But he is </« subject thé duty whieh
is incumbent upon ~AM ~~MM towards hH master.
The distinction between Rights which 1 shall presently
endeavour to expiait), is that aU-pervading and important
distinction which has been assumed Iry thé Roman ItMtitutionat
Wrtters as thé main groundwork of their arrangement: namely,
thé distinction between ri~hts Mt M~ and rights w ~<'wMaM i
or rights which avail against persons generally or universaMy,
and rights which avail exclusively against certain or deteminate
persons.
Thé terms '~M in Mw and 'M t~ ~t~/K werc devised
by thé Civilians of thé Middie Ages, or arose in times still
more récent. 1 adopt them without hésitation, thou~i at thé
risk of on'ending your cars. For of all thé nurnerous tenns by
which thé distinction is expressed, they dénote it thé most
adequatety and thé least ambiguousty. Thé terms whieh were
ernptoyed by thé Roman Lawyers themseh'cs, with vanous other
names for thé classes of rights in question, 1 shaU exphun
bricny hereafter.
At present, 1 will merety point at an ambiguity which
perplexes and obscures thé import of~'M <? MM.
Thé phrase M denotes thé t'<~M.M, and not thé .~<&<'<-<
of the right. It dénotes that thé right in question avails
against persons genernUy and /~< that the right in question is
a right over a ~At' For, as 1 shall show hereafter, ntany of
the rights, which are y;<~ or rights u~ ~'M), are either right.
over, or to, ~'«M~ or have ~M subject (person or thin~).
Ihe ~<;MM!aM!s
Thé phrase M ~<;MM!aM tui eltipticat
is a.!i eluptieaf or abridged expres-
VOL.1l,
!·nT 2B
h n
 LMT.XÎV :tKm for
&!oa 'm perscHam cet't!un sive detcnmhahtm.' LU:o thé
phtaaû
phmaû Mt ~w, tt dettes ths <w~<pfKtt of thé right it deaotea
thutthe
thut thé tight M'aUs t~m~t'~ against (<c<(.')'NH!M<<c person, ur
ttgainstff/t~7'/<tùt<~f
ttgainst c peinons.
Hefore t proceed to thé distinction between the two c!asses
Hefo
righta 1 tnust yet interpose tt rot)nu')< felating ta terms.
of rights,
lut!
In tthé
l hmguage of ttte HotMu L:tw, aud of aU thé modem
System:; which at'G ot~ets from tho Roman Law, the term
Systems
'Oblige
Obligation i& testricted to thé dutie~ wtnch nn~way to nghts
<? ~V~
<'K~v.(tyff<M. Fur thé dutiei} which nuswer to right.s avaHing
agah)St{1persous gencfaMy, the Ifoman LawyM's had 110 distinctive
against
natuf. T)iey opposed theni to <?M<~<«~ (in thé strict or
natue.
propor sensé) by t!ie name of ~<(M or D«<t't'~ Thcugh ouice or
proporst
dutyisf
duty is aa generic expression and comprises ~M<~H<t<M:~ (in tho
fitrict or proper sensc) as weU as t!ie duties which answer to
strict
''ngitts<
'rigittSt/tM.
TMs titHitation of thé tenn 'OMi~tio* by the Homan
This
LawyeM tuust Le caref'tUy noted. Untcss it bo clearly under-
UtOOtt, their
utoott, tl writings, as weH aa those of most Continentat
Jurists, will appear an inexplicable riddie. Tin'ee-fourths of
thasew!)
thase who in our owu country profess to read and tatk about
thé French Code, cannot pos.siMy nndcrstand a word of it, by
theFi'cM
reason of thé sense in which this word is einpioyed therein.
reasonoi
Dutittc. Having
Havi promised thèse rcmarks, 1 proceed to state and to
illustre thé important distinction in question, with ait the
illustrate
hrevity which
t'MftMfmtthrevity~' v is consistent with ctearncss.~
~MtMt. ~"o" <tt <'< may be denned in thé foHowing manner
Hi~hts
j{j.,],
'Rightsi
Rights residin{; in pcrsons, and availi))~ t~ainst ottier persons
'/c<tn'«//y. Or they may be defined thus
'/c<tn'«//y.' Rights residing in
penons, and answering to duties incumbent upon other persons
generalty. By a crowd of modem CivinMtS,<M <? t'fm bas been
denued as fotlows facnttas hotnini coutpetcns si'Kc yc.~n.7«
ad c<~«m ~M'~M<!M,' a dennition 1 believe inventeti by Grotius.
Thé following dennitions will app)y to peraonat rights:–
Rights residing in persons, and ayninns t'A'c~f'e/y against
persons speeineaUy detenninato :–Or, Hights residin~ in
persons, and answerint; to daties which are incmnbent ~7«-
.~n'< on persons specitica!!y detetmiuate.' By modem

For thé (thttnction gcnetaUy, sce

ttu!{o, Jurist. Kucyc. ;.)<. 75, 299, 325,
:<M.–HM))oid, Ju.t. Kotx. Mv. pj).
~-S.–Savifp))-, Vom tk-mt', etc., pjt. 60,
89.–fjcnthaxt, Maeiptfsof ~tor:');) and
LegMation, p. 2<6.–Thi)~ut, Vefiiuche
u);r fio~h"! Theib' Jff Tinmri';
t!<:ht)<, ii. ),. 23
't'
an') note at t)«i oxt ~t
this!t-tM[t-.
<' An o))ti~ti"n otteehes <<-<M.tt'tV<
UjMtt t fMcfMxxt~' jM-rson or pt:rsot<'<.
Wh<;r'- it is ~t'ab)'; of att!tchi))i; Ut~n
 CivitittHS, persoaat right eoMntottly doSae~ in thc M~w-
<t ~W- ~"T.XtV
ing mahncr facultits hotaim compctcns in <<'<«? p&MonaMt.'
:tMt.'
This définition also, irke the former, was, t betieve, devised by
Grotius in neither of thon is t)tero any gréât fnerit.
According to thèse deMnitions, a right of the first ctass and
and
a right of the second class are dMtingukhabie thus Thé duty [uty
whicit contâtes with thé lutter is Mstrieted to
a person~or or
periions apeciticaUy detenutnatu. Thc duty whieh con-ehttM ttt';S
with thc former attaches upoa persons ~<<t)'K/
But though this be thé cs.sene(! of thé distinction, thèse two
classes of ngiits are further distingui.habto thus. Thé duties .ties
whieh corretute with rights </t y'~M, are atways Mfyf<<' thatt is
to say, they are duties to torbear or abstain. Of the oMigationsions
whieit corrolate with rights «t ~<MM«Mt, .~Mc are négative, but
&/MC (and Mo.!<) are ~<tM–t!tat is to say, obligations to doJM' or
perform.
As overy imagiuaNe right belongs to one of thèse classes, 'se~ntustN.
nh 1

or e!se is compounded thèse

,ttion!!oft)f<;
of rights betongiug to eaeh of "tU~tiMctio).
m
etasses, it is rnsnifest that a fu!! exposition of ttti.s aH-pcrvading
distinction were nearly équivalent to a full exposition of the {'"
[H)~ L~twecu

""and~Mt'M
entire scionce of Law. Leaving thé fuiter exposition of it fot'7"'waM.
for :"<-
the~ i

future Lectures, 1 shaM merety endeavour, nt présent, to give i;ive

thé etue to its impot-t, by adducing as brieOy as possibte a fcw few
apt examples.
lst. Ût~tf~ of P~<<y (équivalent to .P~unw, in itsrrojierty. its fre
strict or proper signincation) is a tenn of such eomplex and nnd
vanous nteaning ttiat 1 must defer the full and accurate explana-~na-
tion of it to tt future opportunity. But, in order to the iUustra-
tra-
tion of the distinction which 1 am endeavouring to exemp!
and exptain, Owuership or I~perty may be described aceurate!y
enough, in the following manner thé right to M-w or </<'«/ ?<</<
some given subject, in a mauner, or to an extent, whieh, though
it is not imlimited, is indenuite.'
Xow in this description it is neeessarily iniplied, that the
taw will protect or relicve thé owncr against every disturbance
of his ri~!it on the part of any othcr person. Changing thc
expression, f< other persons are bound to ~'&f«<- from acta
which would prevent or hinder thé enjoyment or exercise of
thé right.
<<A)'Mt'.tf</<; [Mnm))-) (fM thc n-pre. sin~Mtar or univet~), of thc N't~iM)
tract)), xotUM ohtigittioMt.
tet)t!tth'<: of thé obti~or U) caM-.s of coo- oMi~.)r.
<MMo. ctf.), A ri){ht. t'M :i<f<'M<!M a~its cx(:Iu.<ivt-)y
it is only <pa),t<i of &ttachit)KU)<f)n th<-)n ~ainst th< o)))i~or, thm)!;h thé ohti~or
as )-tMK~M/ the wi~itutt oMi~ors. )uHV tx- pn-vent~'d trom t~rfomMuce Lv
It Mv<;r txtettdi) beyetMt thé iiuc'sor, third )'<n't\
t
372 /~V~O~~ ~~<W~ <MM~~
L~-r.xn'
H' Hut, hero/tha dubioa which cot'tesp&nd to thé right of
pu
property terminate. EveryyM~Mw daty whieh may liappen to
conc~m or regani it, is nevort!taless forcir or extumeous to it,
~m
aud nows from some incident ~<'c«! binding the party upon
whom the dutyis incumbent: for instance, from acuntract or
covenant into which he enfers with thé owner, or from a dcliet
winch he commits against his t'i~itt of ownership. lu other
wonls, every such ~Mt~'e duty is restrieted tf a ~cnKt'KM/t'
pcMon, and ia, thet-eforc, an OM~<<<~ (in the seuNe of thé
Homau Lasers). And even a duty w!iich is w.y<'<«'<' aud
regards thé right of ownership, is not an obligation correspond-
ing to that < rig!)t, in case thé n'w~MM be ~xcM~
to say, not attaching indefliiitely upon mankind at but that is

binding some cc~o'f's person, or sontc c~'<<!w persons, nod arising

frotn sottie incident which exdusive!y regards tlie obliged. An
obligation, howevef, in the sense of the Roman Lawyers, or a
duty binding a determinate person, may, whether positive or
négative, co-exist with thé duties which correspond to thé right
of property, by reason of some incident which supentdds to
thé ownership a right <? ~o'~MMM. Thus if in seUing you an
estate 1 enter into a covenant not to tnotest you in thé posses-
sion of it, or into a covenant for further assurance, you enjoy,
besides your right of ownership, which avails and can be en-
forced against thé world at hrge, another right arising out of
thé covenant, and which avails solety against me. Or if 1 trespass
on land of which you are thé owner, 1 becomo amenahle to an
obligation ex <Mt<:<o, whieh is supcradded to thé duties incumbent
upon me and all other persons iu MSpeet of your ownerstnp.
Owttership or Property, is, therefore, a ~eoM o/'J')M in yem.
For owncrship is a right residing in a person, eff?' or ~0 a
person or thing, and «M<!7t~ ayaM~ o</tcf ~<'M!M «MKM< &<'
y<)o'< It is a right impiying and exclusively resting upon
obligations whieh are at once )MtMMf</ and K<ya<n-e.
Where the subject of a right ~o't happons to be a person,
the position of the party wlm is invested with thé right wears a
double aspect. He bas a right (or rights) M'o' or ~o thé subject
as against other persons generaHy, He bas also nghta (:?
~f!M<tm) against the .M< or lies under oM)~<t'o/M (in thé
sense of the Homan ï~wycrs) towards thé subject. But this is
sens<
matter to which 1 shall revert present!y.
a nM
S'rnt't.'i. 2ndty. The <t't<)«/M of thé Roman Law, and of thé varions
modem systems which arc mouincations of thé Roman Law, tnay
mod~
also bo adduced as examples of rights tM M~i.
aiso
 ~'M<!<< (for which the English ~Easuineht' is tmrdïy au
adéquate ~cpttMMont ? a nght to «~ or <~ w!<&, tu a given
and deSnite manuer, a sub~ect Mt'K~ by another. Take, for
instance, a Right of Way over another's htnd. Now according
to this definition, thé capital diHerence between Ot~tp and
.%)'M'<Ma is thé Mlowing :–Thé right of deating with tho subject
which rcsHes m t)n) owner ot' proprietor, is targer, and, indecd,
Me/?Kt<e.' That whieh résides in tho palty who is invested with
a right of servitude, is oarrower and (/c~'MMM<<<
But in respect of that gt'eat distinction which 1 am now
endeavouring to ilhtsh'ate, thé Right of Ownership or Property,
and a Right of Servitude, are perfectly équivalent nght'
&M':<t<N (like Ownership) is a right !'? ~'Mf. For it avaUs
against all Mf<M~'t'~ (including thé owner of thé subject). Or
(changing tho expressioti) it hup!iHs an obligation upon all (thé
owner again includcd) to ~'&t«)' frotn every act incousistent
with thé exercise of the right.
But this i'«:yf<<'t'M and «/ttt'<)'~<< duty, is thé only obligation
which c<M'~<t<t'~ with tho jus ~<'M<«<M, or which corruspouds t&
that veiy nght. Every ~K«~ obligation whicit Jtappuns to
regard or eoncem it, is neverthetess foreign 01' cxtraneous to
it, and answers to somo right of tho opposite or antagonist c!ass.
Suppose, for exatnpie, that thé servitude hM been MM~<<«~
(or granted) by thé actuat owner of thé subject. And suppose
that thé owner has a!so cM<~v«'<<;f/ with thé grantee M«< to ntolcst
Intn in thé enjoyment or exercise of thé right. Xow, liere, thé
granter of thé servitude lies undcr ~<'o duties which are com-
pletely distinct and disparate :–One of them arising frotn the
'y)-f<M<, and answering to thé right whieh it créâtes;–thé other
arising from thé cMt~'«c< by which lie is ~ci'ft~ bound, and
answering to thé right ~< ~c<Mf<m w))ich the eontract vests in
thé grantee. In case ho mo!est thé grantee in thé exercise of
thé servitude, thé ~t/<)' is double, though thé ff<'< is single. By
one and thé same act, he violntes an <~<-<«Ht which ho shares
with thé rest of mankind, and he also breaks an M~~f<<fH (in
thé sensc of the Roman Lawyers) which arises front his peculiar
position.
Having given an exampte or two of real rights (or of rights
which correspond to duties y<;tt<(!/ and Ke~<:t'f), 1 will now
adducc oxamptes of personnl rights that is to say, rights which
avail M'e~Mt~ against persons <'<)'<«!'? or f~)'H)t?M~< or which
corre!ate with obligations, incumbent upon <M<muM~' persons,
to do or perform, or to forbear or abstain.
LfCT X~V Att
j! JHghts arMing CM~wAt Mong to this !ast-
<l'om
t~"X~ mentioned
MMttt ctas~: (Jth~h tttc~ at'e cethnn castes (to whieh t
tjj~j} presextJy ad vert) wherein t!ie right of uwuemhuj, tmd
fightoris. sha!!
ttj~mttof others,
~~K~t~. OUtCt- of thé same kind, arc said (by sotecism) to arise ft'ota
CotttKtet!},
C'Otttt or <ui& evea talked uf (with Hftgrant absttKtity) as if
theyi
they aru.se irom ~M~«<~ifM (in thé .wnsp of thé Roman L:twycrs).
Hi~ht.~ winch, properly spcakhtg, in'iw from 6~/<«t<.f. avtul
against thé ~n-tics who bi)td themseh'es by contmct, amt also
agaiust thé partira who are said tu ~'<
theh' }WMMM tha6
M to say, who succeed on certain cvcnts tu thé a~regatc m' butk
of their rights; nnd, therefore, to thcir /f<t'K~<M or UMans of
fuUiHing or Hqutdathtg their obligations. But as against orties
wlio ncither obtige themsulves by contfact, nor ruprcsunt thé
~w.<M!~ of ;Mtties who oblige thetnsch-es by contrnct, thé rights,
which, properly speaki)~, nn.se frota coHtmct.s, havo no ibMe or
ettcct.
Suppute (for cxu)np!e) titat yoK contract with Mt<* to dcliver
tue some moveable;~ Lut, instead of ddivcring it to Mie in
pUMiuuice of thé conttwt, dt&t you sell and tMivet- it to HMo/
Now, hère, thé right! w)nch 1 aequire by virtue of thé cou-
tract, are the following.
1 hâve a right to thé movcaMe iu questiou
as against ~««
.~<M'f< So long as thé ownership aud thé possession continue
to réside in y««, 1 can force you to deliver me the thing in
specifie perfonHance of coutract or, at least, to make me satis.
faction, in case you detnin it. After thé delivery to thé
1 can compel you to make )ne satisfaction for
~<
your breach of
thé eontract with M«'.
But /<e ]ny rights tenuinate. As against strangers to that
contract, 1 hâve no right whatcver to thé rnoveable in question.
A)td, by conséquence, 1 can neither compel thé buyer to yield it
to //«', non force him ta make me satisfaction as detaining a
thing of Mt<K< For 'oMt~MMK/x substantia non in eo consistit

,t.
ut H/~««</ MM~'?<M ~«cM<, sed !<< «/<«w Ko~ o~'M~ ad dandum
aHquid, vel faciendum vel pnestandum.' [Or Mther, ad faci-
.a.w.c.a.au..a Y~I i.aacaaau
HJ~Ktt~HUU.
If thé cMtrtct to (Mivr, ho~ver,
~~t~ttHiUI, ttH/«H"
'r, KvoHixg
xv tnost ot' itii )<ra'-t)cft) eoMM.
)je mx.«t rf)t~i'<t'oMt' the tratiMetio)) ).<!<]U<')MM
is qu (e,g. t))6M)).tf<).Sft)MAct;th<:
«n6H-hi'hinEt)t;!i'ih)!tW')cj'<Mbforc.t brc~uitaU6Jocth)tff<<))'vMttdut'<)iet),the
it<i f'tfcct M to thirJMrttM, en a t-itriety
ty t~uitaMe rtttt's <M to uott';e, et! ), ~re tx-
Mt'ir<utn.<taM~ T)ti-!0tl!!e.<fromt)te<n)
t~
!)e amt')''<ot' tht iHMnvcniencewhieh ftnw
j~cutittr thtery uf Kn;;ti'ih )aw ttttt tLe
!<& from thc )))'ctet)!iietf of our Courts to
frt
~<<')'<y in movMUes ix tta)ut'rrc'd hv 'y ignore thé }triw:ij<)M of thé KnKMt) bw,
igi
o <ak «t ~«M without rettrt-u':e ta thé te wl
wM)e cotn~Ue<t by thé exiKettfjes et
fa''t &f detivcrY. The eonhman intro- o- coMumtr'e to ft')n)<t thé rosut's ot th<M<'
cm
du<'td))ythi<!<t<)ctnne,<mdthf-~nau-t-: M~rtn':)}')~t!.C.
t-x)w<)ient5 resorted to for thé j'nr]o<.e ~f
endum' (ineluiUng damluut') vel '««* fecleadum/. PraslaiulwM'
seéœ* to luelmfa botli.]
But if ytm deliver fche moveable, in pursHan.ce of your
coutmet with »««, my position tmvards otker pawu) yenemtli;
assumes a différent aspect. In conséquence of the delivery by
yuu aiul tho eoncurring appréhension by me, the thing becomes
mine. I hâve jus in rem I hâve a right vcer tlie thiug, or
a right in the thing, as agaiust ail niaukind A right winch
nnswcrs to obligations nnivemtl and negfUiw, And, by consé-
quence, I eau compel tlie restitution of the thing from any
who nmy tako it or iletnin it, or eau force hini to make me
satisfaction as for an injury tu my right of ownership. lu the
language of Heinuccius (a celebrated Civilian of the last century),
1 Ubi rem meam invenio, ibi earu vindico sive cum ta {jersonû
ntt/titium mihi fueril, sive non fuerit. Contra, si a bibliopolù
librum emi, isque eum nomhrn mihi traditum veudiderit iteriun
Sempronio, ego saue contro .Seinproniuin ftgere nequeo quia
cum Seinpronio nulluiu mihi uncjunm intercessit negotiutu.
Sed agere debeo adversws bibliopolam a quo emi quia ego ex
contractu, t'A ex jure wl ï-em.'
Ail rights which arise frum contractsand(speaking genemlly)
ail rights in pemonam, are riglits to ml* or furbtaraucts on the
part of determinate persons, and to nothing more. At first
sight, that species of jus in parsemant which is styled jus au rem
may appear to forrn an exception. It may seem that the party
who is invested with the right, has a right tu a thing, or a right
in a thing, as agaiust tlie party who lies under the corresponding
obligation. But, in every case of the kind, the right of the
party entitled amounts, in strietness, to tins He bas a right to
acquirc tlie thing from the opposite party, or to compel the party
to make the thing his by an ad of conveyance or trausfer. It
is only by an ellipsis, or for the sake of brevity in the expression,
that the party invested with the right is said to hâve a right to
a thinff.*6
Take the followiug examples.
contract with me to deliver me a spceijic thing,
lst, If you
I iim said to have ju* \v rem that is to say, a right to thu
thing wliich is the subject of the contract, as against you yicdally.
But, in strietness, I hâve merely a right to the acquisition of the
thing a right uf compelling you to give me jus in- rem, in or

*> lu tlio Isingungi} devfuetl l>ythe Civilians, he has jus ad rem that M to
Cimonists, ami ailoiitwt l>y tlie modem sayjmadran act/uirendam.
!v* mer the thing; ta do some act, iu the way of grant or eonvey-
àucé,
àuco, \vliicli slmll makft tlie thi»g '«w.
2mtty>
2i: If you owe me money deteriuînedinpoint of quantily.
or if you hâve donc me an injury and are bound to pay me
damages, I have also a right to the acquisition of a thing; but,
strictly and properly spenking, 1 have not a right to a thintj. I
bave a right of compelling ymi to deliver or pay me
moneys,
which are not determiued in specie, and as yet
are not mine:
though they mil be determiued m specie, and will become mine
by the act of delivery or payment.
In this case, the nature of the right is obvious. For as there
is no detenninate thing upon which it can possibly attach, it
cannot be a right to a thing.
Srdly, Suppose that you enjoy a monopoly by virtue of a
patent and that you enter into a contract with me, to transfer
your exclusive riglit in my favour. Now hère, also, I hâve jus
ml rem, but it is utterly impossible to aflirm that I have right
a
to a thing. The subject of the contract is not a determined
thing, uor a thiug that can be determined. My right irs thi»
a right of compelling you to transfer a right in rem, as shall
direct or appoint. If 1 may refine upon the expression which
custom has established, 1 have not so properiy Jus ad rem, as jus
AD JUS in rem.
And tins, indeed, is the accurate expression for
every case
of that species of jus in personavi which is styled jus ad
rem.
In every case of the kind, the party entitled has jvs in persomm
AD jm in rem acquirendam. That is to say, he has a right,
availing against a determinate person, to the acquùition of
a
right availing against the world at large. And, by conséquence,
his right is a right to an act of conveyance or transfer
on the
part of the person obliged.
With regard to the other species of jus in ptnonam, there
can be no doubt. If you contract with me to do work and
labour, or if you contract with me to forbenr from
some given
act, it is manifest that my right is a right to acte or forbuarauces,
and to nothing more.
1 will now advert to the class of
cases above alluded to
(p. 373) which obscure the otherwise broad and distinct line of
demarcation whereby thèse two great classes of rights are
sepa-
rated. Kights in rtm sometimes arise from an instrument which
is called a contract, and are therefore said to arise from
a
contract the instrument in these cases wenrs a double aspect,
or has a twofold effect j to one purpose it gives jus in persouam
and is a contract» to anotlier purpose it givos Jus in rem and is
a cenveyanea When ta so-eaUed confemet passer an estat^ or,
in die language of. the modem Civilians, a riybt t» rem, to the
obligor, it is to that extent not a contraet but a amveyance;
although it may be a contract to some other extent, and eon-
sidcred from some other aspect. A eontraet i» not distinguished
from a conveyance by the mere cousent of parties, for that
consent is evidently necessary in a conveyanee as well as in a
contract.
For example, a contraet for tlie sale of an immoveable in
the French law, is of itself a conveyanee there is no other
the contract, or agreement to'sell, is registered, and the owner-
ship of the immoveable at once passes to the buyer.
By the provisions of that part of the English law which is
called equity, a contract to sell at once vests jrcs in retn or
ownership in the buyer, and the seller lias only jus in re aliéna.
But according to the conflicting provisions of that part of the
English system called peculiarly law, a sale and purchase with-
out certain formalities merely gives jus ad rem, or a right to
receivo the ownership, not ownership itself and for this reoson
a contract to sell, though in equity it confère ownership, is yet
an imperfect conveyance, in conséquence of the conflicting pre-
tensions of law.47 To complete the transaction the légal interest
of the seller must be passed to tlie buyer, in légal furm. To
titis purpose, the buyer has only /«s in personam a right to
compel the seller to pass his légal interest but, speaking gene-
rally, he lias dominium or jus in ran, and the instrument is a
couveyance. To this one intent only lie bas ju* in pcr&onam
the seller remains obliged, and equity will enforce this obligation
in speeie against the seller, or will compel him to fulfil it by
transferring his légal interest in légal form.
Considered with relation to this obligation, which correlates
to a right in personam, tlie so-called contract is a contract but
if there were only one system of law in England, and that law
were the law administered by the Court of Chancerr, it would
not lie a contract, but a mère conveyauee.
lirielly, no right to a thing, properly speaking, is ever given
by a contract. Where a thing is the subject of the contract,
the right is not a right over, in, or to the thing, but a right to
an net of transfer, or nssignment of the thing on tlie part of the
obligor.
c This of course cannot Iwpjwii in «rhieh requira no particular fonnalitj- in
the ouse of a salo of movi-abte vliattcls, law any more tlrnii in equity. K. C.
 Ail rights fotmtled upon iiijunt's, or rights of action in tlw*
iwlly, h tfifgl
îfttgesE seuse uf the rights i» pm-mmam, equally witb
.wo»0» ar«t
right those
thosi which arise from contracte aud, like ail rigUts in
,lm
fuumlnlon are
jienuuam,
iiitinjury. "re righti to acts or forbearances ou the part of detenninato
'III
porsons, ami to uothing luore. Some contusion hns aman «pon
perse
this point fruiu tho actio in rem of tlie ïîoina» lawyers. Actio
iu rem was a naine yiveu by the liomaii luwyurs to the fown of
action appohiteil for the viudication of rtghts foundcd on injuries.
Tliu naine dous uot imply Uiat the right vindicated i» right w
a
rem, but is an nbrklged expivssion to dénote un action founded
un nn injury agniust jus in rem.
AU îïjfhts of action iuust> it is évident, bo founded
on riglits
in perso7utM~ùmt is, on riglits which tivail exclusively agniust
the determinatu person or persons against wliom the action will
lie although those persons inay hâve been brought under that
désignation by comuùtting an oflence against a right in ran.
Actions in mu are rights of action founded ou an oflence ngainst
n right in ma, and seeking the restitution of the party to the
eujoyment of that very right, and not werely ssitisfaetion for
being deprived of it. ïlms, an action of éjectaient in English
luw would be said by the lîoinan lawyers to be an action in
rem
because it is fouuded upon an act of dispossession infringing upon
niy right of ownership in the land, and because it seeks the
restoration to me of that spécifie right. Su likewise an action
of detinm would Ije called an nctiou i» mu: but an action of
trover would not because, though founded upon the supposition
of a wrongfnl convereion of the subject claimed to the defendant's
use, it does not seek spécifie restitution, but merely satisfaction
or damages.

The following are some of the passages referred to in note43 p.

370, unie, together with the marginal notes attaehed to thom.
Those
mose from Hugo s Juristischo
trom Hugo's JunstischoEncyclopédie' are as follows:
Die Fodcrungcn «incl iiberhauptt Right3 of Actions ure chust*!
Rechtsverliiiltnim-,bei irefcAen notti- with Obligations wliilst oMigiitiui»
• i
mwlûjmtf tinen tmtimmten Verj>jlith- to
t sufler ]jiiiiis)iine]it(which an: not
t'ten lliichkht genmmm wtrdm miu*.. more
i «anutionative tlian tliu furmvr),
In der rûimwhen Srimche J<iii(l sie iaru referred (together with Crime»
tlieil» obligittiones, tlieils actioncs, je and
i Criminal Prucedui-e) to l'uUic
nachdtiu sic fur sich btstthtnih Ver- Law.
] Civil Procédure is complutvly
hilttnitM zwûchen d<m creilitor niul•I sepanitwl
s from the Riglits of Action,
ilcMtor (Sanetiontd), odtr Verhiilt- and
« the Mattt-rs for Exception, upon
nisse zur Verfolgung irgmd tint»•> which it is built. Civil Injuries tire
titulern Uechtœti-hiiltnU&t sind (&ine-
lioning). Bei ck-n Alten tinter.eliei-
not i considérai directly. 4asictioti-
ati
n ve Civil Rifjht-'i which are exercised
oUlgiUioAn sieh nie dur li«clitsfiihit!-
kcit de* Verptliehteten ein Kmle
i(5-
lie
ffinal Nota.
ie uxtïujudieittlly are forgotten.
don »io isieli uueh iliulnrch, da»s die Mar-
•
Lect.XIV

tiiaelWn Kaiiit, wie die* bel der sictio

iu
uft der Full ijst.' llwjo, Jitriit Jinc,
ic
vo!. i. p. 75.
Page 298. Arlrn vm Ittcktm an
m Mortgajje, etc., i* Jim in /te
eintr Hath.' giveu by wiiy of eccurity for tli« pér-
Hugo L'ittuuuratcs three, vix. it, formante uf some obligatiuu, tliuugli
Riffeiithm», Hervitut, «ml Wnml- ({• it umy tuatl in (bu «ventlu t)»u ù»joy-
redit.* 'Doch,' Itu continues, 'muss :s.s ment of
the subject. The Higlit of
btmcrkt \verikjn,wurum(lnsErbrecht ht the Obligor umy Le Property or
îiml der Desitz nicht bfarlier gehoren. m. Bcrvltu* Marginal JVofe.
Ersteres, wuil c-s uinu Art des Eigen- il- + Ami gvttiug asiilu tliis uliibi-
thuuis, oder eine Art es zu «rwt-r- :r- guity assiuiiing that it dénotes Jus,
beii t und Letzterer, woll es etwus us und not a/«o a mode of acquisition
mehr auf duui gegtnwiirtiuen iiatiir- ir- it cannot Ijc claxscd with Jura, in Ue,
liclicn Zustftuile (Factum) uU auf uf bceause it also includus Jus ad Hem.
eineiu Ruehte Ijerahciides ist wu- u. Possession must Le considérai under
durch fix-ilich auch ein striu»cs Recht ht tlirec aspects. 1° As tilulus, as tlic
jçegen den uiischuldij^uilritt«nBc«it- it- fact (tlie fact of enjoyinent or occu-
ifvr eutâtehen kaiin, weiuniurAnfmig ig paucy) whieh gives u right «s agitiiist
des Besitzet (causa odur initiam jws- is- ail except
tlie froprittor. 2' A.; thu
susionis, 8piit«l-l)in liiulus) es crlaubtt naine of thix riglit. 3° As a tilulus,
oft c-ntsteht abc-]1 Jaraus nur eine ne which combiued with otlier tituli
Oblig«tio.'$ gives a right even as against the
proprictor. Marginal Nolt.
i.n. Ju* ad Item ugainst the
alienor by virtue of the wonanty fur
Title. Marginal Xote,
Ptigc 32ô.– Von Fadtmngm,'
Dur Gcgeustund einer Foderang
ig Every obligation i» positive or
ist entwedcr ein Geben, odu ein in négative ia an obligation to sive or
Tlrnn, tjder cin Gcstattcn.' to perforai (in one word, to perfonn)
or to permit, ».e. not tu hinder.
Marginal XoU.

SuhjecL of Privale Lavs,

'Jurîs in artem redacti, seu systematis juris, quantum ad jus
privatum, tres constituuntur partes primante maxime ai mtilutornm
tjusdtmjuris varietale ivusten a.a Jus Personaruui, quod de penon-
arum conditiono, et in primis de statu familite pnecipit b.b. Jus
lieront, quo de rerum divisionibus et jure circa res, tam proprias
quam aliénas, etiara defunctorum, disseritur: denique: ce. Jus
Obligationum et Actionum, quod doctrinam, tum de jure adversus
eertos debitores per obligationemcompetente, tum de variis modis ju*,
qiwd supra (raditum est, injadieiojxvstqacndi tractât. Quibus partibus
tamquam corollarium,sed sine quo ipsa juris privati ratio vix intelligi
possit, recto adnuctitur uni verse /orm?/Aç et onlinhjudkiwmn descriptio.
Haubold, fnstitutorum JurU Privait Jiomani Uutamcnla, p. 7.
Jvv » wt-tMffngj j.xvhvth wniiiysvu.
L«rr,XIV' Oa tha blank part of the page, reforred te itt • Thibaut'» Vorsuelio,' h
the following tnbte:
n.

It moy not be out of place hère to observe that tho ternis real and personal,
when applied by writers on the law of Scotland to distinguish rights,
are
invariaMy applied in a sense conformable to that of the Civilians.
The word rail lias in the luw of Scotland «everal shudea of meaning, but
ail of them importing a distinction of a similar nature to that insisted on by
Mr. Austin. Tluiâ, a real bunlm affecting lands means an obligation, similar
in character to that imposed by what is callcd in Enj,'lish law a covenant
rmiittiij teilh the lanrl, ami is, therefure, a right availiiif; not in certain
penonam, but ngainst perdons of a gt-ncric description,îiumely, ownen, or
possessora of the land. Thus, also, a right to kintlt is classcd amongst rial
rights, being availabk- not ngninst certain perxmam, but against ail persons
introinitting with (i.e. reducin» into possession) the prodiicc or rents.
But the application of the terms real and ptmnal which has most
précision and distinetness i« the following A rtal right in land, or other
subjecta capable of fcudal investiture, is a right complétai l,y infefhntnt (that
is, according to modem forma, duly rugistcreil in the Begister of Sasiiics).
A penmal right to land, etc., is a right mt tmpUttd h\j inftflmtnt.
To understand the distinction, the Englisli reader mnst be informed
that the complete title to larnl in Scotland is of a double nature. There is
the titk proper (or pertonal title), consisting of a «cries or progrès of docu-
ments Connecting (or presumed to connect) the proprietor with the Crown,
as the ultimate author of all fetulal righte. There is also the satine,
fonnerly a public act of taking possession, now eflected by registering the
appropriate instrument or deed in the Register of Sasincs which being
done, in pursuance of lawful warrants, the proprietor is said to be infeft,
or fuutklly investesl with tho propwty, The wotd xn/ifimmlt or invoUtur^ U.v
properly applie» ta the personal title complète*! by tlie boniu» but i* some-
times applied to the stisiue w distinct from the peraoiuil titli-, whew, a» It
tsoiuetimé» Iwppciis, they cunffict.'
Nuw the essential and, I believe, only pwctical dinereuco in jtrutut
effcct mucle by the sasine (omitting the notice effected by registration and
the operatiuu of prescription to cure débets in the pei-sonnl title) i» the
iullowiiig
If A. (the owner, or dominua) he uulnwfully kept out of possession by u
tenant or other peiwm, possessing on a coloumbk title uut derived by way
uf eontMtct fpom A., or from one whose j>erson A. rejwsents, A. ennnot
remove or gtel tli« possesaor until he ia himself infeft in the lands. That is
to say, A. infefl can enforcehis right against persons in general A. unin/e/t,
only aguinst certas ptrmnai, muncly, Ut, against those who pos.wss under
coutract with him and 2udly, against those whose acte may be ucuessary to
procure his penonal right to be clotlied with the feudal investiture.
No doubt the heir who bas entered on the inheritanee, although not
in/t/t, lias wany of thé real riglits of the dominut (e.y, against trespasstrs)
but I lwlieve tluit in the «bove distinction lies the reasun why the tenus
real aud perxnud were applied by our lawyew of the last century (the best
of whum were well versed in the learning of the Civilians) to distinguish
rights couiplcted by iu/e/lmeiU, and rights not su completed.
Thé rights descendible tu hein, as distinguished frum those descendible
to exécutons or adminieirators, arc in the law of Scotlaml denoted by the
appropriate tenu ktritable, and never by the term real. K. C.

LECTURE XV.
jus ix kem IN peksoxam (continuai).
In my last Lecture, I attempted to
explain that leadiiifç and I-Ecr. XV
I-kc
important distinction, which lias beeu nssuineil by the IJoman
Institutional Writei-s, as tlie principal basis (or one of tlie
principal bases) of their System or Arrangement Xamely, the
distinction between rights in rem and rights in pcrwnam or
between riglitswhich avail against persons unùcrsallyor gerwraUy,
and rights which avail cxdusicely against certain or iletermimtc
persons.
Having first endeavoured to state it in gênerai or abstract
expressions, 1 tried to illustrate the distinction between the two
classes of rights by adducing examples of each,
As examplcs of jura in rem, I referred to the right of
ownership, property or dominion and also to those rights over
subjects owued by others, which are styled by the lionian
Lawyers serviltiles or jura servitutis, and which may be styled in
our own langtuige (tliough not with perfcct propriety) ammcaU
or riglUs to casements.
3$? 7~~<)~<MM~<'<~
~:r
LfM-. XV
«e «nUruetu,
e
properly
prop
I
As acomptes of rights ta ptrsoHam,e. __u_a. ia rights
referred ,c_
oï to rights whieh ariso dkectly from contracta
so ealled. Aud I also advorted to the rights which
arise from injuries or wrongs, ami which (taking the term action
:trisc
in itits largest import) may be styled rvjltta qf aetiuit. 1 say, iu
its largest import, becnuse tho term action is ambiguous it lias
a wider und a nurrower signification. ïakeu iu its widest sense,
it dénotes any judicial remedy wlmtever; taken in its narrower
sense, it expresses oilly a particular qjtciti of jtuliciul remedy.
There ai-o iminy cases in which judicial remédies are not tcchni-
cally styletl rights or action. Such, for instance, is, iu the
Itoiuau Law, the edict ««(/<; M, whieh answers almost exactly to
our aetiou of ejeetment, being founded on a wrongful dispos.
session by the party against wlioiu it is brought, and seeking
spécifie restitutiou of the particular right of which the other
party lias Useu deprived. Agaiu, a right to an injunction, and
a right to a writ of kalxa.i corpus, being founded ou an injury,
iind seeking in the one case the stoppage of tlie injury, before it
u coiupleted, in the other case, tlm specifir. restoration of tlie
party to the right of which he lias been deprived by thé injury,
are to all intents aud purposes rights of action, as much as those
which are iu technical jargon called by the name. The whole
theory of actions is in truth perfectly easy and simple, were it
not for the absurd teclinical distinctions by which it is perplexed
and incumbered.
FurtluT il- lu order that I may furtlier illustrate the import of tlie
lustratiûiii «leading distinction in question, I shall direct your attention to
of tlie «lis- il
tillf.tiull
Iwtnvcn
t
those rights in n m wliich are rights over fc ruons, and to certain
jus in nin rights
'' m nui, or arailing against the world at large, whkh ha ce
ami jus iu nno ckkrminate sttbjtct* (persons or thiugs).
jKrsonaiii.
J\u in rem Looking at the obeious signification of the epithet nul (and
restrii.tcil q tlie phrase in rem, from which the epithet is derived), wc
of
cc-rtiiu
(py
writet* 1" should
-<s' naturally conclude that a real right must be a right in a
thiwj. And, accordingly, by inany of the modem e.vpositors of
jus in rtui ()
over or in
thiitgt. t
tho lioman Law, the tenn n:at right or jus in nm (which terms
I1 shall hereafter use as équivalent expressions unless the contrary
is indicatcd), is restricted to such of the rights aviiiling against
if
the world at large, as are rights over thing* properly so called-
tl
that is to say, over permanent externat objecte which aro not
persons, as distinguished both from persons, and from those
transient objects which are called nets aud forbearances.
When 1 say that they restrict the term in the manner
which I have now mentioned, 1 inean that they so restrict it
When thesy staté ita meanhig iu gênerai*, or when they attempt
to (h/me it, For, wlwm thçy a*v oempied with the detaU o{
the Roman Law, they uueouscioualy davkte froiu their own
insufficient notion, and extend the tenu to munerous rights
whieh are not right» over things. For example, it is admitted
or assumed by overy Civilian, that the right of the Koinan heir
over or in tho héritage is n real right.
I say tho right of the heir over or in the héritage. For,
independently of the xeemd rights which devolve te hini fmm
the testator or intestate, he lias a right in the wjgmjate which
is formed by those several rights and which aggregate, coupled
with the obligations of the deceased, constitute the coinplex
whole which is styled the heredita* or héritage. In this héritage,
so far as it consistod of rights, the heir had, by thu Homau la"w,
a right which availed against the world at large, and which he
could maintain agaiust any one who might gainsay
or dispute
it, by a peculiar judicial praceediug called pditio hemlitatû,
which proceeding was an action in nm that is,
an action
grouuded on au iujury to a real right, awl seekiag the restera-
tion of the injured party to the unniolested exercise of the right
in which he lias been disturbed.
But thougli this right of the heir is indisputablyjW* m
it is not a right oter or t» a Uàwj, or onr or m thiwjs. Itrtm, is
properly a right in au ar/gregate of rights; partly, perhaps,
consisting of rights over thinyn, but partly consiatiiig of rights
which are of a widely différent character namely, of thhU due
to the testator or intestate; or of such rights of action, vested
in the testator or intestate, as devolved to Lis heir
or gênerai
représentative. Hère then was a case, and a nwst important
one, in which tlie writers to whom I hâve referred departed froni
their own définition, and approachwl to that adéquate notion
of jus in rem, which I havo endeavoured to impress
upon my
hearers; that which considers it to dénote only the
compass or
range of the right namely, that it avuils against the world at
large, in contradistinction to jus in, prnsonnm, which avails only
against certain or ileterininate individuals.
By y#M in nm aud jun in
pcr-mium, the authors of thosc-
ternis intended to indicatc this broad and simple distinction
which the Itomau lawyers also marked by the words dominium
and oUigalio ternis, the distinction hetween which
was the
groundwork of ail their attempts to arrange rights and duties in
an accurate or scientific nianner. This k not a hnsty siirmise,
but the result of a carefut and ample induction, founded
on a
most diligent study of the lustitùtes of Gaius »iid of Justfuian,
«ml an" attentive perusal of tlw Pandeet* or Digest of the latfoï.
Nor is. tliis opinion cwifiued to iwysolf otherwise 1 sIiouM^ of
course, feel much legs confidence in its correctness. But I share
it with suoh men as Thibaut and Fouerbaeh, mon of indefatigable
persévérance uiulof a sagacity aever surpassed. The importance
of thu distinction will uppeur in glaring culours, when 1 pass
from the gâterai ia into the détail of the science. I iiittst, fur
the présent, coûtent mysulf with illustratiug it in a général and
passing iimnuer ami shall shew its applications hereafter.
Besides the right of the heir over or in the luritaye (which
is deemed by every Civiliau a real right), there are uumerous
mtl rights which are not rights over tldwjs: being riyhts over
pa-mui or being rights to forbmmwx* merely,
aud haviug iw
subjects (persons or tliings).
Of rights existing over persons, and availiug against other
persous generally, 1 may cite the following as examples The
right of the father to the eustody and éducation of the child
the right of the guardkui tu the custody and éducation of the
ward the right of the master to the services of the slave or
servant.
Against the child or ward, and again?f< the slave or servant,
these rights ure rights -in périmant: that is to say, they are
rights answeriug to Miyution* (iu the seuse of the lïoman
Lawyers) which are incumbent ezdudvelg upon those deleminate
individuals. In case the child or.wwd désert the father or
guardian, or refuse the lessons of the teachers whom the father
or guardian bas appointed, the father or guardian may compel
him to return, and may punish him with due modération for
his lazilless or 2ierverseness. If the slave run from his work,
thc master may force him back, and drive him to his work by
chastisement. If the servant abandon his service before its due
expiration, the master may sue him as for a breach of the
cmilmel of hiring, or as for breach of an obligation (QUASI ce
Kontfadn) implied in the status of servant.
But considered from another aspect, thèse rights are of
another character, and belong to another class. Considered
from that aspect, they avail against persons yenerally, or against
the world at large and the duties to which they correspond,
are invariably négative. As against other persons generally,
they are not so much rights to the custody and éducation of the
child, to the custody and éducation of the ward, and to the
services of the slave or servant, as rights to the «mise of such
righta witluntt mokvtutim hy atrangm. As against straogers,
their substance consista of dnties, incambcait upon stnuigers, tu
/oricrt»' or dbdain- ïvam aot» ineo«»istent with their scope or
purpose.
In case the chitd (or wnw!) be detained from the father (or
guardian), the latter can recovcr him from tlie strànger. In
case the child be beateu, or otherwise harmed injuriously, the
father lias an action against the wrong-doer for the wrong
against his internat in the chiW. In case the slave be detained
from his master's service, the master can recover him m qxck
(or his value in the shape of damages) from the stranger who
wrongfully detains him. In case the slave bo harmed and
renderal unfit for his work, the master is entitled to satisfaction
for the injury to his right of owueiship. If the servant be
seduced from his service, the inaster eau sue the servant for the
breach of the contract of liiriug; and also the instigator of the
desertion, for the wrong to his interat in the servant. In case
the servant be harmed, and disabled from rendering his service,
the harm is an injury to the master's interest in the servant, as
well as to the peraon of the latter.
The correlating conditions or status of husband and wife,
will also illustrate the nature of the capital distinction, which
1 aui endeavouring to explain and exemplify.
Hetween themselves, each lias personul rights avniling against
the other, and eacit is subject to corresponding olly/alion-i (in
the sensé of the Roman Lawyers). Moreover, each has a right
iii the other, availing against the rest of the world, or answering
to duties attaching upon persons generally. Adultery by the
wife violâtes a right of the former class, and entitles the husband
(against the wife) to an absolute or qualified divorce. Adultery
uith the wife violâtes a right of the latter class, and gives him
an action for damages against the adultérer.
And hère I may remark conveniently, that where a real
right is ocer a person, or where a personal right is a right to a
person, the person is neither invested with the right, nor is lie J
bound by the duty to which the right corresponds the right J
rmdiny in a person or persons distinct from himself, and amiling t
against a porson or persons also distinct from himself. He J
therefore is merely the subject uf the real or personal right, and v
oeenpies a position analw/on* to that of a tkiwj which is tho
r
subject of a similar right. Consequently, whatever lie the kind r
or sort of the real or personal right, he might be styled i
anttloj/icaUy(wjiou
mMlwfieaUy (wheu considered as its subject), a thing. [
vol.
vol. 1.I. 2 c (
Lrct.[VXV ForFor
exiwnple, Independently of
exiwnple, Indepondentty his riglrts
riglrts against the eh
against thé eliild,
Mut
tmtl iltdepeudently of his obligations toWurds tho ehild, ttui
parei luis a right <« the child availiiig ugaiiist the worM at
parent
largo. And, considered as the subject of this last-nwntioned
tigUt, thu ehild is placed in a position tiuulugou» tu that o£ a tldn/t»
and might be styled (in respect of that uualogy) « thiny.
Indepemlently of his rights against the parent, and inde-
pendently of his obligations towards the parent, the child hus a
right in the patent availing agahist the worlcl at large. Thu
murder of tho parent by a third person might not only be treated
as a aime, or public teruwj, but might also be treated as a civil
injury against that right in the parent which belongs to thu child,
By the laws of modern Europe, the civil injury inorges in the
crime but in other âges the case was différent the offender lay
tmder a twofold obligation to suffer puuislnnent on the part of
the society or community, and to satisfy the parties whose
interest in the deceased he had (testroyed. Beforo tho abolition
of Appeals in criruinal cases/* this was nearly the case in the
law of England. The murderer was obnoxious to punù/iment
to be inflicted on the part of the State and the wife and the
heir of the slaill wero eutitled to vindictive scdù/actwa, which
they exacted or remitted at their pleasure. And this is the
distinction, and the only one, which exists between a civil injury
and a crime."
Now, considered as the subject of the real right which résides
in the child, the parent is placed in a position amlegous to that
of a thing, and might be styled (in respect of that analogy) a
thing, In short, whoever is the subject of a right which resides
in another person, and which amiU or obtains against a third
person or persons, is placed in a position analogous to that of a
thiwj, and might be styled (in respect of that analogy) a Ihiwj.

« liy.the 59 Geo. III. c. 40. in the Knglwn system. for tlic tlistmc-
*> Bytlie law of Seotlaml tlie wife ami
i<l tion,
ti< sucli as it is, in Kngliili I<aw, does
familyof the slnin have still the rit'lit to not
ne arise uiilit commitmenl fur trial
bring a civil action for tunijUmnent (tlio!io (vide
(o .SteplicliVs Criminal /mu:, |i. 15S). t
Krottiul of action beillg not only imk-m- a. lu
In .Scotland the duty or iiivtstigation
nitication for «lainage, but also lolaliumm un iirosL-cution, as well as tliii power of
«ml
for the bereavfineiit), notwitlj.stamliiig a al;
abaniloiimj{pro«c<><lings,/V»mM«(itikcoj •
mininal prosoctition iustituted by the tk eammiiaiim «/ l/iecrime until seitltnw,
lie the t
Public Prosccutor, unlfss ca]iital iiiin- lit with }{er Majesty"» Advocate, ami
n- lins »
Hhtuc-iit bc .sufTtitcl. lt may be nom hi .suWliimta fur whom lu- ia rçs|ioii'
ri: hi»
ohsi'rveil, that in .Scotland aiûl in other
er sihle
sil and tlicre ia further thix dtstinc-
couiitriis wlicro there U a ['iiblic Prose-
>: tiou,
tif that ail criminal procraliugH an:
cutur charged with the invcstijpitioitami ni titiier
«il tak':n in, or are subject to rcïiuw
]irosecution of crirnea and otfcuccs, tin: li) the Court ofJusticiary a court with
te by,
•listinotion lK-tween crimes and offences ex an jurisdictionquite distinct from that of
on the mie lmml, and civil injurk1» ou th Court of Session, whiuh is thu jirojic-r
m the
the other, is much more intelligible than in tribunal
tri in civil actions. K. C.
 But though <my. person, as tlie snl>frv( of any right, might I
ne stylud (Ly aualogy) a thîwj, this analogie»! application of
the terni thing has. (in fuct) beou partial and cl eaprieions. Su far
as I eau remember, thero are two instances, and ouly two, in
whieh the term Umuj lias been applied to ptnonat considered as
the suhjcda. of riglits.
Considered as the mdjal of the rail right which resides in the
master, the slave is occasioually ranked by thé Kontnn Lawyers
with thiurj*. And considered m the mbjteL of the nul riglU
which résides in the putcrfamiliat, the fiUuxfamilias bas Ijeen
classed with thinyst by certain modern Civilians. litsfiectu
patri» jilimfaiuilwa ed res, respect u alùmtm persona. Thèse are
tlie words of Heiueccius and otliurs.
Aceortling to a curreut opinion, which I mentioned in a
preceding lecture, the slave was wot considered by the Roman
Lawyers as belouging to the class of ptrsotu. But this is oue
of those opinions, utterly destitute of foundation, which have
been successively reccived by successive générations, though the
means of détection are open and obvious to alL Considered as
liound by duties towards his master and others, the slave is
îiinked by the Roman Lawyers with physical persom and is
spoken of as bearing, or sustaining, a person, status, or condition.
Considered as the subject of the right residing in his master,
and availing (not against himself, but against third persons), he
is occasionally styled m. But, even as considered froin this
aspect, he is usually deeuted a person rather than a and
is styled usually strtilù jjttmut, Tlie right of the master to
the services of the slave is distinguished by a différent name
from that which expresses the analogous right in a thing. It is
culkd jioteataa, or jjotnUaa tlumiui in ncreum, not domininm. This
last is the name most commonly applied to the analogous right
to a thing it is, however, though less frequently, called, pro-
priclas or, still more rarely, in repotestus. Gaius, in describing
Mancipation, which is a particular forni of conveyance, and
enumerating the subjects winch may be conveycd by it, says,
Eo modo et scrrilen et libmc personœ maneipantur. Hcre the
slave is spoken of as the subject of a right in the master, and is
yet styled scrvilia ptrxona. In ail the passages in which he is
spoken of as res e.g. in the passage nt the beginning of tlie 2nd
Book of Gui us, where he distributes things considered as subjects
uf rights in treatiug of usufruct, where lie speaks of usm/rudus
homimtm et retmmw animnlvim and in the most décisive
passage of ail, that in the Digest, where the action called rci
 388 Pervading Nations emalysed,
~t–
Lew, XV einJimlh, ci
vmlieatfo,
vindimiio, correspondis» te»
çoreespouding ta our real action
pur real for the
action for the reeovery of
•™J land, and our
land, «nd ou action of detinne for a 'ctratM, is said to be appli-
cable toto the
th» reeovery of a slave-; m ail thèse passages, the slave
his spoken
spoken oi of as tlte subject of rights iu the master, availin»
against third persons, and not as being himself subject to obli-
gations. As for the fiïuisfain Uian, I ani not aware of uny passage
in the classical jurists where he is styled a thing. In the
passage of the Digest, ta which I have juat referred, it is denied
by implication that he can be ranked with things. Per hane
aulem aetionem, librœ personœ quai mnt juris nodri ttt puta liberi
qui suiU in pokstate, non ytluntur. The right of the father over
his son is never styled cUnninium or pwprietos, but patria jwtcstas,
or potetfus patrù in libéras.
Many have been shocked and scandalised by the Komau
Jurists, because these hard-hearted and cold-blooded lawyers
degraded the slave to a level with things.
Upon which gross misconception, I remark as follows
It is not true that the Roman Lawyers ranked slaves with
things. Or if it be true, it is only true in that limited sense
which I have just explained. And, admitting that the Roman
Lawyers ranked slaves with things, it follows not that they were
cold-blooded men, and intended to dégrade and vilify the miser-
able slave. In styling the slave a thing they considered him
from a certain aspect namely, as being the sitbjccl of a right
residing in anotfar person, and availing against thinl persons.
And (as I hâve proved to satiety) the analoyy which led these
lawyers to rank the slave with things, would justify the
extension of the term thiwj to any person who is the mbjeet of
any right. I am far enough from wishing to palliate slaverj-,
which I regard with the utmost abhorrence, but I wish that its
opponents would place their reprobation of it on the right
foundation.
Mueh eloquent indignation has also been vented superfluously
on the application of the term clwttel to the slaves in the English
colonies seeing that the term chattel, as applied to the slave,
does
4V
not import that the slave is deerned a moveahlc Ikiny, but
that the rights of the master over his slaves, like his analogous
th
rights over his moveable things, devolve, on the master's intestacy,
ri{
to a certain class of his représentatives.
Jiisrai/iVtr Having cited examples of mil rights which are rights over
ia?rsoniilt.
Kiyhts m persons,
pe I will cite an example or two of recel rights, which are
no rights over things or persons, but are rights to fothtammat
r<m, with- not
out .leter- m
inimité inerely.
Mi
subjects.
 1. Amanrs righfe or interest in im gowl-numem a right whieh
avait» agatn&t persans, as conskiered genemlty «ml indeter-
minàtely they are boûnd to farléar froia such imputations
against him as would ainmmt to injuries towards his right in his
réputation. But, though the right is a real right, thero is no
subject, thing or person, over which it can lie sakl to exist. If
the right lins any subject, ita subject consista of the contingent
advantages which lie may possibly dérive from the approbation
of others.
2. A monopoly, or the right of selling exclusively cont-
modities of a given class (a patent right for instance), is also a
rtal right Ail persons, other than the party in whom the right
résides, are bound to fin-kar frorn selling commudities of the
given class or description. But, though the right is a real right,
there is no subject, person or thing, over which it can be said to
exist. If the right has any subject, its subject consists of the
future profits, above the average rate, which he may possibly
dérive from his exclusive right to sell.
3. Many more examples of this class of rights might be
selected from mnony franchises a law term ernbracing an
immense variety of rights, having no common property whatever
except their supposed origin, being ail of them considered to
have been originallygranted by the Crown. Such, for exarnple,
is a right uf exclusive jurisdiction in a given territory,or a right
of levying a toll at a certain bridge or ferry. The law in thesu
cases empowers a party to do certain acts, and enjoins ail other
persons to forbear from every act whieh would defeat the purpose
of the right. But these rights are not exercised over any
determinate subject, and are yet available against the world at
large. The rights in jxrtmam which concur with the rights in
question are perfectly distinct from those rights themselves.
Those who reside within the territory, or who traverse the bridge,
are bound by obligations arising out of the franchise; but thèse
obligations, which result from their peculiar position, and which
answer to rights in permam, are distinct fiom the obligation
incumbent upon third parties, and answering to the right in rem
namely, the obligation not to impede the exercise of the juris-
diction, the levying of the toll, or the passage over the bridge
nor to carry passengers «cross within the limits of the ferry, to
the détriment of the exclusive right of the person entitled.
4. Lastly, a right in a Status or Condition (considered as an
ajtgregate of rights and capacities) is also a real right. 1 am
not able at présent to explain the nature of Conditions. To
`' détermine precisely what a Stalus i% is iu nty opinion tho most
tliittault pwMem in the wiiole aeience o£ jurisprudence. For the
EIi<!lî~i~~Î

lUIÏHOSf iuuuediately befuic me, thu fullawing nuuarl» will

piti'posa
snraee.
A Statua or Condition may tic purely onovm, or may consist
uf duties otily. Sueh was the condition of the slave, «ceording
tu the oklur lioiunu Law. lie was the sulycd of rights residiug
in his master, and availing against tliirtl persous. He also was
bound by iluties towards his mitster n»d otliew. ]kit he lmd
îiot a pitrticle uf right as against Itis niaster or éveil agaiust
straugers. Considered as the subject of rights residing in his
niastor, lie was susceptible of damage: But lie was not sus-
ceptible of iiijury.
Now a rijjlit in a condition which is piuuly burtlnjnsonii, is
liardly conceivable. But, so fur as il condition consista of
rights, and of capticities to take rights, vre may imagine a riglit
in the amditian consideruil as a cumplex whole.
Accoitling to the Iioman Law, as the hoir lias a right iu the
Jitfitaye (absttacted front its sevenil païts), so bas the party
invested with a condition, a right or interest in the condition
itself (abstraeted from tlie rights and capacities of which it is
compounded). His right in the condition, considered as an
a"!ïreo{ite or whole, is aiialvgws to tlie right of ownership in a
single or individual thiwj.
Consetjuently, wrongs against this right are analvyum to
wrongs against owuership; and, according to the practice of
the lîoman Law, wrongs of both classes are redressed by
amlogow remédies. Where the individual thiug is unlawfully
detained fivin the owner, lie may tindieate or recover the thing.
And where the right in the condition is wrongfullydisputed, the
party may assert his right by an appropriate action, which is
deemed and styled a vindication?*
The rcason why statua or condition nmke so little figure in
tho Knglish law as compared with the Roman, though the idea
rnust of 00111*86 exist in ail Systems of law, seems to be this:
that the right in ce status may by the ftoman kw be asserted
directly aud explicitly by au action expressly for its recovery
while in English law no such action can ho brought, and the
right to a statu», though of course it often becowes the subject
of a judicial décision, almost always cornes in as an épisode,
iucidental to an action of which the direct purpose is something
ri
80 Sco lîentliatn's • PrincijiU-s,* etc., 'jiayment,' ji. 210. Hugo, Jur. Enc. p.
335*
dise.61 Titus a question of legitimacy, which in precisely sly an &««.
IiHeï.-XV
question of Malus, is usually lirought lit and decided upôii UJJOll
ether
inçidontally, în tm action of ejuctrueiit. The question whether
w not a particular person is a slave, would geucrally ootne before
lef'ort:
the jiutge upou a proseeution by tl«* slave of the person claioiing
to lie hls mastur fur duing sotue act which would be illégal
unless the cliiim could be ostablished. Tue only ense' in which
a question of stitlm is decided direetly in English law, is when :t
jury is summoned tu Uy that précise question as au issue
incidental to a suit in another court.

