Austin. We must begin, unquestionably, like Mackintosh, with the "Faculties and Habits of Man." On this point the Stoic and the Epicurean must be agreed. The one founds Law on man's moral nature; the other cannot insist on the external sanction further than it actually binds. For assuming, as he contends, that law is a species of command, and that a command implies the threat of inflicting evil in case of disobedience, still, if what is threatened be not regarded as evil by the party to whom it is addresseed, the command has no efficacy, and, in the language of his own school, does not bind. Morality and Jurisprudence, therefore, both arise from the same foundation; and they differ afterwards, it appears to me, only in the extent to which their common sanction applies. The science of Morality "teaches men their duty, and the reasons of it." Jurisprudence accepts equally the duties and the reasons but acts within a narrower range. Morality concerns itself with all that ought to be done-Jurisprudence with that only which ought to be enforced. It regards man not merely as a race, but as a race which subjects itself to government, and provides for whatever comes within the proper sphere of legislation. If asked, therefore, to explain the expression employed at the outset― Natural Law the answer would be, that it consists of that portion of moral obligation which is enforceable by public authority. We must, in spite of every difficulty, seek to reach the ultimate sanction of Law, as of Morality - not in fear (the infliction of which must itself be justified), but in a pure conscience; and we should aim at developing, throughout the extent of Jurisprudence, the primary rule of morals, "Love your brethren." The violations of this rule (which must happen innocently or of design) may be most easily comprehended under four divisions, Accident, Mistake, Oppression, and Fraud. It is saddening to think of the proportion accounted for by the two latter. Accident and mistake might be omitted from the calculation, without sensibly affecting the result. Men speak of the "Uncertainty of the Law." They forget the fraud that saturates their daily life. If the law were what it naturally is—nothing more than the development of the principle I have stated-there would be

little room for uncertainty. It might be applied to particular cases by any man of ordinary common sense, and having a full knowledge of the facts. Cleared as the moral vision would then be, by the perfect law of love, from the distortions of prejudice, and that darkness that may be felt of interest, the "cautious and unwearied exertions" of which we have been reminded might perhaps be spared for objects of more direct and positive benefit to humanity; and even a single intellect, of average powers of analysis, might be able to develope a system which should suffice for all requirements. I suppose this will sound like exaggeration. But if you will only look at the point fairly, consider for yourselves what fraud actually is in our social relations, trace it in all its turns and windings, see how it courses through the body of our system like its very heart's blood, how, from our pettiest bargain to our most gigantic undertakings, all must be made palatable as by the sweetness of stolen waters, until it has even passed into a maxim of established equity, that "he who trusts most must suffer most," - and then remember that all this has to be met, and is met, by an endless system of appliances and means, (no doubt involving a vast expense, and all irrecoverably wasted,) but still met and then suppose the bane and antidote alike to vanish, and give place to a system of which it should only be said, "There shall be no more fraud;"—you may then see whether you have verily understood the utter separation of two such systems. The Uncertainty of Law" is but a palliating expression for Obliquity of Conduct," and one which, as Words are Things, it would be wiser to forego.

66

ויי,

Continuing to regard man as a race under government, and apart from the special circumstances of the individual, we should proceed to notice what nature has provided for his support, and enter upon the Law of Things. According to Bacon's maxim, Jurisprudence has to provide for the enjoyment of things in the most beneficial manner for all. The natural order is nearly that of the Second Book of the

1 Per Lord Hardwicke. A rule more obviously necessary, but at the same time showing a complete departure in general practice from the primary law of morality, cannot well be imagined.

Institutes', considering, 1st, As to those great material elements which are of first necessity, and enough for all, whether nature has not excluded them altogether from specific appropriation. We shall have next, those which are proper for appropriation by communities; afterwards, Things attaching themselves to those smaller incorporations of men which form part of the machinery of every civilised state; and, lastly, Things proper for individual enjoyment. In this attempt at classification we must hold firmly to principle, unless we would be continually seduced by false analogies. The enumeration of Justinian (for he cannot be said to classify) sins in unaccountable omissions, and refers Things to divisions inconsistent with principle and disavowed by practice. His errors and those of Blackstone are ridiculed by Bentham2, who certainly furnishes us with considerations of great value when our classification is completed, but forgets, also, the classification itself. It is not even agreed among all those authorities what a Thing is. A Field is a Thing, it is agreed --and a Thing may have parts; but a part of a field, say some jurists, is not a Thing until it is divided off, and becomes a part no longer, but a separate Whole. This coined sovereign which I have in my hand is a Thing; and if I give it to you, it still remains a Thing; but if I lend it-for all juridical purposes, we are assured, it becomes then a species of Right called a Debt, and ceases wholly to be in RERUM natura. I conclude, then, as all these positions have a practical bearing, that we shall render no small service to our science if we succeed in obtaining an accurate definition of what a Thing really is juridically considered, and in conveniently classifying whatever falls within that definition. We shall not only avoid the grave errors I have alluded to, but we shall, in its performance,

