conceivable how men of such admirable discernment should have displayed LECT. V such contemptible imbecility. At the commencement of the digest is a passage attempting to define jurisprudence. I shall first present you with this passage in a free translation, and afterwards in the original. Jurisprudence,' says this definition, 'is the knowledge of things divine and human; the science which teaches men to discern the just from the unjust.' 'Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.' In the excerpt from Ulpian which is placed at the beginning of the Digest, it is attempted to define the office or province of the jurisconsult. 'Law,' says the passage, 'derives its name from justice, justitia, and is the science or skill in the good and the equitable. Law being the creature of justice, we the jurisconsults may be considered as her priests, for justice is the goddess whom we worship, and to whose service we are devoted. Justice and equity are our vocation; we teach men to know the difference between the just and the unjust, the lawful and the unlawful; we strive to reclaim them from vice, not only by the terrors of punishment, but also by the blandishment of rewards; herein, unless we flatter ourselves, aspiring to sound and real philosophy, and not like some whom we could mention, contenting ourselves with vain and empty pretension.' 'Juri operam daturum prius nosse oportet, unde nomen juris descendat. Est autem a justitia appellatum ; nam, ut eleganter Celsus definit, jus est ars boni et æqui. Cujus merito quis nos sacerdotes appellet; justitiam namque colimus, et boni et æqui notitiam profitemur, æquum ab iniquo separantes, licitum ab illicito discernentes, bonos non solum metu pœnarum verum etiam prœmiorum quoque exhortatione efficere cupientes, veram, nisi fallor, philosophiam, non simulatam affectantes.' Were I to present you with all the criticisms which these two passages suggest, I should detain you a full hour. I shall content myself with one observation on the scope and purpose of them both. This is, that they affect to define jurisprudence, or what comes exactly to the same thing, the office or province of the juriconsult. Now jurisprudence, if it is anything, is the science of law, or at most the science of law combined with the art of applying it; but what is here given as a definition of it, embraces not only law but positive morality, and even the test to which both these are to be referred. It therefore comprises the science of legislation and deontology. Further, it affirms that law is the creature of justice, which is as much as to say that it is the child of its own offspring. For when by just we mean anything but to express our own approbation we mean something which accords with some given law. True, we speak of law and justice, or of law and equity, as opposed to each other, but when we do so, we mean to express mere dislike of the law, or to intimate that it conflicts with another law, the law of God, which is its standard. According to this, every pernicious law is unjust. But, in truth, law is itself the standard of justice. What deviates from any law is unjust with reference to that law, though it may be just with reference to another law of superior authority. The terms just and unjust imply a standard, and conformity to that standard and a deviation from it; else they signify mere dislike, which it would be far better to signify by a grunt or a groan than by a mischievous and detestable abuse of articulate language. But justice is commonly erected into an entity, and spoken of as a legislator, in which character it is supposed to prescribe the law, conformity to which it should denote. The veriest dolt who is placed in a jury box, the merest old woman who happens to be raised to the LECT. V Example from Lord Mansfield. bench, will talk finely of equity or justice-the justice of the case, the equity of the case, the imperious demands of justice, the plain dictates of equity. He forgets that he is there to enforce the law of the land, else he does not administer that justice or that equity with which alone he is immediately concerned. This is well known to have been a strong tendency of Lord Mansfield— a strange obliquity in so great a man. I will give an instance. By the English law, a promise to give something or to do something for the benefit of another is not binding without what is called a consideration, that is, a motive assigned for the promise, which motive must be of a particular kind. Lord Mansfield, however, overruled the distinct provisions of the law by ruling that moral obligation was a sufficient consideration. Now, moral obligation is an obligation imposed by opinion, or an obligation imposed by God: that is, moral obligation is anything which we choose to call so, for the precepts of positive morality are infinitely varying, and the will of God, whether indicated by utility or by a moral sense, is equally matter of dispute. This decision of Lord Mansfield, which assumes that the judge is to enforce morality, enables the judge to enforce just whatever he pleases. I must here observe that I am not objecting to Lord Mansfield for assuming the office of a legislator. I by no means disapprove of what Mr. Bentham has chosen to call by the disrespectful, and therefore, as I conceive, injudicious, name of judge-made law. For I consider it injudicious to call by any name indicative of disrespect what appears to me highly beneficial and even absolutely necessary. I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature. Notwithstanding my great admiration for Mr. Bentham, I cannot but think that, instead of blaming judges for having legislated, he should blame them for the timid, narrow, and piecemeal manner in which they have legislated, and for legislating under cover of vague and indeterminate phrases such as Lord Mansfield employed in the above example, and which would be censurable in any legislator. LECTURE VI. The connection of the sixth lecture with the first, second, third, fourth, and fifth. POSITIVE laws, the appropriate matter of jurisprudence, are 2. In the way rules of positive 3. By a close or rules of positive or slender analogy, they are related to laws merely metapho- LECT. VI rical, or laws merely figurative. To distinguish positive laws from the objects now enumerated, is the purpose of the present attempt to determine the province of jurisprudence. In pursuance of the purpose to which I have now adverted, I stated, in my first lecture, the essentials of a law or rule (taken with the largest signification which can be given to the term properly). In my second, third, and fourth lectures, I stated the marks or characters by which the laws of God are distinguished from other laws. And, stating those marks or characters, I explained the nature of the index to his unrevealed laws, or I explained and examined the hypotheses which regard the nature of that index. In my fifth lecture, I examined or discussed especially the following principal topics (and I touched upon other topics of secondary or subordinate importance).