NOTES ÏOUNI) AT THK E.N'l) OF LKOTURK XV.

The définition of jus in rem, that it
begets a vindieatory action
against every unlawlul disturbor,' is not universally truc. It may
beget a merc right to satisfaction (e.g. Trover). If true, it is a mère
conséquence or property of the right, and is not of its essence.
Besidcs it merely amounts to this that the disturbance begets a
riglitof action against the disturber or violator; which is true of
every disturbance of a right ('« jiersmum.
N.B. Any prevention of the complction of an Obligation (stricto
senm) caused by a third party would be no violation of a Itight in
the Obligée; or, if it would, would be a violation of a distinct Right.
A stranger who engages a builder to undertake an extensive work,
or wounds or maims him (thereby in either case, preveuting him
from completing a provîous contract with rnysclf) violâtes no Right
in me and my remedy is against thc buihkr for the breach of con-
tract with myself. A stranger who inveigles my servant, violâtes,
not my jus ad rem under the contract, but my jiw m re. The servant
himself, indeed, does; and for this breach of his Obligation (strido
sensu), I may sue him on the contract.

Obligation topay taxes; Obligation to military semée, etc.

The obligations to military service, etc., scem to be merely absolute
obligations. (Seo Lecture XLIX.) The state, to which it is due,
and which alone can have the Right, bas not properly Kights. Be-
sides, there is no Person or Thing to which the State bas a right,
as against ail. It bas mcrely a right to the services of tne dehr-
or the aeter-
11 In the Englkh Probato Court a formai proceeding, (xoribly a matter of
formcrly the Kodcsiasticnl Court– tlic juiiiewl euffirizanix,and appears to hâve
the
right to the excoutorship or oilministra- lieen reiiuisitu in the case of n stnujpr
;ra-
heir (i.f. one who \vas not *««* lœrtt or
tion, a sfitcics of unicersita* jitris, is
ojjtaincd by what ia substantullya jmli- mxtiuarius /<«;/•«) in order to olrtain an
di-
cial proccuding. lt is somc-wliat tvmark-active title to tlic lus siliguLe wiuprised
rk-
Me that in th« Kiiglislt «ystuia the in the inhe-ritanec. A jxvssiiK titlu (i.e.
liability to the obligations of ail heir)
ïijjlits of the heit vt.st in him witliout
»ut
any public fonnality, such ils the mlitioluijjht lw iiitcrrol bv yestio pfo lar.rcdc
Uio
tch without <u(Uù.–R. C.
in tlic Itoinan, the semer in the .Scotch
rlv
law. The «<Mio in lioiiia» law w;is ck-ar)}'
 wmwifo individual. It hns. aofc a right to the money in specie, to the
services! etc, aa
services, as ugainat otheraj but a right to th» paymmt ai the
tax and thethé performance
p of the service, ngitinet thé determinate
upoh ivlioin
person upon wli tho obligation rests. So «oon as the tax is paid,
the Government indeed lias jus in re in the money which is
ren-
dered and as agninst other persons, it bas right (analogous to the
a
jus- in re of an ordinary master) to tho services of tho determinate
person, e. g. A conscript is pnnishable for desertiou by virtue of the
Obligation (stricto ««s»)– person seducing him tt* désert, by virtue
of the obligation, which answers to the jua in re,
The right which the Government has to tho services of its subjecu
generally, is in truth not « Right to a person or thing against ail L

but Itights against a number; rights that they shall perfonn a par-
ticular obliguthn on the happening of such an incident.

(The passage in Hugo referred d to in the note at the bottom of the `

last page, is as follows, together w
with Mr. Austin's marginal notes.)
Unter den vermiscliten Fiilleni Quiut-C'ontract An incident
gibt es einige, die mit einmn Vertmge front which the Obligor ilurives
ArtnliékeU huben* (dio Fotleningj beiiefit a benefît which he oughta
e
e

enUteht ?!(«*» ex cmttradu; st. B. to requite, or which lie ought to

HtyutU gttta, in diesem Sinne, snrremler to the party at whose cost
Verwilttinj,' einer Vorniuntlscliaft, lie lias obtained it. In the Lut casa,
Verwoltun« von etwas Gcmeinsclitift- there seems to be
liehem, Antretunt' einer Erbschaft in1 without demand and refusiil
no obligation
for
lietiehuug aitf die Venniichtntae, till then, the- intention to retain
Kntriclitung von etwns, was man cannot bu known.
nicltt schuldig ist) nmk-re grenzent t Quasi-Delict Damage donc to
nu Vetgebungent (ï««« eas walefido, the OUiyte, but without intention or °

x. B. âasEinstthcnmiùsenfiïrAiithre négligence on the part of the- obligor.

bt-i gewtaen Gelegenlieiten) «iber t Quasi-Miet.
auch noch auf andere Art cntstelit § Quasi -Contmct there being •
cinc Fodenuig ?.. B. atts dem i benefit to the Obligor. ft
Autwcrfen î ((ex Shodia de jactu) II Xeither; unk-i-s by a fiction we
i
auf Untethnlt, Dot und Beertligiing,§ supposed the governed, in considera-
auf die Abynlien, *I und auf das tiim of protection, niutsi-eontmnae
Kinstthcn || fier die physiscltcn und with the Government, The distine-
juriitischen Fehler einer Sache i tion is useless. Inthe ca.se of the 7WW1-
(œdititium edidum und evictio).' ronlmd, there has been no contract.
Hugo, JurU. b'najc. p. 335. lu the case of the quasi-tklict there lias
been damage, but no înjury at leust, [
no injurif on the part of the obligor,
thoughtheremay hn vebeen on the part
of his représentatives. Thé ityury on
his part does not arife till he refuses
satisfaction. The obligation however
i» lilec an obligation ex conlradu.
H Implied wnrranty i.e. An
obligation to satisfy, annexed to the
original contntct: and therefore a
(Jonlratt, thotigh by virtue of a
diapositive Lnw.
 M&'TUKK XVI.8Ï
MGHTS CONSIDEREE» GKSKRALLY.

In tlie procuding Lectures, I have entered upon the analysis or

ofLEcr.XVt
exploitation of the tenu Right.'
Xow (as 1 shall endeavour to demoustrate in this evening'ss .1 7p8

discourse) nll that eau be affirmed of Kights comitlered univemilly,

~Jr

amounts to a brief and baiTCii generality, and may be com- Il-

pressed into a single proposition, or into a few short propositions.
But, before I could shew the little which oui be affirmed of
l
rights m gênerai or (rather) before 1 could shew hmc little eau
be nftiiTued of rights in gênerai, it was necessaiy that I should
advert to penont, considered as invested with rights; to thing*
and perttnu, considered as the subjects of rigbts; to aet* and
forlwtranas, considered as tlie objecte of rights and to a leading
or capital didindwi which obtains between rights themselves.
Aucordingly, I called your attention to the foliowing objects:
lst, To itcrsmis as invested with rights, and as lying under
duties or obligations. 2ndly, To thing* as MtbjccU of rights,
and of the duties corresponding to rights. 3rdly, To person*
as placed in a position analw/ous to the position of Oàwjs that
is to say, not as invested with rights, or as lying under duties or
obligations, but as Htbjtct* of rights residing in otlier persons,
and availing ngainst Mrangcn or third persons. 4thly, To actss
and forbearancet as objecte of rights, and of duties or obligations
correlating with rights. ôthly, and lastly, To the distinction
between ^im in rem and jus in ptrsonam or between rights
which nvail ngainst persons univcnallg or gatcrally, and rights
which avail against persons certain or iktenninntc.

In the present Lecture, 1 shall endeavour to explain the lie J'urjiosp

nature or essence which is connnon to ail rights. Or (changing and ntAct
"S oftÏK-
the expression) I shall endeavour to indicate the point at which
ch iiresciit
they nieet or coincirle or to shew the properties wherein they
resemble or agrée or to state that which may be afiïrmed of
rights universally, or without respect to the generic and specifie
difièrences by which their kinds aud sorts are separated and dis-
tinguished.
K Tlic notes of the oral lectures f:or- miisiiig. Tk-se lectures are thetx-forc
re«t»iKlina to the printed Lectures XVI reprinte-d without altération from the
to XXIII inclusive, an uiifortunately former édition.– R. C.
394 Pervading Notions awtlysedt
Lbct-.XV!
vcrnI
^™*™^ folli
In
'1'-
fbllôwiùg owlor i-
a_ u.Y:.a. a
trying to itçcoiup Itah 11:1,
n
.11 .n"
this purpose TI sliall proeecd in. tho

lst, I slmll enduavour to state, in geueiiil expressions, Uifl

nature, essence, or properties, cominon to ail rights. 2ndly,
uati
I sliall advert Uriefly tu certain classes of rights and I slmll
eudcuvour to show, that tlioy agrée in nothing, excepting those
cominon properties. 3rdly, 1 shall examina certain lUjinitions
of the term 'right;' and I slmll endenvour to elucidate the
cominon nature of rit;lits, hy shewiuy the vices ur dut'ects of
those définitions.
Cominon Jivery right is a right in rem, or a right mpcramam.
nature uf The essentiels of a right m rem are thèse
rights.
It résides in a détenu inato person, or in determiuate per-
sous, aud avails ngainst otlwr persons unieenaUy or gencvally.
Further, the duty with which it correlates, or to which it
corresponds, is ntyatiet that is tu say, a duty to forbear or
abstain. Consequeutly, ail riglits in rem réside in dtiteruiinnte
pursous, and are rights to farbmntiux* on the part of persons
gmeraUy.
The essentials of a right iii pa-sonmu are thèse
It résides in a detenninate person, or in determinate persons,
and avails against a person or persous certain or determinate.
Further, the obligation with which it correlates, or to which it
corresponds, is négative or positive that is to say, an obligation
tu forbear or abstain, or an obligation to do or perforai. Con-
sequently, ail rights in peraonam réside in determinate persons,
and are rights to /vrleuranets or acts on the part of determinate
persons.
It follows from this analysis, first, That ail rights réside in
determinate pereons. Secondly, That ail rights correspond to
duties or obligations incuinbent upon other persons that is to
say, upon persons distinct from those in whom the rights réside.
Thirdly, That aU rights are rights to forhenranecs or acts on the
part of the persons who are hound.
Thèse (I believe) are the oiily propcrties whci-ein ail rights
resemble or agrée.
Consequently, right eomidertd in ahslrad (or tqmrt frum the
kindst and sorti into which rights are divisible) may be conceived
and described generally in the following nianner.

Every légal duty arises from a Oommaml, signified, expressly

or tacitly, by the Soecreign of a given Society.
Kvery légal duty Linds the party obligée!, by virtue of a
 légal sanction. lu other wurIs, in case the party obliged violât©
tho duty iiiiposed «jwtt Jura, he will be obnoxions or liable to
evil w ineouventenee; tu be i»llict«l by sover&ig» authority.
[Now the persou who is subject to a duty, or upon wliom
A duty is incumbeiit, fa boutid to do, or to forbear from, some
given net or aets. And further, lie is faoiuid to do, or to forbear
f roin, the given act or nets absolutely or relative))' Thnt is to
sny, withmt respect tu n deterniinate person or persons, or toivarrfs
a determinate person or determinate persons.]
Tlie objecta of duties are Acts aud Forbearances. Or
(changing the expression) every party upon whom a duty is
incuinbent, is bound to do or to forbear. Or (ehangiiiH; tlie
expression again) the party violates tlie duty which is incumbent
upon hiiii, by not doiug some act which he is cominandud to do,
or by duiiig some act front which lie is commanded to abstain.
Uuty is the basis of liight. That is to say, parties who
hâve rights, or parties who are invested with rights, hâve rights
tu acts or forbearances enjoined by the sovereign upon otlier
parties.
Or (iu other woiils) parties invested with rights arc invested
with rights, because otlier parties are bouud by the coiuuiand of
the sovereign, to do or perfomi acts, or to forbear or abstaiu
front nets.
In short, the tenu right and the term relative duty
signify the same notion considered from différent aspects.
Every right supposes distinct parties A party cominanded by
the sovereign to do or to forbear, and a party towartl* whom he
is cominanded to do or to forbear. The party to whom the
sovereign expresses or intimates the conumtnd, is said to lie
under a duty that is to say a relative duty. The party tmcards
whom ho is commanded to do or to forbear, is said to have a
riyht to the,acts or forbearances in question.
Or the tneaning which I am labouring to convey may be
put thus.
Wherever a right is conferred, a relative duty is also
imposed: the right being conferred upon a certain or determinate
party, other than the party obliged. Or (changing the expres-
sion) a party is commanded by the sovereign to do or to forbear
from acts, and is commanded to do or forbear from those given
acts tmmrdg, or witli wjard ta, a party tletcrminate and distinct
from, himtclf.
For (as I slmll shew hereafter) duties towards oueself and
duties towards persons indefinitely, can scarcely be said with
 -r
Lkct. XVI propriety
propi ta correlate with rights. As agtùnst otliers, 1 hare a
right ta my life. For others arc bound or obHged to forbeai*
from acts. which would destroy or «^danger my life. But it
froni
cnn scnrcely
«m s be said, with propriety, that I have a right to my
own life m against myxtlf:' Althougli I am tégally bound to
atetniu from suicide, by virtuo of certain sanctions whose nature
1 shall expiai» hereafter. And the same may be aflirmed of
duties towitrds persons imlefillitcly tlmt is to say, towanls the
community at kr«e, <>r townnls mankind genemlly.
A law which pi-ohibits the importation of certain foreign
comniodities, to the end of encouragiiig the production of tlio
correspoudinj,' doint-stic comniodities, imposes a duty to forhear
front importing the conimodities which it is said to prohibit.
But it can hardly be said, with propriety, that the law conféra a
right. For there is no dckrminak party who would be injured
by a breach of tlie duty, or towards or with regard to whum the
prohibited act is to be forborue. In the technical language of
certain Systems, breaclies of such duties are offences against the
sovereig», and the sovereign is invested with rights answering to
those duties.
But to impute righU to the sovereign is to talk absurdly.
For rights are conferred by commanda fesuing /mm the sovej-eign.
As violating commanda issuing from the sovereign, breaches
of the duties in question are oftences against the sovereijjn.
But so is a breach of every imaginable duty. For all duties
are the créatures of sovereign will, or are imposed by Laws or
Commands emanating from the Sovereign or State. The truth
is, that duties tomuiU oneself, and towards pereous indefinitcly,
are absolute duties. That is to say, there is no dcltrminatc
party whom a breach of tho duty would injure, or towards or in
respect of whom the duty is to be observed.
It is difficult to indicatc the import of the term Right
(considered as an abstract expression embracing ail rights).
For right (as tlius considered) is so extromely abstract is so
extremely ranote from the particulare which are comprised in its
extension- that its meaning or import is, as it were, shadow,
a
and closely verg&s upon the confines of wo-meaning.
AH the idea? or notions which are comprehended by that
slender meaning may, I think, be compressed into the following
propositions.
Right, like Duty, is the créature of Law, or arises from the
command of the Sovereign in a given independent society.
Every right is created or conferred in the following manner.
 A person or persons are commanded to do or to forbear L
lutoanh, or with regard tu, another and a dctcrminatc party.
The person or persons to whom the commnnd is directud, are
said to be àbligcd, or to lie under a duty,
The party tmoards whom tho duty is to be observed, is said
to Jmve a right, or to be invested with a right.
In order that we may conceive distinctly the nature of
rights, we must descend froin Right in abstract to the species or
sorts of rights. We must take a right of a given species or sort,
and rnust look at its scope or purpose. That is to say, we must
look at the end of the lawgiver in conferring the right in
question, and in imposing the duty or obligation which the
right in question implies.
Now the ends or purposes of different rights are extremely
various. The end of the rights in rem which are conferred over
things, is this that the entitled party may deal with, or dispose
of, the thing in question in such or such a inaiiner and to such
or such an extent. In order to that end, other persons generally
are laid under duties to forbear or abstàiu from acts which would
defeat or thwart it.
But from this general notion of rights over things, we must
descend to the species into which they are divisible. For the
ends of the various rights which are conferred over things, differ
from one another. And what I have said of rights in rem over
things, will apply to such rights over persons as avail against
other persons generally and also to such rights availing against
other persons geuerally as have no detenninate subjects.
The ends or purposes of rights in pcnouam are widely
différent from those of rights m rem.
The ends or purposes of the various rights t» jwsonam are
again extremely different from each other.
A right lias been defined by certain writers, as that security Ce
for the enjoyinent of a good or advantage which one man dérives
from a duty imposed upon another or others. x
<x
It bas also been said that rights arc powers :w powers over,
or powers to deal with, things or persons.
Objections lst, ail rights ans not powers over things or
persons. AH (or most) of the rights which I style rights in
personam are merely rights to acts or forbearances. And many

M In n note, Mr. Austin jiro^ioses to Right in tlie abstract, nnd to thé littl<-
'roui from licntbam's "Priuciples of winch surh a ilelinition tan comprise-
Moral» ami I.t"islntion," such ]iassaj;i.^ Thèse jiassages art to be fourni at p. 221-
as relate to the difliculty of ilcfiniiij{ iiiS.–S.A.
tKfT.XVÎt of
of the rights which i style* /«m in rem have no subjeets (pensons
or thîîJgs).
or
2in\ïy. What is meant by saying that a riglit is a power ?
The party iuvwtoil with a right, is invested witli that right by
vtrtue of the coiresponding duty imposed upou auuthev or others.
And this duty is enforced,. not by the powor of the party in-
vested with the right, but by the power of the state. The power
réside» in the state; and by virtue of the power residing in the
statu, the party invested with the right is enabled to exercise
or enjoy it.M
It may, indeed, be said, that a inan lias a power over a
thing or person, when he can deal with it accordïng tu his
pleasure, free from obstacles opposed by others. Xow in conse-
quence of the duties itupused upou others, lie is thus able. And,
in that sensé, a right may be styled a power. But, even in this
sensé, the définition will only apply to certain rights to forhtar-
unca. lu the case of a right to un ad, the party entitled lias
not always (or ofteu) a power.
Srdly. Facultas Jatiendi (a ut non faeiauli}. Tins définition
is open to the sanio objections as the last définition. facullas,'
what ?
4thly. A person has a right, when the law ntitliorizes liim
to exact from another an act or forbearance.' The test of a
right that (independently of positive provision) the acts or
fbrbearances eujoined are not incapable of being enforced
civilly or in the way of civil action ix. at the discrétion or
pleasure of the party towards wliom they are to be donc or
observed. This would distingtiish thera from absolute duties.
For to talk of a man enforeing a duty agaiust hiniself is absurd.
And where there is no detenninate person towards whom it is
observed, it is incapnble of beiug enforced civilly.
Eight ;• the capacity or power of exacting from another or
others acts or forbearances is nearest to a true définition.
For ail these reasons, I say that a party has a right, when
another or others are bound or obliged by the law, to do or to
forbear, tmcards or in regurd of hiiu.
liut, as 1 stated at the outset of the analysis, the full im-
port of the tenu 'right' eannot be mado tp appear till ail the
related
j[:/t[,I,l;
Ktte m'imjtOfie
tuer.
de
expressions
1:AING7711I117are

l;lle voux aceonlu le lie

examined.
.11
1'118
Ilruil
vous

jus être tué par tnoi elle exige de moi

meu.
i·1U l:.lUlIIiHGV.
1 La loi me I\fo'lIl-olietd" \'OU8 *r
ous
dc ne
m:
A
au obligation
moi meut of a
.t
"jp'- etc. vol. i.a-p. 154.
1 Main, Traités,
tller
servie* rauiiot
IjO
{not to
«abject
yr.n
négative tliongh
obstniut
from wlikh
the enjoy-
usxa ur
:on- services are Uorivable) may. Marginal
de vom! rendre le servic~e 11I:til' ')"i 0:011-
siste a m'abstellir de vous tuer. –~«t- lai- AWcr.
 NOTES at the Enb of Lecture XVI.
11-~
Blnckstone'sabsolute right, vol. i. 123. Mis confusion of Right it
lis hiemjîng eonforaity wïth a rule, àud of Right us correfating withh
duty. (Itid.)
There is no général définition of a lîîglit by tbe Ckssical Juriste
The following passage from Ulpian is in the Digests
Totum nutein jus consistit aut in acquirendo, aut in consemindo,
aut in minuemlo. Aut enim hoc agitur, quemadmodum quid cu-
jusque fiat; aut quemadmodum quis jus suum conservet, aut quo-
inodo amittat.' But this passage relates, not to tlie definition of a
right, but to the modes wherein right* are required, j)reserved, or
lost.

The definition of a Right is not given in any one part of the

Corpus Juris, but extends through tliree Primarj- rights; Viola-
tions and Sanctions. The first adurnbrntes in gênerais; the
second limits and enlarges, so as to correct the generality of the
first the third describes the Sanction. Marginal Kvte in Falek's
Jurist. Enajc. p. 31.

Iiecht wid Oertdtligkeil.

Dasdeutsche Hauptwort Recht hat, wie das lateinische, jux,
eine zweifache Bedcutung. 1° Im objectiven Sinne versteht
man
darunter diejenigen liegeln und Vonchrip.n, welche die Menschen als
vemimftig sinnliche Wesen in ihren gegenseitigeu Verhaltnissenzu
einander, als die Xorm ibi-er freien Ilandlungen zu beobachten
habon. Dasjenige, was mit diesen Forsdirifkn iïlemndimmt Jje-
«eichnen wir mit dem Bciworte reehl (justum sire rtclum)'1 und die
auf dem innern eignen Antriebe des Menschen und auf seiner Nei-
gung zum Guten beruhendo Uebereinstimmung der Handlungen
desselbon, mit den Vorschriften des Rechts heisst Gerechtigkeit
(Juslitia). 2° Im subjectiven Sinne hingegen, bedeutot Recht
so viel
ais Befiigniss zu handeln, oder die morulische Mûglichkeit entweder
etwas selbst thun m dârfen, oder zu verlangen dass ein Anderer
zu unserm Vortheil etwas thue oder unterlasse.66 Hier zeigt es also
das giinstigo Verhaltniss eiues Menschen zu eimen Andern
an, und
ist gleichbedentendmit demjenigen, was wir auch wohl Gereehtsame
oder Gerechtigkeit in diesem Sinne zu nennen pflegen. Macktlâty,
Lehrbuclt des heutigtn riimischen lieclih, p. 1.

Jus vocamus conditionem fttaillalemque fuekndi aut non facietidi.

F.x <iuo nascitur ut juri semper respondeat aliorum officium ;âT idque
aut commune est omnium, quod eo solo cernitur, ut ne quis alterum
65 Riçht us opposcil to Wrong.– J/ur- Nécessitas ollirinm.– Marginal Xutt.
ijiiuil Arf«. « Potestas et oflieinm jus in
•* KJglit as opposed to obligation, soimm et oMigatio,– M.nyinal Aah:per-
400 Perif&dit^N&iiensmafysed.
lonlnt
<7 la
iKCT.XVr aut twtwiim hominuin projmum, scitieet ex ea jure oriimdmn,
`_r'` quo siuguti sîugutis obstringuntiir.
9i
Atque juris qiiidem vis omnis in eogendi potestate posita ed, oftquo
aut
Al jitrfedâ, qua* actionibus maxime contlnetur, aut iinper/tciâ quro
doiensionibus tantum. Omnino autem Iwc sunt tine quibm «&<« nequil
fus, t«t pvrma in quam cadere potest jus et malen'a juris legitima, et
«km» juri constituendo idonea. Miïklenbrttdt, Dactrina Pandutamm,
voL i. p. 144.

Jedes Recht fiihrt aU solchos die Muglichkeit des Zwangea mit

sich, entweder um tien Verpflicliteten zu positiven Handlungen m
niithigen, oder ihn davon abzuhalteu.' Thibaut, System des /J«*wfecfen-
Redds, voL i. p. 44.

LECTURE XVII.
ADSOLUTE AXI) RELATIVE Dl'TIES.

Lkit. lu my last Lecture, I atteinpted to settle thu import of the term

XVII. 'ri»lit,' considered as an expression embracing ail rights, or
considered as an expression for rights in atetract, or without
regard to their generic and specific difl'ereuces.
Imixirt1r The import of the term Itight,' as thus considered, may (I
Right think) be expressed briefly in the following manner.
aMracl,
A monarch or sovereign body expressly or tacitly com-
manda, that one or more of its subjects sliall do or forbear from
acts, towards, or iu respect of, a distinct and dderminate party.08
The person or persons who are to do or forbear from tliese acts,
are said to be subject to a éity, or to lie under a duty, The
party towards whom those acts are to be donc or forborne, is said
to have a right, or to be invested with a vvjht,
Consequently, the tenu right and the term relative duty'
are correlating expressions. They signify the saine notions,
considered from différent aspects, or taken in différent series.
The acts or forbearances which are expressly or tacitly enjoined,
are the objects of the right as well as of the correspomling duty.
Jiut with référence to the persou or persuus counnanded to do ur
M lu the cme of tlie négative duties itics fjucntly, to personK ileterinincd geiicri»
corrtsjiûnilin}; to jun in rem, it it not ally. In every ciu» of a riglit, »ml ut"
auy au iMigatio» (sensu Jtmnnito) tlie party
lIeC('S5o'1ry to (akt info cunsideration any
>leU-nninutc or a«sigiit»l party. The liaviiij; thé right, tir the îrarty buuml l.y
[unies nu u'iioiu tlie iluty is incombentrent tli» oWliçatiou, h assi);iiiifj)ù indiviihuilly
lire rcstrietcl to [«rsons within tlie or ffeiiiirimlly, or Iwtli
thé .Uni inn-t In;
jtlrisiliftioli of tlie aovereigu «Oim- ami- cunsitlend asassigncil indiviilttally.
 furtjewj «t duty i» itnposed. With référence to the opposite
iite LKef.
party, n right Us ecmfermL
As 1 intiinated at the outset of tlie analysis throwgh which
ich
I am now juurnoying, duties may be distinguished into nlatiet'tM
and absoluk.
A relative duty is ineumbeut upon une party, ami correlates
es Duttçs aiv
D
with a right residing in another party. In other worUs, a Jjj
relative duty auwers to a right; or implies, and is impliecl by,
y.
« riglit.
Where a duty is absolute, there is no right with which it
correlates. Thore is no right to which it answers. It neither
implies, nor is it implied by, a right.
Now the term absoluto is a négative expression. It
signifies the absence of some object to which the speaker
or
writer expressly or tacitly refers. As applied to a duty, it
denotes that the duty in question has no corresponding right.
But, in order to the complète explanation of a négative
expression we must first explain the object of which it signifies
the absence. Aecordingly, f haie attempted to explain Hight
(and 'duty' as correlating with 'right'), and now proceed to
the duties which hâve no corresponding rights, or which (in a
word) are absolule.

Every légal duty (like every légal right) emanates from Al

sovereign will, It flows from the conimaml (express or tacit) J-J
of a monarch or sovereign body. And the party upon whom «x
it is imposed is said to be legnlly obliged, because he is obnoxious J'/J
or liable to tliose means of compulsion or restraint which are
wielded by that superior.
Every duty is a duty to do or forbear. A duty is relative,
or answers to a right. where the sovereigu eommamls that the
acts shall be done or forborne towards a d'-tcrmirniv party, otlnr
than the obliged, Ail other duties are absolute.
Consequently, a duty is absolute in any of the following
cases lst, Where it is commanded that tlie acts shall be doue
or forborne towards or in respect of the party to whom the
command is directed. 2ndly, Where it is commanded that the
acts shall be donc or forborne towards or in respect of parties
other than the obligcd, but who are nnt tUkrmiaatc puisons,
49 For 'absoluteiluttcs,' me fitnthnm, Blaikst<Mn-s'utisolute ilutks' are
'Traiti-sJc rA'gislation,"i. 151, 305, H7. moral or i*lihi'uux ttiui. ». Vol. iv. ch.
'r'nii<i|.les of Moral» an.l LfL'islation, i\.
\>l>. 2ïï, 2S9, 308.
402
{(VA
Pervading Notions analysed.
r.KCT. physical.
I qt ftetitlous. For exàmplé, towards the uiembers
xvh goiienitiy of the given iadepemleRt soeiety; oi-towartUmankirid
tC
at lui-ge. ?>rdly, Wliore the duty imposed is nut a duty tawardà
man or where tho acts and forbearances commandai by the j
sovereign, are not to be (lone or observed towards a person or J
persans, 4thly, Where the duty is merely to be observed
[owai the sovereign imposiug it: i.e, the monarch, or the
towards
sovereign
sover number in its collegiate and sovereign capacity.
Oriler in I think thut this enumeratioa coiupletely oxhausts the cases ¡

*lll.h • when
wheveia duties or obligations can be considered absolute.
sliitll cun-
Accoitlingly, for the purpose of explaining and exemplifying
slvler abso- ACCOI
.utoduti. the
lu the
th(i
"~Sgênerai8 nature of those duties, 1 shall consider thom in tho
Emeut order which I have now nnnounced. Though 1 sliould probably [
«cran.
arrange them in another order, if 1 attempted to expound them
amn L
in détail.
de
S<l/-n- IBut before I endeavour to explain and exemplify the classes
'M~fnif of
~luties,nfnh absolute duties, I will brietly advort to a topic upon which I
nnU
may insist hereafter.
dutifs not may
rtgardiny
man,
It*• bave said that soma of these duties aie self-regatding
regard that is to say, that the acts or forbearances which the Law
^Sy
periionq gu Oll are to be donc or observed by the party obliged towards
enjoins
enjoh
m ruspect or Or in respect of himself.
or tlicir
remote IT1 have said that others of thèse duties are not duties towards
puriHwe. man that is to say, that the acts or forbearances, enjuined by
the ILaw, are not to be done or observed towards prscm, or
towards human créatures.
But iu styling some of these duties self-regarding, and in
affinning of others of these duties 'that they are not duties
towards man,' I look exclusively at their immédiate or proxi.
mate scope.
Considered with reference to their more remote purposes,
they are absolute duties regarding persons generally. For,
assuming that they are imposed at the suggestions of gênerai
Utility, they regard the members generally of the given
political society, or they regard mankind at large so far, that
is, as Laws, establislied in a given community, can promote or
contemplate an end so vague and uncertain as the weal of
human kind.
For example, the duty incumbent upon you to forbear from
suicide, is a self-regarding duty, in respect of its proximate
purpose. It is imposed directly, to the end of deterring you
from destroying your own life. But, remotely or indirectly, it
is an absolute duty regarding persons generally. For it is
partty imposée! far tlie purjroses- of pmsorvïng a nietnbeï to tlte
eomiminity, and of deterrmg its members generally ïtam the,W act Ji^-
of suicide by tho conséquences auuexecl to the act in the single
ogle
or pnrticular instance.
Again: A dutyto forbear from cruelty towards the lower jwer
animals, is not a duty towards man iit respect of its proximate
nate
scope. Its proximate or direct scope, is to save the lower >wer
animais firom needless suffering from suffering which has no
tendency to promote the good of niait, or deeitledly outweiglm iglm
the good which man can derive from it. But, in respect off its
remote purposes, tho duty is an absolute duty regarding persons sons
indefmitely. For, tending to preserve and clierish the sentiment nent
of benevolence or sympathy, it tends to the good of the tlie
community, and to the good of mankind at large.
Nor does this apply exclusively to those absolute duties, tieS, RRelative
which I hâve styled (for the sake of distinctiou) self-regarding, i;m, "t Jutits re-
('" g"dl''¡ l'f'
or of which 1 have affirmed (for the same purpose) that they ihey *<iis
« genc-
are not duties towards man.' ™

Jt also applies to relative duties, or to duties wiiielt eorrelate

date «!»«»>•
«'
with rights.
rvitlr riglrts. l'e
j,.
In numerous instances, rights are conferred (and their heir
correlating duties imposed) with the direct or immédiate purpose pose
of promoting the general good (as, for example, the rights
î of
judges and other political subortlihates) And rights are conferred n^ed
indirectly to the same extensive purpose, although their heir
proximate end be the advantage of the parties entitled, orrof of
other determinate parties for whom they are conferred in trust. ist.
For example. The immédiate purpose of a right of property, srty,
is oither the advantage of the proprietor himself, or of some orne
determinate party for whom he is a Trustee. Hut the ulterior nor
or remote end for which such rights are conferred, is the
udvantage of the community nt large. Consequently, absolute lute
duties, and duties correlating with rights, are not distinguishablc vble
when viewedfrom a certain aspect. Considered in respect of their heir
ultimate or remote scope, ail duties regard persons generally.
And as duties which regard diredly determinate or assigned ned Dutks
Di

persons, regard indirecUy persons generally and indefinitely,1 80 1"1'<

so j°
is the converse of the proposition equally true. That is to say, >
imli-
duties which regard diredly persons considered generally regard 1°™ an-,ftt-tly,
indirecUy determinatc persons. For as the gênerai or public '!« ït»
blic «lut
lutt-anls
interest is an aggregate of individual interests, duties which tend end ,l,:t.:innii.
,i,.

tu promote the good of the gênerai or whole, tend to promote îote "••
l"
the good of its several or single members.
404 Pervading Naiimts analysed.

disi
Lhoï. In order that we vsmy conçoive correçtly many important
distinctions, it is nêeessary thafc \ve should conçoive preeiseïy
the truths whieh I hâve now stated.
Jus Pub- For example, the Homnn Lawyers, and most writers upon $
""><* Jurisprudence,
Jui divkb Law iuto Public and Private. According
ravutuin. III
to the Roman Lttwyers, Public Law is that, quod ad publiée.
utilia spectat.' Private Lnw is that départaient of the whole,
uti;
•41quod ad siwjttlornm utilitatem ad primlim utilia speotat.'
But this, it in îiniuifest, is tu4 the gruitnd of the iutuaded
dis
distinction. For since the geueral interest is au aggregate of
individual interest, Law ruganling thu former, and Law regarding
ind
the lutter, regard thu saine subjeet. In other words, the tenus
'pi
public' and private may hv applied indifferently to «Il Law.
Which is as iuuch as to say, that the distinction in question h
WI
ad without a différence. t
a distinction
(1
It is inanifustly impossible to distinguish the two departments
by a property common to both. I shall endeavour, hereafter, S

to
to analyse the distinction.
Brietty stated, the distinction between Public and Private
Law is this. The former regards persons as beuring politicul
La'
characters. ïhe latter regards persons who have no political
clic
elmracters, and persons also who have them as hearing différent
chfî
characters. In a word, Public Law is the law of political Status;
chsi
M
an( instead of standing opposed to the body of the law, is a
and,
branch of one of its depnrtinents namely, of the Law of Persons.
bra
In which light it was justly considered by Hale and, after
Ha by Blackstone.
Hale,
Again: Civil Injuries and Crimes are distinguished by t
Civil Inju-
as1 m private wrongs, and concern
ries ali-1 Blackstone
irn.. and others in the following tnanner. Civil Injuries
individuals only. Crimes are
are
public
put wrongs, and affect the whole community.
If Blackstone had but reflected on his own catalogue of
crimes, he must (I think) have seen that this is not the basis of
cfil
the capital distinction in question. For the greater half of them î1

are offences against rights. In other words, they are violations

l,

of duties regarding determinate persons, and tlicrefore affect 1.

individuals in a direct or proximate raanuer. Suck, for instance, t

are offences against life and body; murder, mayhein, battery,

and the like. Such, too, are theft and other offeuces against 'T

property.
But, indcpondently of this, lîlackstone's statement of tin-
distinction is utterly untenable.
AU offences affect the communitr, and vil offences afïect
individuals. But though ail affect intUvîdual», semé are Jiofc
offeuœs ogaiast rif/hts, and ato thëréfore pursued, of necessity,
crimiimlly. That is to say, they are pursued dîrectly by the
Sovereign, or by some subordinate represonting the Sovereign.
Wheit» the offence is au offence against a right, it miyht bu
puraued (in ail cases) either by the injured party, or by those
who represent him. But, for reasons which I shall explain at
large when 1 arrive at the distinction in question, it is often
thought expedient to couvert the offence into a crime. That is
to say, tho pursuit of it is not left to the discrétion of the
injured party or his representatives, but is assumed by the
Sovereign or by the subordinates of the Sovereign. The
différences between Crimes and Civil Injuries, is not to be
sought for in a supposed différence between their tendencies,
but in the différence between the modes wherein they are
respectively pursued, or wherein the sanction is applied in the
two cases. An offence which is pursued at the discretion of
the injured party or his représentative U a Civil Injury. An
offence which is pursued by the Sovereign or by the subordinates
of the Sovereign, is a Crime.00
In many cases (as in cases of Libels and Assaults), the
same offunce belongs to both classes. That is to say,
the
injured lias a remedy which he applies or not as he likes, and
the Sovereign reserves the power of visiting the offender with
punishment.
That the distinction should hâve been referred to supposed
difTereuces of tendencies, is wonderful. For, in différent
countries, the line between civil and crimiunl is utterly différent,
lu almost ail rude societies, the domain of Criminel Law is
extremely narrow :01 and, for reasons which I shall shew here-
after it generally enlarges as society advances.
The distinction does not consist in tins that the mischief
of crimes (as a class) is more extensive than that of civil
injuries (as a class). But in this the différent tendencies of H
Civil or Criminal l'rocedure as applied in certain cases.
It follows from what lias been premised, that in distin- I- Differcint
J
r
«uishing relative from absolute duties, and in distinguishing 1C rclativi: the
kinds of the latter, we must not look to the ultimate scope or }X îiliit
« ftl)"*o.
1

*> Scoouif, LccttiK XXVIII. ji.

COI. procceilings c.<j. In oim of ofTciiws PS
01 Insitaucea Home ('/«rtuui,1 «tel; arniinst th« Cuvi-riniient amUhe M inlster
err
Euclaml (Anglo-saxon) ('WtngiM') of Justice. TliU \vas ucfes.sarily the »
OW fiennany. In the latter muntry, case liccause the .Sanction of .Sanctions lis
thero was Imnlly auy criminal law. is alway* runislmicnt.
Mcrely «o much os to give «Ift-et to civil
406 Pervadiiig Notions mtalysed*
wttii whick duties axa iiiipuseiL For, as that is the
stantu'
LK<-).
çvli
purpose
pmP.11
sanie in ail case», it eau HeverenaUe us to ilmw the distillations
tu question, c
A relative duty corresponds, as 1 hâve said, to a t'ight i.t ]

it ta a duty to be fnliiUed towards a déterminât*pmm or «/«ter-

minale permis, othw than the obliged, «ud other thnn the i
Sovereign hnposing the duty. AU other duties are absolute.
[AH duties are duties towards the Sovereign, ami, as towards
s
the Sovereign, are relative. By relative,' tliereforu, as applied
(
to duty, 1 mean a duty correlating with a right. Uy 1 absolute,'
as applied to a duty, 1 nieau not a duty without relations, but
without relation to a right.]
Ail absolute obligations are snnctioned criminally they
do not correspond with rights in the Sovereign, the Public, }
etc.03 They do not correspond with rights at ail. But rights
to enforce, exist in persous delegated by the Sovereign. j
c. Iti England, oflences against absolute duties, like ail
other crimes, are said to be offences against the King, becausu
it is part of his office to pursue those offoueos as well as other
crimes.03
Distim- Absolute duties are distinguishable by their proximato or
tions \v immédiate purposes.
twevu
abwlutc The proximate purpose of some is the advantage of the
ilutic-i.
party obliged. And the3e I style self-regarding.
The proximate purpose of others is the advantage of per-
r
sons indefinitely for instance, of the community at large, or of j
nmnkind in gênerai. M
J3
The pfoximate purpose of others is not the advantage of
any pe»on or persons.
1 shall adduce examples of them in that oitlur.
J>uties tmmnls self.
Violations of thèse duties Drunkenness."5 Suicide.00
Fornication, or simple breach of chastity, not accoinpanied by
violation of a right residing in another, as by mlultery,
,11& aaaavuscy aan aw.auawaJ, râpe,
aaai.c, Jt

1
.]

w For exaraple» of brcaches of abso- «•

M II y a bien de» cas od In parti»
lutc obligation», iee lilatkstono, vol. iv. favorisée (tbe party on wliom a right is
8-13, Lilw!, p. ISO; Sniu«j?liug, p.lS4 conftrrctl) n'est ijiiu lu publii; entier, «t
Uatitj", 1>. t6S Forestalliiig, p. 158 ¡ non pas un individu.' ïraitisde lA<jhL r
lireach of prison, escape, etc. p. 120 >. vol.
vase,th.
In î. p. tliin 305.
Champcrty, etc. p. 134 Quarantine, p.L 'ln t"i~ "l1se, the oui)'
only l",rsous iu.
pensons in-
161 l'ulygamy, (>. 163. Otlu-r examplcs, >, v«st«<l with corre.s|K)iidiiig righti* an,
pp. 115-127. clotliod with powers In Trust
jM.-r.soii»
Most of tlic nlfences styled pmmnnire« tbr the Government.' Marginal Note. i
are brenchc-s of obligations towarils su- a Rlaclcstow. iv. 04.
frinty at large. M Ibld. iv. 18P. >

u Ulaekatone, i. 2«8 iii. 10 iv. ht.

séduction.
others who hâve an hitorest, etc.)
(Ifepe faclutloa injury to the party ntvished, and to

There .can. be no ritjht as against self. The end of a right

it
»

is, that a party way bo obliged by a sanction to do or to forbear,

r_
towards a determinate person or persous. But the act or
forbearance, in thi» instance, dépends upou the pleasure of the
party. To give hita a right to an act or forbearance to which
he himself is bound, wero absunl.
Dutùa tvwanh pa-wns indefinitely, or towank (fie fSoixvevjn
imposiwj the duly.
Treason07 is properly an offenco against the Sovereign.
But an off'ence against a member of a sovereign body is often so
cojisidured.08
JDutiea not regardiwj persons.
Towards God (Ascetio observances). (lilackstone, vol. iv.
p. 43.)
Towards the lower animais.
The Deity, an infant, or one of the lower animais, as htiwj
th party tawards vihom a duly k to le performed, might be said
to have a right. But so, in the samie case, might an inanimate
thing. To call the Deity a person, is absurd.

LECTURE XVIII.

WILL AXD MOTIVK.

In a former Lecture I entered upon the analysis and explana-

tion of the term Iiights Meaning by rights,' k'jal rights, or
rights which owe their being to the express or tacit commands 1

of Monarchs or Sovereign bodies. i

Now ail that can be affirmed of rights coivsidmd absiraet in J

-or ail that can bc affinned of rights aparl front thcir kinds
and sorts amounts to a brief and barren genemlity, and may
be thrust into a single proposition, or into a few short
propositions.
But before I could shew the little which can be affirmed of
rights in abstract– or before I could shew how little can be
affirmed of rights in abstract it was necessary that I should
advert to persons, as htaring rights and duties to things and
a Hlackstone, iv. 81. monter* of sovprnijgi jwwers, nmy bc
68 Olfcnces against rights resifling in consitlereil breaclu-suf relative duties.
x~~r~~persom, mmbjeets of rights nn<t duties to am «nd fmfoaratuet,
i^!L mobjecta
obj&
m ofrightà and dutius aud fo n certain capital distindU/m
which obtàius betweén rights thoinselves.
Accordingly, In the last four Lectures I called your atten-
Ac
tiou to the following kudimj topics and to mimeronsmibordinate
tion l
topics, with which they are inseporahly connectée!, or which they
naturally suggest i
lst, Permis, as iuvestetl with rights, and as lying under »
duties. 1
2ndly, Thiwjs, as subjects of rights, and of duties answering 't
to rights.
3rtlly, Permis, as placed in a position analogous to the
position of thimjs That is to say, me as invested with rights,
j
or as lying under duties, but as the subjects or matter of rights
residing in ut/ter persons, and availing against strangers or third a
persons, j
4thly, AcU and /orbeamnees, as objects of rights aud of i
duties corresponding to rights. -i
ôthly, aud lastly, The disliwtiQn between the rights which
avail against persons gencrally, and the rights which avail against
persous certain or dderminate A distinction which the Classical
Jurists deuotcd by the opposed expressions, Dominium et
Oblit/atio;' but which numerous modern Civilians (and writers
upon general jurisprudence) have marked with the more
adéquate and less ambiguous expressions, Jus in rem et Jus in, c
pctuonam.' t
In reviewing these various topics (and, especially, the j
principal kind* into which rights are divisible), 1 endeavoured f
to prépare the way for such a définition of Right as might
rest upon a mjtcient induction as might apply indifferently to
enrif right or might apply to any right, witliout regard to its
class. Accordingly, 1 proceeded to examine the import of the
terrn Right,' considered as an expression for call rights, or for
rights abstracted from the generic and speoifie différences by
which their kinds and sorts are separated or distinguished. '1
And, in attempting to settle the import of the tenu Kight,' 1
considered implicitly the gênerai nature of the duties which I
style n'Iativt that is to say, which correlate with riglUs, or «
answer to corresponding rights.
But, besides the Dtities which 1 style relative,' there are
numerous duties which hâve no corresponding rights, or no
rights wherewith they correlate And, as the Analysis through
which I am joumeying embraces Dutien as well as Rights, it »
was ueceasary that I shauld advért to duties itrilAout correspond-
ing right% es well a» to dutie» wltieU «e relative.
Accordingly, the class. of «luttes in question (which I dis.
tinguish from mlatiw duties by the négative epithet ubsolute')
were also consideredin the last Lecture.

Every légal duty whether it bu relative» or absolute, or

whether it be obligatio or oj/iciwn is a duty to do (or forbear
from) an outward act or acts, and ilows from the Cominaud,
(signified expressly or tacitly) of the person or body which is
sovereign in some given society.
To fulfil the duty which the command imposes, is just or
righl. That is to say, the party does the net. or the party
observes the forbearance, which is jussum or directum by the
author of the commtmd.09
To omit (or forbear from) the act which the command
enjoins, or to do the act which the command prohibits, is a
wrong or injury A term denoting (when taken in its largest
signification)every act, forbearauce,or omission,which aiaouuts to
disobedience of a Law (or to disobedionceof any other command)
emanating directly or circuitously from a Monarch or Sovereignr
Nutuber Generaliter injuria dicitur, ornne quod non jure fit.'
A party lying under a duty, or upon whom a duty is
incumbent, is liable to evil or inconvenience (to be inflicted by
sovereign authority), in case lie disobey the Command by which
the duty is imposed. This conditional cvil is the Sanction
which enforces the duty, or the duty is mnetioned by this
conditional evil And the party Dounti or obliged,
rty bound w bound
ooiigea, %n uuuim orut-

CT r. :t.L:t.
Jusl is tlwt which i» Jiusum; tN,r.
past participlc ofjulxo.
le (~"n,mnmt
lie Command
crètes dénote
as
a
fh..ircorresponding
nQ their nnrrranntnlinn con-
aoniethilig
enn.
which is corn-
lii'jlii is dcrivcil from dirtetum; tlie le manded, or eclual.
pMt jarticiplo of diri'jo; or, ratlicr,
r, Distiuction lwtwccn riglii as denating
riijltl i» pruUbl)' tlorircd from some te sotiietlting commanded,aud as denotinj;
Anglo-Saxon Verb, which cornes with
th tlic position of' tho party tmeanh whom
ftiriyo from a common root. The Ger-
r. it is commandât. To do right, is ta
man rcclU, ijertelit, riehtiy, rethteus, (just)
rt) obey a command. 'To ttace a right,'
is from the obsolète riditeu or rtehtcn
;« is to he placett in midi a position that
Latin another is coiniiianded to <!<> or foriieur
(ilirigo). HenceA<W</cr,ajuilg(>. i of onesclf.
llego, Rex, Régula, Jlectum, (Wroug == towards or in re^iect
Wrimg; the opposite of rectum.) In cunseciut-nci.1 of the iutimate uon-
Ami us jtat ami ri'jhl signify that at nection between the ternis, right and
which is coinuiaiicled, so do the in obligation are often used indiffèrent])-,
Latin
sî.'iimm and the Greek IJitaian te E.g. In old Gennan Law lauguage, reckt
«Icnote
that which conforma to a law or e. dénotes i-ither. So in vul«ar
ruk. knglish.
Manifcstly, a metaphor Iwrrowcil from
m So the Latin jus and obligalio. The
mcxsuivs of Wii);th. SoniHhin^ equal
ai French droit, and the Italian dirilto, are
to, or even with, a somcthiiig to which
;U not free from this ambiguity. The
it is compaml. ^<]<uim = jus gentitun. m. Grec-k txousia is
cf|uivak'iit to facuUas,
The nbstractjf, justice,– justum, di- [('. potestas.
kaion, mjuity, etc., dénote confonnity tu
 M'ft obligea,
obliged, &bemuse ho is abnaxiaus ta this toril, in caso he disobey
ClXL the
the eoiuinuiul–
comm Tbat koml.vmmliini, or ligttmen, wïuoh i» of tftô

^fonction.
of dntyt is, nimply or roerely, liability or obnmomnesa tu
essence oi
sil tianctioh :•

Now it fullows from thèse considérations, that, before I can

complete the analysis of légal rigltt aud duty, 1 must advert to
the nature
nature or essentials of légal Injuries or Wrongs, aud of légal
or political
politica Sanctions. As Peraon, Thing, Act aud Forbeanuico,
are inseparably
insepa coimected with the terms Right' and 'Duty,' so
are
are Injury
Injury aml Sanction imported by the same expressions.
Oblign- But lbefore we can détermine the import of Injury and
fer,
Iujul' 'Sanction'
'Sanction'
unc 1011 (or can distinguish the compulsion or restreint, which
?«J is implied
is impliet in Duty or Obligation, from that compulsion or '>
Sall,.tiollrestreint
iï$ra restraint
ly,gtTFi,lllt which is merely physical), we must try to settle the
~'r.
min. meaning
!TningT'
1
meaning of the following perplexîng terms: namely, Will,
i
2
toutiun, Motive, II Intention, and Négligence: Iucluding, in the term c
.\«gli.
,°°
g~nce 1111..1
RubuvM. which
'Xegligeni those ?nmles of the corresponding complex notion,
'Négligence,'
wluoh are ait styledTemerity or Eashness, Imprudence or
y

v
Heedlessm
Heedlessness.'
Accordingly, I shall now endeavour to state or suggest tlie
Accort
signiiicatic of Motive' and Will.' In other words, I shall
significations
attempt to distinguish desires, as determining to acts or forbear- 1
auces, fror
auces, from those remarkable desires which are nnmed volilions, (
and by by wl
which we are not determined to aets or forbearances, i
although they are the immédiate antecedents of such bodily '
movements as are styled (strictly auct properly) human acts or
movementi 1
actions.
Aiiolo«y i this incidental excursion into the Philosophy of
XorNor is
tln'i"if-v Slind
.t..
l4tu
Vtuii, etc.
Mind
MI
by my
by
a wanton
my sul
wi
w(
subject.
For (f
lor
digression from the path which is marked out

(first) tlie party who lies under a duty is bound or

obliged bj by a sanction. This conditional evil deternrines or
iti/iitn/ia bis will to the act or forbearance enjoined. In other
inclines i
language, he wishes to avoid the evil impending from the Law, j
although he may be averse from the fulfilmeiit of the duty which
the Law imposes upon him.
Consequently, ifwe would know precisely the import of
I>uty,' we must endeavour to clear the expressions Motive
and 'Will1 from the obscurity with which they have been
covered by philosophical and popular jargon.
2ndly, The objects of duties are acts and forbearances. But (
 is tlw conséquence
every act, and every forbeomtiee froro an ftct, ..`:`.
XVHïi
oî a voÙtion, oï of a détermination of the will. (AmseqnwitJyin~lÿ;

if wo woiild know precteety the meaning of net and jorbeàmiwe,Llite,

and, therefore, the tneatiing of duty or obligation, we uiust try
$1y'

to know the meaning of the terra Will.'

3rdly, Some injuries are inlenlionat, Others are conse-
signification of the terni).
quences of négligence (iu the large
Consequently, if we would kuow the nature of injuries or
by which they are
wrongs, and of various important différences
distinguished, wo must try to détermine the meanings of Inteu-
tion' and Négligence.'
It is absolutely necessary that the iniport of the last.
mentioned expressions should be settled with an npproaeh to
precision. For hoth of them ruri, in a contiuued vein, through
the doctrine of injuries or wrongs and of the rights and obliga-
tions which are begotten by injuries or wrongs. And one of
them (namely, 'Intention'), meets us at mnj step, in every
department of Jurisprudence.
But, in order that we may settle the import of the term
Intention,' we must settle the import of the term Will.' For,
although an intention is not a volition, the facts are inseparably
connected. And, silice Négligence implies the absence of a
duc volition and intention, it is manifest that the explanation of
that expression supposes the explanation of these.
Accordingly, I will now attempt to analyse the expressions
• Will1 and Motive.'