It will be seen that I have in general altogether disregarded the order of the Institutes; and as the learned reader is aware, not without high authority. It is strange that, in arranging the relative order of Law of Things and Law of Persons, the true principle should at once be so accurately stated and entirely misunderstood.

2 Traités de Legislation.-Preface.

3 All his divisions run into each other. See Traités de Legislation, par Du mont, vol. i. p. 225.

have already gone far to answer the great question of Jurisprudence, What kinds of right are proper to be allowed?

This will naturally conclude the first of the two great divisions of Jurisprudence - THE LAW OF THINGS: forhere we shall have considered all that belongs to man as a race, apart from the special circumstances of the individual. In considering these, we enter upon the other great division

THE LAW OF PERSONS. This comprises all that infinite variety of circumstances which modify the rights of particular individuals. Age, sex, and condition; alienage, naturalisation; the various kinds of public and private occupation; the relations of blood, marriage, or trusteeship, the effects of crime and incapacity; - form this important branch of the study.

We have said that Jurisprudence regards man as subject to regular government. As member of the universal family of nations, he is subject to regulations enforced by public authority, in conformity with the moral sanction. As member of a particular ştate, regulations are enforced upon him by an authority of narrower extent, but which professes to act in virtue of its supreme power. Of these latter regulations, which are usually called Positive Law, Jurisprudence in general acknowledges the validity; founding its support partly on their conformity with its own, partly on the assent of the individual, presumed from his continued obedience. Our course must therefore develope law in all the possible relations between man and man, considered as members of some regular government. In this view we shall readily perceive that we must be dealing with subjects either of the same or of different states; or the parties affected by our regulations may stand in the relation to each other of subject and sovereign; or may be, as to one of them, the sovereign of one state, while the other is not his subject, but the subject of another Government; or, finally, may each be separate and independent

states.

I believe these include all the possible varieties. The consideration of cases between subjects of the same state, or between the subject and his sovereign, will dispose of Municipal, or Internal, and Colonial law. Private International Law will regulate the relations between individual members

of different communities; while the last case is occupied with what may be most strictly called the Law of Nations.

When, under all these divisions, we have ascertained the rights proper for enforcement,-the evidence by which, in particular cases, they must be shown to exist, the modes of enforcing them, and the punishment of their infraction, -we shall have exhausted the subject-matter of NATural Law.

The warm interest I feel in the study may have led me to express sentiments in which some of you are hardly prepared to coincide. Let me say then, in conclusion, that, highly as I deem of Jurisprudence, it is not the science, nor is its pursuit the occupation, that I can regard as the most ennobling to be desired by man. Yet it presents a close analogy to a dispensation, in whose remedial purpose I am not here required to surrender my belief. In a happier state, the jurist might lead the "harmless," and accompany the "wise," in the paths of virtue. But he comes to be our guard against the follies of ignorance and the designs of vice. And, at the worst, his labours are never thankless. He can always reap the rich reward of obedience in his own person to that rule of which Jurisprudence is the universal exponent-the most sublime of all commandments, as indeed it includes them all, which for this life man can obey -the rule of Him who said to each and all of us, "Love your brethren: Do as thou wouldst be done by."

ART. III. - SIR EDWARD SUGDEN AND MR. DART ON THE LAW OF VENDORS AND PURCHASERS.

A Compendium of the Law and Practice of Vendors and Purchasers of Real Estates. By J. HENRY DART, of Lincoln's Inn, Esq., Barrister-at-Law. Stevens & Norton: 1851.

He is in

SIR Edward Sugden must look to his laurels. danger of being stripped of them leaf by leaf. Mr. Headlam's Trustee Act has quietly repealed his most elaborate performance as a legislator. Mr. Charles Dickens attacks