-I examined the distinguishing marks of those positive moral rules which are laws properly so called: I examined the distinguishing marks of those positive moral rules which are styled laws or rules by an analogical extension of the term: and I examined the distinguishing marks of laws merely metaphorical, or laws merely figurative. I shall finish, in the present lecture, the purpose mentioned above, by explaining the marks or characters which distinguish positive laws, or laws strictly so called. And, in order to an explanation of the marks which distinguish positive laws, I shall analyze the expression sovereignty, the correlative expression subjection, and the inseparably connected expression independent political society. With the ends or final causes for which governments ought to exist, or with their different degrees of fitness to attain or approach those ends, I have no concern.) I examine the notions of sovereignty and independent political society, in order that I may finish the purpose to which I have adverted above: in order that I may distinguish completely the appropriate province of jurisprudence from the regions which lie upon its confines, and by which it is encircled. It is necessary that I should examine those notions, in order that I may finish that purpose. For 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 thus. Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of LECT. VI persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. Even though it sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) 'the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law.' The distinguishing marks of and inde political society. Having stated the topic or subject appropriate to my present discourse, I proceed to distinguish sovereignty from other superiority or might, and to distinguish society political and independent from society of other descriptions. The superiority which is styled sovereignty, and the independent political society which sovereignty implies, is disSovereignty tinguished from other superiority, and from other society, by pendent the following marks or characters.-1. The bulk of the given society are in a habit of obedience or submission to a determinate and common superior: let that common superior be a certain individual person, or a certain body or aggregate of individual persons. 2. That certain individual, or that certain body of individuals, is not in a habit of obedience to a determinate human superior. Laws (improperly so called) which opinion sets or imposes, may permanently affect the conduct of that certain individual or body. To express or tacit commands of other determinate parties, that certain individual or body may yield occasional submission. But there is no determinate person, or determinate aggregate of persons, to whose commands, express or tacit, that certain individual or body renders habitual obedience. The relation of sove Or the notions of sovereignty and independent political society may be expressed concisely thus.-If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent. To that determinate superior, the other members of the reignty and society are subject: or on that determinate superior, the other subjection. members of the society are dependent. The position of its other members towards that determinate superior, is a state LECT. VI of subjection, or a state of dependence. The mutual relation which subsists between that superior and them, may be styled the relation of sovereign and subject, or the relation of sovereignty and subjection. the sove tion of the society, and not the sois indepenreign, or ciety itself, dent, sove Hence it follows, that it is only through an ellipsis, or an Strictly abridged form of expression, that the society is styled inde- speaking, pendent. The party truly independent (independent, that is reign porto say, of a determinate human superior), is not the society, but the sovereign portion of the society: that certain member of the society, or that certain body of its members, to whose commands, expressed or intimated, the generality or bulk of its members render habitual obedience. Upon that supreme. certain person, or certain body of persons, the other members of the society are dependent: or to that certain person, or certain body of persons, the other members of the society are subject. By 'an independent political society,' or 'an independent and sovereign nation,' we mean a political society consisting of a sovereign and subjects, as opposed to a political society which is merely subordinate: that is to say, which is merely a limb or member of another political society, and which therefore consists entirely of persons in a state of subjection. In order that a given form a socal and independent, society may ciety politi the two dis In order that a given society may form a society political and independent, the two distinguishing marks which I have mentioned above must unite. The generality of the given society must be in a habit of obedience to a determinate and common superior: whilst that determinate person, or determinate body of persons, must not be habitually obedient to a tinguishing determinate person or body. It is the union of that positive, which are with this negative mark, which renders that certain superior mentioned sovereign or supreme, and which renders that given society unite. (including that certain superior) a society political and independent. To show that the union of those marks renders a given society a society political and independent, I call your attention to the following positions and examples. 1. In order that a given society may form a society political, the generality or bulk of its members must be in a habit of obedience to a determinate and common superior. In case the generality of its members obey a determinate superior, but the obedience be rare or transient and not habitual or permanent, the relation of sovereignty and subjection is not created thereby between that certain superior marks above must |