Certain parts of the hunian body obey the will. Changing

the expression, certain parts of our bodies move in certain ways
should. Or, changing the expres-
so soon as we will that they
sion agoin, we have the pmer of moving, in certain ways, certain
parts of our bodies.
Now these expressions, and others of the same import,
merely signify this
Certain movements of our bodies follow invarmbly and
immediately our wishes or desires for those santf niovements
l'rovided, that is, that the Lodily oi«an be sane, and the desired
movement bc not prevented by an outward obstacle or hindrance.
If my arm be free from disease, and from chnins or other
hindrances, n»y arm lises, so soon as I wish that it should.
But if my arm bc palsied, or fastened down to my side, my arm
will uot move, although 1 désire to move it.
 4«*
t'* ` Pervading Notions anafysed.
Lkct. Thèse antécédent wishes niïd thèse canséq.ttent movements,
XVUt
are-
are liuniail t'olitùms and œts (strîctly imtl propei-ly so called),
ThoyThojaie the only object» to whieh those
ternis will strktly and
propuriy
DI'OU apply.
Hat, busidus tlie antécédent désire (which 1 style a volitim),
and the conséquent movemeiit (which I stylo an aet), it is
commonly supposed that tliere is a certain Will which is the
cause or author of both. Tho désire is commonly called an act
of the will; or is supposed to be an effect of njiawer w/avulty
t>f mlling, supposed to reside in the mou.
That tins same will is just nothing at all, bas been proved
(in my opinion) beyond controversy by the late Dr. Brown
Who bas also expelled from the région of entities, those fancied
beings called powers,' of which this imaginnry 'will' is one.
Many preeeding writers had stated or suggeated geaerally, the
true nuture of tlie relation between cause and effect. They had
showu that a cautt is nothing but a given cvent invariably or
usually prtcaling another given evont that an effect is nothing
but a given eveut iuvariably or usually folluiviny atiotlier given
event r.nd that the powev of produeing the eflect which is
uscribed to the cause, is merely an abridged (and, therefore, an
obscure) expression for the custoimuy antecedence and
sequence
of thu two eveats. But the author in question, in his analysis
of that relation, considered the subject from numerous aspects
equally new and important. xVnd he was (I believe) the first
who understoud what we would be at, when we talk about the
Will, and the power orfaculty ofwilling.
All that 1 am able to discover when 1 will a movement uf
my body, amounts to this I wish the movement. The move-
ment immédiate! follows my wish of the movement. And when
1 conçoive the wis/i, I expert that the movement wished will
immediately follow it. Any one may couvince himself that this
is the whole of the case, by carefitlly observing what
passes in
himself, when he wilis to move any of the bodily organs, whieh
are said to obey the will, or the poiccr or/«c«% of willing.
For further proof 1 must refer you to JJrown's 'Analysis of
Cause and
ai Effect.' ™ A detailed exposition of the subject, were
utterly iinconsistent with the limits by which 1 am confined,
and witl
with the direct or appropriate purpose of thèse Lectures.
Domiiiiun The wishes which are immediately followed by the bodily
of th« will
Iîrown'.i Knnuiry into t]w ISrtiitiou AimlvsbtofthorhenonicmortlioHnnvin
r" lîrowi
r>
fiiu.se and
of fiill.se a Elfct. (Kor tltc Will in Miud, car.. 24, 35.
l>articular, l'art 1, Section 3.) -Mill's
|iorticul«r,
 mhed, are the
movemeuta wished, thé only wishes èiamediafety fothwed
tkér objecté. Or (changittg
(changitig the expression), tlïey are
aie tlie
wishes which çmimtmmaU themaelrt» .The oiijy wishes which
ly
Uië only
tmv
.h tittiit.-î
J1'
^l
tu
attain their ends without leintervention of nu-ans. £
In every otber instance of wish or désire, the object of the
he.
wish is attained (in case it be attained) through a mmn and
id
(genemlly speaking) through a «Wg» of means Each of the Lie
menus being (in its turn) the object of a distinct wish and i.l
each of them buing wished (in its turu) as a step to that object et
which is the end at which we aim.
For example, If I wish that my arm should rise, the desired ed
movement of tny arm iuuuediately follows my wish. There is
nothing to which I resort, nothing which I wish, as a mean or
instrument wherewith to attain my purpose. But if 1 wish to
lift the book which is now lying before me, 1 wish certain in
movements of my bodily organs, and 1 employ thèse as a mean m
or instrument for the aecomplishment of my ultiinate end.
Again If I wish to look at a book lying beyond my reach, :h,
1 resort to certain niovenients of my bodily organs, coupled with th
an additional something which 1 employ as afurther instrument. :it.
For instance, I grasp and raise the book now lying before mee;
and with the book which I grasp and raise, I get tlie book Dk
which 1 wish to look at, but which lies on a part of the table )le
beyond the reach of my arni.
It will be admitted by ail (on thé bare statement) that tlielieDDominion
dominion of the will is limited or restricted to mue of our J-'
111 limitai to
bodily organs: that is to say, that there are only certain parts r/s *'>««
*»
of our bodily frames, which change their actnnl states for oigau. "t
différent states, ns (and so soon as) we wish or desire that they ey
sliould. Xumberless movements of my anns and legs imme- ie-
diately follow my desires of those same movements. But the
hé
motion of my heart would not be immediately afiected, by a
wish I might happen to conceive that it should stop or cluicken. m.
That tlie dominion of the will extends not to the rnind, may n
ay Dominion
however,
appear (at first sight) soinewhat disputable. It lias,
of tlie Will
oxt.mU
been prottd by the writers to whom I hâve referred. Xor, r>r, jiot
m to tin-
indeed, was the proof diftîeult, so soon as a delinite meaning h»
>!•
had been attached to the term icill. Hère (as in most cases)
the confusion arose from the inilefîniteness of the language by
which the subftds of the inquirr were denoted.
If volitions be nothing but wishes immediately followed by
will. In other words, it will not its
their objects, it is manifest that the mind is net oîiedient to the
adual, for différent
414 Pervading Notions analysée.
Ckct.
tiKCT. states
Stj «*(itml
stntes or conditions, «s (nnd so mon as) it is wished or desired
~Et'!tt tlu it should Try to reeall tin absent tliought, or to louish a
tkit
présent
P" thought, and you will fiùd that your désire is not imine-
diately followed by tlte attainnient of its object. It is, indeed,
dit
iimuil'éat
nu tliut the atteinpt would iiuply au absurdity. Unie*» •
t
the tliought dosired be présent to the mind atready, there is no
thi
determinate object at which the desire aims, and which it eau
de

Ai attniu immediateli/, or without the intervention of a mean.

att
And to désire the absence of a thought nutually présent to the
iiiiud, is to com-da- the thought of which the absence is desired,
mi
c

and
an (by coiisequeiieu) to perpettmte its présence.
Changes in the state of the mind, or in the state of the ideas
an> desires, are uot to be attained immediatolyby desiring those
aud
changes, but through long and complex series of iuterveuing
chi
îucans, beginning with désires which rcally are volitions,11
îuc
VolitioiM, Our desires of those bodily movements which imtnediately
what.
follow our desires of tlietu, are therefore the only objects which
can be styled volitions; or (if you like the expression better)
cai s
which can be styled acts of the will. For that is merely to
wli
affirni, that they are the only desires which are followed by
afti
their objects immediateli/, or without the intervention of means.'
tlu
They are distinguishedfrom other desires by the name of volitioiu,
Th
on account of this, their essential or characteristic property.
Att-i, And as these are the only wlUion.% so are tho bodily i
movements, by which they are immediately followed, the only
m 2
acts or actions (properly so called).îs It will be admitted on
net
the mère statement, that the only objects which can be called
thE

n 11 Exnm[)les: Tuking np a liook

Exrimples Taking Look to scoi
sueras tio
sucras
banish au iiii{wrtuu:ite thought. Look- aet
gencric diirereneo
no generie différence» betwcen
betwcou the
tho
act of taking up a book to banish an im-
ing into a book to recover an absent portunato
pot thought and tho process of
thuujîht. entering(without external aid) upon some
ent
K It ii not clear whether tbe author mental exercise (e.g. a probletn in geo>
mel
litre inU-nils tu oxcltule from the catc metry) for the «me purposc. lt is no
mel
»ory of nets all procussc» that do not doubt true that a yWen spécifie change in
(lot;
iiiuntdiaUly resuit in a pal/xtite budity the stato of the mind cannot f(«nerally be
movement. If au, lie is inconsistent. the object of a volition. But the unie is
The author elscwhere (p. 4SI) impli- tni
true of auy gieen bodily movement, un-
titly rccognisc-1 méditation as an act: less it happe!) ta be one of tlioso inove-
less
Kilrther (]>. 455), while he regards tho ments,
me: very limited in direction and
conviction produeed hy évidence as a extent, n-hii'h are immediately in our
ext
rase of (ihysical comimlsion,lie recogiiists pov to effect.
power
that non-belief may be blamable, if the 1No doubt the mental processus in ques-
result of insuflicientexamination, refusai ttoi are too impalpable and obscure to
tion
to examine, etc. The procès* of examiii- ent the- domain of positive law, unle.ss
enter
utioti )"« tlierefore the object of a duty, evii
evideuced by acts of a more observable
and heuce, iiccoriliii^ to lua own aimlysis, kiii which last ara sometime* distin-
kin<I,
it Uiin net (pp. 367, 395). gui
Xuislieil by the naine of uvert ads, a term
Ami it lis tliflicult to sue why evaito deviscd
<iev not without iiisight. (Sec p. 441,
should not be classed vrith acts, juat ywM-K.
jwl C.
as much as curro or Jtattrio. There
acts, are conséquences of Volitions. A vahmtary movement of
wy "body, or a movemeut whith follows a VoKlfcuV iâ au iïcC.. LCl
XVIII
Tho t*»vpluntary maveinehts which are the conséquences of
certain diseases, are nul acts. But as the bodily movements ltS
wltiolt inunediately i'ullow volitions, are the ouly ends or volition,
>n,
it follows that those bodily movements are the ouly objects to
which the term 'acts' can be applied with perfect précision on
and propriety.
The ouly difflculty with which the subject is buset, itrises ses S»me«
> of
from the concise or abridged ronnner in which (yeuetnlly Il ~tN~Ut~'
"y jinsc cit-
speaking) we express the objecte of our discourse. t
Most of the names which seem to be names of acts, are tre se<|U<)ic<s.
s
names of acts, eovpktl loith certain of Ûieir eomeqttences. ^r
For
example, If I kill you with a gun or pistol, I And
nd
slioot you
the long train of incidents which are denoted by that brief ief
expression, are considered (or spoken of) as if they constituted
;ed
au act, perpetrated by me. In truth, the only parts of the train
tin •

which are my act or acts, are tho muscular motions by which I

mise the weapon; point it at your head or body, and pull the ;he
trigger. Thèse I will. The contact of the flint and steel the ;he l
ignition of the powder, the flight of the ball towards your body,
lly,
the wound and subsequent death, with the numberless incidente lltS
included in thèse, are conséquences of the net which I wilt. I
will not those consequences, although 1 may intend them.
Nor is this ambiguity confined to the names by which our )U1" Confusion
<
actions me denoted. It extends to the term' will;' to the termrln intention,
volitions and to the term acts of the will.' In the case xse
which I hâve just stated, I should be said to will the whole ole
train of incidents although 1 should only will certain muscular
lar
motions, and should inlcnd those consequences which constituteute
the rest of the train. But the further explanation of thèse and
nd
other ambiguities, must be reserved for the explanation of thethe
term intention.'
The desires of those bodily movements which immediately sly Motive
]
follow our desires of them, are imputed (as I hâve said) to an an r,»l Will.
imaginary being, which is styled the Will. They are called led
nets of the will. And this imaginary being is said to bu
determined to action, by Motives.
Ail which (translatée! into intelligible language) merely
means this: 1 wish a certain object. That object is not
attainable immediately, by the wish or désire itself. But it is
attninable by means of Ijodily movements which will imme-
diately follow my désire of them. Fur the pnrpose of attaining
416 Pervadtng Notions anatysed.
tKiT. that whieh I cnuiiot attain l>y a wislt, I wish the inovement»
th(
XVIII wli
whieh will immedtotely follow my wish, and thrmigh which f
uxpect
exj tu attaiu th» abject which ift the end ©f iny désire» (a»
in the foregoing instance of tlie book).
Motives to A motive, then, is a wish causing or prceeding a vulition
volitiuns.
A wish fur tr something not tu be attained by wishing it, but
which the party believes lie shall prohnbly or certainly attaiu,
wt
by means of those wishes which are styleil acts of the will.
«y
ilytives tu lu a certain sense, motive» may preeede motives as well as
motives.
act of tho will For the desired object which is said to deter-
acts
mine the will may itself be desired as a raisin to an ulterior
mil
purpose. In which case, the désire of the object which is the
pui
ttltimate end, prompts the desire which inunediately précèdes
ult
the volition.
the
[Give instance.]
Why the That the will should hâve attracted great attention, is not
WiU'llM
wonderful.
attrat-ti-a wo
\Vo For by nieans of the bodily movements which are
so mui'ii the objects of volitions, the business of our lives is carried on.
tlie
attention «,,
That the will shonld have been thought to contain something
And Iweii 1"'
thought extremely
ext ruysterious, is equally natural. For volitions (os wo
mvstcri- have
uus. aa\ seen) are the only desires which consummate themsulves
the ouly desires which attain their objects without the inter-
vention of means.

NOTKS AXD FRAO.MEXT.S.

See )Ir. Locke Chaptor on Power and Will.

His mistake was this. Ho perceived (though obscurely) that we
mean by tho 'will' or by 'volitions,' désires which consummate
themselves, or which are followetl immediately by their objecte.
And if he had asked liimsclf mitai desires arc attained by merely
desiring them Y he would hâve arrived at the solution reserved for
Dr. Brown.
[The following passage in Hobbes is referred to by Air. Austin]:
'In Deliberation the last Appetite or Aversion immediately
itdhcring to the action, or to the omission thereof, is what we cull
tlie Will the Act (not tho faculty) of Willing. And iteasts that
hâve Délibération must nece.ssarily also have Will. The Définition
of the Will commonly given by the Schools, that it is a rational
Appetite, is not good. For, if it were, then there could bu no volun-
tary Act against lieason. For a volmitary Act is that which proceedeth
from the Will and no other. But if instead of a rational Appetite,
\ve shall say an Appetite resulting from a précèdent Délibération,
then the Definition is the same that I hâve given liore. Wdl tlurtfw
m Ihe /«ut Appetite in Ddihemt'mg. And though we say in common
Discourse, a man had a Will once to do a thiug that nevertheless he
forbore to do; yet that is propwly but an Inclination, which nuike» ]
m Action voltmtniy bewtus» tl« aetkm dépends nofc «rf it, but of
tlie last Inclination 6r Appotite.Zt«W/«wt,p. 28, edit. 1051.
Tito objects of wishes or désires are desirecl simply or absolutely,
or they m-e desired for tlioii- efforts or conséquences. Changing the
expression, the objects of wishes or desires are desired
as endi, or
they are dcsired as meuns to ends.
For example, I may desire mouey for the sake of the advantages
which it would procure or (by virtue of that process of association
which I think it needless to explain) 1 may wish for money without
ailverting to those advantages, or tu any of the conséquences which
would foilow the nttainment of my désire.
And the remark which 1 have applied to pusilivt desires, will also
apply to those ucgulirt désires which are styled unrùons, I may wish
to avoid a given j^in in prospect, without currying my attention
beyond that given object. Or I may wish that an eveut in prospect
may not happen, on account of sonie consequence which would
certaiuly or probably follow it, and from which 1 am averse.
If we steadily keep in view this simple and obvions truth, 1 think
that we may approach to the true distinctions Ijetween Motive, Will,
and Intention.
Vohudarti. Double meaning of the word vohmtary.
First, a voluntary aet is any act donc in purstiance of a volition
i.c an nd (#.s.) with such of its intentional conséquences
as are
included in its import e.tj. submission to puiifchment, in conséquence
of a knowledge that résistance would be fruitless.
Secomlly, a voluntary act is an act clone in consequence of
an act
of the will, <(.s déterminai hij certain milices. This last sensu includes
suveral related yet différent sensés *.tj. a voluntary act,
as opposed
tu an act done for a valuuble considération a voluntary act, as
opposed to an act done in appréhension of pain.
Sjumfaiieim. Mr. Benthum says/'
'I purposely abstuin front the use of the words wtuntary and
inivtmttarif,on account of the extrême ambiguity of their signification.
By a voluntary act is meant sometimes, any act in the performance of
which the will has had any concern at ail in this sense it is
synon^
mous to "intentional sometimes such acts only, in the production
of which the will has been determincd by motives not of painful
a
nature in this sense it is synonymous with uneonstrainedor mmen-ed
sometimes such uch «nhi, in iht i>mhrtion of tehidt the irill has bcen
tlcttrmined hy m>/iiù.< tehkh, tvhellur of the pleastirable or painful kind,
occurred to a man himself, without beinj,' «uggcsted by anybody else;;4
in tliis sensé it is synonymuus with *j*nil'tnt:ou.
'Tho sensé of the word inroluntnry" does not correspond
completely to that of the word "voluntary." Il In voluntary is used in
opposition to intentionaland to uneonstrained, but not to spontaneous.1
n Principes or Xlonils ami I^c-giala- nraoeolitifffrom the Moral Siuictio», an-,
*»•> Pl>- », M, SI. with n-r.-Mn.-e to Ii-jpil ubligiiUrtii, */wi<-
Or tathi-r, liy motivt- .,(/«/• tlinu (aiwvus.– S™ Piiiiciiiks," i-ti-, t..a;!O.–
tliua- which arc in .jiu-stiou. Guod oiRci-s Marginal Suk.
VTil t n
418 Pervading Notimsanzlysed.

LECTURE XTX. s

nmasTiox.
t
lkt.xix IN the preeedin» Lectures I hâve endeavoured to analyse tku
In (
• expressions
ex légal lU'jld und Duti/ or to détermine (jmcmlhj the .<
nature
na and essence of /<</«; Jiigftfo a ad JOuties,
Before I1 eau
Iiefure cunxpkte thc
can complète the nualy sis of
analysis Itiëllt'and
uf 'Itfght' auU 'Duty,'
` Duty,'
`

or before 1 can détermine completely the import of those complex

ternis, 1 must advert in a gênerai luauuer to légal Injuries or
tCJ
Wrongs, ami to légal or politicul Sauetious.
W
But before I could proceed to tlie considérât iou of Injuries
and
an Sanctions, or could distinguish Duty or Obligation from
pkysicnl compulsion or restraint, it was necessary that 1 should
pi
examine
ex tlie meaning of Will and Motive,' Intention' and
>Négligence Including, in the tenu Négligence,' négligence
strictly
st: so called with the closely allied, though somewhat
différent notions, which are styled.' Kashness or Temerity,' and
di
I 1Heedlessness.'
Acconlingly, 1 examined, in the last Lecture, the meaning
of
of AVill and Motive and I now proceed to the import of
•1] Intention' and Négligence.'

Votitious As I stated in my last Lecture, some of our wishes or désires

lu followed iminedialdy by their objecta. In other words,
and
Motiva are
some of our wishes or désires consummate themselves, or attuin
se
t
their appropriate ttubt without the intervention of means.
tl
The only wishes or desires whicli consuminate themselves,
are wishes or desires for certain movements of our own bodily
ai
organs. till our other desires attain their appropriate ends, by
means, or series of means by means of the bodily rnovements
which immediately follow our desires for them, or hy means of
those bodily movements coupled with additional means. (
[The bodily movements which we will, or which immedintely ,
follow our desires of theni, anî not desired for themselves, but
for their conséquences. They are not desired as mil* but as
m
liteaux to ends.
This ( I believe) will hold universally. The movements in
themselves are perfectly indifierent objects, and dérive ail their
interest front the purposes which they subserve.]
The desires for those bodily movements winch immediately
follow our désires for theni, are sometimes styled éditions
more freqnently, 'déterminations of the wiiï/ or of the power
or ïaciûty of willing:' *W hem (as in other cases of cause »mt Ml
eflect) the customary séquence of the bodily movwnent «]>ui» tlwIw'
désire ûnmediaiely preceding, lias been ascribed to fi funcied
soinething styled a power:' A ljwwtr of vnlliny' which résides k-s
in the nian, ami by virtue whoreof he jnvduces thu uioveiueut ut
wliicli is the instant conséquence of lus wish for it. Tho fancied
somethiug which cornes betwcen the wish aud the movement,
is cominoiily stylwl (with more brovity) tlie Will' Ami when-
ever I fiiul occasion to mention this uiysterions being, I will (if
you ptensc) call it su.
For the structure of establisheil speech forces lue to talk uf
willing aud to impute the bodily nioveiuents, which inune-
diately follow our desires for tliem, to Un: Will.'
To discard established terms is seldom possible aud where
it is possible, is seldom expédient. A fcuniïiur expression, how-
ever olacure, is coiaïuonly less obscure, as well as more welcome
to tlie taste, than a ncw and stmiige one. Iustead of rejuctiug
conventional tenus because they are ainbiguous and obscure, we
slmll coinuionly h'nd it better to explain their ineanings, or (in
tho hvnguage of Okl Hobbes) to suit/ them with distinctions
and définitions.'
Accordiugly, I shall talk of willin» of• déterminationsof
thu will and of motives deteruiining the will.' But ail that
I menu by those expressions is this. To will,' is to irish or
tlewr. certain of those bodily nioveinents which imniediatcly
follow our désires of them. A détermination of the will,' or a
volition,' is a wish or désire of the sort. A 'motive determiniiig
thu will,' is n wish not a volition, but sujrgesting n wish which
is. The wish styled a motive,1 is not immediately followed hy
its appropriate object: But the bodily movemeut which is the
appropriate object of the volition, scenis tu the party a certain or
probable mean for nttaining the sometbinj,' which is the appro-
priate object of tho motiiv. In case that something be wished
as a mtati to an ulterior object, thu wish of the ulterior object is
n motive to a motive; as the wish of the iutcrteniHy mean is n
motive to the volition.
The bodily nioveinents which immediately follow our désires
of them, are the only huninn aets, strictly and properly so callcd.
For events which are not -tcillat are not ucto and the bodily
nioveinents in question are the only events which we kïII.
They arc the only ohjects which follow our désires, without the
intervention of nieans.
420 Pervadmg Nations anatysed*

Lkct. XIX
LKCT.XIX But, as I1 olweryed
But» plweïyed in my
Mty lasfc Let-tum, tnost ut
lasb Lectum» of the imj
«ame»
whieh seem to foe uuiiie» of «et* are nomes of ««te strictly «ml
pro]«riy
Pr so ettUetl, eoupM -mth «we « /««»• <jf #*««• «««rçiwKa'S.
Aud as the liâmes of arts comprise certain of their cojwc-
gnenca, so it is suiil tlint those conséquences are willed, although
they are ouly iutendul. lu the case which I have just stipposed,
it would be sait! that I willed the conséquences of my voluntary
muscular movements, as well as the movements theniselves.
Nor is it in our power to discnrd these forma of speeeb,
although they involve the nature of will and intention iu thick
obsciu-ity. They arc iiiseparably intenvoveu with the rest of
ostablishod lnuguage and if we attempted to change thom for
new and précise expressions, wo sliould either resort to ternis
which others would not understaml, or to tedious circumlocutions
which others would not endure. To analyse, mark, aud remem-
ber tlieir complex import, is ail that we can accoraplish.
Accordiugly, I must ofteu speak of 'ad»,' when 1 ineau
ads and Iheir conséquences and rnust often speak of those
consequences as if they were willeâ, thou«h, in truth, they are
inknded.
intentlei

Intimai And hère I must pause a moment for the purpose of cor-
An
Acts. recting a mistake which 1 inade in a former Lectuiu
luIl that Lecture, I distinguished acts into acts internai, and
acts cxlvnud
ex Meauiug by acts iuhrnul, volitions or déter-
minations of the will and meanin» by acts externat, tho Ijodily
minatk
movements which are the appropriute tAjccts of volitions.
I am eonvinced, on reflection, that tlie terms arc needless,
and tend to darken their subjects. ïhe tenu volitions/ or the
t«rm déterminations of the will,' sudieiently dénotes the
objects to which I applied the term infernal acts And it is
utterly absurd (unless we are talkiug in inebiphor) to apply
such ternis as 'act* andmovement to mental pheiioniena. I,
tlterefore, repmliate the term intcrnnl aets;' aud, with that
terra, the superfluous distinction in question. I hastjly borrowed
llie distinction from the works of Air. lîeuthnm :M A writer,
wljom I much révère, and whom I am proue tu follow, though
I will not receive his dogmos with blind and servile submission.
Impttstora exact from their disciples prostration of the under-
standing,' because their doctrines will not endure examination.
n U-ct. XIV., 365, supra. a«ts act* of the iniiul Thns, to strike
\>.
's lu tlit Mcond place, outs may be i« an <;xtr:rn«l or exterior act to iutciiu
diàtiiiRuishBil iutu txttraal ami Mental, tu strikc, an iiiti-rnai nr iutvrioroiic.
Hy extcnial ar<; tucniit i-oriiutiil acts Jient/iam, /'riiicijikx, de. J/. M.
iittu uf the ljoity by internai, mental
 A ma» «f Mi«. ïtewthani's genius may jiiovoke JiKjtnïy; oml
nmy l'est KatMott with tlie autplo atitt geuuiiie ttitluilutiou which
his wi'itings wîll infallibty extort fïoni serutinisinjj «util impar-
tial judges.
The bodily wovenients which hnmediately follow our de-
sires of them, are ud* (properly so called).
Hut every act is followeil by conséquences and is also itSO it'ts, >.>r
altunded l>y imwomitant-t, wliich arc styled its circuM&tunw*.
Tu désire tlie ad is to will it. To exjjid uny of its cww» 1!rl:w;nt
Qunuxs, is to inknd thoso conséquences.
The act itself is intcnded us well an tmlkd. For every
sry
volitkm is aceompanied by an expectation or bulicf, that the
bodily movement wislied will immediately follow the wish.
A conséquence of the act is uevur vnlled. For iione but JUt
act5 themselves aru tho appropriât^ abjects of volitions. Nor U
it alvvays inknihd. For the party who wills the aet, may not lot
expect the conséquence. If a conséquence of the act be <lairal, al,
it is probably intcndctl. But (as I shall shew immediat«ly) anl
inlcndal consecjiieuee h not always dtttiral. Inteutluas, tli«re- re-
fore, regard ads or they regard the conséquence of «<>
When I will an act, I expect or intend the act which is the .ho
appropriate objeet of the volition. Aud wheu I will an act,,1IJ
may expect, contemplato, or intend some given eveut, as a
certain or contingent consequrnee of the act which I will.
Heace (uo doubt) the fréquent confusion of AVill and In- [n- Confusion
tention. Feelin» (liai mil implUn intention (or that the ap- orwm
,r
propriate objects of volitions are intended as well as willcd) •A) '»•
numerous writers upon Jurisprudence (and Mr. Bentham araongst £St
the number) eniploy will and intention as synonyiuous or
equivnlent tenus. They forget that intention do™ not intfilt/ will Jl;
or that the appropriate objects of certain intentions are not the- he
appropiïate objects of volitions. The agent may not intend (1 a A COllM.
conséquence of his act. In other words, when the agent wills :j, ltIU-n.v i.f
the act, he may not contumplate that given event as a certain •lillan"°tnet iimy
'"•
or contingent eonsequeuce of the aet which he wills.
For example
My yard or garden is divided from ri road by n high paling. 11~.
I am shooting with a pistol at a mark chalked upon this paling. an.
A passenger then on the ruad, but whom the fenec intercepts
iVoin my sight, is wounded by one of the shots. For the shot
pierces the paling passes to the road and hits the passenger.
Now, when I aim at the mark, and pull the trigger, I may
not intend to huit the passenger. I may not contemplate the
 Pervading • Notions analysée,
422
tEer. XIX hart
LectXIX httrt of
0 a eontiugent eo»seuu<fflw
passenger a» ad contingent
rt vosseitger.i»
the ac
eo»seiiu<fflwof tlm act,
Fur ttiough îhë httrt of a passcsuger & a probable conséquence*, 1
Furtli
t thiuk oi" it, or advevt tu it, «s a «anBequence. Or,
may not

tu
»«!ty
tliough 1 may advert to it as a possible conséquence, I may
tliougl
think that the feuce will iutereept tlie shot, and prevellt it from
jiassin
Il the roail Or thu" rond may be ono wWch is seldom
travelled,
tnivell and I nuiy think the présence of a stmnger at that
place und time extreinely improbable.
On any of these suppositions, I am clear of inUmliiuj the
O
lmnu
ha nu I
Thongh (as 1 shall shew hereafter) may be guilty of
kemtkstnea* or raxhiuM. Uefore intention can be detined oxuctly,
hcetllet
the in import of those terms must be taken into cunsidcititiou.
An in- Where the «fient iutauls a conséquence of the act, he may
ti-inUil
.on.
llteUi'e of
«' iri-tk> the conséquence, or he may not wish it.
And, if he wiû the consoquenuc,he may wish it as an oui,
A
auii't iniiv
u- «-.Vitrf' ovor ne he may wish it as a main to an end.
or nul. lI will illtistrate these three suppositions by adduciug ex.
And if
«islK-.l, it al»P1(i
amples. 1~ Dut before 1 exemplify thèse three suppositions, 1 will
ma? u- endenvour
ondea to explnin what I mean, when I sny that a consé-
wi.slie<l as
quenc of an net may lie wished as an end.'
an cui, <n- quence
as a ïm'tii, Strictly speaking, no cxtenial consequence of any net is
js1

desired
.(ueuvv of tlesire as an
end.
nu rn-t
wtshml as
ï ïhe end or ultimate purpose of every volition and net is a
aa~ 1. or sentiment is pleasure, direct or positive or is the
feeling
feelin;
pluasi which arises iwdirectly from the removal or prévention
pluasuie
of pa pain. But where the pleasuru, which (in strietness) is the
end of the act, can only be attained tlirough a givoi external
conséquence, that external conséquence is inséparable from the
end and is styled (with suflicient précision) the end of the act
and the volition. For examplu, If you shoot me to duath
beenuso you hâte me mortally, uiy deuth is a necessary condi-
tion to the attainment of your end. The end of the act, is to
ftllay the deadly antipathy. But the end «m only he attained
thruugh my ileath. And my death (which is an intunded con-
séquence of the act) raay, therefore, lie styled the end of the
act and the volition.
1stated in my last Lecture, that the bodily movements,
which are the appropriate objects of volitions, are not desired as
ends.
But that istnie of every outwanl object which is the object
of a désire. This, therefore, will not distinguish volitions frow
other désires.
Nor can it be said, that the appropriate objects of volitions
are desired as niGalis to ends external, or to remote eitck lit i
most cases they are. But in some they are not. Namely, iîy, 'r~'
dancing, etc., for nothing but the présent pleasure.
The true test is, that they are tlte only désires immediately
ely
followed by their appropriate or direct objects.
Wliero an intended conséquence is wished as an cml orr a Concur-c
«tmn, motive and intention concur. In other words. The con- ,.n. icliceof
Jn M«tiw
séquence intended is aLso wished and tlie wish of that conse- ise- nml
l\ Iiitcu-
queuce suggests tlie volition.
1 will now exemplify those three varieties of intention at nt Kxvmjili*
1
which 1 have pointed alroady. t
The varieties mu the ibllowing t
lst. The agent may inlcnd a conséquence and that couse- •se- tions.
quence may be the tnd of his act.
2ndly. He may intend a conséquence but he may désire sire
that conséquence as a vicun to an end.
Srdly. He may inknd the conséquence, without desiring it.
As examples of these three vurieties, I will adduce three iree
cases of intentional killiay.
You hâte me mortally And, in order that you xnay nay Oftlifciiwt
jS0''
<
me
appease that painful niul importunate feeling, you shoot me tion.
dead.
Now hère you intaul rny death: And (taking the word onl
'nid' in the menning whicli 1 hâve just e.xplained) niy deathi is
tlie uul of the act, find of the volition which précèdes the net.
act.
Nothing but that conséquence would accomplùh the purpose, ose,
which (spettking with metaphysical précision) is the end of the
act and the volition, Xothing but that conséquence would mld
allay the painful sentiment of which you purpose ridding ling
youi-self wheu you shoot me. Xothing but that conséquence mee
would appease your hâte, or satisfy your malice.
Again
You shoot me, that you may take my purse. 1 refuse tto sernn.1
.'ittppmi-
deliver my purse, when you demain! it. I défend my purse to tion.
the best of niy ability. And, in order that you may remove the
obstacle which rny résistance opposes to your purpose, you pull
out a pistol and shoot me dead.
Now hère you inloid my death, and you also désire my
death. But you desire it as a mm», and not as an oui, Your
désire of my death is not the ultimate motiw suggesting the
volition and the net. Your ultimate motive is your desire of
my purse. And if 1 would deliver my purse, you would not
shoot me.
 424 Pervadtng Notions analysed.
torr.m
tort, .m Lastly:
Lastly s
Oi'tht- Yon 'shoot at Semprouius or Styles, ai Tithw or Sfokes,
tbiril Hi|f rfes
desirinf» and intemihig to fcitt hint. The death of Styles is the
iioutiori.
«M of your volition imd «et. Your désire of his death, is the
end
ittllmuk
utl malice to the volition. You contemplate his death, as
the probable conséquence of the aet.
the
But when you shoot tit Styles, ani talkin» with him, and
am standing close by him. And, from tho position in which
f sstaud with regard tu the person yuu niiu ut, you think it uot
1
unlikely that yuu may kill me in your attempt to kill him.
uni
You fire, and kill nie aceordiugly. Xow hère you infend my
Yo
death, without dtdviny it. The end of the rolitïou nntl act, is
dea
the death of Styles. My death is ncithor desired as an end,
nor is it desired as a wma
1101 My death wthaerres not your end
yott are not a bit the nearer to the dcath oï Styles, by killing
yov
me. But, since you conteniplate my death as a probable
conséquence of your act, you iitfend my death although you
cou
désire
de» it not.

Forbenr- It follows from the nature of Volitioiis, that furbeumnets

alites atu f
from
iuteudwl, J10' aetx are not
mlteil, but intended.
but iiut To will, is to wish or désire one of those bodily incréments
wUW- which iminediately tollow our desires of thein. Thèse niove-
whi
ments are the only arts, properly so called. Consequeutly, To
mei
wil
will a forbearance (or to will the absence or négation of au
act'), is a flat contradiction in ternis.
act
When I forbear from an act, I will. But I will an act
rther than that from which I forbear or abstain And, knowing
that tliu act which I will, excludes tlie act forbonie, I intend
the fi>i'ljcnroiicu. In other words, I contemplate the forljear-
ince as a conséquence of the act which I will; or, rather, as a
uecossary condition to the act which I will. For if I willud
the act from which I forbear, I should not will (at this time)
the act which I prescntly will.
For example, It is my duty to corne hitlier at seveu o'clock.
But, instead of coming hithor at seven o'clock, I go to the
L'iayhouse at that hour, conscious that I ou»ht to conie hither.
Xow, in tins case, my absence from the rooni is inttnlionul.
[ know that my coming hither is inconsistent with my going
:hither: that, if my le«s brought me to the Uuiversity, they
irould not carry me to the Playhouse.
If I forgot that I ought to conie hither, my absence would
lot be intentional, but the effect of négligence.
 LECTUHEXX.
XEGMGEyCE, UEEDLESSXESS, ,~0 t:ASMXE!

IN my !ast Lecture, 1 endeavourud to Jistinguish «c~ (property 'opertytj'cr.XX.

so ea!Ied) from the events which are c<M!«€?!< of act.s; to A~"
shew that f!t- are !M/t?«M as well as «';7/t'< but that theu'wn)<t"
fOM~WKCt' are nevcr ~<*<7M, although thcy are often
In short, every forbeamuce is <'K~~(/t' but no forhearanco
their
t'n~n: ~=
.nc<j is ';nen<:M
t<tt7M.' thé party wi!Is !t something inconsistent with the
forbornc, coHM«:M thut thé senunthiHg whictt tte presently wiUs,
le net neled. Ic
wilLi, t'~rt~'a)'
exeludus (for thé time being) </«!< fi'Mn whidt he ~rhenM.
The motives to ~b)'&<'f<?'f(K<'t'.<! (or, rat!~r, to thu t«-~ w)tichM')tt\-<-<t~
wjtich
exclude thc acts furborne), arc différent in ditrerent cases.
Distiking thé conséquences of thé act front wh'eit 1 forbcar,
M')x'!U',
1 forbear from thé net ~'«M-M 1 dislike those conséquences. Or Of
without disliking (or posttively liking) those conséquences, )ce<l11.
~w/b' thé conséquences of thé act which Y presentty wit!, n.and
and
whieh 1 could not perforiii unless I forborc frotn thé other.
In tho nmt of thèse cases, my motive to thé net which hichi1
presently wUI, is styled <t!'ti'.f:o~t.' aversion from the netctfm'-
for-
borne, or (rather) from its probable consequences. Dut whetherhcthcr
thé act which 1 <t'i'~ be promoted by preference or aversion, .)n,the
tho
net which 1 will, and Mo< thé forbearanee, is thé object oftheof thé
voiition itsetf. 'To will nothin~f,' is a fiât contradiction [ou in
tenns.~
Forbearanccs must bc distinguished ft'om Omissions.
A yM'ftif'HMCt (taking the word in it-! large signification) is !nn\i!!)'
'°"ti.i<h..J
tho )t0< doing a given act with an «i~M/tOM of not doin~ it.
i!t~it.tr<it"0~ni<.
Thé party M7/ sontetttin~ else, knowin~ that that whieh lie iehhe'
wills exeludcs thé givcn net.
An omission (taking thé word in its large si~nHeation) Mn)is is
thé Mo< doing a givcn act, without advf'rting (at thé time) tothe
to thé
act which is not done.
Tho tcrm forbearanee as it is often uscd) is restrictcd tcdto to Ambigu.
/f<«/«/ forbearances :–ta such as are exacted by duties, or are iti'nt't)to
uot inconsistent with duties.
are~
amtUmi!-
Thé term omission (as it is often used) is restricted
«K~<x~)</ or culpable onussions :–to such as are breaches of
duties.
tett to ;·
hesof'
r It is not jM-rha~ hgnUy true that every forbeam))' e MprM<:ded or aMOtu.
aMOtu'
pani(;d t'y <tn <K<.
 XX And, fttkmg tho tcnns m those rostrictod sensés; we hâve no
mûmes fut untftwfuî uf cuîpuMe &trbeamuccs, or for LtwM
IMU
otuisstQtts.
MU Not unhff~ently, the term omission M extended
to
to a~ umi~ions, tmd fdso to << forbeantuces. Or thé term
'M!omusion deuotea such otuissiuus and forbca.raaces as are
untawt'ut or culpabte. And, ill either of those cases, the not
un)
doing, which is uniutcntiollnl, is confouuded witli tho uot doing,
doi
which is intcutiouat.
wh
~tttit (as oppf~cd to c~tmit ')is aJso deifctivc or am-
big
LigHous. Tu 'co//«Hit/ is to t/f au nct inconsisteut with ft duty.
To omit,' i'! to omit <Mt/«<t/«~ or to omit (or jM~') uutaw-
'T<
full
fuUy. In thé first cMe, tf<<M<: ~b?'MtfaMe<: is <<
tite last CHse, culpabte furbeanmcu is coufounded with CM/~«Me
Iti

«M~
«M<t~t<
think that thé usage uf nmuHt'ous aud ~ood writers au-
1
thorises
t)M thé large si~niticatious which 1 attach to ttte terms in
question.
qm At a!I evenh, those significations aro so ckar, précise,
and commodious, tliat 1 should venture to annex t))etn to thé
MM
~n
terms, in thé teeth of c~tablished. ~a~G.
Those significations1 will rspeat.
To forbear is not to do, with an of not doing.
t?!<<;7t<MM
~1 t'H-bearanco,' is a not doing, with a like intention.
To omit,' is ):o< to do, Lut without thou~ht of the act which
i donc.
is not
~h< oniission,' is a uot doing, witt) a shni!ar absence of
consciousness.
con
If we would dénote that n ibrbearance or omission is a
breach
bt'c of duty,' we can casity aecotnptish thé purpose by ex-
press restriction. We can style it injurious or uniawfut,' or
pré
wn can caH it cutpabte.' Injurions or cu!pablc omissions are
~'i-fM<
K'i- frcquentty styled ne~igent.' T))e party who omits is said to
H<t'< his duty. The omission is aseribed to his ~K~Mce.'
'M<
Thé state of his mind at thé time of thé omission, is styled
Th.
'KfKf~~MM.'
Thèse (I think) are thé tneanings usuaHy attached to these
ter)
terms aithough the Itoman Lawyers (as 1 shall shew int-
tnediatcly) ttavc given thon n ]arger signincation.
Taking them in the tneanings which (I betieve) are usua),
thé term K<t~M< appnes exchtsively to injurious omissions
-to breaches by omission of positive duties. The party omits
au act to which he is oM~/< (in thé sensé of thé Honmn
ï~wyers). He performs not an net to which he is oMiged,
because thé net and the obligation arc absent front his mind.
 'B<-<:(K<~Ntt- diners &oto négligence, alt!toug!i they are
dosetyaUiett~s..
Th& party who is negtigent <«t~ an and breaksks~
a
Ht.

jWSt/tt't' duty:
Thé party who M hee'Hess <<oM an act, «nd breaks H K<~«<t<
<<<t<
duty.
~e~ (properly so caHed) arc not injuries or wrong- inde-Jtdt'-
pendentty of their conséquences. Whero an net is fo'bittden, hkn,
thé duty and thé s~netton ~r& pointed ut eunsequ~MM~ wldcli. 'Idcli.
constftutly or usually M!ow it. An't (as 1 shaH show hercaftcr)
tftcr)
the gnitt or innocente «f a given actor, dépends upon thé stat~'
statu
of his consciousness, with régate to those consettuences,ini th~
given instaucc or case.
If he intend or expect them, lie is guilty of t!M wt'ong
8 at«t
which thé sanction is aimed. And, though he expect them t)0t, not,
tticy are rationally imputed to hin), provided lie M'o«M hâvehave
expccted them, if he had titought of ~M'M and of his duty. :Iuty.
Where lie does thé aet without advertin~ to ttiose conséquences,
nées,
lie is clear of t~e~<~ Utose consequeuce. but ht produces them
Ltiem
by !iis /tCt'<t'~<f.M.
1 endeavoured in my t<tst Lecture to i!Iustrate my meanin~,
nin~,
by an example to which 1 now refer you.~ In thé case
supposed, 1 did not advert to thé probable conséquence off my nty
act. And, since it was my duty to advert to it, 1 am ~ui!ty :ui!ty
of /t«!<~e&MtM!, although 1 am clear of M:/t?<<i'ûM<~ injury.
The states of mind which are styled Négligence amlX<.g)i. and X'
!!C"c<:a))'I
fi
Heediessness are precisely alike. lu either case thc party rty is ?~
'S H<-ed)M.i-
inadvcrtent. In thé first case, he does M«< an act which lie WB;!
was 'Mcom-
bound to do, because ho adverts not to it. In thé second MM case
l'U

lie does an act from which he was bound to forbear, because hc

'e he
adverts not to certain of its probable conséquences. Absence scnee
of a thought which one's duty wouM naturaHy suggest, is thé
main ingrédient in each of thé comptex notions which are styted
tyte.t
'negngenœ' and heediessness.'
Thé party who is gui!ty of Temerity or Hashness, like thé Ka<hn<'M.
K:
party who is guîlty of heedtessness,dues au uct, and breaks a
positive duty. But the party who is guitty of heedtessness,
thinks not of thé probable mischief. Thé party who is guilty of
rashness <Mt~ of thé probable mischief but, in conséquence of
a mis.suppositioa begotten by insuuicient advertence, lie assumes
thnt thé mischief will uot ensue in tite given instance or case.
Such (I think) is the meaning invariabiy attached to thé
)!t:ntha)tt, TnMcit'ttS,' etc. j't-. 60, M!. ~te <2t, ~)t<t.
Lt:et.XX expi-essioM,
expl'essM Hashnoss,' T~ncnty," foothardtHe~ )Utd thé Mke.
thé
Thé radical
rttdi ide& dcMMed if atwftv!! this. Thc party ntns tt risk
ofwludf
of

instance.
whick lui is e~Hscious; but ho thmks (ft-n' ?reasou which be
examine: insufHcientty) that thé tnisc-hief will pMbabty be
exatninM
avcrted in thé gh'cn
1 wiH a~ain iHustrate my meaning, b)' recumng to thc
cxtttnp!c to witich f hâve just :tUudcd.
WhGa 1 tire !tt thu tnark ctmtked upon the ffncc, it oeeurs
to my )t)Ut(t thttt a sh'~ nMty )'!oKt' thé fcneo, nnd mny chance
tu fut a pMsen:~<r. Dut without uxtunifun~ carofn)ty thé
gt'ouud of tny eouetuMOt), j conctude that thu t'oncc M sutticicnt!y
thick to prevent a shot frotu pn.s.sinn tu thc road. Oi-, without
givin~ tayself thé troubte to !ouk into th< r'~d, J a.ssutue thnt a
passen~er is not thuru, Leeausc thé mad is sctdom passcd. lu
fithey cases, nty c~ntideucu is )-«.</< attd, thfou~tt my )'«A7(Mf«
or ~ntt'<7y, 1 am thc authur of the mischict'. My assumptiou
is tbuttdtid upou évidence which thu tjVt-nt shews to be wot-thtess,
and of winch i. situutd dhcover t)~e worthteMnM. if 1 scrutiuised
iti as t ou~fht.
!!y thé I!o!)t:m Lawycrs, Hashuess, IIecdtessuess, or Ne~ii-
~ence is, m cet-tain ea. considcred équivalent tu 'Dotus:'
that i.s to say, to intention. f~oto (.ntpanttur.' Vix est ut a
ccrto noccndi ~)').fi~ di.~L-crni possit.' Chan~ing the ex-
pression, they supposM that mshness, tK'cdlcssness, or négligence :1

can itardty Le distingui.shtid, in certain cases, from intention.

Xow this (it appears to )ne) is a mistake. Intention (it
seems to me) is a ~'<t'
state of thé nnnd, and cannot coalesee
or connuin~Ie with a dii!crcnt state of thé tnind. 'To intend,'
is to bdievc thut a given act wi)t foUow a K~'e" volition, or
that a givcn conséquence will foHow ~iven act. The chance
of thé séquence may be mted hi~her or !ower but thé pM'ty
co/<M«.'t'.< thé
future event, and betieves t)iat titere M a chance of
its foHûwin~ his votitiou or act. Intention, thereforc, is a state
of consciousness.
]
But tte~ti~ence and heedtessness suppose M~consciousness.
In thé first case, thé party (to<;s M«< think of a ~iven act. In (

thé second case, thé party does /to< think of a given con-
sequencf.
Xow a state of mind bctween consciousness and uncon-
sciousnMs–between intention on thc one side and Me~!igonce
or heedhissness on the other–seents to be impossible. Thé
party thinks, or thé party does M«< thiuk, of thé act or con-
séquence. If ho think of it, ho <?<<<<&. If !te do not think of
it, he is )!<'K< of ~ff~M. To say that a négligence M' L'
tMed!csMMM M<ty nm into intcuti~M, is [tt`
s&y t!tat thou~ht
may be fAw!<< from tho mind. and yct (after a tashion) ~tT~'H< M<

to thc nmn).
Xop is it posaibte to conceh'e th<tt SMpposed montre! or
monstor, whieh )s M<;<t<;<' tcHutrity M('<' intention, but partake~
of buth :–A state of nund lyhig on thé confine'! of each, wit!)-
out be!ongin~ prfeisety to thé tci'ritory of either.
The tiMty wlm is guUty of Hnshticss <At~ of u. ~iveii
conséquence: but, Ly reason of K nussuppositiun arising fmm
insufftcient advtirtcnce, )to eonctudes thnt thc given conséquence
will ?M< follow tho act m thé given instance. Xow if he
sunnise (thou~h nevf'r so hastiïy amt iaint!y), that his )nis-
snpposition is uufounJed, )ie t'M/<?)< thé conséquence. For he
~/«' of that conse'tuencc he be!ieve.s that his mifsuppcsition
Miay be a tnissupposition and ho, therefut-e, hehcves thitt thc
conséquence «<«y ib!!ow !us act.
1 will a~uu l'Gvei-t to the example which ï hâve aiready
cited repeatcdly.
When 1 nrc ut thé tnark chatked upon t!)e fence, it occurs
to my ïnind that the shot may pierce thé fence, and !uay chance
to hit a pHSsenger. Ï5ut 1 assume that thé fonce is .suHicientIy
thick to intercept a pistol-shot. Ot', witttout ~oing tu thé mad
in order that 1 may bc .suru of the fact, 1 assume that a
passenger cannot be thet'e &<w<«~ thé road is setdûtn passed.
Now if my tnissupposition be abso!ute!y contident and sin-
cère, 1 mu guiity of rashn~ss on!y.
But, instead uf assumin~ eonitdently tttat thé fenee wi!t
interecpt thé baiï, ot- that no passeo~et- is ttten on thé road, 1
may sunnise that thé assmnption upon winch 1 aet is nut al-
t'~ether just. 1 tidnk that :t pas.-ien~e)' may c)iance to he
there, thougtt 1 think thé presenec of a passcn~er somewhat
improbaMe. Or. thon~It 1 jud~e t)te fcnce a stout and thick
~'n~My, 1 tacitly admit that a bnek walt wouM intercept a
pistol-shot more certain!y. (.ons<'quent!y, 1 i'?<<tK~ thé hurt of
t))e passenger who is actuat!y ]ut and wounded. think of thc
mischief, when 1 wilt the act 1 bcHeve that my missuppusition
M«y bc a nnssupposition; and t, titerefon', betieve there is a
e/<MM<.c that thc ntischief to whif'h advt-tt may foDow my
volition.
Thé proposition of the I!ornan Lawvt-rs is, therefore, false.
The mistake (! hâve no doubt) arose from a confusion of
ideas whidi is not unfreuuent :irom thé confusion of
 ~Kf~fm ntut ~'(!&<TM~ff.of the s~t/K~ of
LfCT. XX ~Kf~fM an inquiry into a tnattcr
offact,
offact,\vtthtItetrMf<M<
Thé state of a man's mind eau ohty bo known by othos
Th<
through his act'} throu~h ttis own dectarations, or through ot!ter
couductr of lus own. L'uusequenUy, it umst ofteu Le. diHteutt tu
detennmu whether a party t«~«M, or whethcr he was merely
Hegligent, heedtcM, or msh. TIie act"; tu which wc tuust resort
as évidence of thé «tate of his tnitt't, !ttay he fo/t~<0!M ittso'
tnuch that thcy lend us to one conclusion as naturatty as to thé
other. Judgm~ from !tis cuuduct, thé n)au may )mvo <K<('M<M,
orhenMy!mve bMMtHi~i~fttt.heedtess.orra.~). Eithcr
hypothesis wouM iit thé appuamuces wluutt are open to our
observation.
Hut the difficulty whicjt belongs to thé f<-<W<i<-c is trans-
ferred to thé .'i«/y<'t'< t<t~ft«- Hecauso we nru unab!e to
deterunne it'/<«~ was thé statu of his miud. wu fancy that thé
.statc ofhis n)iud was itsctf <'<i<~<<fui«/< that it !ay butweot
thé confines of eonsciousness and unconsciousness, without be.
iongiuj~ exactly to either. We forget that ttiesc are auta{;ouist
notions, incapable of Mendia~.
When it was said by the Roman Lawyers, thnt Négli-
gence. HeedtcssnGss, or Hashuess, is équivalent, in certain cases,
to Z'«/<M or Intention,' their meanin~ (I beHeve) was this:–
Jndging from the conduet of the party, it is impossible to
détermine whether he t/~<Mf/< or whether he was ne~ti~ent,
heedtess, or rash. And, such being the case, it shatt be
~t.f«««'~ t!tat he o~x/t' and his iiability shaU he adjusted
aceordin~Iy, /</H'</<;<< ~< /<' gt<t.'i<i'c<t <«'<«' <? <! ttt'tV «c~'c~f. If
thé question had arisen in thé course of a criminal proceeding,
then thé presumption would itave gone in favour of ttte party,
and not against ))in).
Sueh (I think) is thé meaninn wtueh iioated before their
minds: Atthou~h we tnust inierdfwe take tttcir expressions
literatfy) that they believed in thu possibility of a state of nand
lying between consciousness and uuconsciousness.
If 1 attempted to explain thé matter fuiïy, t should enter
upon certaiti distinetif'ns between civil and L'riniittid tiabitity,
and upon thé nature of /~<MXH~<«MMy'o-M or tegal presumptions.
It ia, theKifore, clear to me, that Intention is aiways sepa.
rated trom Ne~!i}jcn<;c, Heedkssness, or Itashncs-s, by a précise
)ine of démarcation. Thé .state of t!n: party'~ mind is atways
<M't~ atthon~)) it may ho dinicutt (judging from his
conduct) to asccrtain thé atate of his mind.
 Befom 1 quit this subjtect, 1 HKty observe that Aa~ intcn- I.
ttOttMfreftHeMttyfttylettMt~M~. Fot'msttmee.Mt mteuti~Mt tftt
manshm~ter M often atyhd r«.< because thé net M not pre- ?-
nteditated, or has not been preeeded by detiberate intention.
'n.
More we can distinguish hasty froMt deiibcnttc intention, we
we
tuust détermine thé nature ot* intentiott fM << M</«t'<«<«)'t' «'
But it M easy to suu that suddeti or hasty iutcutiun is utterly ~y
difterent tforn rnshness. WhfH the act is done, tho party ty
coutetHphtus t!m cotMequMnce, ~thuugh ho bas nut /M'<:Mt<;(/~«<t~
M

t.
the conséquence or thé act.
To résume
It munifest that Ne~Hgcttce, Hec'ttessness, nnd Unshness,
)!; SS,~c);ti-
~c)j
are c!os<;)y aUied. ]~<~ of tite «f/t'o~~tv which ooe's duty
wou!d HatumHy suggest, is the fundamentat or radical idea inm-M.au't
in nm
eac!i of thé comptex notions. But th"u;j;h they are cluscly )<H'ii)M'M.<,
'~Jik~.t
.).,
aUied, or arc modes of thé same notion, they are broadty Hy'Mttthn''tin-
"'t~
distinguished by différences. ~m.th').
In cases of N~ligence, thé party performs not an act t.) to
which he is obliged. He breaks a positive duty.
In cases of Heedie.s.sness or Eashncss, tho party does an act
tCt
from wltich hc is bound to forbear. He breaks a négative duty.
In cases uf Xegti~ence, he adverts uot to the aet, whictt it ia
M
his duty to do.
In cases of Heed!essuess, he adverts not to coM-s'~KOtc' of
the aet which he does.
In cases of Hashness, he adverts to those consequences ot' of
thé act; but, by reason of some assuntption i'-7«'c/t A' t~(?i<:KM
!M
MM«~'ct<;M<~ he eoncludes that those conséquences will not
Mt
foHow the act in thé instance before hitu.
And, since thé notions are so c!oscty aUied, they are (as 'as
mi~ht be expeeted) oftcn confounded. Heediessness is frc- rc-
quently denoted by thé term negh~ence and thé same tenn 'm
bas even been extended to rashness or temerity. But t))e three
'ec
states of mind are neverthciess distinct and, in respect of
dinerences between their conséquences,shou!d be distin~uished. d.
Having tried to analyse intention (where it is eoupted with :th
will), and to setttc the notions of neghgence,heedtessness, and ))d
rashness, 1 will now trouble you with a fcw remarks upon on
certain established terms.
J9«~M dénotes, strictly, ~)«~ –'CaUiditas, fauacia, ma-m-Dotu~.
Dot
chinatio, ad cireumveniendunt, decipiemhun, M!cndum a!terun),
adhibita.'
HettttMMt, t'r. &].
 tmnsfëfeneeof !? meaniRg which ia not vwy exp!
"°" By
eaMc, t a!so signifies <K~~KWf, or t'a~oK~ f<Wt~
eaMc,{ Injm.<t
qua!iscunque .«*<~ mtmissa:Injuria quatu quia ~ct't'/M
quidtsc r

'c<t'/<~< commisit.'
'c<t-/<~«<;
Thé nse of thé tenu <M«s ibr thé purposo of siptiiyiug
Th
M/eK~'w,
M/eK~t't may, ~rh(tpf), be exphuhed t!tus
Fraud importa M<t<~tWt.' For he w)io coutrh'es or machi-
Fr:
notes <!<~f (/<t<~«;/«/«<;t ft~<;<-<</«, pursues a givon purpose. For ~i

want, th~ri'fot'p, of a ntunu which woutd dénote /M<<'«<wM

waut, Il

~tiera!
~tteraMy, thé Homau Lawyurs cxprcssed it (as we!l as t)iey
<;ou!d) by ttie uatm; of a sutaething whic)t uccessM-ily implied it.
It is fm instance of those ~fueraHxatiotM which are su com-
mon iu laH~ua~e uf thé cxtensiott of a terrn ttenotins; a species,
tothej
to thé genus whict) inchtdcs that spccies. [<y. Virtue.]
'</
o

Cutj[)!t. C't<~«
C't~ (whun tu ~«/«~) itnpoyts négligence, heed!oss- t
nuss,ot
nuss, or ttiruet-ity or auy injury conséquent upon any of thèse
'Otttni~ protervitas, temet-itaa, inconsidemutia, desidia, negli-
'OttHtM
geutia, imperitia, quibus ci'<! f~K~t, cui nocittun est.' But
(usedi
(used iiu a hrger sensé), Culpa is equivateut to thé Et~lish
<)'t«~ ft dénotes that thé party itas broken a duty, intention.
a!!y, negUgentIy, Itcediessiy, rash!y. '6~Y<<t'M, ctdpa dicitur
qu:e\'is injuria ita admissa, ut jure imputari possit ejus auctori.'
In order that a given tuischiof n)ay Le <m~«~'<<' to unother,
uecesse est, ut culpa ejus id accident.' Titat is to say, through
his (M/<.M/<6K or through his nc~euce, heed!essness, ortetnerity
(us 1 hâve explained thetn above).
J
6'«~«, titerefore, is somctimes opposed to Z'o/<M; aud it
sotuetimes cmnprises IMus.
Agaiu thé term CM~< is sometimes c~<M<«' to J\<;)!<<M.
îti whic)t case, thèse words hâve a very peculiar meaMius.
C'«/<t M restrieted to </<7~ (stricto sensu). ~<i~<c<;
dénotes breacttes of oMi~ations (s. s.
The injuries donc through C«//M (iu this sensé) '/f«;<'M~o
semper admittantur.'
The injuries donc 'A~eM< (in this sensé) are cominitted li
iaciendo aut non fitciettdo.'
Obti~ation. (.tc<o «-<'?«f«) are positive or négative.
Hère then ~f~M<t'« inelude' Intention, Xc~igeuce (pro-
per!y so caUed), Heedtessness, and Temerity.
Urigiu of this application. j\~<;y'M opposcd to JO<~<'M<M
<e. that care which (ex obh~atione) the ob!iged party~ is often
oMi~ed to employ about the intere.sts of another.
)~tt for n )uù<tiUL-ftt)o))of thi.i<tatetue)tt fitc ;<. 4CS, ~~<. TrMtM" tiaitecs etc.
 1 httve ~rie&dy~Morked upon thé exteusîon ofDolus ta LMT. xx
Intentton genemUy. In thé EngH~h !&w (ht eerhuH easM) we M~.
L<

~¡lilîc",
hâve empbycd thé word Milice for n sitnilar ptu'pose. As
nmliee (~W<-<f ~7!.<«) impttct intention, it hus been extended to
cases in whieh thero io no toatiee. Ao 1 hâve aiready 9hewn, it
doM Mot in this extended sensé dénote thé motive. And it is
tntmifest that thé motive to a criuunfti action nmy lie !andaMe.~
Thé intention of an action su~e~ted by <t UamaMe motive, lawfut.
tt.

A few words for thé purpose of apptying what has b<*Mt said to
tfUo)U!!Md
Uc
the Roman Law. Uuintentionatity, and innocence of intention, jj CtttjKt.
.'Ronmn
j~
seem both to be inoluded in thé caM of M/c~MOf'MSf,wheM therc is 's~w.
neither <MM nor c«~. Unadvisedness coupled with heedlessncss, 's,
and misadvisodness coupled with rashness, correspond to thé c«~« ~<
~'M dolo. Direct intentiouality corresponds to </<<M. Oblique in-n-
tentionality seems hard!y to have been distinguished from direct;
were it to occur, it would probably bo deemed also to correspond to
<MM.M

~((!t< O/~DM/M, <

Dcht~ bonas et matns.–Muhtenbrttch, vot. i. pp. t9t, 332.
Doitts = Voluntas nocendi. ConMqucntty it neither ineludes
<M<~w/, nor ~<«M<K intention.–Muh). 190, 330 Feuerbac)),~
51-2, 58. Rosshirt, 37-9, 43. B':ntham's Princ.
Dolus indeterminatus.–Feuerb.56. Rossh. 39.

Cutptt '= Crimen, DeUctum, Injuria.–Rosshirt,42.

Cutpa = Guitt Dolus et Xegtigcntia (in any of its modifications).
–Feuerb. 78-9. Hossh. 33, 42. ~uh). 32C, 330 et
Cutpa, as opposed to Do!us. Inciudes indirect and hasty intention,
with négligence in aU its modincations.–Feuerb. 51-3, S4-5; 80.
Itossh. 42-3-4. MuhL 330 seq.
Culpa dolo déterminât~Feuerb. 47. RoMh. 39.
Xcgtigentia ob oMigationis vincutum, pnestanda.–Miihi. 333.
Macketdey, ii. 1CO.
Injuria, Dciietunt, Crinten.–MuM. 325-C, 185. Feuerb. 24.
HoMh. 3.
Injuria (generaliter) = OMtoo quod 00~ jure nt.Justinian.
Thé obvious division is into 1', Wrongfu! intention with its
various modifications, 2', Wrongfut inadvertencc with, etc.
Inconsistencics conséquent upon puttittg indirect and sudden
intention into ex~ft, and exc!uding them from (M~–Feuerb. 80.
Rossh. 86.
'rnnci)!i's,'ete. p~. 89, Coo'titiotMftfimputation:
t~-nth:tt)),
ItB, 132, 142. 1. KMwMH' actual or jMsihtc, oo
ItMiuchtdcd tH ctt~f). [A-«)<j'<t, t))eMrtoftheft<'<-H!.<'tt,oft)Mcn)))ina)ity
but without thé t'o/KM<"< t)<~<f'. /'<'aM of )<)'' act or otni~ion
<MKt.t,bntnot<M«A] X<thiM);can)je 2. DejieH'tt.-nMoHhisnwnwithM.of
tunrc an'HMt' thé t'af))t'aran''e or p<'t'tb)HMnct'
/M/'f~«~'ott,/))t~)~«t)7~y,<t))<<Kt~Mo'iirt'Ma~
du'
Lticr.XX
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 LECTURE XXL

j_ tXTEXTtOX tTKTttEft COystDEREb.

TtfE intentions whieh 1 coisidered in my !ast Lecture, are

coupled with présent volitions, and witit posent nets.
The party wishes or wills certain of thé Lodity movements
which immedmtely follow our desires of them Ho cxpccts or
Leiievcs, at thé moment of thé volition, that th" Lodiiy movmnénts
which he wills will certainly and innacditttcty M)uw it and
hc tdso cxpcets or believes, at thé moment ~f thé volition,
ttxtt somc giveu evunt or eventit will certuinly or prouaDy
follow those bodily movemenb.
In other words, Ito preseNt!y M'<7~ somc given act int<;nd-
ing thé aet (as thc cotMequcacc of thé volition), aud mtendinn
some further eveut (as thé conséquence of thc votition and thc
ttCt)
Bnt « ~?'<<!M~ intention to do a /<f?v net, is neithet' coupled
with thé performance of thé act, nor with a présent will to do
it. Thé présent intention is not coupled with thé présent
performance of thc act. l''or the intention, though présent,
regards t)tc future. Xor is it coupted with thé présent «'< to r
do tho act intended. ror to «'< an act is to do thé act,
provided that thé bodity orgM, which is thé instrument of thé i
volition and thé act, be in a Sound f'r heatthy ~tate.
Consequentiy, to do an act with a présent intention, is
wide!y différent from a présent intention to do a future act.
In thé first case, thé act is wHIed and donc. In thé second
case, it is neithur wilted nor donc, although it is intended.

A present intention to do a future act, may (I think) he 1

resotved into thé Miewing eteutenb.
t'irst. The party <M a given object, either as an end, or
1~

as a mean to an end.
Secondty, Ho M«'t-M that thé object is attainaMc through
aets of his own Or (speaking more properly) ])c bdievcs that
acts of his own would givc hi)n a chance of attaining it.
Thirdty, He ~<{o<y hdieves that he .sha)! do aets <?
y'«<«)'< for thé purpose of attami)~ thc object.
A M«; that thé dcsired ob)cet is attainnMe through aets î,
"f our own,' and 'that wc shaU do aets thereafter for the J'
nttaining It,
purpose of flttnlUlIIg
PUlllOSC it,' fll't! neec~nl'Y con.stituents
aff nece~.sary constituent;; of thé JJ,
01 tlie
43~ /A~<~e~
I.Ktï. xXt contp!ex
I.MT.XXt contp!<*x nothMt
MthMt
n~ stytett
which !a sty!ed ? present
présent intention tu
to ddo a
future act.'
future acf.'
Ifthes
If thèse be absent, we simpty désire thé ob{ect.
Untess 1 beUuve that the object be attainable throu~h acts
ofmyowt
of niy own, 1 cattnot pruseutty believo that 1 sha)t do act-s.
her'ttKert'
herettiter tfor thé purpose of attaining thé object. 1 eanuût
that 1 shall try to attain au object, kuowing that tny
believe tha
betieve
attain it are utterly iueBectufJ.
efforts to al
eHorts
Intention supposes thnt thé ubjcct is attainable ttu'ough
Intenti
conduft
conduct of our own. Or (as it is eotnntonly said) that thé
attainmettt of thé object dépends upon our will. And though
Ibelievet)
1 believe tl
ttiat thé object be attainable through acts of my own,
1 &t~ ~Mt't'c
&t~/y a or t<«'e/~ it'M/t t!te objecta uuless 1 ~'<M</y
bcHeve that
bpHeve th: 1 shaU do acts /«!w<t!' for thé purpose of
attainiugit
attainiug it.
For example,
ex if 1 wish for a watch hanging in a watch-
window, but without be!ie\'ing thut t shaH try to take
maker's wi)
Maker's
front the
it from t!)e owuer, 1 am perfectiy clear of M~K~K~ to steal thé
watch, although I aui guilty of cM.'t'<tN~ niy ueighbou.r's goods
watch.aith~
(provided that
(providett t thé wish recur frequently).

r~. ~ofo'
t'tfMmiu-
,lu Il nuuru
The belief 'that thé desired object is attainable through
T!n*Lt
aets of our own,' is necessarily implied in thé belief that we
shaU'Joact
shaU do acts hereafter for thé purpose of attaining it.'
<t..t,t\-
Conseq
Consequently, a present intention to do a future act may
deiined to be 'A present ~«'<' of an object (either as an
be defined
end or a m
eud mcan), coupted with a présent ~/«/ that we shaU do
hereafter for thé purpose of attaining thé object.'
acts hcreat't
It may also )j<: distinguished brie<!y fmm a present votitiou
Itmay
nndintenti'
and intention, in thé foltowing manner
In thé latter case, we presentty will, and presently act,
~t'<)). aCI given conséquence. lit thé former case, we neither
~<'c<!))'/a
presently will
Y nor presently aet, but we ~'t'~<< expect or
believe that we ~/tn// will A'tt«/<j'.

S~
Cunftbiun When'we
When «'a présent act, intending a giveu conséquence,
Inteutiou.
it is frequentiy said that we x-i7/ thé conséquence as well as
theact.'
thé act.' Aud when we intend a future act, it is frequcntly
said'that
said 'that we <rt?/ thé act ~'<«', althou~tt we postpone the
exécution tlto a future time.' In either case, will is confounded
with intention.
When wc intend a future act, it is also common!y said

"y.DmiretnhcKit'K. t{ntn'tKinf<tyOnim;t<'))umMfaccuri!eof
niM !t) a {<rivate 'itntimt (uht<i..) )t'; )'<- undu~'t f'-a~i))!; hi)n to t)< throoe.
a Ma'i)M«) <iU) iht'jtd t'~ Mhi at t)t'-
 that we resolve or détermine to do it or'thatwemakottp
our mmJa to do it/ Frettuoatly, too, a. verM distincHon is
tttken between a strong and a weak intention that is to say,
between a strong or a weak belief that we shaU do thé net ilr
future. Where thé betief H atrong, we are more apt te say
that we tK<<:K~ thé aet.' Where thé belief is weak, we are
moro apt to say that we MM't'e we shaiï do it.'
Sueh beiog the fornM of langage, it is somcwhat di(Hcult
to admit, at Srst heariag, 'that a présent ot<M<<M)t to do a
future net is nothing but a présent M«/ that we shall do an
aet in future.' But that nothing but this really passes in thé
tnind any nmn may convince hhnself by examining thé state of
his mind wtten ho intend:) a future act.
When we speak of M'<M<Ky a future act, we are not speakiug
of our intention to do the future act, but of our wish for thé
object which we believe may bo attained through thé net. Or,
rather, our wish for thé object, and our intention of resorting to
t!te mean, are blended and confounded. And as every volition
is a désire, and is also coupled with an intention, thé compound
of désire and intention is naturaiïy styled a volition, although
it is impossible (from thé nature of thé case) that we M?t will
an act of which we defer thé exécution.
When we say that we have resolverl or detennined on an
aet,' or that we have made up our minds to do an aet,' wc
merely mean this: 'that we have examined thé object of
thé désire, and have considered thé means of attainin~ it, and
that, since we think thé object worthy of pursuit, we believe
we shall resort to the means which will give us a chance of
getting it.'
Here also, thé desire of thé object is confounded with thé
~M/' which properly constitutes thé intention. Every genuine
volition being a desire, and every genuine volition being
coupled with an intention, we naturaHy extend thé terms which
are proper to 'I:olitiolls to cvery desire whieh is combined with
an intention.
It is clear that such expressions as determining,' resoh'.
ing,' making up one's mind,' can onty appty in strictncss to
'vohtions': that is to say, to those désires which are instantty
Mtowed by thcir objects, and by which it may be said that we
are coMt~MM, from thé moment at which we conçoive them.
Hc who wills necessarily acts as hc wills, and cannot will (with
cneet) that ho will retract or recaU thé volition. Ho bas
~<<tTM«)e<~ he lias n.~t'MJ' He bas made up his mind.'
 t.Kff.xxt H& M t'm~~
M<l" by h!s cnhr \'oHtion. He cannot MM-wiM that
wh!ch hctmswitted.
which h
Hnt when such expressions M 'resotving' an<! 'determining*are
Hut
apptmd~
applied to a prêtent intention tu do H future aet, they simpjy dénote
thittwu
that we désire th&f)!tje<tt <'<~<«~,and that \v& beHevo (wit!t cor-
respondittg eonndenw) we sitaM resort to means of attainh)~ it.
n.'spondi
And
And thii! pct-tcctiy uceotd.s with comtHOU appttihensiutt,
atthaug) it may sound (at fit'st tteanM~) as if it wet-e a pamdux.
atthaugtt
For, L-M-y
c\'e t'/f/tM/twt (or every so-styled w<7<), which t'e~ai'ds thc
future, i!is (f)/<</A;~y or <-f<-M-«Mt'. That is to say, tho présent
t/N!<'of
t/'Ai/'c of the object !nay cease hereafter and thé présent M«/
thatwe
that we shaU re.surt to titu tHeana of attaining it, will, of course,
cfasc with the wish for it. We caunot MMM that we shaH
ccasew
tt'ytog<
try to get that, for which wc /'?«)«' that we caro uot.
t«t.-)i.)ij~ It)'iis~ c!ear tliat we toay present!y intend a future forbear-
It
~r'
!'ttt(U~'
ance as well as a future
""cens
We tnay eittter désire an object incoasistent witli thé aet
Cu bo {brborue,
co {
we tnay positivety dislike thé probable

tr-j'ensemences
'onse~ue of thé net. In thé first case, wc may presently
betieve that we shall forbear from thé act hereafter, in order
tliat we may attain thé object which we wish or désire. In
thé latter case, we tnay presently be!ie\'e that we shaH forbear
t'roni thé net hereafter, in order that we may avoid thé
con-
séquences front which we arc «verse.
[Ft'c~ présent ./M'w<t<tc< from a given aet, is not preceded
or accompanied by a présent r~t/«/M to do another act.
It tnay bc preceded or aecompanied by incre inaction c.
t~<
1 may lie perfectiy still, not to rise.
Dut, still, it is geueralty true, that every présent forbear.
ance <-< preceded or aceompanied by a volition. In our wakin~
hours, our Hves are a séries (neady unbroken) of volitions and
aets. And, when we forbear, we connnonty do a somethin~
ineonsistent wittt t)t0 aet forborne, and whic)t we are conscious is
inconsistent with it.]
Where a tbrbeamnee is preceded or accomptmied by inaction,
thé desire !cading to thé forbearatiee is not to be compared tu a
votition. The i'orbearance is not like thé act, thé direct and
appropriateobjeetoftitewish.
AU that can be said (in generals) of intentions to act in
future, may be applied (with st~ht modifications) to intentions
to/M'&tw in future. I confine myseh'to intentions to «'< in
future, in order that ]ny expre'-sions nmy be !e3s complex, and,
t'y conséquence, more inteiH~iMe.
 When we uttend a ~tturo net, we also intend certain qf its 1
cottseqwaces. lu other word.~ we Miove that certain couse- 'C- r
AMttt~ °

quences wiU follow that future net, wtuch we presently beiieve\'e<LmM t

wu shaU hereafter will. This is

necessarity implied in every *y ~tMKt.'of
intention of thé sort. For onr présent wish or désire of some
ilb
probab!o conséquence of thé act,. is our reason for believin~
~M'M<~ that we s)mH do tho act w /'<<«?'<.
But we may also inteud or expect that thé net )uny )'e s.?)'.
Mlûwed by conséquences, which we do not dcsire, or ftom
which wo are averse. For exarnpiM 1 tnay intend to shoot ftt at
i..
~htttttetn.t,
t

nud kill you, so soou :)s I eau 8nd nu oppûrtuuity. Hat know- W-
ing that you are always ftecompanied by ft'ifnd.~ or othcr totu. m-
panions, 1 beliove that 1 may kill or wound ouc of thèse in my "y~`
intended attempt to kill you.
Hère, tho object which 1 wish or desire is your dcath. i1
intencl thé act, or I believo that I N/t«~ will it, because 1 désire iro
your death. But 1 also bctieve that thé act will be fottowcd ed
by a conséquence from w))ic)t 1 am averse :–by a conscquen'e ?0r'
which is not thé ~PMK~ of my present intention, although 1
intend in </ <<. 1 intend a future act. 1 intend a consé- M-
quence which 1 desire. And 1 also intend a conséquence from Htt
whieh 1 am averse.
Thé exécution of every intention to do a future act, M i.-i Intf-ntmn!!
)
necessarily pœtponed to a future time.
or
Every intention to do a future act, is also revocabte fj)'.tr':<;t-rttin
ambulatory. That is to say, Hcforc thé intention be canied ~'tain;
into execution, thé désire which is thé ground of thé intention OU
may cease or be extinguished, or, ntthou~h it continue, may be
outweighed by inconsistent desires.
But thou~h thé exécution of thé intention be ahvays con- 'n-
tingent, thé intention itseU' )nay he certain or uncertain. 1 nmy"y
re~itl thé intended act as one wjtich 1 shaU ccHaitdy will; M' or
1 mny regard it as one winch 1 shaU will, on thé hap~nin'~ of
a given contingency. ïn cither case, 1 may either intendt~<.m:ttU!t KAm
a
precise and deiinite act, or i may meroty intend some act for 'ru)..ti-
thé purpose of attaining my object.
For example 1 may intend to kill you by .~<< ut n
given ~«co and <<M«'. Or (thou~h 1 intend to kill you) 1 may ~ty
neither hâve dctemnned thé <««</<- by whicft I shall attain my !))V
object, nor the ~«i' or ~/<'<'f for execuung thé mur'terou.-i de.<ign.
S".
In cases of thé first e!ass, thé intention, design, or purpose, is
settled, detemnnatc, or matured. ïn ea.ses of thé tatter class, it
is unsettled, indetenninate, or undigestcd.
 /A~~HM~<
44°
TtM~VYt[
Ï.M-F.XXt
iceMt.
?««, or
It -~t .f-A~tt..
Tt not t.
anfMqaentïy nappona,tt.-<
that a <i
longant! comp!ex aenes
of acts and means M a nocessary condition to thé attaùttttent: of
0~
thé desired object (sttpposing it can bo attained). To détermine
«Mttpaat- these meails, or to deliberate on thé choice of them, is commonly
iH);. Mt
styled
st 'a compassing of tho desired object.' Or, when thé
iu
intended means are thus compticated,thé intention is frequently
styled
st. f~M'/tttM. Either of thé terms dénotes the délibération
or pondering, which necessarily attends the intention before it
Ot
becomes précise.
b(
Such (I think) are thé proper meanings of coM~a~t~ and
c<M~<7('«M.
co Whore the inteuded means are few and simple,
there
t:! is no necessity for that long and laborious délibération,
which
w seems to give to thé intention (in the cases in question)
the nfnnes of compassing' or consilium.
th
It must, however, be confessed, that the terms are frequently
applied
~t loosely. In the tanguage of thé Eng!ish Law, you would
M~tjM~ and imagine thé death of the
M although you in-
tended
te to slay him by thé shortest and simptost means. For
in
instance, by shooting him with a rifle in a théâtre. And, in
various
vaF1
booka, 1 have seen the word consi!m)n used for pro-
positmn
pc or intention.
It is only by thé <'<MM~N<y of thé means, that a compassing
or <'oM!7<«m is distinguished from another intention. In a!I
other respects, the two states of mind are exactly alike. Tttere
ot
is a present desire of a given object, with a belief that we shall
resort to means (precise or indetenninate) for thé acccomplish-
re
ment
m~ of the desire.
At.
1

pull
j It frequently happens that the desired object is not accom-
tempt.< ptished by the intended act. For example, 1 point a gun, and
pu thé trigger, intending to shoot you. But thé gun misses
tirr or thé shot misses its mark. In this case, thé act is styled
tire,
an «<~M~ an attempt to accomplish the desired object. It
also frequently happens, that several acts must be donc in
succession before the desired object can bc accomplished. And
thé doing any of thé acts which précède thé last, is aiso an
««t'M~< to accomplis!) thé desired object, or is mther an en-
deavour ~«f< thé accomplishment of tite object. For example
to buy poison for tho purpose of killing another, or to provide
anns for thé purpose of attacking thé king, are attempts or
endeavMtrs towar<.ls murder or treason. Attempts are cvidence
Detictum consummatum. Cottatu.f bringuttg eines YertjreeheM :MM J?(t<eA'<:
<)etin<)MM(ti.' ConsammateCrimM and Aa/, ohtte fton hMweekteo verbrechtr.
Cntttitmt AttemptA–~M~hM~,)).4t. xehett ThftthMttndwirktieh zu mâche)),
'Kine Handtuxg, welche die Hervor' ht eix V<:nuch.eMAtf<,p. S5.
of tha party'a intention
mthaEagIishL<nv,'M'~<M'
and, considered in tliat are styled 1

W)tere a crimina! intention is evidenced by an attempt, thé

party is punished in respect of thé erimina! intention. Some-
timea he is puniched as s~verety aa if he had accompUstted t!~
ob)eet. But more commonty, with less severity.
Why thé party should bo punished in respect of a mère
intention, 1 will try to exp!ain hereafter.
The reason for requiring an attempt, is probably thé danger
uf admitting a mere confession.~ When coupled with an overt
act, thé confession M Hlustrated and supportcd by the latter.
When not, it may proceed from insanity, or may be invcnted by
the witness tu it.
I hâve considered thé import of thé term '7<)<<:K<M!< in
order that 1 might etucidate the général nature of Injuries and
Political Sanctions.
But thé word intention is often employed, without référence ence
to wrongs. We speak of thé intention of thé iegislator,
passing a law of thé intention of testators of thé intention
r,in!HttMiot)
in t
'tatw.ete.
of Í mof~ °

parties to contmcts, and so on. In each of these cases,.thé the

notion significd by thé tenu Intention may be reduced to one
of thé notions whieh 1 have ah'eady endeavoured to explain
namety, a present volition aud net, with thé expectation of a
conséquence or a présent belief, on thé part of thé person iu
question, that he will do an act in future.
When we speak of thé intention of thé legislator, we either
advert to thé put~ose with which he made thé !aw; or we
advert to thé sensé which he annexed to his own expressions,
and in which he wished and expected that others would under-
stand them.
If we advert to thé purpose with which he made thé law,
we mean that lie wi!!ed and performed a given act, <~p<'<'<tK~ a
given conséquence. In orcter that he might attain thé purpose,
he made and puMished thé taw. And when lie made and pro-
mutged it, he !'M/<'Mf/f</ thé purpose: that is to say, he f.~<;<< or
Mtct'f~ that thé purpose whieh tnoved him to make and promulge
it, wou)d follow thé making and promulgation fM n coM'~KfMef.
If we advert to thé sense which he attached to his own
expressions, we also mean that he willed and performed an act,
t vcnture tu think, in accarthnce ).< an aet M'ittexced by (he ('?)'< <K~
'tith <«)' remtttkt itt thf Moh* on p. <t4 K. C.
'<M<< thftt thé ratM of this ))Unii!hm<'))t Exempteof nMn panMht't for con-
is iiiort
ia )norf s)Mt])tc,
HÎlII)I)e, 1111') that titt-
)Mt<t tliat fo<m7<MM or
thc fO/f.yllilll,1 or ft'Mcd
lÏ'sscd intention (wit)tMt
intclltion (\\ithout overt
ovcrt act) to
con-
f<~<<a<fc for which the jxtrty is paobhed kill Henry IH. tf r'mn<t.
 fM~t~~t~ ~t ~t~t~~t~ tt~t~~ttt
XXt <~<T~Ky
LfMT.XXt <~ conseqtMuce. We tnean that !M Used expïessKms
`--Y- <t
wit a, ceïtam settse,f~'cKi'M/ thttt thosc tu whom ba ttddres~ett
with
t!t6!n
t!n* \vou!d t'ecc!ve thon io thu samo sen~.
The intentioa of thc testator t't'gards the purpose of the pro-
vision, or the sensé whieh h~ attttchfd tu his words. In eithf!'
case, wu mette: by 'his ittteation,' thitt he did (t ocrtttitt net
expecting a certain conséquence That he htade t!te pt-ovision,
exp<'cting thé purpose w')utd Mtow it; m' that he used his
words with a certain semé, <~<t~ thut uthût's wouM uudef-
stand t!te!n iH thé same sensé. W))en we say, thnt
ttie will or
intention of thé testator is funbutatory,' we mean that ho may
will and intend anew.'
Wtten we spoak of thé <'K/K/<w of contmcting parties, we
meau thé intention of thé protnisor, or thé intention of the
promisee.~ If we mean the intention of thé promisor, we nteaM
his intention as it regards thé ~«««'.j
of his promise, or we
mean his intention as it Kgarda tite natUM or extent of it. In
thé first case, we tueau
mean that heho intends (when lie makes thé

f)f Mther,
Or mt)n't' thé
H!<* .'M'use M-)n.'). it it
m.nm. in whieh s
!<t
to be inferre') from thé wordf UM<t, orrbothtmrti~.
b
t. tt.t.<
Thetrm'mlehtheunderstamtiugff
t').~ ~.)r. “<'
ThfVMrynsoufPaky's
from thé tr!t)).saction, or from both, thattmh'show.sth<ttite))))jMn-!<both.
n lu
thé one tarty gave and the other )'< tlthé ex:tt)t;')c, i'fth'y stcm.-t to confouttd
ceived it. Patey' rute \t'auh[ tt-itd to tl sens'; whieh thé prutniMr, tncoMtmott
thé
tht! that a mistaken Hp))r''htfHion ofo with M ail, tHtMt hav<; put on hif) t'Mmtse,
thé appréhension in n'htch thé jtMtniw e with
rer<;ive(t, woHM exonerate thé ptomiMr. it
This wouM be to duept)oit)t thé pmni.«!t'.
it. \1 hM secret intentiou of bn;e):iM~

(See tnfxtion,' ff-KanItH~ future. 1

If thé ttpprehen.tMn of tho protMi.iee (U~ ThemtMt'ofthej~uttti.'ie.f't-.themean-
not extend to .'m mueh as thé pn')ni'mrr in}{ h whtch each jKutv :t)<~)-<;h<ud!! that
a]tprehf-tKt.s that it t)i'), it is tnn- thtHt th':
tl wnn)s ar tran~cttun «tust tteoote, !<
thé promixor i!' uot surpMed )<y a mor'; a totitth'ttitrt-ront thin~ trexi th<: )')~<M-
oueMUt uhti~tion thaM he ex~'cted <<t'tt << with whMt it is xm't' Th'- one Me'i,
hut then there M oo MMOM for K'vi"K K atfd he i:no~ he utes, words of Mich an
thé prutttMee ttft advtmttt~e which he didIl ifnj~rt
i) thé oth<r hear< won)!' which he
not exp'ct pitin of toM heit)~ greaterr hnowsh to be of thé .'Mune hnjMft; from
thait thé tnere ptea~ure of j~tin whichh tht-M;
tl wont)! ensuc aH ohtigation. thf
this ath'antagf: wont't ))e: there heint;.'.<'xtctttofwhich''<tehh)fow.'),aKtt<h'-
<
bv thé f<t)ppositioo, t)o expectatioM nndi coMptUsorv jKit-funnance of whieh ot <ef-
theffore no en~grutentin cou~uexce. <;< mMtttM wottht uot di.')ap)mi)tt tha cx))m;ta-
If, on the other hand, thé prontuorun- titiooitfjf th'* j~rtit;!), whatever )uig))t )«-
<terr!es thé expeetatiou of thé pro:ni<<-ee thcir
tl intenttonft.
he di.appointf< au expectation.

\h<r': thé tcnns of a protni<e t~hfth satMty..tfM<'hh:Mt.<ttthcf)(-n),oit)

<)f)uortt5<n.tthat)M~t)if-)'r"ntim-)..) w)ti''hthe)'n)n))sn'a':tM))y)'<:c<'ive')th<*
tu))epf'rhnncd"it)t)mtj:t)M''whi<;h j))nMfi-fur,'n:(-(M<tingtothMtn))f,y')n
tht'prutnistjrftpj)rt'hem)''d.att)]<!time !night)<t)ntWt)int')<'t)};!)(;<:ti)entf)ynu
t))!)tthc)'r'~niA'r<:<;(;iv<-<)it." never')'<i)ftM'ttoun<)<!rMkt'. ttmu'it
't).httntthc)ie<M(-inwhi'')t<))'-)'r')- th''r''ff)r''t'<'th')''tt-:<'(fo)'thfr(!bn<'
mi.<"r actuitHy intm'h-d it, that !thmy'< '~tt'-rn.'toninin~tittwhi'-hth'i~rotnimr
~m-enni ttfe ioter~rctatMt 'jf ft)t<~uiv~- )!<-tM'Mtt)mtt))'*jtr'tmi.<f'fa.<;<h'(th)s
«t))'fomi«';h<'<ttn!if',atthatr:!t'ynM protttM'y, J/i~(t/f;;K< ~o~<. /'A<7o.
mi~ht excite t'xpe<tatio)t't which ynn <"j)/V).t).i.e))f);r.
M':ver)n<t)tt,t)''rwu))!d))e«U)j;ett.to
proniisu) to <!o or forbtiar ni future. In the second case, we
<~y/<'<'<~<y that thé
Mteatt tht~ he tnttkes ? ecftttm ptwtniac, tf
ptomisee will tUid~rstand it itt a certain sensé. In thé first St
case, wc mcaa that he beHeves he shait do or forbear in futur'
ln the second case, wo menn that he does a present «et, expect- t-
ing a s*v~ conse~uenee.
If wu f
ntean tim intention of thé prMnisce, we n~'tm that h''
accepta thé promise, undcrstnnding )t in a certain sensé, an')
expuctin~ a. future c(mii<:queoc&: hamety, that tho pronusor \viU
.n
ptirform it.
He dues K présent act, expeeting a given conséquence.

LHCTUHE XXÏI.

UUTY, !XJ!J<Y, AXt) SAXCTMX.

1 HAVE endcttvmtrett to analyse end tf~ fix tha tneanin~s ftf thé
? t.K'
fo!)owit)g re!ated expressions:Votive,' 'WiH,' 'Intention,'
Négligence,' Hecdtessness,' Rashness.'
1 now proeeed to thé essentiats of Injury and Sanction, and
of that Conpulsion or Hestraint whieit is imported by Duty "r 'r
Obligation,
Every !egat duty (M'hether it be relative or aLsotutc, '~r ~)nty.
whether it be o~tct'«M! or ~a<~) is a duty to do, or t'orbear n'
from, an act or acts, and is imposed by a Command (express o) ))'
tacit)of thé pcrson or hody which is ~/i'ei''<<t in a ~iven .society.
As every injury or wron~ is a breach or violation of duty. ititthjury
supposes that an act enjoined is not donc, or that an act for- )'-
bidden M done.
A party !yin~ under a duty, or upon w]tont a duty i.< in-
eutnbent, ia liable to evil or ino'nvenience (to be intiieted by y
sovereign autttority), in case he viotate thé duty, or disohey thé
K*
comntand which imposes it. The evil to be ineurred by thé
party in case he disobey t!)e connuand, e)t/<c'.t compliance wit.it
i.
thé command, or secures thé fuHihnent of thé duty. In uther
words, it inclines thé party to oLey thé connnand, "r to fnltil
thé duty or oUigation which thé cotntuand imposes u]ion him.
Hy reason of his tiabiiity or obnoxiousne.~s to thé f'vexumt or
conditional evH.there isat-~Mn thathewit! M"/ di-bey: A
chance which is greater or less (fot'ei~n considérations- a])art), as
thé evil itself, and thé chance of incurrin~ it by disobedience.
 M9ggreator or Ïess. Thé ovoutual or eonditional ovit to which
J~L thé:party ia obnoxioH~is styled a'Mt;' or thé Law or
are.
Xxll the
thé
(!

1
uthet Command is said. to be stMc~wtc~ hy thé evû.
other
OM:
tion b ub.
nnxioue·
..OXiotM-
~t~
~j;
'To be obliged to do or forbear,' or'to lie under a <<<~ or
oM~'pM to do or forbear,' is to be liable or obnoxious to a
M~ sanction,
sanet in thé event of disobeying a command. In other
8Meti. v,
~j
wurds, 'to lie under au obligation to do or furbcM,' is to bu
liable to an ovil from thé author of thé commnnd, iu thé event
disobedience.
ot'dK
ot'
Thé party is !'('KM<~ or «M<~ to do or forbear, because he is
obnoxious
obno} to the evil, and because lie fears thé evil. To borrow
thect
thé eurrent, though not very accutate expressions,ho M cM~t'~e~
by his
M fear of thé evil to do thé act which is enjoined, or is
~M
~~Mt'M~ by ]tis fear of thé ovil from doing thé act which if)
forbidden.
forbid (

Sanction thi<:TTIie di~erence between Sanction and Obligation is simply

KndOMig!).
tiou.tistÏM-t'
gUMhtd. Sanction is evil, incurred or to be incurred, by disobedience
to eommand.
toeot
0Obligation is liability to that evil, in thé event of disobed-
ieme.
ience.
Obligation 0Obligation regards thé future. An obligation to a past act,
regards the
future, or m'"1 obligation to a past forbearance, is a contradiction in
tems.
terms.
If thé party has acted or forborne agreeably to thé command,
hos fulfilled the obligation wholly or in part, and thé obliga-
heho!
he
tion has whoUy or in part ended or ceased in respect of that act
or forbearanee. f
And liere there is a certain difference between positive and
negative duties. The end or scope of positive duties, and of thé
.«M) M ~MfMMtM which correspond to them, is thé performance
of that to which the party obliged by thé duty is bound. But
thé scope or purpose of négative duties, and of thé rights with
which they correlate, is not the observance of thé office or
obligation although that observance is a necessary condition to
thé enjoyment or exercise of thé right. A positive obligation,
thercfore, is determined by futnhnent but an otnce or négative
obligation is not determined by fulfilment, but by an event
extmneous to thé duty, namely, thé extinguishment of thé right
with which it correlates, or of a right which it regards or con-
cems. The performance of a positive duty extinguishes both
the duty and the eorresponding right a négative duty is never
extinguished by fuUHment, though if t!te right be extingaished
by another cause, thé duty. ceases. ThM d!f!et'eMe between
poattive Mut ttëgatîve (httie9,haa beeu erroneousIysHppoiied
!)e a dineronœ between pMces and obligations~ a. confusion of
to
idc«s pregnant with important misconcepttons, and whieh
obscntes thé differcnce between offices and obtigations, between
y«~'<~ in <'M~ and ~'M!'(t t<t yetwMHM,
If, on thé other hand, thé party bas disobeyed thé command
by action, forbeal'ance or omission, lie bas actually incutfpd the
sanctiun, or is actually liable to thé application of thé sanction.
And, in respect of the fc'rbearance which lie has Me< observed, or
iu respect of thé act which lie bas forborne or omitted, thé dutyY
or obligation to which thé sanction was annexed, has (as before),
wholly or in part, ended or ceased. The sanction which has
attached upon him may consist of a new obligation, but that
obligation to which thé sanction was appended, has (whuUy or
in part) determined.
It is not unfrequently said 'that Sanctions operate upon s
thé !7/ and that men are obliged to do or forbear thi'oug!i jOpemte
°
u;m)tt)te
their «'?.' d
It were more correct to say that Sanctions operate upont
thé AwM,' and that tnen are oMiged to do or forbear through!i
their f/fWM.'
Stated plainly and precisely, the fact is this: Thé party
obliged is averse from thé conditional evil, w!iich lie may chance
to incur in case he break thé obligation In other w'~ts, he
wishes or desires to avoid it. But, in order tbat he may avoid
the evil, or tnay avoid thé chance of incurring it, he must futn!
thc oMigation: He must do <A<!< which thé Law enjoins, or
must forbear from </<«< which thé I~aw prohibits.
That every sanction opérâtes upon thé (~w.<! of thé obliged,
is truc. For he is neeessarily averse from thé evil with which
!te is threatened by thé Law, fM ho is neeessurHy averse from
every ovil wttatsoever.
That every sanction opérâtes upon thé M'i7/ of thé obliged, is
not truc. If thé duty be ~~n'e, and if he fu!nt thé duty out
of regard to thé sanction, it may be said with propriety that thé
sanction opérâtes upon his «'t7/. For his désire of aveiding thé
evil which impends from thé Law, mnkes him f/f, and, therefore,
i<*<7/, thé act which is thé object of the command and thé duty.
But if thé duty be M'a/K<, and if futnt the duty out of
he
regard to thé sanction, it can scarcety bc said with propriety
tbat thé sanction opérâtes upon his <t7/. His Jcsirp of avoiding
thé evil which intponda from thé Law, makes him forbear from
~6
446 /~p~ ~W~<w~ ~y~
Lt:tT.
L).-rr. thé wtndt ttm
t aet wtuctt
tttf) Ltw prohîbits.
ttn) Lttw M'ohîbits. Bttt. titough he tK<
B~t, tiMUsh thé ~M~
XXH jbrbp~rance, ho doës nat mM th& forhesnmef. He etther wiU;)
j!

(ta a<.t which i& ineunsistont with t!M net futhomc, or he rcmmus
in a state of inaction w!uch e'~uaUy excludes it. In the forme!*
case, h& does n~ will thé j~Mmtw. In the latter case, he
wiUs /f~/<t/
If, then, thé party fultil his duty, and if he fulfil his dnty
out of rc~rd to t)to 'iuncttun, the fact, prccisety state't, is this
Hc is ~tmxiotM to evil t't'Mn thé ï~w, iu ensn ho violât~ hiii
duty. This coudiUonal cvit, Hke MV~ry possiUe evit, hc nncfs-
~ri!y wishes to itvf'id. And, m order that he )nay n\'«!d tttc
evit with whtch hc thrMtencd by thé Law, he wills thé act, or
<<t~.< the forbMn'Miee, whieh the Author of thé Lnw eouunnnds.
A~tiu Every sattotion opcmte~ up<m the (A'<'M of tl~e
obti~ud, «M~x~/t /«' <'M~< ~f ~K~.
It' tte (~ an aet which thé Law forbids, or if he.<'&<Y«'/<'oM
.m i)c[ whicli the Lnw enjoins, he desiKS to avoid thé evil with
which he is threatened by thé Lttw, a~huu~h that désire ba
master~t and suppresaed hy a eoMinctit~ aud strouger d~irc.
And, if he c'M<< an aet winch thé I~w enjuins, he /<f<M<K«/~
desires to avuid thé condition))! evit, atthou~h, at thé moment of
the ottn~iun, he forets the snnctir'n and thé duty.
Hnt, t<<Kt </(f oM~ ~MWy ~/«<M /<M ~M<y, it is tnanifest
[hat the sanction dues not oj'emte upon hi.s f<7/, atthou~h it
affects his <<A If he do an act which the I~w forbids, he
wiUs an act in spite of thé sanction. If he viotatc his duty by
forhearance or onn."sio)), !)e does Mo< )p!~ an aet which ti)e Law

tu t;w/< hi)n <

''njoins, and wttieh it is thé scope and purpose of thé sanction

It is, therefore, not true, or is not true nniversaUy, that

Sanction opérâtes npon thé w:/< of thé oMiged or that thé
pfu'ty is obti~ed throu~h his <ct7/ Hut it is true, aud is true
nniver~Uy, tha.t Stmction opérâtes upon the ~t'f.t of the
obli'~ed.' or that the party is obti~ed through Jus f~t)'
For to afnrm </t«~ is !nere!y to aumn </<M That thé party
is nec<n'ily averse frotn every evii and necessarity wiahes tu
:t\'oid t))e evil by which thé connaand is sanctioned.'
:t\'t)h <

AttuMi~ 1 -aid, in a former Lecture, that an obligation to «'M is

ti~to~jimpo~sible. Wi)y 1 said so, 1 am somewhat at a !oss tu see.
< jIU~N
!t'~tnn).o<.
~i T)if ;.M<!t){'' '<L-rn:d to, ')''t Mt)}; tin&oftt.~C7n'~t',am!nt)Mttmt:W'
r'xttaittt-d
!tUta ih ti)'' )<tnr<*it ft hn<~r)y '«tthnt, <)!t)<in~ t«r)-<'t)y, )'): «)))i~<-<t to
t.ttt.tt
j!)t)')i<)~"). hav'- nf)< r.-<t"re't in its wit), th"U!th w<: itr': «Ui); t)"'ou!:)'
t.ta. j:m 1 tin') th~t :)' .f.-S.M.tMtcs will. Xcithfr'~M w< ~trirt)yfi[<tktt),{,
ith!t~ tlie -utenr. ctntit<)j't tht'M't ))<; oUi~'t tf) ~Htt~r.K. C.
t'or it ts qmte certfttn, tuât thé propostttou M }~'ossty taise, and
is Mot conaisteat wittuny own <Mtber&te &punMt. -i
WeMM ob!iged will, wheneverour doties are ~M7)'M:
that is to say, whenever we are obH~ed to aet. The Law ttireatens
ua with thé sanction, in 'M'der that we may <ft'~ tmd in order
that. wu tnay act, wu taust icill. This, it is tmmiiest, is thé
ine~ningofthe proposition 'titatwe are buund tu act </«'M~/tu«t'
"7/&* Thé furcn of thé ob}i~:<tionlies in uur << of u\'oi')i))g thc
threatencd evit. But, in or~ur dmt wc nmy avoid that Mit Ly
perfonniug thé oUigation, wo «t'M thé act whieh is commandcd.
And this is truc. Fur «c~ <tMf< (-</<M'~«Ht'<.<: are the
f~ects of positive dutiM, aud e\'ery voHtion is ibitowed hyt)te
:Mt which M wiUed, if thé appropriate hf)di!y or~n he sound or
healthy. Pet'haps, 1 eoufouuded </<.«/'< (as contradistio~ui~hed
i'rotn votitions) with those pecutiar desires whieh are styled
voiitions.' Or, periiaps, 1 iutended to amrm tiiat we eannot be
obti~ed to ~«' in thé seH.so wLoMin << is Hppo."ed to «'?.
Ami tins is atso true.
And hcre 1 tuay rcmat.'k that wu cannot Le obli~cd tu désire
or not to désire i'.c. to désire </t«< which thé J<aw enjoins, or
/<o< to désire that which thé Laws forbids For ajthou~h we
</M! to avoid the sanction, we are not ~t~r Hverse front that
which thé Ltw forbids, nor do we therefore inctine to that which
thé Law enjoins.
In spite uf our aversion fmnt thc evil with which we are
monaced by thé Law, we rnay still désire that which thé Law
forbids, or mny désire to cvadt' that which thé Law exacts:
Atthough our necessary désire of avoiding thé sanction, may be
stronger than thé opposite désire which urges us to a brcach of
our duty. T])e désire of avoidin~ thé sanction nmy <-oM~'o< thc
opposite désire, but eannot supplant or destroy it. Or, if it can
destroy it, it ean on!y destroy it in thé obiique or indirect manuer
to whieh 1 shaïï a(!vert immediatcly.
It is equalty tnanifeiit, that we are not 'Mt/y<</ to our désire
of avoiding thé sanction. We are not ~«~ or obH~ed to
entertain thé désire but wo are bound or obii~ed, t"M<f weare
tin'eatened wit!t t)te evil, and &«fM.s' we inevitab!y désire to
«fMW thé evil. ~Ve are not obiiged to entertain thé désire, but
we arc oMigcd ~<««.<. we cntertain it.
When we désire that which thé Law fot-bids, or whett wc are
averse fron) thnt which thé Law enjoins, wc observe our duty
(supposing wc do observo it) our aversion front thé
sanction tops thé eontticting wi:ih.
448 ~M~M~MM<M~~M~
t'Mf. în thèse,
Ïn theae, and in shnitftr
shnitar cttseat.it
fttseat.it is not
not; ntmstttt!
nnnstta! to suppose
suppo a
J~L co~
LHCT.

<~ hetwoen destto a~ will. Bee&use wa M'<K tt somMthiHg

tt'o
ft'om which we are Mt'n-~ it is imagined that we will f<«t«.~ our
desires. Thé truth, howevor, is, that thero is nu eonnict ~MWtt
des
<~
<~M-<: aM<~ ?!«, tdthottgh there M a eouttict between ineonsisteut
desires.
des r

1 wish to forbear from that which thé Law eNJoini!, or I wistt

to<do
to i that which thé Law prohibits. J!ut 1 also wish to avoid 1

the evil with which 1 attt thu~aed by thé I<aw. Aud as my

W)S of avoiding this evil is stfouger than thé opposite wish, f
wish
wH that which thé Law enjoins, or I forbear ft'otn that whieh
will
thé Law forbids. 1 do not will or forbear <~au<~ ?M~ </t'st?'<
but 1 will or forbear in compliance with a stMager désire, instead f
ufj
uf 1ibrbeariug or willing m compliance with a wcakcr desire.
It is truly astoRistting that this obvious solution of thé c
diŒeulty eseaped thé pénétration of Mr. Locke. It is of no
JiH
smaU
SUM importance that thé difnculty should be ctear!y conceived,
and the solution distinct!y apprehended. For 1 betieve that the
Mlysterious jargon about tbo nature of thé will bas arisen en-
Hiy!
tirely from this purely verbal puzzle.
tire
If we suppose that thé WiU can control thé Désires, or that
rnan can will ~<t~< Ins desires, we must suppose tliat will and
ma!
des are utterly distinct and disparate we cannot, cousistently
desire
with such a supposition, admit that voûtions are a class of
wit
desires, aud are merely distinguished from other desires by a
des <
certain specinc différence namety, that they are foUowed hn-
cer<
mediately
me' or without thé intervention of means, by their direct
or appropriate
or! t objects.
t:)r<-ctof 1 have said that we cannot be obtiged ««< to désire that
.btij~tMn thé désire of avoiding thé sanction tnay M<M<t~' or t't<M< but
UX.-XttH-
mishiMj; cannot
can extinguish a desire which urges to a breac)t of duty.
<ieMre.<
whi~hHr~-
But this, though truc in thé main, must lie takon with an
totbM.h~ important qualification.
ofduty. The desire of avoiding thé sanction cannot destroy <7m'< )
thé connieting and sinister désire. But tite désire of avoiding
the sanction may destroy the antagonist desire, ~<'nf~«f//y or «<
thé
the f<v<y of <!&weK<<<M. Thé thought of the act or furbe:(ranct;
which would amount to a breach of duty, is itabituaHy coup~d
with thé thought of thé evil which thé Law annexes to thé r

wrong. If our desire of avoidiug thé evil, which thé Law

annexes to thé wrong, be .-itronger than our désire of thé con-
séquences which nnght follow thé aet or forbearance, wc regn~
thé Intter as a cause of probable evil, and we graduaHy transfcr
 tothocaase our aversion from the aSeet. OurstrongerdeaiM
or avoidmg the Sanction~ gmduaHy extmgtHshes the weakor
désire. Our wish for the agreeaHu consequences which might
follow the wrong, is absorbed by our wish of avoiding thé evil
which the wrong would probably indnoe. We regard thé wrong
as a cause of evi!, and we dislike it aecorttingty.
nus is merely a case of a famiiiar and indisputab!e fact.
Objects originally agreeable become disagreeaMo on account of
their disagreeabic conséquences. And ob~ects originaUy p!eaMBg
become displeasing by reason of painful consequences with whieh
they are pregnant.
This graduai effect of sanctions in extingnishing sinister
desires, is a matter of famUiar remark, and is oxpressed in varions
ways. Owing to the prevalent misconceptions regartUcg thé
nature of thé will, thé eHëct which is really wrought upon thé
state of thé desires is frequentty ascribed to the M'!7/. It is
forgotten that thé will is merely an instrument of thé desires;
and that every change in disposition and conduct is a change in
the dominant désires, aud not in the SMhgect will.
Wo are told, for instance, by Hobbes, in his Essay on
Liberty and Nocessity,' that thé !)ttbituat fear of punishment
maketh men just:' 'that it trames and moulds their w! to
justice.' The plain and simple truth is this that it tends to
quench wishes which urge to breach of duty, or are adverse to
<A<:< which is ~tMM<M
or oKtained.
Whero thé fear of thé evils which impend from thé Law
has extinguished thé desires which urge to breaeh of duty, thé
man is y!M/. He is not compelled or restrained by fcar of the
sanction, but he fulfils his duty spontaneously. He is moved to
right, and is held from wrong, by that habituai aversion from
wrong or injury, which thé habituai fear of thé sanction bas
graduaHy begotten.
Thé man who fulfils his duty ~M<Mc he fears thé sanction,
is an MMJust man, although jus conduct be just. If he could
viotato his duty without incurring thé evil, his conduct would
accord with the desires which urge him to break it.
In short, thé fear of thé evils by which our duties
are
sanetioned, cannot cxtinguish tH~<K~ or f~'cc~ thé desires and
aversions which urge us to violate our duties. But thé fear of
tliose evi!s may extinguish these desires and aversions ~'f«~M~
or
ut Mt
m </«! mty of
Mtc M-ny fH.cifffttw. Our
<y <ïAMCM<Kw. uur necessary aversion
averstou from thé
cvi!s with whieh we are threatcned by thé Law is often trons- tmns-
ferred by insensible degrees to thé injuries or
wroHgs which
wroH~
VOL.
Vf~T t.
T 2 G
n"
might brin~ those evils uppn tM. Ou fear of tho sanction is
citanged
ctttm into Imts or thé oH~neo. Insteadbï'fMÏBUiag out duty
throt
through {car of thé sanction, we fu!fi! car duty through that
aversion front wrung which thé tmbitual fear of tlie sanction bas
atowly engend~red. Wa corne to love justice with disiutel'ested
love, and tu hâte injustice with disinter~ted hâte. Su far us wm
fultil our duties through thcso disiuterested aHbctious, wo are
just. 'Justitia est perpetuft voluntos sumn cuique ttibuondi.'
So t'ar as we are moved to fultil thetu by the evils with which
thuy are sanctioned, we arc Kttjust M<'?t, aittiough our CM~~Mc~ be
just. t'or if we wcrc freed from thé fear which compels or
t'fstrains us, our couduct would accord with the sittiater desires
and aversiotts, whicit solicit or urge us to violate our duties.
Wheu 1 aMrtu that our fear of thu evils by which our duties
are sauctioued i.s frequentty trausmuted into a diainterested hâte
of injustice, 1 am far from intituating that <A<!< fear is thé only
source of <A< beucticent disposition. Thé love of justice, or tho
hâte of injustice, is partiy generated (MO doubt) by a perception
of thé t<<<7i'of justice, and by that love of générât utility
which is felt by all or most men more or less strongly. But it
is also generated, in part, by the habituât fear of sanctions.
And to this considération my attention is particularty directed.
For nty purpose is not to analyse thé sources uf thé beneficent
disposition, but to distinguish thé yemo<e cffect of obtigations
ami sanctions from thé tMM«'~M~<! or <~«'< to shew that
sanctions may inspire us with a disinterested love of justice,
although t!My CMM~ us to right, or ~~<)t!?t us from wrong, in
case that usefui sentiment be absent or defeetive.
When thé desires of thé man hat~ituaUy accord with his
duty, we say that thé man is disposed to justice, or wo style thé
-itate of his mind a disposition to justice. And this disposition
to justice is a ground for mitigation in measuring out punish-
ment or in measuring out censure.
Every légal crime should be visited with légal punishment,
and every onence ngainst !nom!s should be visited witti répro-
bation. But when thé circumstances of thé onence indicate a
disposition to justice, or indicate any disposition which is gene-
raMy usefui or beneficcnt, utitity requires that the puni.shmcnt
should ~t'~i'~MA, or that thé censure shonM ~/X<;M accordingty.
Thé général conséquences which woutd ensue if thé on'ender
passed with impunity, render it expe<!ieMt that it shoujd be
visited with punishment or censure. But fince there would be
few olfences if good dispositionswere generfu, it is atso expédient
to mitante thé pnuishtMeht or eensure~ \vith a view to thé good
ttMtpoMti<mmtmifestt!ttbytheeutttUKJ.
And this, according!y, is thé usuat habit of thé wor!d.
The occasions (tben~tions of ? man wlio M haMtua!!y just or
iuuafme, are tteated wtth k~ severity t!mn thé fonces ~f
tho dishonost and thu cruel. Thé ~mount of punishment i&
frcquentty JcterMiined by this cousideration or (although thé
naUn'o of thé offence excludc uutigation of punishntent~ public
reprobation Mis with compiu.fttive lenity. Thé ueccssity of
iuitieting thé pnnishment is generally perceived and admitted,
but thé oH'euder is rcgarded with a feelin}; which appruaches to
compassion tutd regret, rttther titan to antipathy attd exultation.
Where thé desires of the Mtan are habitually advcrso tu hi~
duty, we say that thu )nati is disposcd tu injustice, ur style thu
state of his mind K disposition to injustice.
Owing to thu prévalent misconccptions aLout thé nature of
will, we frequcntty style thé prédominance of pernieious désires,
a depraved or wicked will. Sotnetimes, indecd, wc mean by a
depmved or wicked will, a deUbemte intmitM~ to do a. cl'inunal
aet. Atthough it is perfectly manifest, t)iat ~dness or ~oodness
cannot be atnrmed of thé will, and that a cnminal intention may
accord with a good disposition.

Xo't'ES.

(Sec Leibnitz. SeheHing and Kant in Ititter and Ktng.

Cotet-i.!gc.)~
What they meant by freedom of thé Will was not that we désire
wtthout. a detennining cauM, or that we will aginnst our desires, but
that, in thé cases in question, our desires or wUb go with our duties,
!.f. ire désire to perform our duty more than anything e)M.
T))C!!<! ntunea, esjxicitUy thé firM and thé onty aim whieh onght to control thf
last of thetn, iiMjtjjfSt an observationUj'on desin"). But tho <«n: of Kevchtion he
thé ethiot viewt maintaitMtt by thé to fiUence Il
Msites insilellee;
JJII~ses reïcfMwhieh
a reso:rvc which~inestiou,
obiigM
hint to tfave wt)toM<:)<e<t t)n' (tm-stio)).
author itf thèse hcturex.
The author tecosnisc!) ttn a)'so!utB how far it ia poMibte for hu~an !t't<;ni-
fitandant '~f what if. };oo't and true, not j f{''nee and '~stro te reach forward t~eyon~
(with Kaot) as a t)'-t;M<!uy fnn)) of exjwri''m'< in thé <)in'<:tiot)et' ronfonu-
!ho')K)'t, h'tt ufimtMiiitttt)} in thé nivine it)~ th<'nt!ie!v~.sto thc Dh'iue itth'UigeHce
t~' whieh is set to nian by o sujmrtor, aud thé Hn'ine wi)).
t~tnety the DitiMe inteHifiettee. Thé Thé p<M)tion thu< tat:en up by the
imUm;! tf) that hw he stah's to be Kevth- anthor, i:! a vety otrong one and athnir-
on
t4o)) <t)t<t Utitit)', a)t't th'- p'jsitiott aHy !MMj)tttl tu th': purpMe uf tttt <:ntf)'
which h<! iosisb at )fn~th it) thé httro' into thé tx'M of jurtxpntdexcH. )}nt t
'tuctory tectures M this that, aMrt fromcannot hetp notiN~ thitt, in M~ptfd to thé
K'etittion, UtiKty M the only indtl, entire M't c'f.Mt< «-)'<-)«'< this position
toeMure, or tMt ofthe Divine )aw–~o))- ia cotn[)amt!ve)y narrow, end that its
t'ormity tu thé hw MceftttineJby ftitity, boundit hâve bec)) teft by the «uthor
4~3
LKC).
thé terrn ~Sanetîoa* dénotes the eohdïtionat evil, wMch is annoxed
XXH by the So~etetga to thé Command. The terni ~ONtgat!on' tmpott~
thé same object coMt4et'ed from a certain aspect. It dénotes present
t:abtî:ty tb that eontmgfMt evH, tn eaae thé duty be broSen, or thé
cotumand be diso~'yed.
Thé Latin OMt~M denotes thé opemtion of the Ntaction upon
thé will of thé obliged.
Itmanifest that thé Latin <~<y<~<o {9 equivatent to /t~!BMK or
M
<wM~<w. Thé position of a party obnoxious to a. contingent ovil, is
likoned to that of a party who is tied to a given place.
Tho EngHsh ~y (tooMng at its denvation) rather donotes that
to which a man is obliged, than thé obtigation itself. It is derived,
through thé French </<t-Mt- (past part.)and thé Italian <~M' from thé
Latin t~n;. It is, thcrefore, equivaleut to id ~«od' ~M<«m est, rather
than to oA/<~«/«/.
Same remark as to thé Gennan 'f~'iM~'
(equivalent to thé
uM~«/w of thé Roman Jurists), Ptueht,' Verbindtichkeit.'
By duty may be meant any duty but it commonty meant
feMgious duty, or te~t of duties.

LECTURE XXIII.

PHYStCAL COMPULStOX DISTIXOnSHKD FKOM SAKCTtOX.

,r
I.KCT.
~1~
1I ~OW
yow
fromtt
proceed to disthtguish physical conpulsiou or restrahtt
from thé restraint which M imposed by dnty or obligation.
A
A sanction is a conditional evil :–an evil which the party
obti~ed may chance to incur, m case he violato the obligation,
ordiso
or disobey the cotnmand wbich imposes it. The party obli"ed
M obliged, because lie is obnoxious to this evil in thé event of

undetined. Andtheyaremcesmnty) hunmn

1
a~M,
nature ~f'~nM <t<f~Mf<
indemnité, t'oft~oneeivethat.mtt)
''YhichcaMtiMabove
1 expérience to thé
M<;a.w<'or<<~<,utnitymaywettbet remmition 1 and partiat reatisation ot' thé
extendedfitrwithinthexphereofKeve-f f!<MO
F existing iH God end thé Divine
~t~tr,an<l«rovid<i(ia«theremttsof
lation and h thé only /<.)< of R<:ve)<(tion )1
whichtheit)te)ti)iencec')t)tt«o))tontt!iMeh a fhcnfty )je tfMbmeed in thé term
fi
U)!tnkindseen)SCap!tMeof~p))tying. Kut tKtvetatMn, 1 ft'adify accède to thé
thatthetheoryofutitityM'iavtnJed.aituthor'e
s rejeettou of a ~MKm ~M«/
''xcepttOttVerytitnitedMteHt.int
~Uttdcr
u the Marne ofn)omtf.e))se, etc..
~<<tY<t;ef))~théptactica) s';ien':e of ethieo, standing
s between Mevetation and Utility
tnkc to ho coxttary to thé tcaching of MmindexttHoorattntth.
a Aoinquin-
history. For 1 confes!: toy~tf a learner iinto the nature and prot-ince of Beveta-
witit thoa: wht have read histor)' M ttiott and thé conf.<no))d!ng ttceptive
shewing, that Revehtiott has been thé ffacotty would cteariv hare been beyond
gaidû atMt pioneer, in places which utility ttho scojte of thèse jectuteit. And as it
has now fenced and Meurot M 0 poMes- hhas not been entered on, neither i)) it
siou to tMottind for at) time emning. prqttdged.–H.
)) C.
Provided only tliere be co))c<!<ted to
dia&bedienee, MMt bectmee he M aeeessarHy averae from it, or
~eM~temvoidit.
Th& <<c~ of every duty is an aet or fot'beamne&: Or
(changing thé expression) every duty is ft duty to act or forbear.
But every act is tho consequence of a volition, aud every volition
M thé conséquence of a desire meaning by a fMi'e, a désire
which is not a volition, or a desire strictly so catled. Conse-
quontty, every act is thé conséquence of a désire.
And, further, every ~<~MM!M<w M ~m~< and t9 either
the effect of an aversion from thé consequences of thé act for-
borne, or is thé effect of a preference for some object whieh is
inconsistent with thé performance of that act. Consequentty,
every forbearance, like every net, is thé conséquence of a desire.
Uniess we are determined to obedience by disinterested hâte
of wrong, we fulfil an oMigation hecanse we are averse from th<'
sanction. Our desire of avoiding thé evil which we might
chance to incur by disobedieace, Mtakes us will the act whieh
the command enjoins, makes us forbear from thé act which tlie
command forbids. ïn other words, our desire of avoiding thé
evil, which we might chance to incur by disobedience, makes us
désire thé net, or makes us desire thé forbearance.
Consequently, we cannot be obliged to </«<< whieh depends
not upon our desires, or which we cannot fulfil by desiring or
wishing to fu!fil it. A stupid and cruel Legistator may affect
to command <Aa<, which thé party cannot perform, a!though he
désire to perform it. But though he inspire tho party with a
wish of fulniling thé command, he cannot attain his end by
inspiring those wishes. Nor will thé inniction of thé pain
operate in thé way of MXMM~e, or tend to confirm others in their
desires of fulnuing their duties. Consequentty, thé compulsion
or restraint which M implied in Duty or Obligation, is hâte and
fear of an evil which we may avoid by ~M'~ by desiring to
fulfil a something, whieh we MM fulfil if we wish.
Other compulsion or restraint may be styled merelyp/ty~ce~. P
For the term physical or naturat (as it is common!y used) is
simply a négative expression denoting that thé object to which «
it is applied, is Ko< some other object which is expressly or
tacitly referred to. As applied to contpulsion or restraint, it w
denotes that thé compulsion or restraint to which it is applied,
is not the compu!sion or restl'aint whieh is imported by Obliga-
tionorDuty.
r!)ysicat eompu!sion or restraint, as thus understood, may
affect thé body, or may affect the mind.
J~
L&M. ]ï'orextn))pt&: If 1 M& imprisoned m~ccU of which thé
door is loeked, physkttt teatKtmt H ttppliett to Hty ~dy. ï
etmaot
e<mm mova h-om my ceU, tdthou~h 1 désire to move from it.
Whether
Whe 1 shitU quit, or whether 1 shatt stay in my cell,
dépends not upon my desires.
Again r 1 am imprisonett in a ceU front wineh 1 am able to
escape, but, knowing that 1 tnay Le punished, ni case 1 attempt
to escape, tho fear of tho probable puni.shmcnt determines or
inclines me te stay tttM'e.
Now, iu this instance, thé restmiut which is applied to me
is not ~/ty~<cN< restraint, but 1 am oMt~ to stay in tny cell. ~îy
désire to eseape.is not controltcd orpreventcdbyoutward obstacles.
It is controlled or prevented by my opposite or conflicting desire
of avoiding thé probable punistiment. Whether 1 shaU quit, or
whether 1 shall stay in nty prison, depends upou my desires.
Further If thé judge sentence me to imprisonmont, ho may
conuuMtd that 1 shall bo dragged to prison in case 1 refuse to
~o, or he may command me to go to prison under peril of an
itdttitionat punisbment. If 1 refuse ta go to prison, and am
dragged thititer by the officers without a movement of my own,
physical co?)!~<Mt is applied to my body. My body tnoves
to the prison in obédience to an outward impulse, and not in
complianee with volitions of my own, prompted by a desire of
my own. Whether 1 shall move to prison, or shaU not movc to
prison, dépends not upon my desires.
But if 1 go to prison, knowing that I shall be whipped in
case I refuse to go, ~/(yw«~ coNi~K~t'cM is not applied to my
body, but 1 movo to prison M't7/M~y in conséquence of my
oMty«~'<Mt to go. Much as 1 hâte impriMnntont, 1 hâte int-
prisonment coupled with whipping more. My aversion from
tho henvier punishment, being stronger than my aversion from
thé lighter punishment it may be said, that I desire to go to
my prison, i.e. 1 désire it as a mean: n mean of avoiding thé
greater evi!, and that that desire makes me will thé movements
whieh curry my body to my prison.

As 1 observed in a former Lecture, thé dominion of thé

will extends not to thé mind.~ That is to say, no change in
the state of thé mind is accomptished by a mere désire. But,
thongh no change in thé mind immedintely Mlows a desire for
it, changes in thé mind may be wrought through MMaM to whic!i
wc resort in conséquence of such dpsh-es.
P. 413 oxh.
 For ex<ttNp!e, 1cannot know a science by 8in)p!y wishing
to kn&w H. But hy reswtiMg to meatu suggested by tho wîsh,
wl~ xxm ..°.
Imaycotnetoknowit. RyreadiMg,\vriti))g, and méditation, atîon,
1 stm!! acquire thé knowledge whicit 1 désire. And so, virtues
irtues
may be acquired by indirect conséquence. Xumerous ehan~fs
in tho mind tire, theretbre, wrought hy desires though none of
thé désires winch work changes in the mind, can be likened to
thé peculiar desires which are styted volitions.
But a change iu the Mind may Le wreught or preveuted,
whether we desire thé change or whether wo do not desire it.
And, in al! such cases, it may be said that thé mind is anected
by physical eotupulsiou or restraint.
The conviction produeed by evidence, is a case of physicul
compulsion, If 1 perçoive that prémisses are true, and that
the inferonce is justly drnwn, I admit thé conclusion, though 1
do not w~A to admit it, or though thé truth Le unwelcome, and
1 would reject the truth if 1 could. According!y, if 1 love
darkness, and hate thé light, I naturaUy eschew thé évidence
wluch might expel the gratefui error. 1 refuse to examine thé
proofs which might render thé truth resistless, and 1 dwe!l with
comp!acency upon every shadow of proof whieh tends tu connnn
my prepossession.~
I observe, that certain writers talk of oUigations to sufier,'.CUi~.
0
and of obligations not to suffer. And, as an i))."tancf of an
iiUt!<it-Mj
obligation to suner, they cite thé supposed obtigation to rttutto
suffer
punishment, which is iucumbent upon a crinnnai.
But it is c!ear that we cannot be oM~«~ to suffer, or not to0
suffer. For whether we shaU suffer, or shaH not suffer, does
not dépend upon our rlesires. By acts or forbearances which
(/o depend upon our desires, we may induce suftëring upon
oursetves, or we n)ay avert suuering fron ourseh'es but thé
sunerance or passion itself is not immediatety dépendent upon
our wishes to suner or not.
The Criminal who is condeinned to punis!)ment is nHver
oM<~f~ <o st<~T, although he may be obliged to acts which
faciUtate the infliction of thé sunering, or may be obliged to
forbear from acts whieh would prevent or hinder thé innietion.
For exampte If 1 am condemned to imprisonncnt, 1 am
not obligcd to suffer thé imprisonment, although 1 may be
obliged to walk to prison, or to forbear from breaking prison.

For thift reMon, non.beHef tn:'y be examine. p~rtMity or Mtij'i'thy intH-

Ham<t)<)c. Where (<) it M thé r~utt rectty reMMV'.)Mc,vol.
<-h'.
2~
of ilisufricient exttnhmtion. r<-fn.'a) to Traitea, etc. i. p['. ~3t',
4$6 /M&~
Whether yi shall ~tntttf
Wh
~Vc~y aw~~y~.
walk to prison, or ùh~H walk t~
WTt~ttat* B~NfH shaU ~~t~
not Uf~tt~ to prison, or
~"t.
t-ECT
T.WfT
XXIII wwhathor
u
wh(
tfH Mmoit~tH ~t*
1 sMI forhear or uo6 ftom attempting to ,break' my
tttMa~

prison, dépends upon my degrés. And 1 can, therefb~ be

pris
bound or obliged by fear of additional punishmont, to do thé
bou
act,. or to obasrve tb& fbrbeftnutce. But whether ï shall s~Her
thé imprisonment,or shall not suffer thé imprisonment, doea. not
depeud upon my desires m the last result. If, in spite of thé
additional puoishment with which 1 am threatenod, 1 refuse to
go to prison, or attempt to break prison, 1 may not only be
visited with the additional punishment, but physical compulsion
or restraint tnay be applied to my body. 1 may be dmgged to
prison by thé officers of justice; or, when 1 am tbere, 1 may
ue secured
be se by walls and chains which defy my attempta to
escape.
Mcap~
FM~eao)- 1 talk of oMt~f<<tCM to suffer, is to eonfound obligation with
To
suffering, the
what. IS
uttimate bMis of obligation In thé last result, every obliga-
thé ti,
theM/<f- tion is sauctioued by suHering that is to say, by some pain
ttoni
M«<fanc' ,t.),
which may be inflicted upou thé wrong-doer whether ho consent
tion of
or not: <.f*. by some pain which may be innicted upon the
et'eryobU.orMC
wrong-doer
wro~ independentty of an act or forbearance of his own.
IftM
If this were not thé case, and if every obligation were sanctioned
by a further oMi~tion, no obligation could be enëctual. One
obligation might be broken after another and as no obligation
could be enforced without tlie consent of the wrong-doer, !t3
would not be ohliged at aIL
For example 1 am condemned to restore a bouse wlucli 1
detain from thé owner to make satisfaction for a breach of
contract to pay damages for an assault, to thé injured party;
or to pay a fine for tlie same offence.
Thé sanctionwhich attaches upon me, in this the first stage,
is an obligation An obligation to deliver the house, or to pay
thé damages or nne.
If 1 refuse to perform this obligation, 1 may incur a further
obligation for instance, an obligation to pay a fine or to suSer
imprisonment.
But if this wero again sanctioned by a further obligation,
and that by another, and so on, it is manifest that 1 should be
exempt (in enect) from ail obligation.
Either in thé first instance, or at some subsequent point, 1
must be visited with a sanction which can be innicted without
my consent. SuOëring, therefore, is the ultimate sanction. Or
(changing thé expression) every obligation is ultimately sanc-
tioned by suMëring, although (in innumcrable cases to which 1
shaU adverthereaKer)thé immédiate sanction of thé oMigation
M another obHgatioH,
But though suHering M thé ultimate sanction, we cannot be
obliged to suffer. For that supposes that wo can be obtiged to
a somettnng which dépends not upon our defures. Thé only. ly E
possible objects of duties or oMigations are ac~ ahd j~~ayancM.M.
Before 1 conclude 1 beg leave to observe, t)mt suffering tg SufMing
s
must not bo confounded with physical compulsion and restraint.
,tmin-be
i:
"'i.tfUeted
To suffer, is to incur an evil independentlyof our own conseHtt:wit)Mut
v
phy~a! i
a pain which is inflicted upon us, independently of an act or COHtpNt..
forbearance of our own.
stRint.
Now, though physical compulsion or restraint, is commonly S
thé mean or instrument by which suffering is inflicted, suffering f

may be infUcted without it. For instance, certain obligations US

are sanctioned by nutlities; others again are sanctioned by

penalties which arc purety int'amising by a declaration, pro-0-
nounced by competent autbority, that thé party shall bc held
M
infamous or merits infamy.
In these and in other OMes, the sanction is applied without
ut
the consent of thé party, and without physical compulsion or
restraint (or, at least, without such compulsion or restraintnt
applied to thé body).
<
In other cases, the suncring is innicted by physical compul-
sion or restraint Or at !eMt physical compulsion or restraintnt
may be necessary (< Punishmenta which affect thé body).
Inmost of thé cases, in which it may be necessary tu
innict suffering by physical compulsion or restraint, the physical
compulsion or restmint is, in fact, needless because thé party, -y.
knowing it may be applied, submits votuntarih'.

LECTURE XXIV.
JXJUXY OR WROXG, GUILT, IMPCTABtM'n'.

Now proeeed to consider thé import of '~Mi7<' or '<M)~«<'«<<7~ XX!V

1 J-ECT.

which it is necessary to détermine in order that we may fully

apprehend thé nature of injury or wrong.
Every act and every fortwarance derives its importance or tmm~tiate
1
t.. an')
interest from its positive or négative conséquences that is to nhjMtit
° teMote
of
say, from certain events by which it is followed or from its
ts't"tie'.
preventin}; events which won!d or might have happened, if the he
act donc had )M< been donc, or if thé act forbome A<M! been done.
4?8
T~~

~L
~1F4
/A~<<
~t.
? Consequently,A!thoughaotit tMtd ibrbeat-ancoa tn'& thé MM-
M«~w<A' objecta ot' duties, thé positive and aegattv& conséquences
of thé acts and ibrbcMttneesenjomed, Ma tha objecta whictt they
of
regartt
t'e t'cwf~y.
That an net or acts may bo donc, is the t'mMc~M~ purpose
of a positive duty. But thé production of events by whieh thé
act may bo followed, or thé pt'eventiou of events whieh tnay
happen if thé act be not donc, is thé UMM rctuote purpose for
which tha duty M itHposed.
That an act or acts may be t'orbotue, is thé tmm<«~<'
purpose of a ~«~«'t' dttty. But thé prévention of events which
may happen in case thé aet be donc, or thé production of events
ma;
which thé act mi~ht prevent, is thé more <'('Ntc<c purpose for
whi
which thé duty is imposed.
whj
Forbear. If the act enjoined be forbornc or omittcd, or if thé act
f~t
forbiddeu
0.ni~M.'°"
MtL'M. be donc, tite positive or négative conséquences, which
orAct~ iti!is
it 1: thé purpose of thé duty to produce,
are certainly or probably
whichaK w< produeed WhHst tlie opposite or contrary consequences,
meon.<iit.
<nta'ith whieh it is thc purpose of thé duty to avert, certaiMiy or probaMy
whi
thcrcmot').
Mlow thé forbeamnee, omission,
)))tnMS).iof or act.
t)ntt«. Certain of such forbearances, omissions, and acts, are tM;')<)'M
tm~rtof
th.Mi{. or'wrongs.
or
Mt'iM* The persons who have furbome, omitted, or acted, are guilty,
prti.'Hions,
Or thé persons who have forborne, omitted, or acted, are in t))at
plight or predicament which is styled 'Mt7<
CnUt.tm- r;)).
put..MHtv '=
=Mf~ftfI Thé forbearances, omissions, or acts, together with such of
.fDutv. their
thé: consequences as it was thé purpose of the duties to avert,
are tM!~M~<M<; to thé persons who have forbome, omitted, or
acted. Or thé p!ight or predicament of thé persons who have
act<
forborne, omitted, or acted, is styled 't'm~aM~
AI! thèse expressions, it appears to me, are equivalent.
They ail of them dénote this, and nothing but this that thé
persons, who have forborne, omitted, or acted, have ~«~
viohtted or broken duties or obligations.'
A )tv<M)y, or t/M)'y, is an act, forbearance, or omission, of
such a character, that the party is ~M!7<y.-
And, To be guilty, is to hâve acted, forborne, or omitted,
in sueh wise, that thé act, forbearanee, or omission, is an '<«~
or «fOM~.
If thé act, forbearanee, or onnssion, bc an M!/«~ or w~'<Mt~,

('tmpatitMtity' is pToner)y tp;.t!. ;']iK!'t < )'M<tiM)nent of thé t~rty to

caMe to thé cutpaMe act, forbearanee,or whom fiueh act, fûrtxttraxct, o)- oMiMio)),
omission. his.however.a~ptiedtethe isimputaMe.t
<MMt if thé pttt-ty lié ttmrotM'e ~M~ thé net, forbeamnce, or
omission, together with sueh of its eoHsefpMtM~ a.t it w:M
tt~
tlie party. Ands
purposa of th& duty ta avert,tn-e M~<<«Mc tu
if thé act, forbearanco, or ommsio)). together with such of it'
conséquences as it was thé purpose of thé duty to avert, e
be
~«<<tM<- tu thé party, thé party h:M broken or VMtutfd :< Juty
or obtigtttion.
As 1 shall shew het'cafter, intention, negHgence, hee'Uessncss, !,t))«!ntiHn,
or mahnMM, i9 <Mt f.Mt;M<<«~tw<t/ ci' iujury ur Wtou~, d J j
]

guilt or imputitbility of breaeit or \'io)ation of duty af obtigutiou.

Ltt'-M,ur `

Wiether thé net ibrbcamuee, or omMSMn, constitute an"t'thc~- r~·

injury or wrong or whethor thé party be ptaced hy H in tlie (i.whrt~t
pre'Ucament of guilt or itnputabiHty or whether it constitute n
breach of dnty or obUgation; ~M)- dépends upon his tww«~- ~.j'utt)M)it).
an'.t betofe thf
MM, with regaKt to !'<, or its consequences, nt W.<t'duty.
time of thé act, forbearance, or omission. Tntess thé party
Y
intended, or was négligent, heed!ess, or rash, thé att, furbearauce, e,
is p!aced
or omission, i.-i Mf< au injury or wrong tlie party
by it in thé predicament of guitt or imptttabittty uur is it &
breach or violation of duty or obligation.
But a necessary ingrédient is Mo< t!te compound into which h!<Mi<t
that ingrédient must enter before the compound can exist. injury,
An essential part is Mo< thé complex who!e of which it is an ~;nuitt,fte.
essentiat part.
Intention, negHgence, heediessness, or rashness, is ?'
MMMM of injury or wrong
is <~ ~< f-HM of breach of duty is
a ~x'cf&w~-y fOK~<<t'<'M ~w</t'K< to thé existence of
that p!i~ht or
predicantent which is styted gnitt or imputability.
But intention, neghgenee, heed!essness, or rashness, is not (;/
injury or wron~is not <'<
breach of duty will not
<~ ~t/ place thé party in thé ptight or predieament of guilt M
imputabiHty. Intention, négligence, hecdkssness, or rashness,
will not place thé party in thé pl~ht of gui!t or imputabitity,
unless it bo followed or accompanied by an act, forbearance, or
omission by an aet, forbearance, or omission which amounts to
preceded and accompanied
an injury or wrong, provided it be
by that stato of thé mind. Action, forbearance, or omission, is
as necessary an ingrédient in thé notion of
injury, guHt, or
imputability, as thé intention, négligence, heediessness, or rash-
ness, by which the action, forbeamnce, or
omission, is preeede't
or accompanied. The notion of injury,
guHt, or imputabitity,
does not consist of either considered atone, but is compounded
of both taken in conjunction.
 460 /W~A~~MM~m~MM~
~<~OMM~ ~WMM ~Mtf~or.
tttCT. Tbis may be mado mMtifcst by a short analysis.
XJCtV If-«m K~Iadvet't: not to a giveh Mt: An<by
Bnefan! reasohof that inadvertence, omit thé act.
tysifof
Npt;ti~f)K\'
If 1 am Ae<:<~< 1 will and do an act, not adverting to its
aMditit probaHe conséquences And, by reason of that inadvertence, 1
mott<s;t)f will and do thé act.
Intention
MgMding g If 1 am /YM/t, 1 will and do an act, adverting to its probable
the prê- but, by reason of a missupposition which 1 examine
tent, and conséquences ]
tntentioMM <w<~t'<«<~ 1 think that those probable consequences will not
t~Ktmg ensue. Aud, by
thotHtm~ reason of my insuiBcient advertence to thé
ground of thé missupposition, 1 will and do thé act.
Consequently, negligence, heediessness, or rashness, supposes
au omission or act, whieh is thé result of inadvertance. To that
inadvertence,M <«Z-c~ or coMMf~'f~t~ <'<'?(/'«M<'<t'Mt <M<A</<e ctKMMOK
</f act, we give thé name of négligence, heediessness, or rashness.
But nono of those names has thé shadow of a meaning, unless
the inadvcrtence, to which it is applied, be considered in con-
junction with thé omission or act of which thé inadverteuco is
thé cause.
If 1 u(<<:M(<, niy intention regards thé present, or my intention
regards thé future. If my intention regards thé present, 1
presently do an act, expecting consequences: Or I presently do
an aet, or am presentiy inactivo, ]<nowing that thé aet which 1
do, or thé inaction wherein 1 am, exchtdes for thé présent thé
performance of another act. In thé former case, I presently do
an act, intending conséquences. In thé latter case, I presently
forbear from an act.
r(
In either case, my intention is necessarily coupled with a
présent act of forbearance And thé word intention' has no
meaning,uniess thé consciousness or belief to which it is applied
be considered in conjunetion with that act or forbearance.
If mym intention regard thé future, 1 ~'c~K~ expect
or believe
Whettw thatls! that 1 shall act or forbear A<:rc<}'.
Mtnten. And, in this single case, it is (I think) ~MM~i to imagine,
And.
tMn.Mi.
th.r<n- thatmer that mere consciousness might be treated as a <wo~ migitt be
satnmtte
~y
norM-
an at.
t'M!~M<~ to thé party
tM!~M<M or might place thé party in thé plight or
predicament which is styled !M~M~<&:7t<~ or ~Mt7<.
predicam
tcmpt,
We M~/t< (I incline to think) be cMt~ to forbear from
~l'~
cou1<l be
tlio,
ot.'jMtof!t action:*
~)<<~i'<MM, which regard future acts, or future forbearances from
itlt~nli()lI.
!t action IOr, at least, to forbear from AMcA of those intentions, as
ohliga.
~ettt<
are settted, deliberate, or frequently recurring to thé mind. The
tion!(Me fear
fcar of punishment might prevent thé frequent recurrence; and
~f'
l" 432,
aerl4. )
might.tt
might, tt
mirrht
p
therefore, prevent thé pernicious acts or forbeamnces, to
whtoh intentions (whett they reçue trequeNtty) certainty ot'
ptûMtMyleao.
Be thix as it may, 1 am not aware of &jMït<nw system of
Law, wherein au intention, without an act or forbearance,places
thé party in the predicament which is styled imputabHity. lu
every positive system of whieh I hâve any knowledge, a mère
intention to forbear in future is innocent. And an intention to
act in future is not ~mjM~efJ to the party, unless it be fottowed
by an act un!esa it be followed by an aet which accomptishes
his ultimate purpose, or by an act which is an attempt or
endeavour to accomplish that ultimate purpose. In either case,
thé party is y«t7<y, beeause thé intention is coupied with an <!<*<
and with an act from which ho is o6~((< to forbear or abstain.
For, though he is not obliged to forbear from t!ie 'tM<<'K<t'ûM, he
is obliged to forbear from <'M~<!MM<Mto accomplish that intention,
as well as from such acts as might accomplish his intention
directly.
Without, then, staying to inquire, whether we ~/t< be H
obliged to forbear from naked intentions, 1 assume, for thé présent,
thé foHowing conclusion a conclusion which accords with '1
geneml or universal practice.
Intention, négligence, heedïessness, or rashness, is not o/' ?
t~y wrong, or breach of duty or oMigation nor does it cy
place thé party in thé predicament of guilt or imputability. In B
order that thé party may be placed in that predicament, o
his
intention, négligence, heediessness, or rnshness, must be referred n
to an aet, forbearance, or omission, of which it was thé cHMf. (j
Accordingly, thé term Injure' (or Wrong ')
and the ternt
Breaoh of Duty,' is invariaMy applied to a <'cmjMMK<7 of action,
forbearance, or omission, and of intention, négligence, heedtessness,
or mshness. The terniimputabitity is a!so applied invanably
in a similar sensé. It dénotes that thé party has broken a duty,
by some net, forbearance, or omission which was thé '<;< of an
intention he had conceived, or of his negngence, heed!essness,
or rashness.
But, in thé !anguage of lawyers, and especiatly of criminat
lawyers, guilt or cutpa is fre~uendy restricted to thé state
of thé party's mind. It t~notes ttte intention of thé party, or
his négligence, heedtessncss,or rashness although it necessarily
co/motes (or signifies indirectiy) thé act or forbearance which was

Sec Fem;r~ch, 'L''hr)"<h <)e!i Hos.hirt; 'I.")ir))nch des Crimina!.

D':ut!ic)t)a)nt (!<ittigc)t ~cin- ttechts,' p.
f'emt-tt)<-n it) rs.
lichen R~htf,' pp. 93, 41, 43.
thé <~c<;< of his
ttM~C< mtcnt!<m, or thé omission or tM:t whieh was t!~
~f~oÏ
~f<'<4 of his Me~U~Mice, of his headiessness
or or temority.
lu oi~er thitt JL umy shew thu mcnnmg whieh is commouly
MIHeXft to guitt,' 1 wiU read a few passages frotn two trcutises
aunexed
on Cennfta Crinunai Law.
One of them M t!m work of FeHCt'baeh, thc tnost edebrated
Cniuiual Lawyer now tivht~; fm'nn:rly pt'ofuss&r of EomaM aud
Cenuau .hu'tapt'uticnce,autt nuw pM~idoit ot' a Court of Appeal
m thé Kitt~dom of l~M'in.
Thé other is by Dr. Kos.shh't, pt'ofessot- of Law :tt Heidelbet'g.
Feuerbaeh's book is entitted, Itistitutcs of tho Pénal Law
whieh obtams genct'aUy in Gcrmauy.'
ThM title of Dt-. KoiBhu't's book tnay be traustated as foUows
tnstttutea of thé Crimuiat Law whieh obtains genemUy in
Gunnatiy lucludin~ a piU'ticulur Exposition of Hotuau CritnhMl
Law, iu so fur as thé Cenaau is derivcd from it.'
The application (says Feuerbach) of a pénal Law, supposes
that the will of thé party was detenuincd positivoty or
ne~atively th&b this detM'tnin&tion oï thé will waa c&nttr&ry or
adver<e to the dnty imtMsed by thé Law and that this deter-
tninatiott of the wiM was thé «!<.«.' of thé criminal fact.' Thé
refeMice of thé fact <M (~<'< to thé deteftHination of the wi!t «~
<-f<«~, eoustitutes tliat whieh is styled <m~«<«<«'H. And a party
\v!to is p!aced in suc!) a pi'tjdimuHeut, that a crimiMal faet may
be imputed to a detenuinatioti of iu. will, is said to be i)t a state
or condition of ta~«~Mf'<y.'
Thé référence of the tact fM <c< to the détermination of
thé will M f««~ setttes or Hxes thé légal character of thé httter.
In conséquence of that rct'tirence (or by reason of thé
imputation of thé tact) the detertnin~tion of thu will is held or
:idjudged to be ~!«'~ Whieh ~«i7< is tho ground of the puuish-
ment applied to t!ie party.'
He adds, in a note, 'that thé cK~t of tho Rotnan Lawyers
(as taken in its largest signincation~, and aiso thé M«<<M of
)aor<: récent writers upot) jurisprudence, answers to the "<&AMM"
ur "<< FK'7<!</t/K: ofthe Oerman Law.'
6'<f/< (as taken in its lar~e.st si~nincatiott), !'tM<M.<, and
'.S'7f«/ (or 'f~M Ft<7(K/<~M') )nay (I apprehend) bo traxslatcd
by the Engtish ~«!
Tfte ian~ttage of !)r. Rosshirt accord', with that of Feuer-
bach. In order (say~ he) to thé existence of a CW)M' ttte
HL' ~)i. itt tS33. T'<tM'iai;ennoted ).<)at )N);M 7S, 70 ff))M wortt.
!'aj.;e.t3S-4:
w~ </ ~«-~ muât httv~ beem in swh a ptedtOttmeHt, tha6
</M!

thé criminal faet m<ty be t~t~; that N to say, that thé

criminal faot may bu imputed fM e~e< to thé state of hi); will as
M«W.'
Thé term Cf<~ as nsed by the Roman Lawyers, is
frequently synonymotM with C'n'Me or J~c~, or wït): /<ry
~enemUy. But, wh<m they employ it in a stricter sense, it M
equh'atent to thé 7fa<)M of modern phHusophical jurisprudence,
to thé ]~)'«'/M<M< of the GenHftM I.aw. It. tkttot<M thé ~a<e
</«' ~W~ Mt~, cottsidered aa thé CMM~' of thé crnninal fact. It
donotes thé <MM, or the Mf~/<~<7!<M<, of which thc cruninat fact
is the aseertained consecluence or enect.'
In tmusiating these passages 1 have thrown overboard
certain terms bon'owed from the Kantian Phitosop!iy. For the
modem German Jurists (like thé CInsMcat Jurists of o!d) are
prone to shew off their knowledge of Pitilosophy, though actually
occupied with thé exposition of municipal and positive Law.
Thèse impertinent terms being du!y ejected, thé meaning of
thé passages ia clear and shnp!e.
It tnerety aruounts to this. Culpa' <notes thé stato of
thé party's mind although it connotes (or embraces by implica-
tion) thé positive or négative conséquence of thé state of his
mind.
But 1 think that thé term 'Guilt,' as used by EngUsh lawyers,
not only dénotes thé stato of thé party's mind, but also thé act,
forbearance, or omission, which was thé consequence. It hnports
generatly that thé party bas bmken a duty.' It embrnces f<~
the ingrédients which enter into thé composition of thé wrong;
and is not restricted to Mit of those necessary ingrédients. Wo
say that a man is .~«~y of an injury, or is ~K<7<~ of a breach of
duty: expressions which would not be applicable, unless thé terni
'~M<7<' imported thé wholo oncnce, instead of being litnitcd (!ike
the term cM~« ') to an essGntiaHy component part.
And this extended meatting of thé word guitc is HkewisG
(I think) thé tneanin; which convenience prescribes. A ~cM<'rt<~
expression for cu!paMe t7<<<'«<!(«t, and for thé various modifica-
tions of M~M~t't', tends to confusion aud obscurity rather than
to order and c!earness. 1 nm not aware of a single instance, in
which it can bc nece.ss:)t'y to talk of them f«//«'~tt'<y. I!ut it is
necessary to <<<<M/' them in nnmbct-tess instances.
Before 1 coxcludc this subject, 1 will remark that thé term
Injury,' and also thé term 'Cui!t,' is merc!y thé contradietory
of thé tenu Duty or Obligation.'
~64

~L
Lmf.
to;.1
If 1
~~M~A~~MW~of.
am bpund oroMtged to f~,
topr~tetm!ttheact<Hf~MK~O!tfy~n~y.
r
1 tu _1i_tf-
am bound or obliged not

If 1 am bound or obliged to/t~w; 1 am bound or obuged

<M< to do thé act t/t~M</t~certain conséquences, or Mot to do thé
act&«'<Mf~<M'<'0~4.
1 nm uot absotutety oMiged to do or forbear, but to do or
forbear <M~A <Aos<' r<tWcM~ M<o<<t~M<<ftM.
If 1 pKetermit an act intentionalty or negugently, 1 break a
positive duty.
If 1 do an act inteoding certain consequences, or if 1 do an
act heedtessiy or rashty, I break a négative duty.
An iujury, or breach of duty, is thereforc thé c<Mt<)'cMfM<o!'y
of <A«~ which the Law imposing thé duty enjoins or forbids
Ooue id quod ~oM jure fit.'
Accordingly, that may be au injury to one purpose which is
uot an injury tu another purpose. Or (changing the expression)
that may bo a breach of one duty, whieh is not a breach of
another duty.
1 am bound not to kill with a f~'M'o'a~' intention of killing,
1 am bound not to kill with a sudden intention of killing.
Each of thèse is a ~s<w< duty and tlie compound whole,
which constitutes thé corresponding injury, consists, in each case,
of a distinct set of ingrédients.
If I kill with a dehberate intention of killing, I am guilty
of Murder.
But if I kill on a sudden provocation, 1 am guilty of
Voluntary Manslaughter. With référence to thé Law which
forMds murder. 1 am not guilty, or have not committed a wrong.
To adopt thé current phrase, there is not thé c<My:M fMM<t which
will sustain a charge of Murder. There is not deliberate inten-
tion or gross heediessness.
Corpus For e<M~!M f7<7!'c<) (a phrase introduced by certain modern
D.hcti. civitianit) is a collective name for the sum or aggregate of thé
~~j
vari ingrédients which make a givcn fact a breach of a given
various
La~ C~iM is u.ed by thé Roman tawyers (like universitas)
Law.'
to eexpress every whote cotnposed of parts, as in thé phrase cMptM
~'«t'M, which with thé Roman lawyers stood for thé aggregate of
~'«~
the laws, though by the modems it is applied to thé particular
volumes which contain Justinian's coUections.
voh
Fartherfi- Before 1 conclude 1 must con'ect certain mistakes which 1
marks on committed in stating thc import of <M<M and cM~ft. I said,
theimpo~t com
that fMM is exactly équivalent to intention, except when dolus
ofthewontthat
Dolus.
For C«~)« M«-<(. see Feuerboch, 75, 76 Ro~hirt, 7C.
 is used tu its original and narrow sense, to sigoHy fhmd.~ But t
this Ïs not precisety ttM case. ~M~M comprises m meantttg,
tK~y~tOM, but it must be <?'cc~ int~ntiotn thé amehi~f duuu
rnust not only be intended but desired; it must be tho very end
fur which thé party does thé aet. 2)o~M doea not inelude what
tms bcon catled by sonttt modem civilMHs <M ~!</w<-<iM, aud
by Mr. Bentham </<~ù'te< Mt~<«M<«~; <[.c. intention tu do
ait
net which is not desired as, fur example, when 1 .~hoot at one
person whi!e another is stMidins sa Mat that 1 thiok it pt~)aMe
1 shall kill At~ in endeavouring to kill thé other. Nor does
fM:M include hasty ur sudden intention,
as contradistin~ttished
from detiberate intention. This is ineluded in f«~H M opposcd
to <MMs.- it wou!d probably be inctuded in <('tK'.t~, in couse.
quenco of a confusion of ideas to which I fbnnerty advertcd.
J9o<M% therefore, denotes aU intention, except indirect and sudden
intention. Thcse at-e comprised in ei<~ as opposa to <M:M.
Cu!pa, ttiercfore, includes négligence, heediessness, rashness, and
indirect and sudden intention. Tins, at least, is thé meaning
of cM~t as opposed to <j'c<M. As used m another
sense, to
which 1 adverted in a former part of this lecture, it dénotes
intention of any hind, or négligence, heedlessness, or rashness
in short, thé mental state which is thé cause of
any eSect that
can be ~M~ to thé party. Negligentia, in the case of
oNigatio in the strict sensé, ineludes intention of aH species,
together with negligence, heedtessncss, and temerity, particu-
litrly in thé position of parties who are bound to f/~fM~'M, by
reason of Bduciary situations; of some trust or other with
which they arc invested. Thèse are gcneraUy thé
cases in
which intention or négligence are brought in question. In
most othor cases they arc necessarily implied in thé breach of
thé eM!~f<<M).
The word MM~M is often coupled with fM<M by thé Homan
lawyers. The reason is that there is a ~M ~M, NMc~M
a
which is innocent or laudabîo artifice, for exampte, which is
made use of to prevent an impendiug crime. AU other <A,
is ~<<M mf~M.- and this is thé only meaning of thé word ~«/<M
wheu attached to '&/«.<.
An example occurs to me which shews thé importance of
this classification of thé various states of eonsciousness. It is
laid down ttiat there cannot bc a f!<M<' «~M; Xow tht.s
would be tma if <;M~< oniy inctuded negJigencc, heedtessness,
or
inshness because an attempt is of course intention~ but if
Sce p. 43!, «)!f<t.
 it ts
~L (MM M<<n'f<'<!H!, or stutdea intention. be included in
~eartth~t
etcar e thcre may bc ft cutpose attemp!.
<?<~M,

Fttrther
p.
Fm'ther in,tntlces
instaHces
Damage noyo~t' tu things be!ongih~ to another mnotmts to
a bt'eaeh of Lex Aqui!ia*
Dtnnagu Mw <-t//y~<'( amomits tu n breach not of Lex AquiHa,
but of a dttty ituposcd by the l'm'torian Kdict, nnd for which au
t«'« M~t'/M tay.
Trcsp&ss n <~ « ~tM and Case is a somcwhat8nHi!ar distinction.
Attetupts as distinguishcd ftftn eunsumuMiiou.~
Fat- waut of thé <wi.«~«'/«;(; thcre is not thé C'&tM of ttie
principal ddict. But thé ~(~'M<«)M coupletl wit!) au net ~««~ )
to the tw<.wyxf<i<'c coustitutes thé <y~M of the secondary dehct M

stykd au attetnpt.'
~/<Mt'~ ({/S'('/«</<~«' /<?, <
1 remarked iu a former Lecture that '~M,' ')'<'<<< or
frequently ttenotea the <h)ty incunt~n~ upon thé party obliged, as
'r<
M-t-U as thé right residing in thé opposite party and that thé
(Wf~</M of thf Roman Lawyers dénotes thé tM //fMM«M re.std-

in~ in thé purty entitled, as well as tho fMfy«/t'M incumbent npon thc
party obliged.
The German 'A*fMM' (or das'Verschutden')
reminds me of a
simUar ambi~uity. &«/<< signifies property ~'<:<'t/< Tu impute
to a peMon '7«t/ is to say that he bas broken a duty, and is now
/<Aecordin~ty,
to thé fonction.
synonymotta witt) thé Kotnau '~fM/ff,
')'t'/<M/<~i<'r' is
t

r
H-hich apptiM to auy person lying under any t~(~t<'< that is to say,
au (~/f'f~ (~«-~ .«t.<M), or in the sensé of tho Roman Lawyers.
(.<7.M,' is thé corretative of De~
md applies to any perscn
who ha-. ~)~<'t"). Thé French M<'<t«r and CWuMCfM-
ha\'u pr'ci.sety the sMue meanings. Thé EngHsh '~Mf'y«i' and
OA/t'/M oug))t to bear the same signincatioM. But, in the technicid
!angua~f of our Law, thé term 'o<<Mtt' or '~t)-<' itas been
miserabty mutitated. Instend of denoting <iM~<j (as corretntin~
with ~M "< ~<w<'<w). it is app!i';d cxctusivety to certain «Mt7<~tt-f</
';ontracts <cM<;fm't/ <
wrt'/Mt~ Mit<~< Or, rather, it is applied t' 1
thé writing under seal by which t)tf utniatend eontract i.s evidenccd.

actiDnetu
Kt

utiks adi<JII'
j
<-ssc, si
(iemum ex ista )t-gt
)Ja':M)t ita
't"K ''orpore .uo <))tt«-

-<3.
!)e)it;ttnK Mniitnnhmttnn. C&tXftus
(tt-limjHt-Mtti.' C&ttsumtott).' CriK)'") a)f~
rtt)tn~f:'t':rit!tt')Ma)iomodt«)at)mottato, Cri)ni)i!ttAtten)}'t'i. fcM<-rb<K:h, ;){). n,
dantur,' ct,Uaiu9,
a.'tiut)M dRlltur,' üi. 42,
<:t.C:uus, iii.
r.me !hntt)uo~, Wf:r:t)M (h': Hen'~r-
Uitmnge '!oM )'v thé b«()i)y )ni!{)'t ûf bringnnf;cinM V<r~r<h'-n'i:<')<)
thé otten.ter was thé pru~er sutijMt of Af' o))))<! dex bMWtckt'-n verbrt'h'-r-
~'x-
th.- Aquitian Lw; which w~ however i.hpnTh..t)f'.)t!'n')wirk)i(;))X)tmMhm.
extcn't~ ;'< "<Eqaity.)~.
f«-<t'<'nM to oth':r i~t ciu Ychuch.' K't-.hit-t, ['. i".
.lamage within its A'<i<<.
 mat M to say, tt la Mt ttM HMM of un o~jjM~, bat of an ~M~f-
evidenetag a '-c~«~ from whieh an obtigatioa ariM.s. Aud, lit
coMsequctK~of t!u.t absurd apptienti'~ f~f ih<* tertM <~W~;<M or ~M<
tho wett-constructed expressions 0<r
and MK~f are nfso cont-
ptetoly epoUed. If it were used p~perty, the term wouh!
appfy to any peniM) invested with ~M ~MM; And thé term
'<f/M-' (as the curretstivc oi' '~t~e'; w<ju)d f<pp)y ta the party
)yitt~ under the eorresp~ding duty. Hut iu cun~quenee of th<j
nan-ow apptieMtion of '~)(/' or '<«~«,'the t~tM 'M~t~ with
itt cot-M~Uve cMt~ pxchMtvety applies to persons w))o «rû partte.~
tu certain eontmets nam~y, such uniiatMrat contraets M are «'«/<K~
«-<<m~ !<M(/<)' .«'«/, and are couched lit a ppcutiar form 'rhat
pHCuliar form twing not i~s absurd than thé absurd application of
't< or 'cMy«/«')t' tu which 1 havu pointed your attention.
In tho strict teclinical import which it bcaM in thé Engtish Law,
thé meaning of '<M<' is not tes!, narrow and inconvénient than thé
nteaning of AfM«<' or 'M~H/w/t.'
I)t tho ltoman Law.the term '<M<7«M' is Macttyco-extensive
with thé related or paronymou.-) expression '<M)7~ As '</<&)7M''
signifies genemuy a person Jying under an cM~t'eH, </<-M/t<M
dénotes (with thé same generahty) ct-c~ aet or forbearauee to which
a person is «M~. It dénotes nniversatty thé positive or négative
something which is ~M by virtue of an obtigation: 'id quod M
c~<y«<t</))c ~M.~KafMM est.'
Hut in thé strict teehnieat import which it bears in thé Kng)ish
Law, is restrieted to a (/f/Mt~ -!««t o/' ?;MMy, due or owing
trotn one party to another party. And, accorthngty, thé action of
debt does not in strictness lie, untess thé objcct of thé action be thé
recovery of a ~«M cf~HM.
In iater times, indeed, this strictness fias been rehtxed Insomueh
titat fM «~t ~<~t! fMi~«~ is not substatitiatty dint'rent front an
action of tt~-MN)~Mt/whiist (/< M~x ~M~ diMers from an ~<w( </
~)'M«~ in form rather than in enfct.
As is usnat in Engtish tegistation (whether it be direct or
judicia)) a mischievous absurdity of thé o)d Law has been cured by
a mischievous remedy. Instead of w/<tYMtf/ pernitious ndes and dis-
tinctions, Kngiish Legistators are content to p:d)iate thé mischief by
the introduction of M'y~MM: exceptions, which aggravate thé hu)k
of the C't'~M JM)M, and (what is an evit of still greater magnitude;
which r''duee the body of thé Law to a chaos of incohérentdétails.~
1 will venture to anirm, that no other body of Law, obtaining in
a civitized cummunity, bas so tittte of consistency and symmetry as
our own. Ilence its en'trmous bu)k and (what is infinitejy worse
than its mere btdk) thé utter impossibijity of concciving it with
distinctness and précision. If you wou)d know tlie En~ish Law,
you htust know a)t th'; detaits which make up the tm-ss. For it bas
tt tnay ))<: s-;afeety ))~:e.<K~y to
-r'ti thttt t)t<: t''r«)< i') w))i''h tht.- :t))th')r Thf :mouMii. h").: ').
'))<- tx-foM thé C.f..t'. AeM, ].SM ftn't t~M.

.j~tk.') of K)~ii.<h a~timM !tt t.m', ar-: !om''w)tt)t tMJti~tt'.). thuu;{)t bvwcr''
atc~
direct);' a;'t')ica)')': te thf- furm.! in u- tnfans renio~d, bvthose Acb.–if'. C.
Mo
~68 ~~MM~M~JV~MM~~M~MM~
LcM'. notm df those large ec~n~ principlea
none sare
principles wRieh arc ? Mfe <H<&!
<H<&~ to
detatts. And, smec details are infthite, it is manifest that no man
(let hM HKhMtry b& what tt nmy) e<tM oompasa thé whote ty~tn.t..
Conspqnentty,thé knowkdgo of an Mngtish Lawyer. is nothing
but a beggarty account of scrap~ and fragments. His memory tnay
be stored witlt îtumcMus tKu'ticuhtM, but of tho Law as a whoio, atKt
of thé mututtt retat!on8 of its parts, he haft not a conception.
ComptUti the best of our Ëxghsh treatiscs with thé writings of
thé Ctassicid Jnrists and of thé Modem Civiliuns, and you will
tnstantty admit that therc is oo exa~geration in what 1 hâve vetttured
to state.
Rctuming to thé suhjcct front which 1 have digreMed, it is
remarkaMt! that '&A«My;<'< (in thc otder Gennan Law) applied to
thé C'~f~f, M well as to thc ~f&t~f.' Just as ~'(M Mmettïno!signinM
duty, as well as right and just as «&/<<!<? dénotes ./<M «t ~M<M«M,
as well as thé duty to which the right corresponds.
The ~!M of tho Koman Lawyets is in thé same predicament.
As opposed tu Actor' it si~nincs thc </<<'n</«7<< in a c«'<7 proeeeding,
or thé party who is thé object of accusation in a t-<'iMHt«< proeeeding.
Aud, taken in this sensé, it is not ambiguous.
But MM also signifies a party to a ~«/a/MM.- that is to say,
a unilater4l contmct aecompanicd by peculiar sotemuities. And,
taken in this sensé, it appiies to tho promisee or obligee, as well
as to thé promisor or ohtigor. Bot are Mt. Tho party who makes
tho promise, is styled ~x~ ~Mtt~K</<: Thé party to whom it is
made, and by whom it is accepted, is styled )f<M ~u/«H(/<. C'Mr<'<
~&m(//<'<!<~ are joint promissors C't ~tpM/aM~, joint pronuseps.

LECTURE XXV.
AXALY8!S OF !XJUKY OR WBOXG COXT!NUED.

s-xx\'N'
Intention
orin~h'er-
1 ASSUMED,
is
A in my last Lecture, that Intention or Inadvertance
a neccMary ingrédient in injury or wrong.
tsa Il
A short analysis will shew the truth of thé assumption.
In case thé duty be positive, thé pm-tonnission of thé act
MMeisof
whieh thé duty requires, is tite rcsult of forbearance, or thé
the)"sfn<'<;tt-h!
ofinjun-.
result
rest: of omission.
If thé pnctermission of thé act be thé result of forbearancc,
tlie party, at the time of thé ibrhearance, M conscious of his duty,
and knows that thé duty of which he is j'resently conscious,
requires the performance of thé act front which he forbears.
If thé pneternu~iMt of thé act be thé result of omission,
the party is conscious ~Ht' of thé duty incumbent upon
him, but adverts not to lus duty, or to thé act which Ins duty
requires, at thé moment of thé omissiou.
 t
9peci<ttreason exempt him from HttbHtty.
In etthef c<MM), ho is gttitty of ittjury or wrong, nntesa some

In case the duty be négative, the party does an act from

which he is bouhd toforhettr.expecting conséquences whieh it is
t))e object of thé duty to prevcnt. Or the party does the aet
without adverting to those conséquences, or assuming MM<<-
M'?'<<'M<~ that those conséquences will not ensue. And, on any
of these supposions, he is guilty of Injury or Wrong, un!ess
some special reason exempt him from liability.
Now, tu all these various cases of forbearance, omission, and
action, thé party expects consequences inconsistent with thé
objecta of his duty, or, in case he adverted or attended in the
manner which his duty requires, he m~< perceive that such
consequences would certainly or probably ensue. In otherl'
words, hc forbears or acts with an intention adverse to his duty,
or else he omits or acts negligentty, heedlessly, or rash!y.
Unless he expected conséquences ineonsistent with thé
objects of his duty, or M~< expect such conséquences if he
adverted or attended as he ought, he ;<'M<M not and fM<M not
~Mow, that thé forbearance, otnission, or act would conHict with
his duty. And, by conséquence, thé sanction M-oxW not and
co!<M not operate as a motive to thé Miitment of thé duty. In
short, men are held to their duties by thé sanctions annexed to
those duties. But sanctions operate upon thé obliged in a two-
Md manner: that is to say, T))ey counteract thé motives or
desires which prompt to a breach of duty, and they tend to
excite thé attention which thé fuUihnent of duty requires.
Consequently, injury or wrong supposes untawfui o<<< M<«'M, or
one of those modes of untawfui MMf~-e~fe which are styled
négligence, heediessness, and rashness. For unless thé party
knew that he was violating his duty, or unless he M!f< hâve
known that he was vMating his duty, thé sanction could not
operate, at thé moment of thé wrong, to thé end of impelling
him to thé act whieh thé I~w enjoins, or of deterring him
front the act which thé Law forbids.
The onty instance wherein intention or inadvertence is notOt Anabsurd-
An
<-ity!n
an ingrédient in breach of duty, is furni~hed by thé Law ~'KxgtM.
of
Engtand. liy that law, in cases of Obligation arising directiy ,ty !tw t'rotn
iMttc'n.
tj~
~tiontnthis
from contraet, it frequently happens that thé performance of thé
obligation is due from thé very instant at which thé obligation P"
O~phncipk-.
arises. Or (speaMng more accurate!y) thé time for performance ?8k'
is not determined by thé contraet, and performance is duc so
soon as thé oMigee shaH désire it.
 l'wexatnpte:
If ~HK'veaLh: b~dntmsitedwith MMtM tM'im that 1 m&y
kcc it iu safety, 1 a!u bound, ~-</M
kccp M~t~~ < </te (&~<M!t<, tu
rfstorcittotheban'r.
If 1 buy gQûds, and uo ti)HM bu fixed for tht~ payment of tho
priée, 1 am bound,j'<-M«. <A.; M«««M< </«. <Mt<y, tu pay thé
priée tottie setter.
Xow, m thuse, nnd m snntiat' cases, it is hnpos~ibtc that th<-
obti~tion should bu brukcu, <A/'</f«//t t~M«. <M- tM<«~'<-t'<<:M<-f,
untit thé obligée dcsire put'tbDuancG, and untM titu ob!i~t' be
informed of thé dcsh-u. For, strietty speaking, ho is bound to
pcrtbrmtheg!v<')tact,sosoonast)MobHgecshaUwishttK'
performance, aud so suon as ))e himsftf si)aM be dtdy appri.scd
ut' thé wish. But, .Mcordin~ to the ruie which obtaitts iu the
Courhi of Common Law, thé ereditor may .'sue thc debtur, as for
a breach of thé obitgatîo)), wtthout a previous dentaud: Thé
dcbtor bMing tiabk' m thc action for damagf.s aud œst:i, just as
he woutd bf Iiab!c if pm'fM'ntam-~ !)ad bcen rfquir<'<t, aud th<
obli~tioM had then bcen bi-okuu tiu-ou~h hh owtt mt~nHon 'H'
neg!i};etn'<
Xow as every right of action is founded on an injnry, jiere
is a case of iujury withcut. intention or inadvertenec. For,
withoutprevious duruand, or without sohM notice or intimation
that thé credttor désires performaucc, thu dcbtot' cannot know
that he is breakin~ his obH~Htion, )jy not per~rming thé act
to which he is obh~d.
Tins tuoustrous ruie of thé Common Law Courts, is justified
by :t reason which i-i not tess tnonstrous. For it is .said that a
préviensdetnand wen:' supertiuous and neediess, inasmuch as th''
action is itself a dcntand.
Thu reason forgets, that a ri~ht of action is foumtcd on au
injury that uniawt'ul intention or inadvcrtcnco is of thc essence
of injury and that, in au thé cases which 1 am now eonsiderin~,
there is no roon for untawhd inteutiou or inadvertance, untit
thé créditer dMJre purfonuance, and untit thé debtor Le appri.scd
of thé désire.
Where an «t/«'y /«! ~<'<t «t'~«~/y c«MMi'< it is n"t
necessary (atthou~h it May be exj~dient) that thc action foundcd
on thé injury shon)d be preeedcd by a demand. For, here, th''
right of action itaa aireadv accrucd, and thc use of thé previou-
demand woutd rnerely amount to this that it wontd ~ive thc
deittor an opportunity of redressing t))e wrong, and n)i};ht. there-
fore save thc parties fron thé eviL-i which accompany a suit.
 But m cases of thé class which 1 am aow c<ms!denMg, there
is no injary ~ittteKtiomtt M' by Megti~ftec), Mhti! thé ereditM' J~L
dMfttmd pertbttua&cc, itud untit thé d<:btor (intentiontd!y or by
neg!igence) cotnpty not with thé demand.
Strietty speatting, the case stands thus. Looking at thé
essentiab of injury, thé party ob!iged is not guilty of t"j"y.
But he is uonsidered by thc Courts us if hc h:td btokcu lus
obligation, and is accordin~y liaUe in an actiou fM' damages
aud coats.
Ix <'<W«!'M am now c'~xsiderin~ it
cases of thé c!ass which 1
)!), indeed, expédient that thé créditer should be penuittcd tu
sue, althou~h M demand bas been made upon the debtf))'. But
why ? Hecauso thé debtot' bas actuatty broken thé oUi~ation
ur because the debtor !'K<' /i~ to bt'eak thé oMigation, and the
doïay oeeasioned by a fonnal demaud mi~ht i'acilitatu thé
exécution of his unhnvfui design.
For exampte
If the dcbtM' withdraw hiniself from his home (~r frotn his
M&u<d places oî reaott, m M'<~)' <&Mt &<: otfty ct<M~ a ~M<HM~, he
is placed in the position in which he would hâve been placed if
thé demand had actuaUy been tuade. Or, speakit~ more strictly,
:t demand M made ou thé part of thé créditer and it taay t'ait'Iy
te ~'MMm< from thé conduet of the debtor, that he ]<as t!0<<c'.
<jf thé demaud. He i.s fuirly Hable to an action, and to thé costs
occasioaed by the action. For he is eonscious that thé oMi~ee
requires performance he withhoMs perfonnauct' notwithstauding;
aud he is thereforo gui!ty of an actual injury.
Again If there be reason to suppose that he means to
wititdraw hintsetf frotn thé juridiction, or to place his goods
heyond thé reach of process, it is reasonaUe that thé creditor
should be permitted to suc, without a previous (ten)and. For,
hère, the debtor presently u~<'M<~ to comntit an injury and thé
de!ay oeeasioned by a previous dernand, might enab)e hi)n to
defeat the action by withdrawing his person or property.
In this case, thé action is institutcd for the purposo of ~'f-
y(M/:fK; and it operate-i like an injunction, or a Me ".«<< )'«).
Hut where there is nothing in thc c~nduct of the debtor,
indicating a)t intention to frustrate titc ct'editor of his ri~ht, it
is ctear that a demand of performance, with subséquent non-
performance, ou~ht to précède thé action And that if an action
Le brought without this importantpretiuunary,thé créditer shouM
)? liabte for the costs of t)te needtess proceeding, an't bound t'~
make satisfaction for the gratuitous vexutiott which he occasions.
472 /<t~('C~MMO!S<<~
tdtCT. On t<Mt!fm<y over Ëvans'a
looking n<Mf l~&nst'a Dtgest of thn
ÏHtmat ftf Stnhttt. fn*
tHo StatMtos for Mother
YY\' purpose,1 hâve had gréât p!e«s<tre m otMervmg thataojudictOM-!
put'
PU1'

a writer
!m m tabs thé sfune viow of this qo~tion whieh 1 !mve
jtMt Stated. He says (vot ii!. p. 2S9): 'Tttere M another Me
(tM<
in Courts of Equity which may deservo a dinbrent consideM.tioa,
as applied tu legal demauds, viz. that tength of time is no bar in
case of a trust. Wherc ft man déports tuoney in tho hands of
another, to be kept for his use, thé possession of thé custodeo
ought to be deemed
tlie possession of thé owner, until an
application and refusaI, or other déniai of thé right for, until
then, there is nothing adverse; and 1 conçoive that upon prin-
ciple, no action should bo aHowed in those cases, without a
préviens demand consequently, that no limitation should be
computed further back than such demand. Aud 1 think it
probable that, under these circmMstance~, thé limitation would
not be allowed to attaeh, though the other part of tho observation
would be as probabty disatlowed." For a sweeping n)lo bas been
by some tneans introdueed into practice, that an action is
a
demand whëreaa <t'f~ a<'<tOK tM its M~«)'<; ~M~MM a ~M~M~
<~<«~ wh-ire money is improperly received, ur goods are bought
without any spécifie credit, or even where money is borrowed
generaHy, there is held to be an immédiate duty, and it is a
perfectiy tegitimate conclusion that no detaand can be necessary,
in addition to the duty itself. But wherever there is a loan in
thé nature of a deposit, or any other confidentiat duty is
con-
tracted, thé tuere creation of that duty, unaccompanied with thé
.tbsoiute breach of it, by déniât or inconsistent conduct, ought
not to bc considered as a ground of action.'
I perfectty agrée with this reasoning as applied to thé case
of thé deposit. It is only on breach of tlie obligation, that
a
right of action should accrue to thé bai!or. And it is ouiy by
refusai or negtect to return thé subject on demand, that thé
obtigation is broken.
But similar reasoning is also applicable to the case of goods
sold without spécifie crédit of money lent generaHy and of
money paid and reccived by mistake.
In thé case of money paid and received by mistake, it i3
neeessary to distinguish.
If the money was received &M«~<(, it surely is expédient
that a demand should precede thé action. For until the debtor

rio hr
xs )D-wb thé operatio)) of with ju'ticia) deei'.ion (t'hitmtt < Kc).
th.: statut* .;f )i)ifit<ttioM<. thé principe ~v. 3 Ad. & t:U.
t0(t Edwanh f. Clay,
hMe totttendtd fer M<-m<! ttûw to coMsiat 2't Meav. ~f).–K. C.
 is~ssr~ ~,n sn s~ vm~

ia apprised- of the mistake, ? M tmpossiMe to say that he has

btokotn~<'K<'t<Mct~of6yM~~M!Mh!9oMtgationtiO'returnthe
rnoney.
money was received m«/<!y?«f< the act of receiving
If thé
the money was in itself an ~'tt~; an injury <m<~fMifCMs to
untawfut taking. Thé only dinerence between thé cases lies in
thé means. In thé one case, 1 take thé goods of another with-
out thé consent of the owner. In the other case, 1 take thé
goods w~A his consent, but by reason of an error in which he is,
and of which 1 avail myself by suppressing the truth. Hère,
therefore, thé debtor is guilty of an injury from thé very outset;
and no demand is necessary as a basis for thé action.
1 shall hère remark generaUy, a distinction which exista
between obligations arising from thé possession of MS a~M7«B,
or things which are thé property of another person. The party
entitled bas always a right to thé restitution of thé goods or to
satisfaction for their loss, and thé party in possession is always
bound to restore or satisfy.
But thé nature of thé obligation depends upon thé conscious-
ness of thé party in possession If he possess the subject MMM
his possession is itself a wrong. His obligation to restore
or satisfy, arises from an tM/<H'y; and, inasmuch as thé right
which is violated is~M in MM, thé obligation is ex ~<<c<~ (in the
strict signification of thé term).
If ho possess thé subject &o~~< his possession is not a
wrong. His oHigation to restoro or satisfy is ~tM-M M coK<ra<'<M
That is to say, It anses from a fact whieh is neither an injury
nor a convention. But so soon as ho is apprised of thé right
which résides in the party entitled, thé obligation alters its
nature. It may either be considered as arising from a breach of
thé quasi-contract or from a violation of thé ~'M! )*<?: which
resides in the party entitled. And, on either supposition, it
arises from an injury. Thé only dinGrenco is, that it arises, on
the former, from a breach of quasi-contraet whiist it arises, on
thé latter, front a <Mf< (strictly so cailed).
[Remark on thé indistinctness of thé boundary, by which oMi-
gations fM/t/e are distinguished from obligations ~)«Mi M eoM/)'«<«.
Tho receipt of moncy paid by mistake ought not to be considered
as begctting an obligation quasi ex coM~'ac/M, if thc party receiving
be in M.aM ~M<. The action should be Case, and not Assumpiiit
(aMumiog. that is, that thé forms of action shout't be kept up).
Thé Roman Law not ft-ce from this uneettainty.
The confusion of qnasi-contmcts with contracts, peculiar to
English Lawyers.]
 474
L)M-.
~A~
Thé ftttegation
T!'c ftHesation in b!Jt..j, 'that thé p!a.intin'
ia bm..).
XXV détendant to purtcfm t~& o~ect of t)n) suit, but thtt~
n~uitiH' haft
haa refiuash'J thû
requestcd tiM
thé ttetMMtant
hits ï'ch).-)ed or negh'cted to coapty with that Mqucat,' (I shanid
suppose} merely tôt-mal <.< i[ ia not ineumb'nt on thé piaintin'
tu pt-ovo it. At t~Mt, tt demand is Mot Mecess<t)y, whct-e thé
ii
défendant bas actuaUy cMmttUtted an injury. But where notice
must be };ivett, beibt-u thc défendant M~ eoMmit an n\)ury, there r
(I ttppt-ehond) a demand on thé part of thé ptaintin, wit!) subse-
quent refusai or u~ect un thu piu-t of thé do~nd~nt, is a
necessary pi-eibninary to the institution of thé suit. J~. tf
yon aœ seizetl in fée in trust for KM, you ttre tjound to eonvoy
th~ tcgtU estata as 1 shall direct. But if 1 {it<;d a bill for thé
purpose of cotapolling a couveyance without previous demand
and con~uont refusât or nfgtcct, 1 think that JE'~«<7y (who, let
)tueu tmduce her fts they )nay, is far more rationat than her sister t
and rival 7;<«t') wonid compel )ne to pay thé costs of thé wanton []
and vexations suit.
1
(
Tho Hoinau Law, in regard to thé matter in question, is
perfectty rational aud. consistent. In <dl eaaes, ti~ institution
( an action must lie preceded by a notice to thé debtor, provided
of
ttfte debtor can be found. In case thé debtor has not broken
thé
t obligation, thé notice is necessary as a &«.-<M to t!te action.
1In case thé debtor has actually broken thé obligation, thé notice

gives
fi him an opportunity of redressin~ the injury, and of saving
i"
iiimscif aud tite creditor from thé evils of a suit.
Whether or not a demand tnust précède an <M~'OM, is, there-
)
ffore, a question which can ~tpver anse. As a demand must )
précède
r an action in every case whatever, tlie onty question ]
which
Y can arise is this nameiy, w!)ether a demand of perform-
aance must be mnde by thé creditor, in order that thé debtor may
hlie <? M& and may incur thé habiHties which
are incident to
that predicament. This I will endeavour to explain with att
ti
possible
P brevity.
J/o~ The non-perfornMnce of an obligation is in thé Roman Law
styled
S~ mw~ for thé debtor <y.! performance or, in conse- ]

qquence of the non-performance, thé creditor M f/7~< Xot

unfrequcntty,
u it is sty!ed/<-«~-«<M,or ~)7H<M.
But the predicament in which the debtor is p!aeed in
conséquence ofhis non-perfontmnce, is also styted M~ ~M/w
c~
~'<t MMMM ~<;tt< in M<M'~ ~)<7)<f. Heing ;')<
Habilities from which he were exempt if he were not <M
7~ he incurs

M~<
M'ihktthntdt. i. 325. 9X9. Mackt-h~y, ii. tM, 'J
 Fttt' exMttpte If tt hto~ttbtti) hus beea deposit~d with thé <
debtor in ontcp ttmt he might kecp te sftMy, he M not tiabte jbt-
accidentât dfHHttga, unies.t he be m m<'<-<ï. Hut if h& refuse tn
retnrn it ou demand rnade by thé créditer, ttc is t/t M<f/'< and
ho H thenceforth !!aMo tbr acctdentai damnée, as weH as iNt-
damage occasi~tted by his intention ur nc~It~enco.
If he owe tuouey payable on deinand, and after dcntMnd
()<;cline ar ne~tect payment, hc is !K w<t~. And beio~ <M 7/<f/'«,
}? M h«t)))d te pay Htt<'t~")t on Um nwMey which he dftftiua,
tiMttgh no iuterest wa'! previuusty payable.
Now, if no thne bc nxed fbr thc porfonnance of thc objj~atio)),
the deLtor is not tK w«x'< aud doea not inem' thé liabilities
incident to that prcdieament, uniuss a demand of performanc<;
bo made by the creditor, and un!es.s thc debtor comply not with
the denMnd. Thé rute is' /<f<c/~<«Mf/<MM< ~<&t< ~c« t< ~Ki/t
<y/M'<«<M.' TttG autliot's of the rule justly cousidered, that
intentiou or inadvertence is of thé essence of wrong and that
thé obtigation could not be hroken, cither through iatention or
inadvertence, untU thé creditor required performance.
If tt specine <<H<M or time be nxed for thé perfortuauce,
the debtor is ~t ~w< untess he perform at that thnc, attiiou~h
no denmnd Le made hy the creditor. 'Z)t'< </<<<)'<?<< /M'
/<f)Mt !'<«' (X.H. //i<)'~t~<<w si~ifies makinfj; a demand.) For,
hcre, thé debtor breaks thc obligation, intentionatty or by
neg!igeuee, whothcr a demand be made or not by thé opposite
party. He knows y';)t'-t'«/ that he ou~ht to perform at thé
thne and a demand of performance on the part of thé creditor
were, therefore, supernuous.
Whether a demand of performance ought to précède an
action, and whethcr a demand s!Mu!d be made in order that
the debtur may be «( ~f«-(!, are distinct questions. But it is
manifest that the solution of either question must be sought
for in thé same source namety, in thé state of thé debtor':)
eonsciousnes:). If hc know that the performance is due, and
yet do not peribrm, it is reasonabtc to présume that thé non-
performMice is thé conséquence of intention or nc~ti~enc'
He is xetutdty ~uilty of injury. Con.sequetttty, a dcmand of
performfmce is not an <«t<~<t;<< preliminary to thé institution
of an action. And, further, it is not uumMonabIc that he
.shouid ))o subjected to certain Habi!ities, which he woutd not
hâve incurred, if he had been c!ear of un!a\fut intention or
uuhtwM inadvertence. On this, as on ahnost a!! other subject.
rctating to contracts, thé depth and consistency of thc Homan
4?6

J~L
LKtT.
l'.
,XXV.

Before
renmrk.
ret
négligence
ne;
1
o
/<t~~(M<~<*<
ïawycïs is truty adhurabte, and is only cf~uaHed by thqir p!ain
Î!M
ttmtmatJytmmBeEofexpïesMngthaitmetmmg,
an
disnnss this subject, 1 may make tltis general
In most cases of breach of contract, thé intention or
of thé debtor is so nttu~i~st, that thc question is not
agitated
ag or even advet'ted to. And from henee wo might incline
to int'er, that intention or MegMgonco is not of thé essence of thé
w
woug. If we look into the détail, we hamedmtely perceive
t!mt breach of contract as necessM'Hy supposes intention or
th!
negligcNce
ne as any other injury whatever.
For instance: whether a demand be an essential preliminary
to an action, or whether thé debtor be in M<~ without a donand,
entirely
en dépends upon thé presence or absence of intention or
nfg!i~e)tce.
nf If «'<'<A<~«< demand he could not A'MMc that he was
brea-king his obligation, it is mauifest!y neeessary thnt a demand
b~
should be made, before thé action is instituted by thé créditer,
sh~
or beforo the debtor is plaeed in the predicament which is styled
~tM- Iu aU cases in which thé contract binds him to ~)7~<!H<<a
~t<
(as in cases of bailment), thé question of négligence or not,' also
t'requcntly arises. In ordinary cases thé question does not
t'M
arise, because thé intention or negligence is ntauifest and
ari
indisputablo. 1 make this remark beeause, owiug to thé
in<
arrangement adopted by thé Roman institutional writers, one
an
is liable to suppose that breaches of contraet are not similar to
other
ot] breaches of obtigation, and are not even injuries at aH
not being ranked with delicts or injuries, nor bearing thé same
no
ttame. tn the arrangement of thé Roman law, not only the
tt:t
pt'itnary
pri obligation-; arising from contracts and quasi-contracts,
are called <'M!<~M, but likewise the obligations arMing from
ar<
br
breaches of these primary obligations are called oMM/a<)'<M)«i
"imp]y
-'it and are said to arise not from de!icts, but from thé con-
tracta
tK or quasi-contracts. And in our own law we talk of actions
<~ coo<)Y«'~M,and distinguish thcm from actions ex fMM<e. It is,
however, undeniable that actions <.c eoK~'f<c<t< are just as much
ho
founded on injury, as thé actions which are said to be M f/< <M~.
foi
Rtsunte Untawhd intention or unlawful inadvertence, is, therefore,
<)tH['ri)). of and for this reason, that the sanction
that «flf' thé évince of injury,
eipte.th~t
eil'le,
intentiott could
c~ not have operated upon thé party as a motive to thé fu!-
urinât)-
vertes; filment of the duty, unteM at thé moment hnmediateiy
preceding
Mofthe th wrong he had been conscious that he was violating his duty,
thé
CMtMtot'
injury. ~r untess he M'oMM have been conscions that he was vMating his
or
duty, if he had advcrted or attended as he ought.
d):
 ".irL" .1.R
If we exaMtino al. ..1.I.
1'
thé groMnds of thé vttrion-! exetnpt~M from
MabiKty,wo~taUSndthMnmst~thoM~httotaH)ofthcntaKi
reducible to thé principles which 1 hâve now statcd. We shall
tM 'f.u.
Lt<t'.
M
t!t OMundtof
t
find (generaHy spe~king) that the party is clear of tiabitity, txemptioa fi
i *'tmnt]iM.
beeause he is ctear of intention or inadvertance or (what, iuMUty.
iu 1,
v effect, cornes to the same thitt~), because it is ~'MKMt~ that ht: ~j
–.tHMb~tu
M clear of intention or inadvertenee. ti
Thua: No one is liable )br a tuischief rcsultiug from
«MM~ca~ or tA«M<'t' (M<«.<). 'nmt is to say, front sotnt: cv~ut )1
!t~.
"t).Ct~U<ut
(«</(tif than act of his own), which hc was UHaMe to forMce, oj-, AwtdeMt.'
fofeseeing, was unabte to pfeveut. Whether the eveut happhu ~t
through thé intervention of Matt, or wttether it happen without Ut
t!te intervention of man, is not important. Thé essence of <'<M«~, <.<.
<<f<Mc< or NMtf/fM<, lies in thb that thé event was nut au act
doae by thé ~iven party, and eould not hâve Leen ibreseen or pre-
vented by that given party. This (I think) is thé meanir~ of
ca~M. or «<:ct</<:)t< in thé Roman, of c/tK/icf or f«'t~<M< in our own Law.
By thé Common Law' (says Lord MansMetd) a
carrier is
an insut'er. It is laid down, that lie is liable fur evet'y «ctiW',x/,
except by thé act of God M' </«' ~tv~< <'M('M«'M.' Hère, thé tenu
<!<:c«/c~ includes t!to o~ MfM namely, of thé king's enouies.
And, in thé Digest, it is expressly said, 'y<«t<M M~t'&M.! solet
etiam adnutncrari ff~AM<~f< ~pK «<<).'
It wou!d seem then, that <«.~i«! or <!fn'</(H< includcs thé aet
of man. But (I think) it is ncvet- extended to thé act of thé
party hirnse!}'. An act of his own is hardiy caHed au f«;MW';M/,
although thé act be not <'M~«M< inasmuch as it is not accotn-
panied by unlawful intention or inadvcrtence, or, is excusable
for other reasons.
lu thé tanguage of thé EngHsh Law, an event which happens
without thé intervention of man, is styled 'thé Act of C!od.'
The language of thé Roman Lw is nearly thé same. Miscitiefs
arising f~m sueh events are styttjd f/«MMft~«<«~'«, or f/t'/i-tm<~f<
~M. They arc ascribed to <
<<'<M~, or to a certain per-
sonage styled yf<<t<M. Or thé <'«.«/.< or «<.<:t'<~M< takes a spécifie
name, and is called ~(M~«.).
Tite language of either systcm is absurd. For thé act of
man is as much thé aet of God as any cvent whieh arises with-
out thé intervention of man. And if we choose to suppose a cer-
tain ~f<<t orf/t.!i<!«< we must suppose that site or it déterminer
thé acts of nien, as well as thé events which are not acts of meu.
Miihtpt'ttntc).. i. 179, S26, ?!. ii!. ]CS. H<;i))'i<;ciM.s, RccttatMM.s, t.3:.
Mteketticy, ii. 167. MactMtoM, iv. M 53!
 ht thohtHj~tmge ot'~he R'wnMt L~w.evetttswMchhitppen
withfHtt thé intcfrcfttMtt nf m<m, <tr<? s~mefitttes diatittguished
front thé ot.hM'-)hythot~tuwf«t-'<<. (h'~what eunMatfthe
same thin~) t!tuy nrf a.~)'ibed to <-M ~«<«~'«/M.
Keturning t~ t!ie kgal eucct of f~ff-f, <7t~ttM-, or <M<:M<;M<,
)M man is tia.Me, civitty or criminatty, fut- a pure!y «M-t.«/
nn'<chiof. Fur, as hc could not forMSfe tim event frout which t)M
mi~'hiuf iu'o. or was utturty unuMf to ot'vittte thé evcnt or its
con)!<uG!te<'9, thc mttchtef is not itnptttabk to his mtt'ntion or
uegli~tn:
For exumple. If 1 am in po~e~stuti of a htmse, M' uf t)
!uovcabte belmigini.: to ftuother, an'! the subjuct w)uist iu
my possession is 'ksiroyed by au itccukutut tire, 1 mu not
liable to the owner in respect of thé damage. Damnum ux
easu sentit dominus.'
but whuu 1 !iay, that no mau is tutbic iu respect of au
necMc.mtd uu~chMt' 1 mean, thut he i3 not li~Me «~ ./<)<' «/<.
;'«/'«/y c~' «-OM~ ror, by virtue of tm obligation arising
«<tttM~< he n)ay ho HaMe.
To revert to the instance which 1 ha.ve just cited :–1 am
tinMe to the owner foi' thé damage dune by thé Hru, in case t
coun'aete't with him to that efKjCt. 1 ata also littbio in case 1
Ma a carrier, und the subject bas comc into tny possession in the
course of my catlin; If the subject was deposited with me in
order that 1 might keep it safely, 1 am aiso HaMc (aceordiug to
the Homan I~w) if 1 a)a Mt /H< that is to say, if tho owner
has requestcd me to retum thé subject, and 1 hâve nevertheless
kept posscs-sion of it.
But iu thèse and similar cases, 1 am not liaMe ns for au
injury, but by virtue of an obligation f~' <:u/t~-t<c~/ or ~M«- <
~«t<)'<!<<. The mischief done by the fire, is not thé conséquence
"fan injurydone by me; although 1 .</f< be answerabte, tM~
t~'x~, in case 1 perfonn not !ny special obligation to nmke
-~ood the ]oss arising from the accident.
Thé carrier is a person un whom the law imposes u par-
ucu)ar obligation, and att persuns are supposed to dea! with
thé carrier on thé teruM whiuh thé taw prédétermines, un!ess
they speci~Hy provide otherwise. Dus is t)te case of what
are tenned dispositive taws. A particuiar armn~'ment i-,
'tetennined by a provi.sif))) of thé !aw, subject tu be a!te)'ed bv
a spécial convention betwcen the parties. Titus, ahhough as a
~.urier ï am !iable ~r att damage sufiered by jï<jods uuder my
':h<u-e, except from the aet of Cod, or thé hing's enotuies, 1 am
<ttHbctty t<t retievc Mtyoetf &OM tki~ Habtttty, by stteking up tu
my st)op a notice t& that ettect. fn eithor cnso, thc obHgftttOM
MnM't ftotn a eoMtttctr m t!te one case, thé partit~ enter htto at
cuntmct., taeitly adopting thé pruvisiona of the dtspoijhh'e law
ht thu other case, t))ey enter into a tuore special contmct,
moditying thosc provisions. In tho case of N«~, atso, tiiei
obligation to ntMwer for ttamngc by tire or 'jthfr aceidunt, does
nut arise tt'otn thé tire, but is conséquent M) a pt'eviuus htjury.
If this oMigntMM) be v!o!at<;d, a new injury is commited and at
°
conséquent obligation iiietirred.'
Auothfr ground of exemption M, <~)iM'«/<fc or ww withiS.f~lo. s.
regard to matter of fact. Ÿ

Now, hère, although thé /o'(M.<~ ground is ignorance orr

en'or, thé M~</Hf<<c ground is thé absence of uillawful intentiont
or unlawful inadvertenee. For uniess thé ignorance or errorr
was )'<f<<7«Mt or ~!i'!MNMc (or, in other words, uniess it eoutd1
not ttave been removed ùy due attention or advcrtcucc), thc net,
forbeamnee, or omission, whieh was t)ie conséquence of thé
i~noMnee or error, is imputttMe to negti~ence, hecdhHsness, or
temerity.
1 will touch brieOy upmt a few cases, wherein thé party is
exempt from civil and criminal HabiUty, by rcason of ignora))ce
or error.
'Si quh' (.says Utpian) 'hominem Hberum ceciderit.~M~
~<~<< .wi'MM M<K~<, in et causa est, ne injuriarutn teneatur.'
Here thé party whose conduct is in question béats a
freeman. But he is not Hable as for an assault and battery,
because he beneves at thé time of thé beating that thé nmn is
his s!a\'e. In conséquence of ignorance or error, hc thittks that
he is exercising his indisputable ri~ht of using and abusin~ his own.
Another case, ctosety resembtin~ thé last, is thé foUowin~.
If thé party p'~ssess &«H~ ~f/<' a thing beton~ing to another, and
if thé thing be damaged by his abuse or caretessness, he is not
nitMo tu thé owner in respect of thé damage atthough he K''M<M
hâve been liable, if lie had possessed thé titing M<f<M yMc.
Item enim ~i«M< At<«M negtexit.'
;L.

to)M!itr)ti';h)'r'y~itt)uti))t)ti!<omtH'y<
J
/W< f<:<'<)'t'ff<, ftMt
*A.<tsfn'M)tIyth''<)~;Hith''U!i'/
CM
t'<ft<'t't<i«.Mt<'(U.h'.C'. The)ft<Muf
yv.t<t'<<«-M<, )')< y,
uth~iiahitityittth'Kmffanhwwa.show-
"htybutthrM!Kh')'itKur!'jM',t)M<:ustu)ut t
!<)<'[ tttuk'Manuin~rt-httit)~ tu ~t'v<'r))')ti)!)p!tMt~)ntr;t''t~t'it)t)t')mfitv,
cart'i")~~
nf!H're')~!ti.wiasth')ttm')n)fm't)f) tfttHt~t~Mïn'ttt*i~C.
1
K))!;)a)t<),))!)')it'ion}<)nittt)M))u''itiv<'
e ''F'-u';r))!teh,p.).M)i))!cn))tH'')),
))]99,3:it.
))m''))j<M)ttit)};a)««)t)~tt<itu){o«m)t.s:it)] Ko.~)tirt,M. Ma~tûM,
')iii.m,!i;t;iv.~0. )!.ittU.M<rr.
t))i'!ittst.)n'f'<))')winK*)"*t'f"t'ti
u))t)M)'r!t')tMnKtti!'t,V'f"<C'<M-])CS.
~W)<A'~&)<~<t<~<~C<[~f~tttt'<~('t<~<
rr
 The BMcgoing examples Me taken &<m thé Roman: thé
J~L
XX\ foHawiag,
~u
fe from thé EngtMh Lsw.
if 1 htf~ yum' servant, /M«*M~ that he ta your servtHit, 1 F

am guilty of an oHence agtdnst your right m the servant, and t

tt!u tiaMo to an action on thé Case. But if 1 hire yo«r servant,
«<'< knowing that he is ytur servant, 1 am not ~uiMy of a wrong, <

and am Mot UaUo to an action, until 1 t'e~iv~ Hotice ot' ttis

privions contract with you. t
If 1 koep tt dog givon ttt worry cuttle, tmd if 1 ma apprisud ]
of </<f<~ his miitchievous incluiatiou, 1 ant !iabk for damage done
by thé do{; to my ueighbour's cow or shecp. But uukss 1 am
appriaed of tus vicious dispositton, 1 am not guilty of an injury,
and am uot liable to make good thé damage." For thé damago e
is Mot imputable to my intention or inadvertence. t
If, intending to kill a bur~Iar wlio bas broken into my <
house, 1 strike in the dark and kill my own servant, 1 am not
~uitty of murder, nor even of ntanstau~htcr. For tlie mischief
is uot imputable to intention or inadvertence, but to inévitable
error. That is to sa.y, to error which could uot h&ve been
prevented by any attention or advertence, practicabte undcr thé
circumstances.
And so much for ignorance or error, with regard tu matter
of fact.

Before 1 dismiss thé subject, 1 will brieny advert to ignorance

or error, with regard to thé state of thé law.
In order that an obligation may be enectual (or, in other
words, in order that thé sanction may operate as a motive to i

futiUmcot), two conditions must concur. Ist. It is necessary

that thé party should know thé law, by whicti thé 0&/<H<<~t is
imposed, and to which thé <Sf<K<<M< is annexed. 3ndty. It is
necessary that he should actuaUy know (or, by due attention or
advertcnce, M!< actually know), that thé given act, or thé
given forbcarance or omission, would K'~«<<: thé law, or amount
to a ~'<-<M/< of thé obligation. Un!ess'thèse conditions concur,
t
The «rcsutnptitt) whieh apMr'-ttth Thé tfoUM of f~p)< (t.or~b CnMwotth
exM<f)inKttShndinfsvourofthum't-[. and!!roM{;ha)M)')v<:rru)mtthii!tMi<ia)t
M«<« )(<!<)< ft of our do}p) hM et.cwhe-e
(2))!(a)U<n,U). AMActwa.ftiu))!
not })M<)ed without controv'rsy. t)' qnt-ntty pasM-d (for Scothttti), dechrit~
tt itunM'mry,i'mtnn:tion~tinstt)M
case in S'-f'ttimd where s)t''<-p htd ))<:<.n
worried hy a foxhoau' the tttt'i ~'nt t <twner of thé inJHte
d«K, to prove !t ).n'vinus
(.'ockb'tr« ret'u'tiatcd th" pnnfiptf t
thftt propettsitY tn fatt<M (2'! & 27 Yi<;t.
'every <to!; u cntith' to )'!<vc at ]e<Mt
af~~t
tt c. 100). ÀK A~t
~~w~b~~thr!t(M&Mto a sixtihr puniort WM
~x «-«i-f~ an.! thé Sco'h Court
with )'m< in ['rMuminx, that if et 'tof;
f; Vi.'t. c. <!0).–K. C.
worry fiticep, thé uwt~r is to bht))~
 p

it is imposaiMt! that thé stuictiou shouîd operate upon his desires.

Oc (chttoguitg thé expMs~tOM) thé given aot, or thé give~ iot'be<t!
anue or omission, cannot be imputa to. an uniawfui mtention,
ot* to any of those modes of uniawfui inadvertenee which are
styled négligence, heedtessHess, or raahnesa.
Accordingly, inévitable ignorance or error in respect to
matter of fact, is considerod, in every system, as a ground of
exemption.
With regard to i~tiûnmce or etror in respect to thé state of
thé law, thé provisions of dinërent systems appear to differ
consideraMy; atthough they aiï concur in assuming ~/€Hf?'<
that it shall not be a ground of exemption.J~H/x~ est, juris
iguorantiam cuique nocere,' is thé language of thé Pandects.
Aud yey Manwood, as reported by Plowden, It is to be
presumed that no subject of this reaint is misconusant of thé
Law whereby he is governed. Ignorance of thé Law excuseth
none.'
1 have no doubt that this nde is expedient, or, rather, is
absolutely uecessary. But the reasous assigned for thé nde,
which 1 have happened to meet with, are not satisfactory.
The reason given in thé Paudects is this In omni parte,
error in j'!<e non eodem loco quo /:«'<t ignorantia haberi debabit,
quunt jus ,/Mtt<«Nt et possit esse et debeat: facti interpretatio
plerutnqne ctiatu prudentissimos fallat.'
Which reasoniug may be exprcssed thus
Ignorance or error with regard to matter of fact, is often
inévitable that is to say, no attention or advertence could
prevent it. But ignorance or error with regard to thé state of
the law, is never inévitable. For thé law is detinite and
knowable, or might or ought to be so. Consequendy, igtiomnce
or error with regard to thé law is no ground for exemption. If
thé conduct of thé party be imputable to ignorance of law, it is
not imputable ~ttw< to unlawful intention or inadvertence.
But as the ignorance to w!uch it is ImputaMe is thé consequence
of uniawfui inadvertence, his conduct, in thé tast result, is
eaused by his négligence.'
Thé reasoning involves thé small mistake of confounding
'is' with might be' and ought to be.' That LawMt~/i/be
knowable by ail who are bound to obey it, or titat Law o~/<< to
he knowable by ail who are bound to obcy it–t«!<KM et
possit esse et debeat,' is, 1 incline to think, true. That any
nctual System H so knowable, or that auy aetual systctn bas
Digest, xxii. «, 2.
4~9 ~~MM~M~MM~MM~M~
ever becn so knowable,
becn so !:nowaMe, is ïtotorM~sty atxt
N so ïtotoripusty and nd!ctt!ot)f!ly
rht!ett!ot)f!ty fatse
J~L evo
t.HE'r.
t-HE-r.
Wt~ thM
tha< 1 shitU not oeeupy your time With pfoof of tha contrary.
Maehstone produces thé saine ~-c/i'~t m~'o, navoured with
a spicf
s of that circular argumentation wherein lie deHghts.
AA mistake (saya h~ m point of. Lnw, which every person of
discrétion, )mt only mf<y, but is bound and presumed to ktMW, i:
is in crinunat cases no sort of defence.'
Xow to aHirm thut every person may know thé !aw,' is to
aMrm thé thmg which is not. And to say 'that his ignorance
should not excuse him because he is &««K~ to know/ is simpty
to assign the rute as a reason for itself, Being t~ound to know
thé law, he caunot etIeetuaHy a!tegc hi.<) igHOtauco of thé law as
a ground of exemptton from the law. But w/ty is he bound to (
know thé law ? or M'~ is it presumed, y«~ et cle ~'M)'< that he
knew the law ?
The only ~'c<fn< reason for thé rule in question, seems to
be this that if ignorance of law werc admitted as a. ground of
exemption, thé Courts would be involved in questions which it
were searcely possible to solve, and which would render thé
administration of justice next to impracticable. If ignorance of
law were admitted as a ground of exemption, ignorance of law
would aiways be alleged by thé party, and thé Court, in every
case, would be bound to décide thé point.
But, in order that thé Court might decide thé point, it were
incumbent upon thé Court to examine thé foUowing questions
of fact Ist, Was the party ignorant of thé law at thé time of
thé alleged wrong ?1 2nd!y, Assuming that he was ignorant of
thé law at the time of thé wrong aUeged, was his ignorance of
thé law M<:M<aM< ignorance, or had he been previously placed
in such a position that he might have known thé law, if lie had
duly tried3
It is manifest that thé latter question ia not tess material
than thé former. If he might hâve known the law in case he
had duly tried, thé reasoning which I have produced from thé [
l'andects would apply to his case. That is to say Inasmuch
as thé conduet in question were clirectly imputable to his
ignorance, it were not imputable directly to mtlawfnl intention
or inadvertence. But, inasmuch as his ignorance of thé law
were imputable to unlawful inadvertence, thé conduct in question
were imputable, in the last result, to his Mf~(/'«'.
New either of thèse questions were next to insoluble.
Whether the party was really ignorant of thé law, and was
ignorant of the law that he Itad no <)<t' of its provisions,
 could sc<u'ce!y be detennined by uny evidettee acceasibt<< to
ottMt's. AtKl br thé parpose of detenMtHtM~ the mrw-~ of his
ignorance (it& KH~ bciug ascertttiucd~ it wem incumbont u}~n
the tribunal to unittvd his previous history, and to seareh Itis
who!e life for the etemcnts of a just so!ution.
The reason for the !'n)c itt question wontd, therefore, seem
to be titis:–It Hot utifrequettUy httppeus that thé party is
ignorant of thé lnw, and thnt his istionmou of thu iitw i'. inévit-
able. But if i~noMmce uf law weto a gtwtHtt ot' exemption, the
ndmioi.stttttion of justice would be an'e'itcd. For, in atmost
every case, i~uorance of law woutd Le aHe~ed. Aud, for thc
purpoae of detennining thé <'<;«/<~ and ascurtaittin~ thé c«!< of
thé i~torance, thé Court were con)pe!!ed to enter upon questions
of fact, insoluble and interminable.
That thé party shult be presumed ~~i'cM~~M- conusant of
thé law, or (c)ianging thc shape of thé expression) thnt his
i~nomnce s)m!t not exetnpt him, seetns to be a rule so necessary,
t!tat law woutd become inencetual if it werc not app!ied by the
Courts geueraHy. And if due pains were taken to pronm!ge thé
law, and to clear it of needless complexity,tlie presumption would
accord with thé truth in thé vast majority of instances. The
party (generaHy speaking) K-oxM actuaUy A'Mo~ thé law. Or
the party, at least, nught so ~u-MtMe its provisions, thnt he could
shapc his conduct safely. The reasoning ht thé Paudects would
then bc just. The law woutd be in./«t-< as '<K~i and know-
ab!e, as '~o.Mt< Mw, et <M<'«<
Thé admission of ignorance of,/«c< as a ground of exemption,
is not attended with those ineonveniences which would
seem to
be thé reuson for rejecting ignorance of ~x' as vatid
a excuse.
Whether thé ignorance really existed, and whether it was im.
putable or not to thé inadvertence of thé party, is a question
which may be solved by looking at thé circumstances of thé
case. Thé inquiry is limited to a given incident, and to tlre
circumstances attendiug that incident, and is, therefore,'not
interminable.
1 hâve said that thé provisions of difierent systems
seem to
differ consideraMy with regard to thé principle which 1 am nuw
considering.
In our own law, ignorantia juris non excusat' seems to
obtain without exception. 1 am not aware of a single instance
in which ignorance of law (eonsidered ~f ~;) exempts or dis-
charges thé party, civitly or crin)ina!!y. In thé
case of infancy,
and in certain other cases to which 1 sha!! advert directly, thé
 fM Htcapactty of th~ p<ttty to know thé t&w wouM seem
J~L pMSKtCMtt
to) be
to 1 Me or thé gronda MpoM which thé exemption rests. But
hb presnmed iuo~M~ity tu knu\v thé tnw ts only une of those
hts
gl'otmds.
~-01 His exemption rests ~«tt~'«//iy, upon his ~< Mf~~ in-
c:tpacity (real or presmued) tu judge sanely of law or tact.
t*rom tm opuuon throwa out by Lord EMou, in thé easo of
Stockley f. Stockley, 1 iuditMd to think (lit tho Ht-st Mush) that
a t~arty would )? relieved, in certain instances, from a contntct
into which lie had ent~red in i~noMnce of hw." But, adtnitth~
t!~ justness of Lurd Eldou'.s conclusion,thé ~remuent(I couceive)
would be void, not bccausc the party was ignoMnt of thé law,
but beeause theK i. 110 considération to support thé pt\nnise.
According to thé HMnan Law, there are certain classes of
persons, 'quibus permissunt est jus ignorare.' They are exempt
from liability (at hiast for certain purposes), not by reason of
their général imbecility, but beeause it is presumed that their
capacity is not adéquate to a knowledge of the law. Such are
wotneH, soldiers, and persons who hâve not reached thé age of
twenty-nve. Hère, igttomnce of law (considered jK<- ~c) is a
ground of exemption. For women, soldiers, aud multitudes of
t'ersons under twenty-tive are not in that state of gênerai im-
becHity, which is thé ground of exemption in case of insanity,
or in case of extrême youth." But ignorance of law (as a
specifie ground of exemption) is onty adnussibte in faveur of
persons who be!ong to certain classes.
And this (I apprehend) shcws distinctiy, thnt thé exclusion
of ~«MW)<i'« ~'«W.<, as a ground of exemption, is deducible from
thé reason whieh 1 have atready assigned. In ordinary cases,
thé admission of i'o/'«/<~< ~i! as a ground of exemption
woutd leud to interminable inquiry. But, in thèse excepted
cases, it is ~WMt' front thé .~t-, or from the «y, or frotn the
~i'~t of thé party, thnt the party was ignorant of the taw,
and thnt thé ignorance was inévitable. Thé inquiry into thé

obvions fact bein~ tlie

matter of fact is limited to a given point namely, thé sex, âge,
or profession of thé party who insists upon thé exemption. That
légat presumption or infereuce
is drawn by thé tribunal without furtiter investigation.
Whether thé legal presurnption ought to obtain, m' whether
in tnost cases it do not connict with thé truth, is a distinct
question. What 1 advance is thi-i that ill ordinary cases, thé
inquiry were impNcticabte, beeause thé facts upon which the
solution dépends are not to be aseertained.
V<yJHi. 3).1. Il ~i~st, xxii. !).
 In thèse excepted cases thé inquiry is ptacttcabto, becauae it
it pfedetenmned by a geceral rutc~ that certain hcts whieh may XX?
.f <
be ascettained shtdl be received by thé Courts as évidence of the
tacts in question. Thero is a /M'<H<Ht/y<to yK~ <'< <~ y'< and d
évidence h not admissible to rebut it. Nor would thé case bc
]nateria)ty attered, assutning that thé presumption may bc !<*
rebutted. Fur thé counter évidence must neeessat'ily eonsist of )f
a specifie fact or facts. The !arge nnd vagae iMquiry is shut H
out by the !ega! preMmption.

[Atttttogous Citse of (Mt f<~«<;)'~ in infoucy. See p. 490 ~<M<.]

Before 1 quit this subject, 1 will advert to a cunous dis- i-
tinction made by thé Eotnau Law.
Thé persons, ~M~M.~c~n~MMt <~y«.! t~<Mw< eannot aUe~c'<*
with eHect their i~nontnce of t!ie law, in case they have viotate'!
those parts of it which are founded upon thé'jus ~cK<«tM. )4
For thé persons in question are uot geuerally imbecite, and thée
y<M ~<;K<<MM is knowabte ?M<:<f<~ /'f<<<o!tt. With regard to thu
u
~!M cMt~, or to those parts of the Roman IAw whieh are pecutiar :r
tu thé systcm. they may allège with ef!ect their ignorance of .f
the law.
This coincideswith our distinction betwcen H~</KM ~t'oA<t:'<«~
and K<f</«w in .!<t- and thé distinction is reasonabic. Fur somee
iaws are so obviousty suggcsted by utility, that any person nott
insane would natunUty surmise or guess their existence which!t
they could not be expccted to do, where thé utility of thé lawv
is not so obvions. And most men's knowledge of thé law iss
U)ost!y of tins kind. They see that a particalar aet would bee
)t)ischio\'ous, and they conclude that it tnust be prohibitcd. Thée
couduct of ninetcen mon out of twenty, in nineteen cases out off
twenty, is ratbcr guided by a sumnse as to the law, than by at
knowledge of it. Even lawyers hâve no other know)edge than)
this, of any brunch of law but that which they have peculiarly
studied. A Comrnon Law !awyer, if he were niaking a will or
a setttenteut of rcat property, would, if he acted rationaUy,
sunnise that thft'e must be provisions of thé law of real property
which were not known to hhn, and would accordin~!y hâve
rcconrse to a conveyancer,rather than foolishly attempt to dmw
tho instrument for hitnsetf.
Hcfore 1 conctude, 1 must observe that the objection to !aws Th
ex ~< /f<o, is deducible from thé gettcra! principle ah'eady ex-
Nor (pt'r t~bt'o) can they a))p; it, or if tht-v had a~'M.~ii to goo~t !t}ja! ad'
if thé law taight hâve tx:eM KunJM'tured, vice. D{~cst, tt4t .tt~Mtt.
j~
Cot<t!CT.
T;

hK~jf'ht'
pt
ptaitted,
L
f'ht. uf
a<t)jnety, thttt intention or inadvertehee M nceeMary to
eonstittttc <nft tttjHFy. T)te !a~ was not in cxistcace ftt th& t!tnc
otj` tht) givett ttët, torbearftMce, or omissionr conseqnenttythé party
th-mt- j'j' did
t'[')t'!t'r'Lfttt
Il not, and eonïd not know that he was vtuiatiu~ a !aw. Tho X
i)<Ut-:it.l. sunetion
.sttj could not operatc as a motive to obédience, inasunHih
a.-i there was uothin~ to obey.
a;i
1 am pMvoked to tnake this remark by a silly and flippant
attempt
at< m the Edinbui~It Ruvicw to justify or paHiato ex ~«.~
n
/«~
/<'< legislation. Speaking of Lord StraH'ord's attainder, tho
)
writer
Wt talka to tlie t'ollowing eftcct.
It is commonty objected to punishment inOictcd M; po.!<
/<!<'<(', that it opérâtes uot as a waruing. But this is
a faHacy.
Punishmettt mfHcted < ~o~ /f<f<u does operate as a wannug.
The punishnMttt initicted upon Lord StraHbrd operated as a
wanuug to sueceeding statMn<cu.' The writer mistakes thé
objection (situpic and obvious as it is) which is coounonty urged 1:

against punishment inHicted <'A' /w< /«c~. It is not objected to

.~uc!t plinishineiit, that it may not operate as ft waming. But it
is objected, and is truly objected, to such punishment. that the
party «~M «'A</M< M <)t//<t-<t-</ was not wamed. He conibunds
thé appHcatiou of a law to cases which précède it, with thé
application of thé same law to cases which follow it. With
regant to cases which precede it, thé law (if it extend to those
cases) is an M ~< /«<'<o law. With regard to cases which .<:
fo!tow it, it is not.
That is to say, thé writer answers thé ot~jection to cx ~<M<
a
législation, by shewing that thé objection does not apply
to o~<r législation.
1 have treated this nonsense with gréât indulgence; for ]
have assumed that thé punishment inincted upon Lord Straftbrd
might at lenst operate as a warning to suceeeding statesmen.
Dut even this is iatse. For thé !aw by whieh lie suftered
was not only <<: ~o.~ j~<t~, but was what is styled in thé Roman
Law a ~tt-:7'~ti<M. Jt was a law innicting punishment upon
Stranbrd specincally, and not declaring in gênerai expressions,
that those who might do thereafteras Stranbrd Jtad donc should
be visited with Strunbrft's fate.'
If the punishment had been intlicted by virtue of a judicial
décision, then also it might have operated as a waming. For
one judicial decision being commonly thé basis of others, a
judicial décision is tantamount to a law conceivcd in gênera!
expressions.
But from an arbitary command nothing can be eoncluded.
Alchongh tho suprême LegMatMM ptthM)e<! Sttanbtd, it eottM t
XXV
tiot bu intOMed (lo<t!ït~ at thé nature of its proceediDg) that it ~L
would pttuish ûttut'e st&tesmeti watMn~ in Straftbrd's stcps.
It tnust be obs~rved t!tat tt judiciat décision pnwMe t/M/~M.
~tOMM, or a. jttdgm<mt by which a new point of law is for thé
first time dccided, is always Kn jeoï< ~!<'<c law with respect to
thé particular case on which thé point first at'ose, and on wMch
the docisiou was giv~u.

NOTES.

Thc itubjotned TaMes are copied from the margin:! of Muhten-

bruch and Maeketdoy ut thé pagea refutTed to in thc footnotes, pp.

!)
477, 479 <Mt<e.–&

Damnunt fettuitum. Damn. ex. homine facto.

Proprio. Atieno.

Licite (ecd Ilticito

obUgatorM) q. ex. c. s.mjnn!) in
sensu t;et).
Aquilia culpa (<. Culpa EitopHciter)ob damnmu t!t/Mn<t datum, idqut
fMieodo, pwtanda.

Dotus. Culpa.

Lata. Lens.

ii
Negligentia o)) ONigationi.~ vmcutnm, idque faciendo vel
non faciendo, pra~staKda.

lata
Cutpa C. du!o prox. Cutpa !e\-i.

1 1
DohM. cu)pa MmpIieiM!

CtMUt. Factum votuntarium.

Proprimn. AtieMun.

Lic:tum.

Do!o.
IHicitum.

Cutpa.
i
Mora.
4~8 /A'<M~~w~y~
LECTURE XXVI.

1 HAVtxo in thé Lecture

LKcr.
XXV!assumed
RfCitj'itu-
httott.
latieil.
that intention
TttS MME 8UBJECT CONTMt'Ett.
which immediatcly preeeded't!Mtast,
or un!ful inadvettence is a necessary
ingrédient in injury or wrong, 1 endeavoured in my tost Lecture
to prove this assumption by & brief ana!ysis of the various
ciasses
< of injuries. Having demonstrated by général teasoning,
that
1 unlawful intention or inadvertence is of tho essence of
injury, 1 then adverted to certain cases in which an net, forbear-
ance, or omission seems to be an injury, although its author
neither was conscious, nor could he be conscious, that ho was
violating an obligation. A créditer, for example, by English
law, may sue without previous demand, atthough thé oMi~tion
on thé part of thé debtor is merely to pay thé debt on dernand.
Thèse cases, 1 observed, are anomalies, and tite nue of the
Common Law Courts which admits such suits, confiiets, not
only with gênerai principles, but with thé practice which pre-
vails In aualogous cases in thé Courts of Equity, as well as with
the rutes of thé Itotuan law.
1 next observed that if we cxamined thé ground of most of
the exemptions from liability, we should nnd that they ulti-
mate!y rest on thé principle that intention or inudvcrtence is
necessary to coastituto wrong. A party is exempt, either
because he ia clear in fact from unlawful intention or inadvert-
ence, or because (which generaMy amounts to the same thing)
he is presumed to be clear of both. In order to eonnrm this
remark, 1 examined at some length two of thé principal grounds
of exemption from liability, namely, lst, e<M;M, c&atMe or accMe~,
and 2ndIy,t~«HMor<:)VM'; thislast being either with rela-
tion to a matter of fact, or with relation to thé state of thé law.
Having explained the import of <-<M!M or <!CM'<<Mt<, 1
en-
deavoured to shew that thé exemption on account of co~M rests
on thé broad prineiple aiready hid down. As thé party could
not foresee thé misehievous event, or, foreseeing, eodd not
prevent it, thé misehief was not thé conset~uence of his unlawful
intention or inadvertance, and therefore is not imputed to him.
Ohiigations to answer for mischance arise, when they do anse,
not from injuries, but from contracts and quasi-contract.
In thé case of ignorance or error also, thé ground of thé
exemption is thé absence of unlawful intention and of un!awfut
inadvertence. For if the ignorance or error be not invincible
and inevita.ble, but might ha.v~ been cured or preventcd by due
aMettttMtt thé mtsehievoas eonseqnenee is HMpnted tft thé ptttty.
With respect to ignorance or error regardiug tlie state of
thé law, 1 put n dimculty which naturaly suggests itsetf; it is
this. In order that the oMigation may be effectua!, or in order
that thé sanction may determine thé party from thé wrong, it M
necessary, Ist, that t!ic party should know or surmiso thé law
which imposes the obligation. ftnd to which the sanction is
annexed; and 2ndty, that he should know, or might know by
due attention or advertence, thitt the specifie act, forbearance, or
ornission would conflict with thé ends of the law and of thé
duty. Uniess both thèse conditions conour, thé sanction cannot
operate as a motive, and thé act, forbearance, or omission, is not
imputable to uniawfui intention, or to négligence, heedtessness,
or rasbuess. But although to render the sanction efficaeious, it
is necessary that thé party should know the law, it is assumed
~enefany or universatjy, in overy systein of law, that ignorance
or error as to thé state of the law shall not exempt thé party
from liability. Thia mnexiNe or nearly inflexible maxna would
seem to conflict with thé necessary principle, which 1 have so
often stated, respccting thé eonstituents of injury or wrong.
For ignorance of the law is often inévitable, and where thé
injury or wrong is thé conséquence of that inévitable ignorance.
it is not even rcmotdy thé effect of uniawfui intention or oi'
unlawful inadvertence.
t'he solution of this diniculty is to be found in thé principles
of judicial évidence. Thé admission of ignorance of taw as n
specifie ground of exemption, would tead to interminable investi-
gation of insotnbte questions of fact, and would, in affect, nullify
thé law by hindering thé administration of justice. Tins rule,
therefore, is one which it is necessary to maintain, although it
occasionally wounds thé important principle, that unlawful
intention or inadvertence is a necessary ingrédient of injury.
1 then adverted to certain exceptions to this rule permitted
by thé Homan law, and shewed that those exceptions consitt
with thé rcason of thé général maxim, and also serve to indicato
what that reason is. Lastly, 1 observcd that these exceptions
uttimateiy rest on thé principle which it was thé main purpose
of my Lecture to exptain and illustrate:–aud shewed that
wherevcr ignorance of law exempts from tiability, thé ignorance
is presumed to he inevitable, and thé party therefore, to be
clear from untawfut intention and inadvertence.
If 1 were to examine f<</ thé exemptions which ultimateJy
490 ~M~V~M~KMM~
t
rcst
Lf!CT. Mp&n this principe thé présent thquiry wMtM nm to
J~i. tmcoHseiottttbtc
t~
tongth. Butïshattbrieny toMeh uponafew,
he
tiunot'thet tu
t which 1 dida'Ivert in my !ast Lecture.
Mot
w~Mt'- And, first, an iniaut or a person insanc M exempted from .l
~,t
tiott.tfrotu

ti)tM)i(y liability.
}j not -because he is an infant or becansc he is insane, but t-
K!Um<'<.t..
because
b it is ini'erred front his infancy or htsfuuty. that at thé
S.tMfaMcy '"y
NUttit)- tuuu
t~ of the atkged wrong he was not c~pftHo of untawfn!
!<tttity. intention or iMad\'ertut)ce. It M <n'<'<~ frum his infftHey or
,j
insauity,
il that, at thé tiuM of tlie alteged wron~, he was ignorant
of thé taw or (what in eftect is thé santé thing) was unable to L
retnember thé law. Or (assuming that he !tad knowu, and was
unable to retuentber thé law) it L} mferred that he was unaMe
to apply thé law, and to govern lus couduct accordingly that
lie did not and could uot foresee thé conséquences of his con-
duct and, therefore, did not aud could not foresee that his
eonduct tended to thé consetj~uenees which it was thé end of thé
law to avert.
For, in order that 1 may adjust my eonduct to thé command
or prohibition of thé law, 1 must know and remember what the
law M I must distiuctiy appretiend thé Maître of the eonduct
which 1 contemptate; and (in thé language of lawyers and
logicians) 1 must corrcctîy ~M~!<m<; thé specinc case as /(!~K~
wMtM </« ~a:t'. In other words, 1 tnust compare thé conduet
which 1 contemplate with the purpose or end of thé law, and
must bo able to perceive that it agrees or conflicts with that
purpose or end. Every application of tlie law to a fact or case,
is a sytiogism of which thé minor pretniss and thé conclusion
are singular propositions. Uu!ess 1 am compétent to this
intellectual process, thé sanction cnnnot operate as a motive to
thé fuJnIment of thé obligation, M' (chauging thé expression)
thé obligation is necessarily inencetuaL
That thé ultimate basis of the exemption of infants and
lunaties is thé presumed absence of unlawful intention or
inadvertence, will appear from thé Mtowing considération.
For if the infant was<t c<«.<; (or was conscious that his
eonduct connicted with thé !aw), his infancy does not excuse
him. Certain évidence of his eapacity of untawtul intention, or
even thé specific and pMeise evidence af)orded by the fact or its
circumstances, rebuts thc général and uncertain presumption
which arises from his âge. And if thé aUcged wrong was donc
in a lucid interval, thé fact is iotputcd to thé madman. There
are, indeed, cases, wherein the /M'«'«~t'f ~'f< founded on
infancy is '«/< et de ./tw.' That is to say, thé inference which
the law proftppoint% !s conelusive as weH as pKappomt~. Thé
Mbuhal ia not ouly bound to dr~w thé inference, b~t to reject
tfMY~ty'-evidenee.
1t-J~ k?E Y(

White 1 am on tho aub{ect of légal presumptions, shattH Mf~tfsiot'

1
perhaps be exeused for digtessing from thé main subject of the
Lecture, for thé purpose of giving some explanations for whieh))):in(hof
lel' occasion
no 0other
no oeeasiou illay
may m'ise.
arist~.
It is absurd to style conclusîve inferenees, ~'<M?~~<Mt. ,fffM.
Fo)' ¡

ttprésomption, M <t?'MKMt, is an inference or conc!usim) whi'-h

May be disproved. Till pfoof to thé contrary be got, the iut'ct-il-

ence may hold. <?K proof to thé contmry, it can hold uo longe).
But according to thé langttage of th<: Civiiians (tanguagu
which bas bcen adopted by some of our writers on cvideucM),
~'MMM~'wM arc divisible in thé folbwing manner.
Presumptious are ~'<<N!~<to?tc~ j'M~'M, or ~œ<w~t'<.<
/tOMMHM. J~KN~i<M«'~ jt'MT-M are inferences dfawn in pur-
suancc of thc preappointment of thé law. The law prédéter-
mines the ~'«!'a<tM! effect of the fact, or instructs thé judge to
draw a certain inference from a fact of a certain sort. For
example, thé presumption aiready stated in favour of infants is
jM'ccsMM~o j'«rM. Tlie law prédétermines that from thé fact of
infancy, thé incapacity of unlawful intention and of unlawful
inadvertence shaU be inferred. 7~'<M«m~<MK< /t~ttMM, or
presumptions simply so called, are drawn from facts of which
thé law bas left thé probative force to the discrétion of thé
judge. In other words, he is not instructed to dMW a given
inference from a fact of thé sort..P~MM~M~ ~«' are
again divisible into ~'«MKm~i'oHMyMn'~ (sin)ply so caHed) and
~'<iM~<M~<M~MMyKn<t et (~e~'KM.
There are therefore three classes of presumptions: ~'<t'-
SMN!~t<MtM /t<MKtMM, ~M'OMMM~<tOH<y«)'M,and ~'<ï'oHM)~<t'MtM~<W.
et ~<K?'<.
Where thé presumption is a ~MMKM~M /t<M))ï/o.<, not oniy
is proof to thé contrary admissible, but thé presumption is not
necessarHy conclusive, though no proof to thé contrary be
adduced. For instance 1 sue you for goods sold and dcii%'ered,
and 1 produce a fact teading to a presumption that thé goods
MCt-c delivered. Xot oniy is it compétent to thé judge to admit
counter-evidence, but to reject thé presumption as ~<<))/,
though no counter-evidence bc adduced. For, hère, thé judge
M at liberty to determine without restriction thé exact worth of
thc fact as an article of évidence.
 t.~M< ~VfMtW~«!~M<~M<i
Actions frcquently fait; Mot becfUMte thé évidence prodnced
~ytheActoï.M met bycottntcr-evidenee.noi'baetmset!tti
évidence whieh he producea is attogethor wotthtess; but
becauso thé inferenee or presumption foundcd r.
FI
upon thé tacts
prot!uced, M too feeble to sustam thé
case. The iuference
drawn from testimony to thé truth of the ~et attested M nlso in Il!
truth of this kind. ti
Where thé presumption is ~'<NMM~<M~)M-Msimply, proof to ei
thé contrary is <!<~MM&/< but, till it be produced, thé
pré. t]
~unptton necessarily holds. For, hère, thé law bas predeter-
miHed thé probntivo force of thé fact, a!though it permits the
judge to recei\-e countor-ovidence. The law,
or thé moker of
thé lnw, aays to thé Courts, Eeeeive counter-evidence if it be
produccd, and weigh thé effect of th~t évidence against thé
worth of thé presumption. But till such counter-evidence be
produced, draw from thé given fact thé inference which 1 1
prédétermine.' For example Where an infant hns attained
a
-ertain age, proof of his f~t <-«~<:</f< is admissible. But until
such proof produced, it is inferred from thé fact of his
inRmey, that he is not fM M~A'.
Where thé ~-«MM~M y<tn'~ is y«rM <'< A' ~M'e, tite law
predetermines thé probative force of thé fact, and also forbids
thé admission of counter-evidence. The inference (for it is
absurd to call it a presumption) is <-M<~<.M'M. That is to p
say,
proof to the contrary is not admissible. For. ait that is meant
'<y a conclusive proof. is a proof which the law hus nmde
so.
Independently of predetermination that it ~M~ be conclusive,
no inference from one fact to another can he more than
probabte: Atthough, in loose language, we style thé proof
«Hx/x.~t'f, wherever thé probability appears to be gréât.
As an instance of a presumption~'M et ~e y;<t-f, I
may
mention thé case of an infant under a certain for exampio,
age
seven years. Here, according to tho Roman Law, and (~~<-)
according to our own, thé iniant is presumed ~w et <& /M!-<:
incapable of uniawfut intention or euIpa.Me inadvertenco. His i'
incapacity is inferred or presumed from thé
age wherein he is;
and proof to thé contrary of that preappointed inference is
not
admissible by thé tribunals.
In numerous cases, presumptions~M~<'< f/e~MM 0
are purely
tk-titious. They are resorted to by thé Courts
as a means of
legistating indirectiy. For exnmple, a ~?!< of
an eascment is
inferred from the fact of its having been enjoyed,
or a
-iurrender of a trust term is presumed by thé Courts of Law
t
t
 bécMs~ thé trust bas been performedL lu th& nrst case (whtfjh f
ii! the simplor and more intelligible of thé two) a cei-tam îegat
conséquence is aanexed to !ongth of enjoyment by means tt or
XXYt
.1.
tictitious prosumption. It is not believod that there ever was a
grant, but the jury are mstructed by thé judge. tu mfer that
there was from the fact of tho enjoytneat.
ht other words, aequisitive prescription is unknown to thé
Englistt Law in its direct form. Directty and avowediy.
length of enjoyment ts not a Mw/c <~ «(.~«~t'Mt, or (m thé
hmguMgo of our own law) a <:</< But a ~'SM< M a lille directiy
and avowedty And, by fcigniug a grant front length of enjoy-
ment, length of enjoyment becomes a title in effect, or that
mode of acquisition winch is styled «c~i<M!<«-<; prescription is
introduced t'Mf~~c~y.
The number of rights and obligations, which (in our own
law and in thé Roman also) are created and imposed oUiquety
by means of thèse fictitious presumptions, is truly astonishin~.
Probubly one-tinrd of the rights confen-ed by thé Koman Law,
nnd a very grcat proportion in our own, are conferred in this
absm~ manner. The various stututes of limitations do not give
M<M~M on which thé party can positively insist, but
are merely
opposed as a bar to a right of action rcsidiug ia a determinate
party. AU prescription known to thé EngUsh Law is, 1 beUeve,
in theory, merety neg:ttive or extinctive."
It is évident, that unless these nctitious presumptions werf
No MqUMitive ))n'scription in En~- tM of posse~'iOtyaction.
)M)t Lttw. Ditren.-nce twtweett anjm. Ste tnodifMtttiot) of thu sMt'tMcttt
sitive ottt) restrieth-t.- j.re.'icnption not so on p. MO, //«<<.
ubviott!) now, utt xucouut of thé t'n:'))Mtt

Xotw:thataudingthé change in thé tiHuou~y and peftCMtbh-.

Ittw of prescription tnatte by thé statute NMine, tbutK~i on thé M.,t of tit). )M)-.
\h~ thc-
3 & 4 W. tV. e. 27, thé statetxeHt in thé to hâve tjeet) tattett by a !HMmhr <ur-
text that tt<:qui!!itive pre.~riptio)t un. MMor (of ~<t~<Mt-r), thé pro.iuftion «f
ttxow)) to thé Ettgti.sh !:tW in its <)ifKt thé deed of ~tienation (or purL-hase) o).
fonn, M (fiubjeet to thé corttetion on p. w)tM) thé sosinc i.< Kt-outKiMt, is furthn
SM, ;~) still pert'Mtty aceumtc. The nm-Mry to n)ak.; )m U)t.-x<t,ptihM!)b!e
whoh: fntn<e of this f.httute ).< «~.tv, title, but it )!! not nfcesMryto .shcw
that is, ttenying action to periion:! witO further ')o<-un)e)tt.< !i0 M to comte, anv t th'c
have ttegtectett a chtM for a certain owu':r with thé crown a.< th.: anthorof
)~rio(t ot titttc although, in thé case uf all heritab)e ri~hts. This pre.<. n).ti..h
txany tttie.'<, thé protection aObnM hy is !,aH to ),e ~M)'<t'r< or o<Mt«'i- )j.
this aet M nearty e.~tiva)ent to that can.~ thc owner, atthou~h h.. tu;n. );a\
«tronied by an f"«M.'<i-<: or ~<K<<t't-e ori){inat)y purcha~ed Mm< <~),n't.),
a..
t.MM-riptiott. tn ScnttftnJ thcre M an .juit-M bv it what M
a')uisitn-e or positive pMcnptit'n whcre ~mft- ~7~ aud
enacte.t tu tx: a tit)'; it":)i)Mt ait
heritabte sttbjt-t.-t;i hâve b'tt poss.:S!jcd thé worid. This pre~-ription w t.)u)t))e.t
<;ontbnn!tUy to s.tsine:t(that i.-f, to thé on an Actof thé Scotch t'atiiatncntmaJt'
ittftrunteMt':vi't':))cit~ thé !tct "f feu'tatty in thé vear
tcceivinf; positti.iiion)for forty years cun-
Mt!K. C.
 t-
494

~L
LKCT. /K~
7'~#~ et ile
xv.vr presutnptiohs
p'
hl

exctuded
e?
~V~~y~
&j.t~
"I:II:
f&'
n.
they eott!t! not ttnswer their parpose. Bnt
./K! /f
jM<M*,

are not ahmys ScMtious. Sôma of

thetn arc reaHy founded on probabitity. and counter-ovidence is
tt~
for n special reason. Such, for instance, is thc
preMnnption that thé party hoows thé law. This presumptiou
is Ma!)y true in thé majority of instances and is mado con-
chtsive for thé reason which 1 hâve before stated, namety, that
r

a judiciat iuquiry into its truth must ottterwiso be resorted to in

every instituée, aud the administration of justice be rendcred
iiupossiblo.

Reverting to thé subject h'om whieh 1 have digres.'K'd,–thc

presutnptioa~«'<<! <~ ~<;y<N't' that the infant under seven is not
<Mt t~<.K,' is probably we!I fouuded iu ahnost every iustance.
It is ptrobably made conclusive in f~ instauecs, on account of
thé tittiM advantage which eould arise from thé punishment of a
ctiitd in any instance whatever. His punishinent would rather
revott, than serve as a usefui example, and it is therefore 1

expédient to extinguish inquiry at once by a conclusive

presmnption of innocence. It eannot, then. be inferred from
this case, that the exemption from liability by reason of infancy
does not rest upon thé broad principle wiuch 1 am endeavouring
to exptain.
1 observe that Mr. Bentham ascribes this exemption, and

also thé exemption in case of insanity and drunkenness, to a

dif!erent principle name!y, 'that the prospect of evils so
distant as those which are held forth by thé Law, eannot have
thé effect of innuencing thé conduct of thé party.'
But this (I think) will not hold. In case thé party, at thé
moment of thé alleged wrong, were conscious of thé law, and
could foresee thé consequences of his conduct, it is manifest
that thé sanction would inspire him with some desireof avoiding
it. And an inquiry into thé strength or steadiness of that
désire, would seem to be idie because it must necessarily be
différent in every différent person, whether he be infant or adult,
ma') or sane, drunk or sober.
There are indeed cases, to which 1 shaU advert directly,
wherein the party is held exempt, because he is moved to thé
aUe~ed wrong by a désire so strong and imperions that no
sanction could get thé hetter of it. Such are thé cases in which
a party is exempted because he was compelled /<!<<«: that is, by
some apprehension which it is supposed that no will, however
stroo~, ean resist.
 Thé tcaaott
C'A~M~ 49s
mn assigned
assigued by B!ac&stonef
B!ao&stonet and by vari'MM
various other
othM' r.'i'
writers, H httttUy worth powder and shot.
He tells us that a. wrong is th<t eiieet of & wicked will.
And (says he) infants and madmen tu'e exemptcd, because the act
goea not with their wiU, or is not imputab!e to a wicked wUt.
Now, in case thé ttHcged wt~n~ be wi'cu~ht by action, it i~
clear that t))tere tniist bc a will goiug with thu aet, tdthough thé
party may not bc conscious of a wron~. In case it Le wrouKt't
Hogativcly, it ift true that thé i'~r)watMt<:e or otnissioH du~ notr
y« with volitiou, or is uot f/tt'f<y thé conséquence of H volition.
But what would that ntatter, if thé forbearauce were ttccottt-
pMtied by fm unlawful intention, or thé omission could bM
Mscnbcd to culpabte négligence ?
Hy diut of nmch exptauation, it is true that this jargon
may be made iute!!igiMe. By thé will of thé party, B~ack.'itone
means (so far as he tneans anything) thé state of thé party's
consciousness. Hy a wicked will, he means unlawful intention
or untawfui inadvertence. And hc means that thé aUeged
wrong ia not imputable to eithet'.wheoheaayathatiteannot
be ascribed to a wicked wiH. And when he aŒrms, that thé
ground of every exemption is a want or defect of will, lie means
tliat thé ground of every exemption is inevitaUe ignorance:
inevitable ignorance of thé !aw or of thé certain or probable
consequences of thé alleged wrong or of the relation or con-
nection Letween that aHeged wreng and thé taw. He cannot
tnean to afHrni that an infant or madman has not as much will
us thé adult or thé sane.
Nor is his position, thus trandated, truc. For, in certain
cases (as 1 shnll shew hnmediate!y), tite party is exempt, al-
though lie is conscious of the law; of thé nature and conse-
quences of his own conduct and of thé relation or conneetion
between his couduct and thé law.

1 have stated that infancy or iusanity is a ground of exemp-

tion, partly bccause thé party was ignorant of thé law, or ix
presumed to hâve been ignorant of thé law. This does not
contradict what 1 before said, that ignorance of thé law is never
in our own system a ground of exemption. For in thé case of
insanity or infancy, it is not a spécifie or distinct ground of
exemption infants and lunatiea arc not exempted distinct!y and
sole!y on that nccount. It may, however, bc considered as one
ground of tho exemption in company with othcr grounds front
which it is impossible to <ever it in thé particular cases.
 In thé JEnglish Law, druukennMs is not <uî exemption. In
i,. aever: wr in ctvH case') whett thé grattnd of thé
cMtHMta! casos,
"k. tiitMtity M of thé nature of a detict; but a party M ut times
Mteased from a contract which he eatered into when (ïnmik.
lit thé Homan Law, drnnkenness was an exemption even in thé
case of a deltct provided thé dnmkennt'ss itself was not t))e
eousequoN<;e of uutawfui mtentiou fur instance, 1 résolve to
if,
kill you, aud driak iu urdcr to gct pluck, accordiug to thé
vul~r expression, the tnisehief, atthou~h CQHnnttted iu dnuiken-
ness, ii! u!tituate!y imput~Me to tay mteutiutt. lu nU othet'
cases, druukeuness w:M a ground of exemption m thé HottMa
Law.
Thé ultimate gi-outid of tliis exemption is thé same as in
the case of insanity or infaucy. Thé party is unable to re-
member thé lnw if he knew it, or to appreciate distinctly thé
fact he is about, or to subsume it as fallitig under the law.
Where unintentional drunkenness, that is, drunkenness
which is uot itself thé conséquence of unlawful intention, is not
a ~round of exemption, the party, it is évident, is liable iu
respect of heediessmiss. There is no uulawfui cousciousness at
the time of thé OHeuce, but he tnight have known before he got
drunk, that he was likely when drunk to commit acts incon.
sistent with the ends of his duties. He bas heedless!y placed
!timse!f in a position, of which thé probable consequence will be
thé commission of a wrong.
This remote inadvertence is very often a ground of liability.
Hemote inadvertence is what 1 have just exptained. Thé party
is gui!ty of ïcmote iuadvertence, where thé aHe~ed wrong is not
imputable directly to unlawful intention or inadvertence, but is
a natural conséquence of a position in which he bas ptaced
himself from inadvertence, and is thcrefore a remote effect of
inadvertence. When thé party commits thé wrong in cons<
'tuencc of his ignorance of thé law, thé ground of liability might
be referred to remote inadvertence. Werc it not for thé lega!
pre~umption, that he knows the !aw, thé fact would bc imput-
able to him, if nt a! from his havh)~ pre\ iousty nt~Iected to
make himself acquainted with thé law.
t Another ground of exemption is suddcn and furious anger.
In Eagtish law, this is uever a ground of exemption in Homan
J<aw it is, for the saute reason as drunkennessand insanity.
Where thé party is answct'abte for au a)!eged wrong dom'
in furious anger, t))e reasonin~ M thc same as in thé case of
drunkennexs. He is guilty, nnt in respect of what he bas d~nc
 _r. f w_ ~.yrrwvrrrs~,
.r..
in A~
ftmoMa
u
angor, but in or
respect of his having negïectcd that
aoM.(HseiptiM, whicti wouM ha va provented suett fm-ibmt <!ta o!
ttt
otj~ LKer.
?fXYI
anger.
There are many cases of !iabitity on similar grounds. 7)K- M-
~M~tft, for instance, or want of akilt, is the source of a common m
case of liahility both in our own and in thé Moman Law. In [n
this case thé ground of thé obtention is the samo as in thc case se
last specinud. Pretending to practise as a physicmn or as a
surgeon, 1 do hartu to some person: in the particular case 1
attend with aH my ski!), and thé mischief is not imputable to
unlawful intention or inadvertenee at that time, but to negh'ct et
of the previous duty of qualif~'in~ mysetf by study fur thé pro. [).
fession 1 affect to exercise.
Liability for injuries done by third parties, is ascribed justly
by Mr. Bentham to thé same cause. 1 am Iiab)e for injuries 's
done by persons whom 1 employ, because it is genera!)y in my y
power not to en)p!«y persons of such a citamcter, or to form
them by discipline and éducation so as to be incapable of thé
~c
commission of wront{. Thé nr&t reasfiti appUM to a. m~m's 's
servants, thé last to his chiidren. Tiie oUi~tion is peculiarly y
strong in thé lioman Law, because of thé gréât extent of thée
~M<n'<! ~M<0!~ by reason of which it probaUy was in thé power T
of thé father not only to form thé character of his chi!d byy
previous discipline, but in most cases to prevent thé specifiec
mischief by spécifie care.~
Beforo 1 quit thé subject, 1 shall remark on a distinction lAnittoM-
At
which is made hy thé Homan !awyers, and which appears to
iu
me iHogical and ahsurd (a rare and surprising thing in t])ej E<MMn E"
Eotnan Law). 1 mean thé distinction between f/<)'c~ and ~K~i'-
'tweendc-
<&<<c~. 1 cannot discover any ground for this distinction fron)ti<:t!H)t!
lie
thé capricious way in which they arrange offences under thèse SUtM.
two heads.
The~M!<n<M for instance of a physician is delict butt
a
thé MK~w/M<M; of a judge, who is liable in certain cases forr
erroneous décisions, is a quasi-delict. Thé ground of t!)e
liability in these two cases is preeisely thé same. The gnilt of
thé party in both cases consista in taking upon Jtimself thé
Stf Pothief. 'Tmitë des Obtint. th<* )'<~f<m<~< of thia eMntption, whifh
tions,' l'artD.ch.vi. vjii.Art.fI. n)))~aM to !Mve b<'cn tint dtstin''th' laid
§St4M).T)tettMtinctMnthttto)<tM)ttft <toMtbyS))M-,C..).inat)A)Mtn~n
inthec!tMwhc)'t't)Mt"JHn'dj)!trtyi)tcaM, thé Hng)i<h, S''ûtfh, «n<) A)))''ri<;an
also a servant r<"it. o~oM thé cuMtract <'Mtrtsar.-atf))K.,8M<M<-tt'.t)t'a,3 3
tXjtKMOt'imptiedtx'twwttthemai.t.'r))a'jn'n,MO,3t< Lam'R.:]wrM,] 1
ttfttthe)!tttt:r,wh')ishe!<)toMn<!<:rtak< Q. X. t49. 2 Q. B. 33, and t !}. ot L. Sf.
the risks incident toth<!)!ertK<i. On!3M.–H. C.
VOL.
VOL. I,
1. 2Kx
 ~~<i~M~~<M~
J,v" c~MMe of_i a m_·_»
fMKCtMH, without (My qnalrfym~
''l'.n¡ himself by
pMvious preparation.. An<t as ttte right vMtited is itt butK
y
caws right ~M, thé oHenec is proper!y a dctict. This dis-
tinction, th(.'retbre, appcars to me to be groundtess though 1
dmwsueh a.eonctusion with dMtdeuee.whett it re&ns toany
distinction drawn by the Homan !awyers, whose distinctions 1
have foMud in a!most every other case to rest
on a sotid
Ïuuud~tion.
AU thé exemptions, which hâve now been examiMed, m(ty n
be ret'en'ed to thé saine principte. The party neither was t
conscious nor could jte be conscious that lie was vio!atin~ his
duty, aud cottserluetttlythu sanction eould not operate on his
d~h'ea.
m'o
il And this principle will account for thé greater numbcr
of
ofe exemptions,
e but nut for aU.
Croutxhof~f Thé party is exonpted in sonte cases in which thé sanction H

uot.k.
mi~ht
cxptnHtion
n"t; act on his desires, but in which thé faet does not dépend
I')!<ou)
the forego. ou hi'!
J desires.
i.i- Such is thé case of physical compulsion. A person is not
·
!ogpr!uci-
t.
pt' 1. liable for what he is forced to do by physictd constraiut; in
H.y~!
cnmput- whieh
whi he is not an agent, but an instrument or means. In this
case he may be conseious of the obligation, and fear the
case,
sanction
san' but thé sanction would not be eflectual if applied,
beeause it is impossible for him to perform thé obligation. 20
bee<

x
2. Extrême There is still another case which is distinguishabte from
terror. this; in which thé sanction might operate on thé desires of thé
this
party, might be present to his mind, and thé performance of thé
part
duty might not be altogether independent of his desires but
dut~
thé party is aneeted with an opposite desire, of a strength
which no sanction can controt, and thé sanction therefore woutd
be ineffectual. Such for instance is thé case in which
a party
is compelled by menaces of instant death to commit what
wonid otherwise be a crime. For example, if 1 am compelled
by thé king's enemies to join their ranks and fight against thé l
kin~. I am not liaMe for treason, provided that 1 take the
eariiest opportunity of makin~ My escape. Thé reason is that
1 am urged to a breach of thé duty by a motive
more proximate
and more imperious than any sanction which thé law could hotd
ont and as thé sanction therefore would not be operative, its
infliction would be gratuitous erue!ty
ï beHeve that ait these exemptions, except the two last
It will he nh9erve<t that in thM ca~e t~))« of an act of thé party, M to b<-
t]M~;ti'i))otthe<)<<'y'f/«)/<t)'~t<ta)). pro}<er!y !tK't)tio)x'[ iti un exhMotit'e
ft LeaM however M <!t)'onf!!y thé MMt- MtMurvofextntptiotts.–K. C.
mentmued, mity bs exphmed on ths principle so otten mterred
te.
In eonformity with usage, 1 hâve talked
of thèse vtujous T
circumstancesas cases of exemption front HabUity but it would
be more con'eet to say, that they arc cases in whieh thé parties
are not obtiged cases to whieh thé notion of ob!i~ation cannot
apply, beeause thé sanction coutd not Le opcrutive. Injury M
co-extensivewith obhgation. Xow we are ttot Lound absututely
to do Of forbeur wo <ne bound (ttt'tc~y speakinn) M'~ to ontit
ueg!igent!y, or to tbrbear with unhtwfui inteution or tuUawfnt °:
inadvertence. Thereibre, whet-e no uHtawfu! intention or ittad-
vertence exists, thé party i)as not broken any obligation, nor
cottsequeutty iueun'ed :my liability from wtncft he can be ex-
empted. Thé sanction woutd be tnef!'ectua!, either as not
operating on the desires, as in the fh'e fn-st-meutioncd cases, or
as operating upon them in vaiti, as iu thé two cases last men-
tioned.
It may be remarkcd that thé nrst of these cases,'name]y,
that of physical computaton, falt~ within m~~ w accident, sittee,
as 1 ha vu ah'eady observed, thé act of man as <t'M«f'ft /«<Kt<~t
faUs within thé notion of MM-tM.

LECTUHE XXVII.
~tt'FK);t:XT KfXUS OF SAXCTtOXS.
1 Wf;iH, before 1 commence, to correct one or two mist:tkes into
whieh 1 fe!l in my last Lecture.
1 said that furious anger is a grouud of exemption in thé t.
Roman Law. Xow anger may be .snch as to exclude a!!
conseiousne~ of thé untawfutuess of thé act; nr it )nav not 10
exctude aïï consciousness of thé un)awfu!ness a!thou~h it A
pmmpts thé ~uty tu :m aet (aecompanied by an unlawful f
intention), frmft which he would otherwi<e abstain.
tt is on!y in thé first ca.-t- that it i.< a ground of exemption
in the Koman Law. It exempts, precisc'!y as insiUlity exempts,
and is in truth considered as temporary madness. W))en thé
anger docs not exetude aU conseiou.sue.s. of thé un]awfu!ness f'f
thé act, and is yet a cause of mitigation, thé .~round is not thé
absence of umawfu) itttcntion and ot' umawt'ul inadvertencf. but
the absence of <ttt<'«/t' intt'ntion ïn this, as in varions other
cases, thé disposition of thé party is taken into the account, and
~ÛO ~A~~<MM!~W<~
LMT. uus tess niaJignity of disposition M eviaced by a t!t'!tMtnal in-
XXVH
t6HtionwhMt
t sMddfn thtUttvheu deHberttte, the puHishmentis
eonuuou!)'
<!
la
less. EngUsh Law, for exempte. if thu fact wcre
thomicide, thé oHenee would in thé one case bu murtier, in thé
other
0 only votantary macstaMghtfr.
On thé other hand, where an act whieh does suspend the
use of reason is not a ground of exemption, it is becausc thé aot
H

arises
a t'emotely from négligence. Thus, wherc drunkenness is not
a ground of oxemptioM, as in our owu law, thé party is not
a
tm'i\ve!'ab!o
u beeause at the tinM of thé wrong he was guilty of
unlawful
t.:
intention or unhtwhd inadvertence but beeause he ha9
negtigeutty
r placed himself in a position from which he might
1hâve knowM that criminat acts were not uulikely to ensue.

St;tt''n)''nt 1 a~o stated too t-ouudty that aequisitive pya?scnption in its

MtOdtL'- pnescription in
'tui~tiv; direct fonu is unknown in thé Euglish Law. A
jx-.CtLrip- a;) y«< M<«~ as it is called, or a prescription of an easement
ti'?tt,p.t93, appurtenant,
«))<<.
is recogniscd directly by thé Engtish Law. But 1
think
t tttis is thé on!y instance. Easements in gross are uot
a<;<[turt!d
1\
by pru'sctipttMt in that direct way, but in thé oMique
modu
n before cxplaiued. Rights antounting to proprietas or
dominium are M<'<'<T acquired by direct prœscription. Tlie
operatioti of the dinerent statutes of tinutation is purely néga-
tive or cxtinctive it merely bars the right of a dennito person,
and does uot give to thé party in possession a right whicit he
can eufurce against thé world. 1 may plead thé stututes of
limitation in bar to an action brought by a party who would
otiterwise be entit!ed. liut in order to enforce my right of
))roperty against third parties, 1 can only proceed by proving
anterior possession. This, against a person who can produce no
title at aiï, estab!is))es my right.
Thé distinction between acquisitive and négative pMcscriptioM
turns solety, as it appears to me, upon thé naturu of thé evidence
which it is requisite to give in order to enable thé owuer to
recover thé thing when detained by a stranger. It may be only
necessary to show anterior possession, in order to enabte hhn to
maintain an action or to maintain an action it tnay bo necessary
for hitn to shew his title. If it be necessary to shew )ns title,
thcn un)e.<s a title may he acquired by aequisitive prit-scription,
lie cannot sustain the action. But thé right which he possesscs
nnder thé statute of limitation certainty would aot enaMe him
to maintain an action against a third party.

Having endeavoured to exp!ain tite essentials of Injuries

and Sanctions, nnd, thorein, to iHusthtte thé Hatttre of oMigait!o!M
xxvii
or duties, I will uu\v advett to t!tc diRercncu by whieh sanctions h9
are distiuguished. ïf i attempted a comptcte exitnnnation of nll tll
thèse di(tet'en<:cs, the présent inqttiry M'ould t'uu tu inordinate .tf
ten~th And those more important dinerences upon which 1
shaU toueh, will attilicieiitly su~c~t the others tu thé tuemory t'y
or reason of my henrers.
'< SMtt'ttOM
And, tirst; Sanctious ttt~y bu dividnd mtu tt't't/ tun.! t/-t'M«/, s;
or (chuugtHg thé exprcs.sions) into ~nn<<t' aud ~«M!'(-.
As 1 rcmat~ed iu a i'onnM' !.<;<;tm'c/' thé distinctiou between ii!)
private aud pubtic wrengs, or civil injuries and emncs, does not Ot
rest upon any difterenco between tho respective teudMoeies Of of
thé two classes of offenees wrougs being in thuir )'(?«)<<' con-
séquences ~<;Mt/-K/ mischievous and toost of thé wrongs styled
public, being <m//<«/«(<'7~ detritneMtai to deterMinatu pft'Nons.
Viewed from a certain aspect, a]l wrongs aott ail sanctions
are public, For all wrongs are violations of ta\vs estabtisttcd
directly or iudirectiy by thé SovcMign or State. And aH
sanctions are enforend by thé sovereign.'or by sov~rcign autitority.
But in certain cases of wron~s whieh are otf''itces a'~ainst
rights, or (changint; t))e expression) w)tich are bi-eaehcs of relative
duties, thé sanction is enforeed at thé instance or di-eretion of
thé injured party. It is compétent to thé detenninate pet'son
unmediate!y aifeeted by thé wrf~]~, to enfercc or remit thé
liability incurred by thé wron~-doer. And, in every case of thé
kind, thé injury and thé sanction tnay be styled e«.-<7, or (if we
!ike thé term better) ~'t't'«~
In other cases of wren~s which ure breaciies of rehttive
duties, and in tdt cases of wron~ which are )<reac))es of absolute
duties, thé sanction is enforced at thé discrétion of thé Soverei~n
or State. It is oniy by thé soverei~n or stute that thé tiabitity
incurred by thé wt'oo~-doet' can be ronitte'). Aud in every ca.s~'
of thé Mnd, tJie h'jm'y and the sanction may be styled ci-i~tt'««/
or ~!<MM.
In sone countrics, thé pursuit or pr'~ficutio)) of Crimes d"G.s
not strictty réside in thé soverei~n or .-itate. Lut itt some w M'~(/-
of the soverci~n body. For it~tanct. thé ptusuit. of cttt<t)n:d.s
resides in this country in tl)e Kin~; or, in a ft-w instances, in
thé House of Con)n)o))s, as when it i)ttp<tch<-s an aHe~ed
onender before thé House uf !rd.s. Thé d'-tinitixn of a. cuminal
sanction and of a crime must thetet'ore be taken with tllis
qutdi<ieation.
L<;Ltu~ XV)!. ).. 40. .th.
 lu short, the distinetioti betwueu private and pubUc wronga,
w civil HtjtM'iettaud m-tMM9, woMtd seetM to constat in this:
\V!tere thé WNu~ is a ett'~ <K/
thé sanction is uutbïced
at thé discrétion of the pftt'ty whose right bas been violated.
Where the wrong M ? M'<)Kf, the sanction is enforced at thé
discrétion of the soverei~n.~ And, aecordingty, thé same wrong
utity lie privée or publie, as wo take it with l'eference to one, or
to another sanction. Considered as tt ~t'ound of action on the
part oï thé injm'ed tudividual, & b~ttery i~ a. civit injnry. Thé
saine battery, considered as a gruuud for au iudictmeut, is a
crime or publie wrong.

The distinction, as 1 hâve now stated it, between civil in-

juries and crimes, tuust, ttowever, be takeu with thé following
0
explatmtions.
Ist. In certain cases of civil injury, it is not competent to
thé iojured party, either to pursue thé oftender before thé tri-
bunal, or to remit thé liability which thé on'ender bas incurred.
For exampte, An infant who bas sunered & wrong M not cap~bte
of instituting a suit, nor of renounciug thé right which he bas
acquired by thé injury. Thé suit is instituted on his beha!f by
a general or special Guardian who (as a trustee for thé infant)
tuay also be incapable of remitting thé offender's liability.
It were, thcrefore, ntoro accurate to say, that where thé
wrong is a civil injury, thé sanction is enforced at thé instance
of thé injured, or of his représentative and that thé liability
of thé on'ender (if remissiMe at ait) is remissible by t!)c injured
party, and not by thé sovereign or state.
2ndty. Whea 1 speak of thé discrétion or thé sovereign or
state, 1 mean the discretion of thé sovereign or state as exercised
aceording to !aw. For, by a special and arbitrary command,
the sovereign n)ay deprive thé injured of thc ri~ht arising from
thé injuty, or may exempt thé wrong'doer from his civil liability.
[Herein lies thé différence between gove:'nment!i of /<<' :u)d
governmcnts of Mt~.] In one or two of thé bin) govct'nrnents
still existing in Europe, this footi-ih and mischievous proceeding
is not uncommon. For exa.!np!e, Lettcrs of protection are
granted by thé ~overnment to debtors, and by thèse thé debtors
arc seeured from thé pursuit of their crcditors. Dut in cases
of this kind thé -iovereign purtiitHy abrogatcs his own law to
answer some special purpose. This is never practised by wise
Sec di<tin-:tiM tx-tween Civil !))juric< tttut Chmcs, in )~'cttro XVH., 'On
AtMotate UutiM,' li. <M. attff.
govemmonts, whether monM'cMcaï or other. The Oreat t
Frederick, in spitc of bis impcrioa:! temper and tove o~ powet,
a!ways confunned his own conduct to his own taws.
Letters of protcctMn were granted m this country by thé
King, so lato as thé reign of. Witliam IU.~ Tiicse must hâve
been iltega!. For though thé King is empowered by thé Con-
stitution to pursue and pardon crilnina!'? at his own discre~~n,
he is uot Sovereign. It is not compétent to huu to disregard
thé law by deprh'ing tho injured party of a ri~ht of civil action.
In an anatogous case, this has, however, becn done by thé Par-
UaHtCNt. A person named Wright sucd a nutuber of clergymen
for non-résidence and though he had been encoura~d to
bring thèse actions by the invitation of thé existing law, Ptu'!ia-
ment passed an Act indetnuit'ying thé cier~ynmu, aud put off poor
Wright with thé cxpense of thé actions whieh hc had brûug)it.
T)ie distinction between private and publie wrongs, is piaeed Pu
by sonie on another ground
Where, say they, thc injury is a crime, tho end or scope ofwronga.
wr

thé sanction is thé ywM~M of future injuries. Thé evil in-

flicted on thé individual off'ender, is innicted as a punishment, or
for the sake of warning or example. In other words, thé evil
is inflicted on thé indh'iduaj offender, in order that others may
be deterred from similar ofiences. Where thé injury is civil,
the end of thé sanction is redress to thé injured party.
Now, it is certainty true, that where thé injury is treated as
a crime, thé end of thé sanction is thé prévention of future
wrongs. The sanction is ~K~ or ~K)iM/<M<;K< (strictly so
caHed) that is to say, an evil inuicted on a given onender in
order that others may observe thé law. Or (what is thé same
thing) thé evil is inflicted on the given ou'ender, by way of
example, warning, or A)eMM<'M/MM In order that others may be
<'<MM!fM of thé evils threateued by thé law, and may be con-
vinced that its menaces are not idie and vain.
This is manifestly thé meaning of thé word example, when
we speak of punishment being infucted for thé sake of examp!e.
We mean that thé punishment is inflicted by way of caution or
warning for thé sake of recaUing to others thé threats of thé
law. The word commonly used by Latin writers; and more
especially by Tacitus, is ~t)('Mm<:M<)'m. If thé evil did not
answer this purpose, it woutd be inflicted to no end.

See the me of ïx)r<t Cutts, 3 L<'v. Taonton, vols. v. and vi. presame
332. << ~t rf<n'c<) to is 57 &'«. Ut. M.
Some of the r.)!!t.t are reported in –K. C.
 CT. ît ts ntso oqttaHy tmo. that whoro
thc !"j'"y M conaMered
xxvii ct\I,
d. thô pt-oxutmtu eud of thé st~etion M ~Mtiuty spcak-
in~),
in~ r'-dre. to thé injured party. t~ut;. stit!, thé diuercnco )'c-
tn-
twccn civil injurier and crimM. ean hfn'dty he found in any
diftttt'MK'e betwe~n Un* Mtds oï put-po~ <~ thé con'espotKting
Stmctiuu~
For, tirst A!thou.Kh the prnximatc end of a civi! sanction,
M, ~eneruHy speakin~, redress t& thé injur~d pfH'ty, its rumote
aud p~MUMunt eud~ Iike thut of n o'uttinat sanction, is the
prevctiticm of ottcnces ~'ncmHy.
Aud. secundty An action n MniethnM ~iven to thé injured
party, in m'det' that ttu' wronn-ducr tnay )'e visited with ~w?t)'<A-
?«<<, a<ut not in or'ter ttiat thc injured p.n-ty )')ay )?t't'ei~.
Actions uf thi.-i sur't (to whieh 1 shaU advert immedintety} are
stvicd /i«/: In the Iat~uat{f of thé Kutnan ï<aw, ~H«'
j.

1t
~tM<'Ct</<«'«E.
propositions 1 will cn'teavonr to cxptain.
Tiic.-iH
r

It is quite clear that thé necessity of makint; redress, and

of pa.m~ the cost~ of tlie proeceding by which redress is
compeUcd, <t'M~ to prevent the rccurrcncG of snnilw injuries
Thé immédiate en'ect of thé proceedins is the restitution of thé
injured party to thé enjoymcnt of the \'io!ated right, or thé
computsory purt'ormance of an obligation incumbent upon thc
défendant, or satisfaction to thé injured party in the way of
équivalent or compensation. But the proceeding aho opet'ates
<? <<)w<;m. For it is scen that the wt'on~-doer is stripped of
every advantage whictt he may !mve happened to dérive fi'om
the wronK, and is subjeeted tu thé expenses and other incon-
veniences of a suit.
Aecordin~ty,a pronnse uot to sue, in case thé promisee shall
wron~ thé promisor, is void (~eneraHy speakin}{) by thé Boman
Law Atthou};)) it is compétent to n party who has ~c<M<
suftered a \vron~ to remit the civil liabitity incurred by the
wron~-doer. Anf! thé reason aUc~d for thé prohibition is this:
That such a pronise removes thé salutan' tcar w)<ich M inspircd
by prospective !iabi)ity. A ri.~ht of action is not merely con-
sidcred as an instrument or tnean.<! of redress, but as a rcstraint
or duterminativo from wron:{.
In short, thf end or purpose tbr which thé action is given
is doubte t-e<n-f;ss to the party directty aO't'etcd by thé injury,
and the prévention of shnifar injuries Thé accomptishment of
thé former, whif'h is thé proxirnate purpos< tending to accorn-
p)ish thé latter, whi''h i-! thé remote and paramount.
 ~CÏ~C~
AMMming, then,
v.v.w
~rwrwmviw~
~t. At~
thst thé ~~1~ thé
~t *t~
~<treM of înJMfed ~tt~t~
t~:«*M~ ist
party ~M
~o$
)Tm~~
T~MT.
r-

XXVtt
atways ans abject of tt eivM proceeding, it cannot be said that
civil and criminal sanctions are distinguisaed by their ends or
purposes.
It may, however, be urged, that tho prévention of future
injuries is thé sole end of a criminal proceeding whilst tho end
of a proceeding styled civil, is ttte preveution of future injuriest
(M<< thé redress of thc injured. But even this will acaKely
hold. For in those civil actions which are styled ~<;K«/, thé
action is given to thé party, not for his own advtmtage, but for
tite mère purpose of punishing thé wronH-doer.
in tho Homan Law, actions of this kind are numerous.
For example, Titeit is not a crime, but a private delict
But besides thé action for the recovery of thé thing stolen, thé
thief was liable to a penalty, to be reeovered in a distinct action
by thé injured party.
So, agnin, if thé hoirs of a testator refuscd to pay a legacy
left to a tonpie or ehurch, they were not oniy eontpeued to yieldt
ipsatu rem vel pecuniam qu:e relicta est, sed auud, pro ~<M<
There are (L think) cases of thé kind in our own hw,?
though 1 c:umot at this instant recal them. In such cases, thé3
end of thé action is not redress, but prévention.
A!though by these civil actions a right is conferred upon1
thé party injured, thé end for which thé actions are given is5
not to redress tlie damage which ))as been suffered by him, butt
to punisli thé wrong-doer, and by tttat means to prevent future
wrongs. In tho case of theft, for example, tlie damage sustained1
by thé injured party is redressed by thé first action for restitu-
tion, and thé end of thé othcr action for thé penalty is so)e!y
tbe punishment of thé oSeodcr. Atso popular actions, or actionsS
given ex !'<'<< '.c ~o~M~, which exist both in thé Roman andj
EngJish La\v, evidentty have thé punishment of the onender r
for their object.
Besides this principat distinction, there are othc'r species off t~WS
f~
sanctions requiring notice. Laws are soutetimes sanctioncd by !anetiot)''<t
sem<'titm's

for examp]c, to contmcts, on condition that these tmnsactions S'

nullities. The législature annexes rights to certain transactions; ).y))V nutt'

are uccompanied by certain eircumstances. If tt)G condition bee

not observed, thé transaction is void, that is, no right arises; orr
thé transaction is voidaMc, that is, a right arises, but thé
transaction is liabte to be rescinded and thé right annuHed.
Whether thé transaction is void or voidable, thé sanction may
_1.1.
be appïied eithcr directly or indircctiy. Thé transaction may
\'OL. t. L
eithcr be MseindedotKtn appHe~tintt made ta th~t ~Hect,or thé
nnHtty may be opposett to tt demand {bunded oK the transaction.
Art ittatftnee of thé iirst kind ? fttt appHcatiott t~ the Court of
Chancery tu set aside the transaction an instance of thé second
is anbh!ed by a défendant who opposes tt ground of nuHity to
an action at common taw. Thé distinction in Engtish Law
between voM aud voidaMe is thé samo as titat in the Homan
Law between nuM ~~M ~<' and ope <tv<y<oK~<t. Thé first
cont'errcd no nght the second conferred a right which mi~ht
be )'escinded or destroycd by some party interestcd in setting it
aaitk. Ope M~t<mM is an inadëquatc naine, for thé transaction
might be rescinded, not only by <e'y<o, that i8j a plea, but by
applications an:ttogons to an application to Chancery to set
asido a voidabte instrument or an instrument obtained by fraud.
In curtaiti cases, sanctions consist in pains to be endured
by others, aud are intended to act on us through sympathy.
Thèse Mr. Bentham bas styled vicarious punishtnents. They
fait on other persons in whom wc take an interest, and if they
affect ~H at all, ancct ns by our sympathy with those persons.
Forfeiture, m treason, is an instance. As it falls upon a person
who by t))e supposition is to be hanged, it is évident that it
cannot an'ect /«'m, but it att'eets those in whom he is interested,
his chitdren or rotations, and may possib)y, for that reason,
intluence his conduet. Annutling a marriage bas in part thé
same ett'ect, since it not only affects the parties themselves
whose marriage is annuUed, but also bastar()ises thé issue.
Sanctions, in some otiter cases, consist of thé application of
something not itsetf attëcting us as an evil, but anecting us by
association as if it wcre an evil. l'osthumous dishononr is of
this nature. It is appliecl as a punishment in thé case of
suicides who are buried with certain ignominious circumstances.
This, of course, can only operate upon thé mind of tho party by
association, since at tho time when lie ii: buried he is not
conseious of thé manner of his buriat.
In adverting to thé dinerence between civil and criminal
sanctions, 1 forgot to say that where thé sanction is crimina!, or
where thé procceding is crimina!, or rather whcre thé injttry is
considered as a crime, nothing but thé intention of thé party,
thé state of his conseiousness, is looked to where, on thé other
hand, it is a civil injury, an injury must hâve bcen committed
for the immediate end, by thé supposition, is thé redress of thé
injury to thé given party which supposes that an injnry bas
heen committed. The state of tho party's consciousncss is thé
<Mdy eitotuastaaeo which is considcred m cnmes, and en thia.
prmetptettpartyMptHuahedfoFattctnpts. Uenemtïy.attetttpts X"VU
ate perfectty umocuous.and the party la punished, not in respfjct
<JCt

of thé attempt, but in respect of what ho intended to do.

ï now advert to thé various meaniags of the word sanction.!OB.

As it is at présent used, it haa thé extensiw tneaning which

~e!tY<M"!i
MtMttin);s
1 have attaehed to it, and dénotes any conditional evil annexed"ftndet)'U)0.
to a law to produce obedience and conformity to it. According '"f;y thé
!inE 1.
to this aceeptMioH, which 1 bolievo is now gëtieial mucaj.; t;
O~tiM..
writers on tho subject, thé liabilities under civil actions maybebe
called sanctions with thé same propriety as punishments under td<ir

a criminal proceeding. But tho tcnn sanction is frequentty 'tty

limited to punishments strictly so called. This is thé sensé in
whieh thé word is used by Nackstone, though not consistently.
With thé Roman lawyers, who were thé authors of thé tenu,
or rather who adopted it from thé popular language of their own
country, sanction denoted, not the pain annexed tu a law to
produce obédience, but thé clause of a penal luw which détermines
and declares the punishment,
In thé Digest the etymology of the wortl is said to bc this
~t<~«M is deSned ~M(< <t& t){;WM /<M<ttM«M (/<y('ifi.!KM < and
is said to be derived from .MytMMM<, thé name of certain hGrbs
which thé Homan ambassadors bore as marks of inviotabiHty.
The term was transferred, in a manner not uncommon, from thé
mark of inviolability.towhat is frequentlya cause of inviolability,
namety punistiment.
tn other cases .mMt'/t'oK neither dénotes thé evil nor thé
clause dotenninin; the evil: it signifies confinnation by somc
legal authority. Thus, wc say that a Bill beeomes law whcn
iMMt<MK<'d by l'arliament, and that it does not become law till
it is saH<'<MMc~ by thé Royal assent, or till it has rcecived thé
Royal sanction. And itis often used in this sensé by thé Homan
lawyers.
j&«'t'<t<' is alsu used to dénote genemlly a law or législative
provision, or to dénote thé law or body of law collectively.
Thus, in thé bcginning of thé Digest, <o<f'Mt J~«mf<!<f<tH &:M<</M<m
is used for thé whoh' of thc Roman Law. &<wu't means to
cnact or estahlish laws. Tite manner in whici) it acquired this
sensé is easily eonccivable.
 AmctMttur S-nnEKr~
~M.
MR. MURRAY'S
UST 0F
NEW PUBLICATIONS.
!j~iH!t~==!
A NEW WORK BY THE DUKE OF ARQYLL.
IRISH NATIONALISM.
~.v ~/v~ yo ~.s'y~~K
By <he DUKE OF ARGYLL, K.G., K.T.
Cf~ 8:f. 3. 6<
*< *«*<
THE UNSEEN FOUNDATIONS OF SOCIETY;

A~ EXA~HKA'nON 0F THE t'ALLACtES A~U FAILUKKS Ot-'

ECO~O~tC SCIEKCE UUE 't'O KKdLECTKD ELE~tE~TS.
By the DUKE OF ARGYLL, K.G., K.T.
&tfm/ SM. <8~.

fn)and su):K'
do to
'ontnbmionscvt'r <n.tdf to t)t<' '-conomic sM': <~ p"tic"H
W<' hnve nn he~iMtmn in sayin;; that thf )Ju)!c of Ar~yH' '")")< 's "<' of thf nto't h<-tp.

a)) tne') of s<'n':e und sinccrity who are <:)).sed tti:\ttM)nx th'j socia)
wc can is
proUem to nad
n<)vk<'
tt)e ijukc's booti.<<
THE DIARY OF AN IDLE WOMAN IN
CONSTANTINOPLE.
By MM. MtNTO ELDOT.
Author of Tht Diary ef M Me W.mn i.. ft~y, m SH))' &C.

tf'M <:M</ /M~.t«'"M. CiMfM SM. t4J.

T))C votome h an hittoncat an<) socia) );t)!<)ehnott. in wM.:)t t))'- j)!t)urt"~t)''nn') rf.~istic
dMCftp'ion it inttMpened \tith a sorics of bnUiant dratumc i<;enes.&y A'~w:
 THE BARONAGE AND THE SENATE;
OR THE HOUSE OF !.OKDS !X THE PAST, THE PKESHNT,
AKU THE FUTURE.
8y WM. OHARTERtS MACPHERSON.
SM. t6f.
Cf'The Otigin and Con<titutiun of thé Hou-.c or Lords.–Thé Radical
against thé ofLor(~–Ra<)iKa[ Remédia–Cun~tViU~'e Rtfonns.
HoMS);
C:Mc

A tnfxt ~)t<nd. int<'fe'.<in<nnd infonn!ng boo): !tnd vey few men who hâve not mndeit
c:<~fu) '.tu<)v ofconstitnti~tt:)hitt~wi)) ctn«. it withont fMht)~ ttntt ttfy are b<:tt<r)')forn)Kt
Kbum t)n- t~toryuf thé n<jusc ~f't.ord~. its u~~iUttt its position inUMcoosUtuuot). than
th~' m-re wht:n they )-'cj;A)). /~Mt/t /<«<

ST. JOHN'S
WILD SPORTS AND NATURAL HISTORY OF
THE HIGHLANDS OF SCOTLAND.
A XHW A~O CHEAt'ER EDtTtOX, THOROCGHt.V Rt:tS!:P, WtT!t
nt'ntERTO CXrUliLISHKU NOTES !!V T!tH AU'rttOR.
Kt.)tTt:t), WtT)t A ~tt!ttO)K Of TttK AL'mOR,
By the Rev. M. G. WATKINS.
<n?A 7~7 <J/ 7" A~f /m//<MM.</m~S~. t~.

ttt**<«*<
A NEW WORK BY 8)R ALFRED LYALL.
THE:
RISE OF THE BRITISH DOMINION IN INDIA.
FROM THE EAKLY DAYS OF THE EAST INDIA COMt'AXY
TO THE COXOCEST OF THE t'AKJA!
By S'R ALFRED LYALL, K.O.B.

/f)7/W~ e ~/w/h- /< UXtVERSfTY KX THSStO\ Se):)KS, ~<7<

PKOtESSOtt Kxt'.HT.
M~< Co/w~ /M'/T. /M Sfc. < 6~.
Thi! little to!um" it w.')) worthv of the fttuhor'thit;)) reput non. nnd we hofC and be)ie'c
tt veill obtaiH many readert who tot!iU not study a dry hbtMy.y'A<.s/<w.
 THE GREAT ENIGMA.
ByW.&ULLY.
~<'<Mt/ /MMw. Sff. t-t~.
CONTENTS.
t.–Tnt!T\n.)anrot'')mC'~t':<. V.–KATtosAt.T'tRtsM.
tt.mftM. VI.–T)tRt!<St'.KL)':m.
tff.–CtiCt'tf.U. A'WS-rrr;«t. Vfh–'}))){ CtHtMttAS SïXTttEStS.
tV.–SciHXTtn'; A'.xo.otct~M.
"nin)p9rtM<c.-)MribMtiuntottt')'ox'="~°~ ')": Rreat argument.
M'hich int'oh'M a t.-ntiai <<!U))in;ni')<) of Mti)"

~<
uf th': <n:t!n 'urr~nn of n)o')ern specuht've
th''u~!)(. h preMnMt)with r.(re <)i.d<:<;tiL-.ttstfi)).
A [mw-rf~t bo'jk–tnofBpoweffut perhapt in
)t< nj~ttive di~ectie in its c<m<tnMif<' efforts, but in nny CHe a MfioMSamt stt!Mmed
t)Mt)
[)~'t))i'; itgtunit some o( (hc dotuinimt MHden'MS of tnodem tti;noitic <hou;ht. /'<m~.

SOME NOTES OF THE PAST.

By the Right Hon. SIR HENRY DRUMMOND WOLFF, G.O.B.
)). ~t. AHt!<t4odor M M:MirH.
C''W<St'f.
Ct'Three Vi<it.; t" thc War in t~o.–t'rincc
I~)Mt! \apo)eon.–Unwntten
nht('t)'fa<t!unede )''eMt;h~-te-The Pfincc ImpeM).

t~
The "f th<:«: K")e': w<:re printcd privée); Md i!!H<!d to ft few of thé
{;r<!Uer [Mft
Mthor' Mends, at whosc tcquMt they are now )na<)t: puUic.
tt i!! mt too mnch tn ~y t)'at in <his )itt)c votnme tht're h more th.tt i'i wort)) recording
th.~n in nitM ut't of M uf th'- h'ttky t(«u<;s. in whid) imtoMograph'c-dwritu));s are continuaiiy
LL-ittg prcMnMd to Mi..t/<<M/t'j/.

THE FRENCH REVOLUTION.

By C. E. MALLET,
MtMCoHtSt,Ojtfor<i.
(f~w8< ~.6/.
COUTEMTS.
<T)«' CftSMTm~ "< )'m';C<; tK TMK V).–T)tKR<f!OfTMttjACt)M':Pti:TV.
Ktf~HTKK.STHCKSTtKV. VH.i'MK isn.'KSCK ''t~ 'rHt: W.~tt C~X
U.t'HH LA'.T\'tA):SOtTtH:A\~H:S )JtKR):VuH.T'
)<)'.<.))<< \'tt).)')tK)''A).u)'T)tt.<OSt)&
))).–T)<KK*M.tntV<')t'rM)')<n.n.tT; )X.t't<KjAcoMK'.t':t'.m)!t;.
)V.t')<n).«:M«t .nt.Cos'.rtnr'.r X.)''ft:Mt'rt.M"t''rt''<ASOTM)~
.<HMM.Ï.
\)'AhrtK<AS))P~tTtHA't~):r)<t'
A'SCH':t~H-
Xt.t'W:KK*CTM; t RnM.st'OiKtŒ.
Cus'ittTt.<rA~st.t.t.
~'Wf'M.y <t tWtfh' f/' Mt RRAY' U~n'ERStTY EXTRXS~'X St;)!tKS, ~<i'<
t'ROt'HsSOR KXtGHT.
Amtnprfhfnsitcand we)) pronortiono't sun-ey. 7'<M<
A<)o)ir.))))yaccttmte and tin);uhrfy int';r<t)ns~y<ff.
RECORDS OF A NATURALIST ON THE AMAZONS
UUt<!X(.: KLHVKX YKAKS 0F
ADVENTURE AND TRAVEL.
By HENRY WALTER BATES,
t-ateA«!<[:Mt'Sft:r<t:tryM 'ht )<o)-))<:«!MpMntt.Soei«y.

A Nt:W Et')T)OX Of ')HK U'<AfR)))<:Et' WoKK,

W!th a Memolr of tho Author by EDWARD CLODO.
tf~M ~M'?, C'f/<'H~ /V< /MJ/m/W<f,<!</</ ~/tt/)~<MM S~. tS~.
This w<)tk is so w.-t) knowt). nnd ))j5 )on!; )~')'t t'igh n pt~co antonR MicMi<)Cbooh< of
tmve), that !sunt)M;<;<s.tr)' <odo t~urf th.m nutc th<tj<pca;:tm-t' <jf:t nc~ édition. <</«/<

6b i i iii i«*
STRAY VERSES.
t889–90.
By ROBERT, LORD HOUGWTON,
Lord LitUMMnt uf )tet:.nd.

A New K~mOK, TO \V)("K AKK At't'Kt' SOMK D';<'X.UÏ)KY Vt:ttSt:S TO

T))K ~tE~«'ttY or I.')ft' 'rK'<SV<OX.
~M/JM/ Stf.
Thi! daintv iittle Mlumc !< indec;) rM.h- 'tf'n-'t ~ith t))f Kn'w and s''y conf-cits of poc-iy.
nnit t.ofd Houfihton nay Ix aMurMd that f." tyreistun~d tu Y'ryc.tpthatittg n)easu)\
7~'n<
~'<«7i'
*<«*<
EXPLOSIVES AND THEIR POWERS.
TRANSLATEU A~n COKDKKSEn FttOM T)ft! KRK\C!t of M. BEKTHELOT

By 0. NAPtER HAKE.
F<:i]owofthe!n!titat<ofChtmiHty,~tjxcMtcfËtpto'tMt*to theCoMntmmtofVittotM,
and WILLIAM MACNAB.
Fc]!ow <<fthe in~tîtuteofChenusti~

With an Introduction by Lt.-Cotone) J. P. CUNDtLL, R.A.,

H.M. <B!))MMfCf KtptCHVtt.
~M /?/M~nt/WM. 8M. 24;.
Thé TtaMhtion of this wet).nown work of thc cctebrated Freneh Chembt,
M. BER-rHEKn-, President ofthe COMMtNtO~ DKS SUBSTAt<CM EXPt.OStVM, i<
pubtished with his sanction.
 PROMET H EU S BOUND.
y/M~'My~ /~o.v jr~'c~~c/~
By HENRY HOWARD MOLYNEUX, Fourth Earl of Carnarvon.
C~t<'«8:w. 6j.
comptvted )'y the tate t'tr) of CarnatYon. His
Thb wa< thé )Mt literary wotk
tra't'.tattun of the A~mctnnun wa< [~btished in tS~ii.

MURRAY'S HANDBOOKS.
XKW HDtTtOX.S. JUST REAUY.

l.-CONSTANTINOPLE, BRÛSA, AND

THE TROAD.
Edited by General SIR CHARLES WtLSON. R.E., G.O.B.
AHm~w~ J/j aM</ /V<"M. S:t). yj. 6'
Owinc to the tatm~r of revMon, it hM )wn found impo~iMe to c"mp)tte the latter
poni-.n <-hhe jbndbooktbr Turticy it. Asia, rehfin!; to Anatoii~ and McsopotamM:
YtHt (.oMMnttnopk.
and in view, therefore. of th'! incr<ming nu)..))M of (Mve)kf! who
pubhshed Oonc. thé
Mfûs~. and thé Troad, the <t<s<:nption': ofthose p):)<:M arc now
M-written.
text has been fMrrang'Kt and, for thé most part,

n-THE RIVÏERA.
f'-RO~t MARSEtLLES TO r!SA-AXD THE KOUTES THITHER.
A KfW Fom~ nf MCKKAY'S )tAS))nooK t'ott -r))H R)V)KRA. THOttOUOtn.V
KKY'SK)', AX)' ).-< A '.XKVr MKASfttB ttK-WKmKX OX T)))!
hMT.

~~A ~f
MMW~M~ < a ~<' C'n')M< 6j. &W.

nf.-DERBY, NOTTS, LEICESTER AND

STAFFORD.
MM ~«W, ~W< 9'-

iv.-KENT. v-SUSSEX.
/~A A/«'< 7~. M ~MM. 6~.

3T4~ ~<' ~<7MM <'M/.w <t.?~-M/ w/M~ </f~ SMC <t~

~<'aM/ ~.ww~ .1laps a~ ou a /<MS~ ~<<
 A NEW tNTROOUOTtON TO THE 8TUDY OF GeOLOGY.
THE EARTH'S HISTORY AN INTRODUCTION
TO MODERN GEOLOGY.
By R. D. ROBERTS, D.Sc..
SotM tirne t-'dtow ofCt~< C~)!<~<Ca<HbtM!;< SteKtatyt~ the )-<tn<fun Unittr'ityKxtemiut) S)i!t)iat<
/7«M,; a fW<"w Ux)\'E)t<n'v KxtH.~sx/x SKttt~, A<«/ <~
t'Kutt.SiiOK K~ttHU.
~<M CWtMr<'<~)/tt/r<<~maM/M~a/< f'n'7tSM.
"Admimbtt; it) t'rcryW!K- ht armnscntcnt. in <:un)p-'<:tnM~,!nt)n.<rous!'t)<;ss, and in thc
interesting tna)))K'r in whit.h thé !ubjec( )~ h.tndtmt.S?f.'jm./M.
f

A BRIEF MEMOIR OF SIR HENRY MAINE.

By the Right Hon. SIR M. E. GRANT DUFF, G.C.8.).
WITH SOME 0F tttS t~ntAX St'K):CtU-;S AXU MtX~TES,
Seteeted and Edited by WW)Tt.EY STOKES. D.O.L.
Memb<f of th< ïn~thute 'f ffanct, amttienenti
f'unnef!y t.aw Membir of thé C~uncH
of tndia.
<~f the CcvtfMf'

W~ /tM7. 8M. t4J.

")«'!in)po«iM<:(o rca<) )a)f-a-ttt)iten p~~es ht thé volume, whatevcr subject may bc nndt'r
withaut bH.'omh~mnMiotM th.tt we ttre in contact with -t j;)im t)n< eontbincd Il
f))!c')SMon. a
comuKtmate titfmty !<itt \tith thé stateiintunthipth.tt )~;)«ni;~ rM)xr to <)'c phitoMph';r tban
to thé potitiei.ta.f/ )t'f/< [

OUTLINES OF ANCÏENT EGYPTIAN a

HÏSTORY.
BASE!) OX THE WORK OF AUGUSTE MARIETTE.
Translated and Edited, with Notes, by MARY BRODRtCK,
Of thc K,;)-j'tË\j )'.)r:HMn t'ttnd.
A XtW RKVtSEX AS)' t:?it.Af(<:):t) t:U)))0\.
WnH T.U't-K UF CAKTOt.'CHKS, MA)' A~t) !\K):X. 1.

CtMi'M Sr't'. ~f.

This worh bas b<M:n undtrtaken with thé fuU approvitt uf thé representMives of the
bte At. AUGCSTt:: MAKH.TTK.
ExrfiAM tKùMALt.rrHK ot- ~t. MAs)'t:M T~ -nn: TKAXst.ATOK.
"Je pense qu': w~ fW!! rendu «n tMitabte servie': .t ceux de vus contpatrioM <)U)
foknt savoir un peu de ce ')ue c est que t Ksyptc san< pour ccht !i'in)po<ef ta fatigue de hte
)e~ outtagM iouvtnt trM arides des Kgyptotogues."
 A HANDBOOK TO POLÏTICAL QUESTIONS
OF THE DAY.
AND THE ARGUMENTS ON EÏTHER SIPE.
WITH AN tKTRODCCTtOX.
By SYDNEY BUXTON, M.P.,
.\m)«f ef t'inmce and fditia," &c.
~V/M~ &??«, A'ft" StW. !OJ. M.

At'w .SW~ this&?' .–Legishth-etnterfcTence in the Uouri. of A<h))t M~ci!

–Tmde OpUon-Miners'Eight HoH)'s Miti-One Man One Vote-Shcttef t'Mhaments
-Second ~ttots-MunicipttHome Kute for London–Taxationof Gtound Values, nnd
of KeveMonMtif,&c.–R!nin6 of Vacant Land–Municipal Death Duties–Bêtement-.
lattnigmtiotof l'auper Aliens, &c.
~l~f··NNi~·t
WORKS BY MR. WLPREO J. CRtPPS, C.B.

OLD ENGLISH PLATE. OLD FRENCH PLATE.

ITS MAKHRS AXU ~tAKKS.
KCCLEStAS'nc.U.. DECOXATIVK,
A' ~~7w, ?!
~<
AXH DO~tKSTtC. ~M
<M~~< ~M ~<-
a~. S~. t~
NOTES BY A NATURALIST ON H.M.S.
CHALLENGER.
~?? OF OBSERVATtOXS MADK !)UK!XC THE
A RFCORn"CHALU~GER"
ROUKD
YOYACK OF
-n~
WOR!.H !N TUE YKARS
~6 ~U~TUK
S. COMMAXD OF CAtTAtN SIR C. S. XARKS.
K.C.B.. t-.K-S. A~P CAPTAI F. T.
THOMSOX. R.X.

By H. N. MOSELEY. M.A., F.R.S..

0~
<M/<4/
Ute t'enew ofKMtcr CoMtS*.

A KHW .~f CHt:rKK KUtïtOX, w. A MKMOIK or ntR ACTUOH.

CnMt'MSM. 9J.

-C~mcd ~ith good <hinE! for the student of and customs.

lmnlun JVc.d.~A'f~t.ookwhi.c<c<.p.hiBhp!M.n.ns ~cords of cxploring ~W~
&<A C<<~< .)/w'<-
 EGYPT UNDER THE PHARAOHS.
A HISTORY DERIVED ENTIRELY FROM TttK MONUMENTS.
By HENRY BRUGSOH BEY.
A NKW EutTtQJt, CMDKS'iKD AND THOKOLCHLY REVfSEp.
By MARY BRODRIOK.
M~M <Mt~, /?aw a<h/ /?/«~<-< S<w. tS<.

~.v?'Y.t' .?tr~.vo ?w~A'f)f'K ~r/s/i~ /?7o.v ry 70

KIRKES' HANDBOOK OF PHYStOLOGY.

A HANDBOOK OF PHYSIOLOGY.
By W. MORRANT BAKER, F.R.C.8..
~urs<on tu St. Eanhotontew'f.H'~itat, Kxa<]un<:r in Surg':ry at th<t Rny~t Cutk};~ of SufKcu)! and

VtNOENT DORMER HARRIS, M.D. Lond.,

DemuMtraturuf rhy<î'j!ut;yat Si. B.mt'o)utm:w'A Hos~ttKh

~'M M'~f 500 /n!fMf and C'<'At<'rA//yf< Tit/rA'A /:</<< CfWtf'M StV. t~.

THE ENGLISH FLOWER GARDEN

DESIGN, VIE\S, AND PLANTS.

By W. ROBtNSON, F.L.S.
7XM &/<7«)«, w/t'f ~'<t'<~< t~M w<M<y/<M a<<f7«t/ ~/<~ aM~. Stw. t y.

OCEAN STEAMSHIPS.
A POPULAR ACCOUXT OF THEIR COXS'i'RL'C't'tOK,
UEVELOPMEXT,MA~ACEMK~T,AXt) At'PHAXCES.
By Various Writers.
tt~M 96 /MM/m/<~M. ~/f<Mw Sp~. t2j.
This state)y voiame is handsomeenouc)) for a ftmwinK-room tnbte, nnd nt thé Mme
time is so int<:t<)inj;. white tneetinf:) gfnemt want, that it ouRht to become popular in thé
best scnst, as btin~ both a work ofaft and aJK) a useM fnen't for whocver purpows a voyage
hy <tn oectn sttamship, or wbhes to recall interesting piusagm by s<st in thé récent pas).'
/tVty-'0/.)/~tTMfy.
 THE QUEEN'S COMMISSION
HOW TO PREPARE FOR IT, HOW TO OBTAIN IT,
AND HOW TO USE IT.
By Capt. Q. J. YOUNGHUSBANO,
Of <)MQM<t'*Ow~CMptot Guida: AMhor of "Frtpmd
t'ofif'
& A.A7AW. e'~tMt SM. 6t.
conM.nptate makinE
hhd'meutt to tmamn. <t betMr
guide t'mn thX to parents who
<<~MM tons them~t'e!
tl their
mtdtefs of their Mn:

«,t*
S~h Xwa. much w<nt.d. and <h~ before us has ~i<Xn.!y been ~M)y prepared
by a very compétenthand.?'~ fM~.

ARCHITECTURE.
Thé t.te MR. JAMES FERGUS80N-S HISTORY OF

INDIAN AND EASTERN ARCHITECTURE.

''M'

~w~~
"M 400 S!'«. 6~.
A~t. <!«</ C-4«t/~ ~Mw.

'T'S~
last c:omprehensivennd p,eçise
the mcltof every English render.
M once ~rrest and rivet 'ftc~t. pre~MR
Mtenmt~p~. the M.dy&.n.M.i.
knowledge of Indien architecture nlaced within

tions of ttiemst-ives form perfect study 01 Indlan art. 'l'heir

~~X~t~ .-h.?~- such an

could only have been produced by the labour of a lifctime.
is one
lIfr,
is
'rheendiesssu=sionotiisadinimblyclassifiedillubtrt.
and beiuty
protusion, açcura")',

Forgusson's work
the
as
will
offered
to the<p!tndidcivilisationof aneent tn<iia.r<~<J.

MODERN STYLES OF ARCHITECTURE.

A XKW Eomw, REV)4t:0 AND ËXt.AM!KU.
FKOGRESS Ot.'
WtTtt A SrEC!AL ACCOUXT OF THE RECEXT
ARCtHTKCTURR M AMËKtCA.

By ROBERT KERR,

<h. ~d
PfOf«MrofArcMtt«t)T<M Kiot'' College, London.

tf~330/&a/«'<tj. ~7M<Mw!w. 3!J.M

Mmp)~s <h. hi!Mr)r of

Th. votume now before t.!himseif orthe
prMf or the learned
tearned
this untiring student
sludent himself to accon.pthh. an"
te accomp1ish, and il anather proof
&ddsMot)Mr
.t ndds
whkh
whichthis untinnK sel
see
his reseaMh. 'MM'~ A'.tM.
Mthet'tindtfaUsaMHtyand thé comprchensivenessof
~A~~7.< ~C/~r~/) ~'C~7SC7-eW~
9 tMf.. « «~ A< the ~<M. /M <3.
tt~ ~'<~< ~M~t ty ~vt~tf .f Mt~tmtH'w<t
ARCHITECTURE: A PROFESSION OR AN ART.
THIRTEEN SHORT ESSAYS ON THE QUALIFICATIONS
AND TRAtMING OF ARCHITECTS.
J'y T. C. JACKSOX. A.K.A.. K. XOK~tAX SHAW, K.A., J. T. M!CKLK.
THWAtTK, Rt-:<:tX.\LD BLOM!H:LH. t.. t- MOUt.HV, A.K.A.,
MHKVYN MACARTKËV, ERKËST XK\TQX. t. t'RMR. J. K.
CLAYTOX, tiAStL CHAM!~KVS. W. K. LKTHAttV, W. B. KtOU-
MOXD, A.K.A., <
C. HORSLEY.

Edited by R. NORMAN SHAW. R.A., and T. G. JACKSON, A.R.A.

SM'. 9'.
NNIH·····1H·111
THE COUNTRY BANKER:
HIS CLIENTS, CARES, AND WORK.
ey GEORGE RAE.
M~ ~<7t~. C<~t<'« 8w. 7~. <x/.

*<«*«*««**
BOOKS BY MR. W. M. AOWORTW.
THE THE
RAILWAYS OF ENGLAND. RAILWAYS OF SCOTLAND.
/<«~~S'<~&M. /A'<t/t~<t. <M. t4J. ~<t~< C'WM&w.

THE RAILWAYS AND THE TRADERS.

A SKETCH 0F THE RAÏLWAY RATES QUESTION
tN TttEORY AND PRACT!CK.
&MM<~ ~<A/<~«. CfWM 8~, 6~ eM<~ a 7~«/a~ ~MfA~M, t*.

THE RAILWAYS OF AMERICA.

THEIR CONSTRUCTION, DEVELOPMENT, MANAGEMENT,
AND APPLIANCES.
By various Writert.
M~A ~A~, <t~«xt /<t/«M~. Za~ 8c< $n. M
"Theittastration:are xuptrb.Md thé tettetpfeM !f it Jack!: somethincof thettnityand
to<Mi«N) interest of Mr. Aewatthi con'Mpondiagbootis on Kn);Hsh Rjuttmy!, et teMt bh~tet
with infomt~tion on &M points of « hrge subject. To Knj;)hh Engtn«)t thete is mMeritt for
book.a/«~y
stttdy in the ttthniea) portion of thé ~'<f~«'.
 WORKS BV MR. QORE.

THE MISSION 0F THE CHURCH.

FOUR LECTURES DELIVEREU IN THE CATHEDRA!.
CHURCH 0F ST. ASAPH.
By the Rev. CHARLES OORE,
Principal ofj'tmy House, Oxford, Kditor or t.tM ~tundi."
CfW 8tf. :t. &

THE BAMPTON LECTURES FOR 1891.

THE INCARNATION OF THE SON OF GOD.

A'.t-~ ?XMtMM< St'f. 7,f- M.

LUX MUNDI.
A SERIES OF STUDIES ÏN THE RELIGION OF
THE INCARNATION.
BY VAITIOUS WRtTEM.
Edited by Rev. CHARLES GORE, M.A.
C'/iM~ .S/<7<f~. ~A/w~ 7XM<MK< CtWfM Stw. 6j.

aafeiawa~a.r·vaaw
HANDBOOK OF GREEK ARCH~EOLOGY,
SCULPTURE, VASES, BROKZES, GEMS, TERRA-COTTAS,
ARCHITECTURE, MURAL PAtNTtNGS, &c.
By A. S. MURRAY. LL.D.,
K«p<r of the Greek and Roman Antiquities. liritisli MttKom.
H~ !t ~<f~ /V" <t«</ t~o ff~~M'j. C'w<w !w. t8j.
Admirable ln its method and fascinating in its materhb tht! thmtboo): b eminmttv
and or the gréât
worthyor its lellrnClI nlllhor, <m<tofth<-
worthYof"s'<t'rnettaM<)'of. great inttitmion
In51itlllion tu
to ~hich
which lie
h'- t'donEs.
belongs. lis
tM illtrin~i,:
tntMMM
mtoet!. gfett)ven)mncc<) by thé numerous i))ustfa[ions. aM of whMh a!e appropnate and
iMtnttti't. whtte the more etabomteare very benutifuUy executed.
V'/M~.

the Same Author.

By
A HISTORY OF GREEK SCULPTURE.
~t'&MM. ~M!407/A<f~/M)U. 9~Mf. ~<MM!tW. 36~.

tn mMC and mastery of thé subject. and cteamMi:and attractivene!! of ftyte. the booh
Memtto Man excellent example of what such book shoutd be. W. bec once mot. M
intestins book-with thé BM<itM<iewhith consists parUyinM
thank Mr. Marray for his
MpeetMioo of future fMourt.CM*
 ITALIAN PAINTERS.
CRITtCAL STUDIES 0F THEtK WORKS.
By GtOVANN) MORELLI (Ivan Lermotietf).
Translated from the German by CONSTANCE JOOELYN FFOULKES.
With an tntroductory Notice by Sir HENRY LAYARD, G.C.B.
THE BORGHESË ASt) DOMA PAMFtH GALLEKtES M KOME.
t~M /M~a/t'MM. 8M'. tSt.
It

~<
does not nf-d an enthM~hmic sentiment for art <ofind <his interetOnK.
boc): Ko
.ttudent of painting can afTord do
M without it. 'rhr.ttt;hout the votum. there )! little e t)KM

?))) <:n) tu interest the most OMM) r<Md< So far as htcrary assistance is poMtM~ none
(«-nef Ct)u)J bc hopcd for than that whieh ~)c'~<)) KivM us in this exceMni
vofume.
/a//M/~ <~JM/

PRIMITIVE CULTURE.
RESEARCHES INTO THE DEVELOPMEKT OF MYTHOLOGY,
PHILOSOPHY, RELIGION, LANGUAGE, ART ASD SCtENCE.
By EDWARD B. TYt-OR, LLO., F.R.S..
KMpMof the ~!uKum, O-tfont.Md Authorof RtKMtha into the Etfty History of
MfMnd.'
N

yX<~<t«t/f<<< S Sw. ZU.

DICTIONARY OF
GREEK AND ROMAN ANTIQUITIES.
n<CLUDIXG THE LAWS, INSTITUTIONS, DOMESTIC USAGES,
PAtNTf~G, SCULPTURE, MUSIC, THE URAMA, &c.
MtTEn BY
WILLIAM SMtTH,H..D., H.n.U.C.L.O.fo~:Ho..Ph.D.L<ip<i)::¡
WILLIAM WAYTE, M.A., ~nntrtyF.H.*ofKin6''C<I<<!<,Ctmi..H)!
G. E. MAR)ND)N, M.A., FMmMtyFtI~ofKi.tS'iC.Uw.CmbrMe..

<vide intérêt
TtURO RttVMD ANt) EXLAM.EO Et'tTtOS (!t4° PP-).
~M <)oo
.f
/<«/n!
)~h.n accent thetahour~hieA
whichitposscKM

the last preccdi.K edition-the

a ~W;. ~/i'<M<'< S~. 3~. M. «~.

for
!)r WitthmStnith'~O.etionMyof Greek and
have conspired top~uc.t.
various

Kc.nd-.ppe.tred
'j~
This yMf ha:, scen aho the completion of a work whieh mny fitty 'Mei'e mention hMe.
c)..Mc~ofMadents–t'"eMthe third edition of
Roman Anttq)tttt<N..ed.[t<tfnthe first volume
hy Mr Wayte. and in thé second by Mr. Mmndit.. t-orty-three
in .848. ~o
ytimh~e etapsed since
one
fmiffut this long interval has been in fresh nmten.<)s of every kind can Mnder thM~henew
they !tm<), 'wo-thM! hav~
SSM.ySter.d.andonMh!~has h<n.ntir.)yr.wri.t.n.
Moei~moM a new booh. Setfcety twenty articles rcmain M
~~««M/.t/t~'tf~~HKt.HK)C SOC<6TV./M< t<9'.
 NEW CHAPTERS ÏN GREEK HISTORY.
mSTORICAL RESULTS 0F RECENT EXCAVATIONS
IN GREECE AND ASIA MINOR.
Sy PERCY OARDNER, M.A.,
l'~ft'wref~thzob~yintheUttiMnityefOjtfen).
~nt/K"M. Stf. t;f.
Thé V<r!f!cntionofAncicntHisto[y.–)')'rygiann<) Tr'tyceoMan'! thé hhn'h.–
Tht; fat~ce at Tiryns.–Keeent r)i!.c"vn<i and thé tionxnc t'uems.–Anetent
Cypruii.K<tu<;nttii an') thé Cteett* in Kj'yp' Thé Exca~tioa ')< the Athenhn
AcMpo'is.–OtytnpMtnd thé FestiYat.–Thc t<e)icf'. aw) toMfiptions at AthenitK
't'unuM–SMrtMTon))'! and thé (-'uhus of thé )~<st().–KpHam'u" nnd Anoent
~~e~iicinK.)<Ni~n~~the~()'<'riei!Uo<)naMd thé OnKks.–The SttcccisoM
ofAt<t:mder ami t.rcek

t<<
Ci~iUMtiun

ELEMENTS OF AGRICULTURE.
in thé K~t.

A TEXT-noOK PREPARED UNOER THK At'THORtTY OF

THK ROYAL ACRtCULTURAL SOCtETY 0)' KXCLAXU.

~A'M~
PART I.-The Soil.
By W. FREAM,

rAM n.Tho Ptant.

~2oo/w~A'<
H..D.
r~Kr tt!The Anim~.
Cn'N'MSw. 3f.M.

A DICTIONARY OF HYMNOLOGY.
MTT)SO FOttTM THK
ORIGIX AND HtSTORY OF THt-: CHX!STtAX HYMKS
OF ALL ACES A~U NATIONS,
W1TH SPECIAL REFERENCE TO THOSE CONTA!NED ÏN THE
HYMN.BOOKS OF ENGUSH SFEAKtNG COUNTRIES,
AND NOW M COMMON USE.
Edited by JOHN JULIAN, M.A.,
Vicar of WitxMtM):. ShtMd.
t6t6/ ~!t<A'MM StM.
"AworkMmonttmcnt~indNr.tcMr.fo exhaustive in executicn, couttt on!y ))ave been
um!cf~)<enbyaneM))U<!h!itwitht))einstiMt«)n<ta).t)H)<tc!. of a sdmhr. and Mr. tutian ii.
evidenOya man of this rare type. Wc cannot but conf;mtuhtc both tdttof and ~t)M)d)er on
the -itteceMM compktio!) of a boo): whtch mM-.t hcncefurth tnke its phM <t standard work
of referenct ln evm Ihcologicn\ and genenl 1il.rary-·Tiarer.
°'~S'A~S~'r~r)!S~'boSSict'/S?evFr i~'t t
fromthepMss. I' is tcfn.
pttte guide to thé hymnotosyof Chnstendon)." -<7~ A'ftM.
r s
 CHARLES DARWIN.
HIS LtFE TOLD AN AUTOMtOURAPHtCAL CHAPTER, ANU
IN A SELECTEU SKRtKS Ot.' HtS Ï'UUUSMED LRTTERS.
By his Son FRANOIS DARWtN, F.R.S.,
FeHow ofChtitt't CeUte', CambrMtie.

H?/<! /M« /«M~. ~< Cw f~A</w, <-r<w~< 8M'. M

THE HISTORY OF P. CORNELIUS TACITUS.

MOKS t. & n.
TRANSLATEU INTO ENGLISH, WITH INTRODUCTION
AND NOTES CRITICAL AND EXPLANATORY.
By ALBERT W. QUILL, M.A., T.C.D.
S<m<t!m<:Scholar cfTfinity Co))<){< fuMic.

Su'. 7A M
··N1NNNNN11·
THE COLLECTED WORKS OF WERNER
VON SIEMENS.
Translated by E. F. BAMBER.
SCIENTIFIC PAPERS AND ADDRESSES.
With /W/M/MMJ. St'f. t<
CuB'M Ttk~ph)"
~'LitiM H)Kt~Mt!c Induction: Th< M<m.r)-U''i'R'«~"°'' R<'ktante<
.nd 'î<:«ini: SubnmnM Cabk~ Ihe Uynamu.E~ctne t'nt'op).: TtM
~nOMM. uf t.'sht on the t-:)Mtn<: KtiitMMe of SdtMum, &< &c., &<

.~aH~····aW·
THE ELEMENTS OF ETHICS.
By JOHN R. MUIRHEAD,
E~M tecturer m ~foMt MtM.. Km a) Holloway CoU~e E~iunima-in
Muuo. College, O~efd
fh,)t,<~hy to th< UaiMnity of Gb~jiew.
~<<H't<' a ~/M~M W U}fn ERStTY EXTKNStON SEttttM, ~<
rxot'RSSOtt K~tOHT.
Cn~fo St~. 31.
tiooK I.–The Science of Ethics. I DooK IV.–Thé End as Good.
HooK n.-Mora! Judgment. BooK V.–Morat Prog~s*.
BooK 1!Théories of the End.
 JOHN WILLIAM BUR60N,
LATE DRAN OF CHICUESTER.
A BIOGRAPHY, WITH EXTRACTS FROM HIS LETTER8
AND EARLY JOURNALS.
By EDWARD MEYRtOK QOULBURW,
D.D..
Sontttim*H*m et Nefwid).

K~M /M!< a J~/f. 8M. ~4*.

DEAN BURGON'S LAST WORK.

~~vX~
j)/,< V.~
LIVES OF TWELVE GOOD MEN.
R~IIIA. &"<~ <~7~
~.M~A~AC~
< c~~<
~W~~y~
~it"

/A-By JOHN W. BURGON, B.D., t~te Oean of Chtehee~.

W'TH fOKTRAtTS Of Tt.E AUTttOK AND
~~A ?X<'«MM' 8M. ~f.
W THE T-WM.VE.

.wa.a~ravaw+~·
?7/ AND POPULAR /?y6W.
A PLEA FOR LIBERTY:
AN ARGUMENT AGAINST SOCIALISM
AND SOCIALISTIC
LEGISLATION.
COSS.ST.W 0~ AN ISTRODUCT.O~ ).Y
HERHERT St'MXCER, AKP EMAM
MYVARtOUS \VRITERS.
Edited by THOMAS MAOKAY,
Afthorof "'i1'< EasMsh P'Cw" Stf.
~M a «<? ~"y
M< Stale /~M~M<. M.

T"
CONTENTS.
tUTROnUCTION. FROM FRMUOM TO tXVESTMMT. T. MACMY.
BOM.1<~H"TS~ tHoM~OOFTHBl'OOX. M.A.RAt-)--A.
!MPRACn':M)U:YOt' SûCtAt-MM. b. &.
KtttX~os. t.ov.cM.
F. MtUAtt.
L.MtTS Of HMM-Y.
I.,MKRTY ~°~
W; Dû~MORM.
AT 'DtK AM'tOM-
'~LA~.
Wo~~s D~co~~T. En~u~
SoCtAUSM
POST OFncB.
LtMAMKS.
ht.C.J.RAUt.eY.
P. O'BRtKN.
SK..F-PT<~ STATB F~s.0~. Th.
1 AIaNROV Hr.uuxer.
Vtxcext.
 A PUBUSHER AND HIS FRIENDS.
MEMOIR AND CORRESPONDENCE 0F
JOHN MURRAY (THE SECOND).
WtTH AN ACCOUNT Ot-' T)!H OKtCtX ANP PKOGRESS 0F
TUK UOUSH. ~6)!<3.
By SAMUEL SMtLES, LL.D.
7'<<n/<M,M«/. W~t~. ~8M. 3~.
Thfy m~ be ptaecd side )~ !)(!e withi !t it dink-u!t within the sfMce a< Ottr
thf t.ite of Scott. as boottï that witt tx~r comnmndto doju'!tie<< M n tmok M ri~h in
t
t.'r)xttMtdippi'));andwecou!d hafdty theKten')yhiMof)fofthetmte.M<r«m.
ix's(ow any hisher ptaise.?'A< 7'<m< )

LONDON: PAST AND PRESENT;

ITS HISTORY, ASSOCIATIONS, AND TRADITIONS.
By HENRY B. WMEATt.EY, F.S.A.
F~~J?/? ON CMV~V/C'/M~ /A~~O<7~
/<~<y ~<M«' /W<t/<t/ M< ~a«/ /<f. 3 Wj. ~M'Mm 8tw. ~3 3<.

JOURNEYS IN PERSIA AND KURDISTAN;

WITH A SUM~tER IN THE UPPER KARUN REGION,
AXD A VtStT TO THE KESTORIAN RAYAHS.
By Mrs. BtSHOP (Miss fSABELLA B)RD).
~M ~<t/'j tt~f/ 36 /<<wty. a W~. C'M< SM'. :4f.

.N··111i1·1····1·
Collections towards the History and Antiquities of
THE COUNTY OF HEREFORD.
/.V e'(?~V7~VM4?V<7.V Or ~M\'C</J~ /7T97?K
HUNDRED OF GRIMSWORTH.
A SECOX!) PORTION tX COXTtNUATtON OF PART ï., WtTtt
WH!C!t tT FOKMS A COMPLETE VOLU~!E.
By WILLIAM HENRY COOKE, M.A., Q.C.. F.S.A.,
Recorder of Otford: Ju'~e of Couoty Couru a ~t.ts~trmc !tM< Uept.-t.MUteMttt for jftfttbnhhitie
a~. (Two rAKTS, tj. <<)
 POPULAR NOVELS.
ESTHER VANHOMRIGH. MARCIA.
By MARGARET L. WOODS, By W. E. NORRIS.
AuthMef"AVM:!tEeTf!'e«iy."&<
A~ff ~«' S:< //<
6~
~W. CnMMt
Amhotef"T)'MbyHttt."&<&c.
~x/af ~</<<<M~ Ctiwt S<w. 6t.
MISS BLAKE OF COMEDY OF A COUNTRY
MONKSHALTON.
By ISABELLA
~Sw.
0. fORD.
S'.
?~?~' HOUSE.

A''t)Mt<f"John« ft~mt,""John MMdmtnt,*&<

C'MSef. 6t.
PLAINFRANCESMOWBRAY. MAJOR LAWRENCE, F.L.S.
AND OTHER TALES. A NOVEL.
By the HON. E. LAWLESS, By the MON. E. LAWLESS,
Authar of HmtM~" A''t)<w of MMttsh.'
C~«'/< Stw. 6t. CrftfM 8< 6t.

..w.ww.w.
SECOND EDtTtON OF MR. WHYMPER'S NEW BOOK.

TRAVELS AMONGST THE GREAT ANDES

OF THE EQUATOR.
By EDWARD WHYMPER.
W)T)tI).t.USTKATM)tSBY
BARNARD, CORBOULD. DADH, I.AP\VOKTn, OVËKEKD, SKELTON,
WAUKER, WtLSOX, WOLF, Axo OTHKKs.
W~ 4 A!t~ <!«</ !40 /M~<t/<«t. JA'<A'«M Stf. z~. /f<
SUPPLEMENTARY AITENDtX TO j HOW TO USE THE
TRAVELS AMONGST THE ~NEROID BAROMETER.
GREAT ANDES
OF THE EQUATOR. 8y EDWARD WHYMPER.
tMfMrated with Figures of new Gênent
and Species. ~j; M<MMM~~ 7MAM. AMw~ &~
W/A<io/M~n'/WM. ~<<MSM.
lllilà
/'<tM<t/~t~.
Atedom Sv#.
<
21. &l. rree.

?!)< e~M /A~< M~~t ~M ~<t<f~.

 MURRAY'S
UNIVERSÏTY EXTENSION MANUALS.
Edlted by Profeesor KNIGHT, of St. Andfew'e University.

7~~ ~'OZ~O~r/~C f~OA'A~ ~A'A ~0/r A'M/

THE STUDY OF ANIMAL LIFE. By j. AxmuR TnoMso~
Lecmrer on Xootosy. Schoo) of Medicine, Kdint'uri;)), Joint Author of the Ktohtiot)
ofSex.AuthorofOmtiocxofXootogy. WithmanyntHstmtionii. CrownSvo. s;.
THE REALM OF NATURE: A MANUAL OF PHYSIO-
GRAPHY. By Dr. Ht.'cn ROMEKT Mtt.t., LibtMiim «' the koytt
CeogMpMcat
Society. Whh<9Co)ouredMap!!and68Utusttations. (~Sopp.) CrownSvq. St.

THE EARTH'S HISTORY: AN INTRODUCTION TO MODERN

GEOLOGY. HyK.tt.RonKKTs. Wit))Co)ouKdMap~antnnMtratiot)s. Crown
S<n).

THE ELEMENTS OF ETHICS. By jons H. MuiRHKAp, Battio)

College, Oxfotd, Lecturer on Moral Science, !<o)M) UoUowty CoUtge, Examiner
int'hUosophytotheUniversityofGtasgow. CrownSve. 3<.

THE FINE ARTS. ByPro~ BALpw)KBROWN,Univers:tyofEd!n*

burgh. Wit]) Illustrations. Crown Svo. 3~. &
THE FRENCH REVOLUTION. By C. E. MALLET, BaM:ot Collegc,
Oxford. Crown 8vo. y. 6~.
THE RISE OF THE BRITISH DOMINION IN INDIA. Py
S)KAt.t)te)'t.vjnj.,K.C.B. WithCotottredMitps. CMwnSvo. 4~.6<
ENGLISH COLONIZATION AND EMPIRE. By A. CA!.Mcorj,
Fe))owofSt.John'Cot)ege,Cen)bfid{{e.CotottredMapsMdrhM. Cr.Svo. y.6f/.
THE USE AND ABUSE OF MONEY. By w. c~toxcHM..
D.D.. tettow of Trin. Coll., Cambftdge, PtofeMOt of Economie Science, Kine't
College, London. Crown Svo. y.
THE PHILOSOPHY OF THE BEAUTIFUL. Partf, I. and n.
By t'r&fcMor Kxfcm, Univeri-ity of St. Andrcwa. Crown Svo. y. &A (cach fart).

OUTLINES OF ENGLISH LITERATURE. By w.t.uAM RnsTox.

Wtth mttstmttYe Di.)gtams. Crown 8vo. 3J. Gd

FRENCH LITERATURE. By H. G. KEME, Wadh~ College,

Oxford Fellow of the University of Calcutta. Ctowx 8vo. 3*.
 At-MMAKH!STMtn-,
~t/,t893.

MR. MURRAY'S
LIST 0F
FORTHCOMING WORKS.

A Revised, Enlarged and Cheaper Edition of

SIR WILLIAM SMITH'S
The Dictionary of thc Bible.
BY VAKtOUS \RtTt.M.
Mtttd sza WHHAM SMITH:, D.O.L.,
and the Rev. J. M. t'ULLER, ~t.A.
WtTK*LAK.!ENUMBt!ttOFXEW H.t.USTRAT)OK!!ASU MAt".Ot-SPBC)A). DtSTRtCT-i.

*S'?.~ 3 ~)~«<M 8tw.

REDUCTION ÏN HBIOE.
TM. work h~ hltherto been sold at
t<.M~* to ne*f)< double )tt rormer dimensions,
~~°T~V.tume.
?
REOUOED ??MURCUtNEA8 The New F'ftt Vc~me ()n TWO
6..
~4 4~'

the PMOE OF THE WHOLE WORK )S NOW

Mt. ('86: pp.)
2 faftt. '953 PP.) sold 'ep< ·
OU.NEA8 TOQETMER.

voS!
'r~;s~
prit
bl Whm the DietiotMrv was originally

~R~r~
with ies uampletiotiin
'n~htMfMS
~d~?.bi~~nt=.i~
the contmenccd it WM intended tliat lt shoutd be com-
work pr~e.de.! it was found .hat thi. t.m.< was int-oui.
~~MewithiM~amnktioninnïchoiartyiU'dsaUsfacteD-n'anner..
scholnrly I\lId snllsÍaelOl')' manner.
from K to the e-na of th.- a'ph~t. was therefore
therein ~re'ted in futt.r
,n<~n..
~xpMded tnto tw..
..nd more cxh.st..c

~S.
lIIanner11\311 Ihose comprised in Volume J. (:1-I).
%-olitine nbfC"oISI of the requirementsor

-€
fulness and scholnrship with Volumes11. and I 11.
reviscd. iiiany of the more important articles have
Witl> Ibis end in vlew the volume bns bcen
~n'.nd~Mud.din.h.App.ndi. (.dded Volume )tt. some ~r..g<.)
t.
ij..t~P~~
it
have been inscrted in
Vols. jn~d
iliuir proper ptace.
the same maoner,
h.1ve bt'1!n the additionsthat the ne, first volume
excectls the old hy more than

E~ lu\ Il,
Ixen round ncccasary to issue it in two parts. 1-*c)rtitnatt-Iv.:&
thrown'
:v
hirge Ilfol"'rllon of Ibos" anicles on \hich rcc"'II1 resr.trch and criticism
which thc opinions of the ixst Ititalical scito'ars h-.tve tincier.
gon the 1II0si
'h~rM'?~~
AIZI)
"1'1\1; Hom,s OY p~
not
1i.\IIVI.ONI, 1T,j'T, HITTITES.

Aniong the writers of new aniclcs in the present

~<~r~~M)!ishopof
~pA~o~ UJM n-.
(juSI'f:I.

th. h..
cdnion are the
Ans 01' Tilt;

B.h.p LIr:lITf'OOT,
late ilishap
Durham, Pn-feMor UKtVM. I)r. H~ts )'r.fcs<nr
~AVtt.K the K<;ypt.W: 'esMr «Y.
t)f.
Instance,
change since the ihctionwry was first litililislied.-as, forr',IKSSrrt.ra,
I)RUTt:RO?tt)AIY. 'I'SIF 1':I'15TU: 1'0 Till: Jh:ltltf:S. allû
L,o..T~.
)~SrSAt!MY.
~h~ WATK.NS. M.j.r.U.n.~ C,.AR. W.nd (Nrv t-an.
Dr. SAKM. t'fof~or SAYCM. 'mf~or h~KTtM.
seady.
 –j~
Thc Life and Correspondcncc of
Arthur Penrhyn Stanley,
).At)t)'EANOfWMTM)KST))!«.
By R. E. PBOTHERO, M.A.,
B.<rnKtr.!H.t..tw,hte Fejtuw ufAUSeu)!' CQtk):t, Oxfon).
Wn)f TttH Co.orHRAT)"'< ASO SAXCT<Of Of Tt)<!
Very Bev. G. 0. BRADLEY,
UCAS OF WE'iTMtMTKK.
t~M ~<Mtt'/A 2 M~. Sw.

The Life of Professor Owcn.

!!ASED ON HtS CORRESPOKDKXCR, H!S DtARtES, AN!)
THOSEOFIHSWIFE.
By hia Orandacn, The Bev. MCHABD OWENT.
/r<M /am/MJ~<t/MW. 2 H'/A S~.

A Sketch of the Life of Georgiana,

<
'4

Lady de Ros.
W!TH SOME REMtXtSCEXCES OF !)KR FAMÏLY ANU FR!ENDS,
INCLUDÏXG THE UL'KE Ût.' WELUNCTON.
By her Da~ghter the Hon. MM. 8WINTON.
/Mt7j. Cn':t~ 8t<). 7A 6< [~tf r~~)'.
-t~
The Letters of Lady Burghersh
(At-TERWAROS COU~TeM Ct- WESTMORLA~t))

tROM CERMAXY A\D FRANCE DURtKG THE CAMPAIGN

OF <8t3-)4.
Edited by her DaugMey, Lady ROSE WEIOALL.
~y~ A~~t~. CwM &w.
Thc Philosophy of thc Bcauttfu!. Pt. IL
By FtofeMM KNIOXT,
U"n!tyofS(.A't')nm*.
<~<HM< 8M'. CK~. 3f. 6t/.
t'fotegomen~–tl. Th<:Xattte of Bcauty.-Ht. The tdcat ao.! thé Kea).-t\.
tnttdequttteortttrOit) 'rht«ne"V. SuH){eMhjt~towatd-i&))mMComplote th<;ofy
Meauty.–V!tt, it!! Xitture an<t t-'unction'i.-VH. ihe Lutfthm'M) of thé Art)..
-Ht. Pottry.-tX. MM:ic.–X. Atchitecture.-XL
i
XtH. Dancing.–At't-KXf'tX A.–XusiianAeithetic.
ScutptMfe.–Xtt.
~ttanish
I'.ut)ttt)t;.
AMtbeue.
/<'fmt'~a f'o/MWf~'ML'KKAY'S L'X)\t:)t.S)t'Y )-fH:S)OX SHKtBS.

Alone with the Hairy Amu.

OR, 3,800 ~ULES OX A PACK SAUDfJ: IX YËXO AXU
A CRUtSE TO THK KUKtLH tSLAXDS.
By A. H. SAVAGE I.ANDOR.
<r<M <M~ a~/ <w//M~w /K~f~'M~ ~M~f)-. ~:Y//MM 8:f.

Scrambics amongst thc Alps in thc

Years 1860-69,
tXCLUDtXC THE HtSTORY OF T!!K I-'tRST AKCKXT
01-- THH MA'n'ERHOKX.

By EDWA&D WHYMPBB.
.4~ /~7MM «'< ~M.r.- (/=< ~<7/~). Jt'M S /a~ aM./ t3o /w~.
A Histor)' of Marborough Collège
PURIKG FIFrY YEARS, FROM ITS FOUKDATtOX TO THH
PRESENT TtME, 1893.
By A. Ct. B&ADLBY and A. 0. OHAMPNBYS.
WtTH A CttAt-Tett OX GAMH AXU StOKTS,
By J. W. BAINES.
nM <M<M~n'M ~f/M/M/Ma~. <tt<'M ~M.
 Italian Pamtcrs.
CRITICAL STUUIES OF THEIR WORKS.
By CHOVANNTI MOSELM (Ivan LermoUeC).
Thc GaHcnes of Munich and Dresden.
T)<AS<t.ATKh UtOM THK (ittKMAt
By CONSTANCE JOOELTNT yM'OLKE9.
~M /M~«<fMJ. 8K).
TtHS )!) .t CO\))'AStO~ \'OH'MH TO "TttK ]tOK(:))):S): ASt) UOtUA-PAMftt.t
CAt.LHKtM )X KOMK,"At.)<KAUY )'t;M.t!;Mf!)',W/t!.

Barncra]~.
EPISODES IX THE LIFE OF A SCOTTISH VILLAGE.
Cw'tStc.

Logic, Inducttvc and Deductive.

By WILHAM MINTO,
).a<e Pn)ft~Ktf of t.o~[c MJ LitMMMfe, L'niv<:r.My<;f.j<:nt<tn.
'M /)/«{vawj. Cn~fM Stc. [A~~ <wa<
COMYCMTS.
Part'.1.
).–(:r';Kt!tt. ~AtKt A'.U AH.tfM D«T)!'C. tf."Tf<K SYtt.nt.t'.TtC Astt.t.'ti Of P<!0)'UH'
Tt~ Ti'S~TuTKKM!
Pa~tL
L'-t~t't.!f))'t:rt.)~:)!~TA':OiSOf'tW'~tM iH.m'-t")t.f''<C.~TF<~MtH~
-\Xt< 1«K hKMKt~KS r)))tKK)utf–t)M- )V.–Ttf)!C"SrtOV)~<V)'KTWeKKt,)Vf!)<S<).
Li-ft')-:HstTt~.s. )~t~t'T~).:s~.<SL~;Kht~'t~MKM)-:).A'
)).<)<« rtVK )'Xt.t;ttU.t.H<VH!~U.H: Tt't~t.ti'.KMt.KAtt~ToTxon.ttT
)<KAt.f'XM'tt.A)b~ .UTt)R)fAt.tTY.
Part'H.
t.-T~)'tK.rt'~i.Mc.t.t, Uf.–Tt«:httuc.\T)')'t"n~ntf.lM.
'rHt:Ktt:s..f tV.–Tt'HC'A.TfiK-iMt't.~At'ffl')twmt'
~.t~~t~Kt.~ :tK)')~tnF"f'~).~Lt'.tt:f:KSt:t:KutCTt'J\.
)).-Ttt~)M~nt'i'<.)'t't««'~nt<j.<.T)t):
t\th)t)'];)A'tt~t' ttu\'<.
Part'V.
). TniSYt.t~M. Vt.–TnKt.'m.nYnfTXfSYt.t.t'.M.
H. t)<~Kf.<)'ft!-t)tt:<!YU.nfmM., VU.–C~Mt~ttAt.AM.t.Mf. MtfutXKTt-
))).r)<)-tJhM.H:U.t-tHKSYt.;Mi!C C.U.St).).)~). f'f-J~.hCTne~t.~J.
.\t.t.Tt~:C.u.s.,tt)<t:.Stt.M- Vtn.–t'.tt.tACt)'<.t'.)')!WCT]tt!A'!<.L')t!.T.
<.MtA.)<Uttt!MMA.
f.t~M.
)\t')tt.As«.Y<t-.<.FA~K.T.)XT';StH. )~rtMt'KtXmHA.uit,U«A~tU
~.t.~m:F"M~ ~.].i:tt.
t'·Ev JII"I'U~11"
/t'~W/ <! t'o/M/M <y' ~tUKttAY'S UK'VKRStTY Ex)t:XS<0\ SKRtM, ~.AM
l'KOftStOR K~tCHT.
 Heaith Hints
FOR TRAVKLLERS Ï~ AFRICA.

By the Bev. HORACE WALLEB,

FunMf)!r Lay S~ftnM'<"< "< U.MM' Mi.d.~ EMt Afme.

~-«/. S;'c. t~.

-t-~

T he Mctallurgy of Iron and Steel.

By the tate JOHN PEBOY. M.D., F.B..8.
AUT..OK-S LATRST CORRECTIONS,
A NEW ANO RKV.SKO EU.T.OK, W.T.< -1HK TtMK.
BROUGHT MOWt) TO -m'! t'ttKJKMT
AND
ByH.BA~ESMAN.F.&.S.,
R<.)Js<:).~of Mine., Md of th. )M.i..t..n of Cfit t.n<.nM~
A~ht..f th.
M~A /M~a/«"<t. StW.

Thc Psalter of 15 3 9.
A LANDMARK OF E~GUSH LITERATURE.
COMFtHS~O TttK TMT, )X Rt-ACK LtH-TM TVt-e.

Edited. with Notée, by JOHN EAB.LE. Bt.A.,

t'mfe.<or of Angte-SMQn in thé Uniy<HityofO~hfd.
.~M«~ SKt.
–t*-
FERGUSSON'S HISTORY OF ARCHITEOTURE )N ALL OOUNTRtES.

Ancient
A' ~yv< ~?~s'
and Médiéval Architecture.

~m.tc.datad~nMMover
of
Edited by R.. rHENË 8PIER8, r.S.A.
~tM <ooo /Mj/n~<wt. a

Of AK. ) tTKcruKK. h i! notnUonly

Sbj.ct. or
-Sntunlay Krtri~rta.
h.s
bas
thM the
hv~ or
t~.
cxt~ofdin~
pr~ccM.M.
tW~.

~~r. FemtMon'sbeautifu) and ntost popular books h~e

abund~nce
but
~tt q~)iti.d t«
no
deal
~/< 8w.
superseded
of
other
w.th it
?"
hti
wnMr hiUeMftMd
in att its brancha.

y~~M on !m)ian and E~tern and on ~fodern Architecture are a!rM<!y

pubîishtd. & IM);e 9.

 Thc Chronology of Mcdiscval and
Renaissance Architecture.
A UATE JiOOK Of AKCtttTECTUR.U. A«T,
t-ROM THE FOUNMKt.
0~ TUK MAStL!C.\ Ci-' ST. i't.:Tf;K. KOMK. )!V COXSTAKTtKK,
TO THt: t)):UIC.\HO\ (~' THË XEW BUtLMXC
t'OPt: L'Rti. VHt.
/f/<M(;' a C<<f/w/< ~W«/w /< t'KK'.t'<OX'.< JttSTOXY OF AKCXnKCft.'Rf."

By J. TAVENOB PERRY.
~'f~ /<t/<w. Stc.
Thé work comprise'! severa) thuu~n.) M-<;))'Mthcntieatet) date~ uf).UtMit)t;<'peratioM
in Europe and thc K~t during the ~i<x) ui thé RomMesqut', Cothic, and Komisseocc
ttytes, togoht;r with cupiou.< indcxM to the tNmcs of t'hce~ Iim)ding!i, Atehitects,
t''oundt:rs. &< Md a Synoptica) T.thtc sfiewing hy cxan)p)ts the ({mdmtt dctUopment
ofthe stytM.

C o u nt J u 11 a n.
y/MC'y~K
By JTMAN aTURGIS,
At:thor of C~mtdy ~f.tCutmMy Huute," nM) of thc Libr~tto of t~nhtX!.
C<'f!r« Stw.

-~<
Dr. DoUingcr's Essays on Histoncal and
Lttcrary Su~ects.
Tt<XSt.ATEn, tX ACf;n)!)).t\CK W)T)< Ttt)! W)S)< Of HfK t.ATK AL'THOR,
By MARGAXET WARBE.
.t Aht' A«~. !t).
I.–L''<n't!M<Tft; t'A.) jtS)' t'ttESM).
Jt.–t'"t'X))f:tfS f)t- Kt:t.t'.«'X:i.
m.–T)fK HMftKt: Ot CttAttf.M Ttt)! (:f!t:AT AX)' HtS St'CCKSSORS.
t\AXA'iXt.
V.–T))K DfMTRt-f T)..K Ot TJt); OxftKtt OF KK)(.t)T~ TKMt't.ARS.
Vf. Tttt! Ht.i-)f)<tV (.) Kt:).t'.f0t-s !)tHEM)M.
VH.–V.tKtOtS )-:tT)M.\Tt:s or -)))H Ftitft-tt Kt:VOt.t-Ttrt\.
VH!T)m LtTEKAtmt! Of T))t: CStT)!)' STATK.< <'t AttKKtCA.
 A Manual of Naval Architecture.
FOR THE UXH OF Ot'î'-tCKRS Ot.' THE NAVY,
THE MERCANTILE MARtKH. SHtt'-OWNERS, StHl'-HUILOERS.
A~)) YACHTSMKX.
By V. H. WHITB, C.B., F.B.S.,
A'<i<tmt.C.)n'M)krm.! X.rKtofuf Mm) CoMroction.Roya) HMy: t'ethwof thé Koy:t) SxM<!«
!ttt 'mdon am) K')Mmr);h ViM-Pre~d'-m of th* tn'mutton of N:a) .\[cMMct< Mem))tf «t th*
<;)ti)Eni(ittMr<M")
Inrtuntionsuf
)MHtmmt)tof ~<e<:).;umt)
C:iyil ftll~intl:" hlld .:uj(Înt:r.HH'Jnl)rary
:\fe,=II,k~1K~):in~r<: .M~'nb-:r uf ,fat: Sanh.t:.ht Cw
~noMfy~~mtxroftheSonh-h~.t CQ".&;C
tnttit)ttM<)efK~imtMa')dShtp))uiMt~!t'e))'<jfttMtto)'at SthMtuf Ntt~ Af'.hKMUK.

7Xm/ ~</< ~<<~4<)' A'M'w<~ e~~ <" .?' ~-M'<M,

«'f'/tt tSO~V«~W. Sf'O.

A'f /?/7'/oy <~ ?y/~ /OA'A'.? 0/

HERMAN MELVtt-LE.
Wnn A M):Mot)t ot- n)K A'") xoK )~' H. S. SALT,
ASf XKW tt.).U<TMT)OXS TAK):X os T))K srot-.
Typée Omoo
OX. TttË MARQUt:S.\S A ~;ARKAT!H Ot-' ADYHXTURH
T' SOUTH SEAS.
<M)/w/ )SLAXUKRS.
<m)S:'f. ~A.tftM/«~f/f. t.K'MS:

Chapters m Modem Botany.

By PATRICK OEDDES,
)'mfe<foref )htM)'. Univertit;'Cotk~e, Uundee.

~M /nt/«MM. C~tt~ SM.

CONTENTS.
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)V & V
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~/MW< M"RMAY''i L'Xtt-EK~rY KXTKX'iMX St:B<H,
rMFE.SSO): KxtGttT.
 Jenny Lmd the Artist.
A NEW AND AMRtUCED BMTfOM 0F THE MKMO!R Ot-
Madamc Jcnny Lind-Go!dschmidt.
1820–1831.
FROM MSS. AXU UOCUMKKTS COLLECTEU HY
MR. GOLUSCH~HDT.
By H. SOOTT-HOLI.AND, and W. S. ROOKSTRO,
CimonofSt. Pitut'tCMh<dm): ANthor<!f"'t'h<!t.i!<pfMende)tMhn."
With /7~!t?A Cr~N) 8!f.

The Student's History of the

Roman Empire.
FROM THE ESTA)!LÏSt~!t:r Of THK EM)'!RE TO THE
ACCESSION OF COMMODUS, A.n. )8o.
~O~m~ OM<'< .Sr/j
</ML'Rt(AY'!i S)t')~T's ~tAft-At.
By J.B.BURY.
Ft!)ow and Tuturuf 'Mnity Cotk~, DuDin.
ff/~ Cf/<~<V</ .M;J <tM</ Wt!~ /t<f/<'<t/<!?MJ. SM.
Thb woftt wtM take up the Htstoy at thé point M whieh Datn Liddett ttaves off. and
otfry it down to the period at which Gibbon begins.

A POCKET DICTIONARY OF THE

Modern Greek and English Langua~es
AS ACTUALLY WRITTE~f AXD SPOKEX.
HE)X<! A CortOt-'S VoCAttUt.ARY OF AU. WOKM AXtt KxrKKSStOX-! CL'MMNT )M
Ot~tfARY t<)!At')*<t; AXM t:< KVÏRVDAY TA! K, WtTH Ktt'fOA). tt.t.UXTXATtOX,
nV MRASS OC DfXTtXCTfVKS)OX<, OF mf! COH.OQt.'tAt. A'<)t t'O'H.Att G)tEKK
LAXf:UAHt:. tOR THt! CutUANCt! Of STUKR~T;! A~tt TttAYED.KttS TMMWGH
G)t)!M:tt AKO Tt<R EAST.
By A. tf. JANNARIB, Ph.D. f':<mMr).
AHKUnt Proft'<nr of f:re<)c LittmtUM in tht National t-'t)ive''H!y of GrMct. and At)t)xt tf the
<Ate« Ancî<nt and Modem Cfa~k t~xicon(tht on)y une appftfVed by ~< Cr<et: U~veTDCMat~ acd c)
vatiousother DietiemfiM and otho- LiMraryWofjtt.
~<MM ~ht~. ~M.
 Grcccc in thc Age of Pericîcs.
ByA.J.QUANT,
K!tCoM~e.CamLfMiie.and Sh<r)~et"n- in Hnfry M 'h<! L'nivtrtity uf('MtbrH,;e.
CwK'MSM'.
CONTENTS.
th-T).KKS.K<iM:M- vn.-THt:An!):f.~Dt~t.~ï!AtY.
L-TMKEssKsnA'«)rCf!M:KC!t-<M'"s. Vttt.-)');m.<n<t't..cv.r)<t.
m.-S).AMTA,AM:C.<~TW,'<'HKUK-. f\S.<tK~<f'.M:mK.
tV.TKKKA<)t..M~Y"An<K\ X.-t~T"KUm.KKAt: n;r)'i.
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t~OFBSSORKstOXT.
ia
Thc Physîology of the Scnscs.
By JOHN McKBNDBIOK,
t'MftsMr of Phym;!o){)r in thé Utthwiity of Uhigow
amd Dr. SNODOmASS,
t')!ytiohei<~tt.a)jomtu)'y,Ct.u)!OK.

//A/~<tt/f< C'f: S:w. A~'7)' f<-a~

t. Ta'), TAsn:, AXft SMKt.L. T)n: S):x. o~' Sti!)(T.

j. Sot.'M< Asn !h'.ARtxc.

/«'/(~ f! tWMWt' MURRAY'S L'X)V)!R.s)TV E\tt:XS<C'X SKtt)):~

/:</<t)'l''t'H's<OK Kf)':)tT.

Murray's Handbooks.
~/v ~.vr/z~ A'A'~ /r<?A'A:

HASt)MOK–N):w Z!L.\X!), Auckland, We]i)ngton. Thc

Hot I~kes District, Wanganui, Christ Church, Uunedin, The West
Coast Road, Thé Co!d Lakes, Thu Sound! etc. ~M~ ~i/ /y.
8t'
.\7~f' A/)/yyo.v.v, A'o/r /.v yv/A /s.
HAxnnooK–Rcssi. St. Petersburg. ~toscow, Fintand,
CrimM, Caucasus, &c. J/< «~ /V(wy. 7~/ 8r f.
HA~nnooK–DK\MARK. Stcswig, Ho!stc!n, Ccpcnhagcn,
Jutland, Icetand. ~/<~ f~ 7''<M~. 7~~ Sfo.
 Umvcrsity Extension Manuals.

TV/A /-U/Of<e; ~A' /.V /VMC/

Comparative Rdi~ion.
Ry Au.x MBSXtM, PtofeMot of BibtM.-at CUtkbxt in thé University o(
St. Andrews.
Thc English Novc], from its Origin to Sir W. Scott.
Hy l'tofe.tsor KAt.ftGH, University College, Liverpoo!.
Froblems of Political Economy.
By M. E. SADt.M, Senior Student or Christ Church, Oxford, S<C)fet«ry to thé
Oxfun! Univ<;Mty bxtenslon Dctegacy.

Psychotogy A H tstoncat Sketch.

Hy Axt'KKW SETX, !'foftMO)' of Lngic an't ~tetaphysic in thé University of
KdittbMrj;b.
The Jacobean Poets.
By HuMU}!n GoME, Trinity College, Cambridge.
An Introduction to Physical Science.
Hy Jon~ Cox. t'eitow of Trinity College, Cambridge, ProfeMOt of Expcronenta)
)'hysi~, ~[cCiU Cu))ese, Montreat.
Thé Englisli Poets, from Blake to Tcnnyson.
!}y Rev. S'ropMRO A. BROOKE, Trinity Co!t<f;e, Dublin.

Tlie History of Astronomy.

By AftTHUtt !!MRV, t'e))ow of Kin);'s College, CMnbrHgc, Secretary to thé
Camhrxtge L'nitcrsity HxtensionSyndicate.

Shakespeare and his Predecessors in the English Drama.

By F. S. !!OAS, !!a))M College, Ofthrd.

Latin Literature.
ByJ. W. ~tACKA", !M)M <~u!)cge, Oxfor't.. t
A History of Education.
!:y JAMES !)o\A).t)sox, Principa! and Vice-Chanct!)ot of thé Unhtniity of
St. Andrtws.

BMPtmY, MX~W, & CO. t.C., Mt!)T)!M, WH)T)!)'tM<tt.