In the Preface to the first volume, I ventured to print a few disjointed sentences which appeared to me to throw light on the character of the man, and on the nature and aims of his teaching. I have since found more notes of the same kind; and, broken as they are, I give them, as showing still more clearly in what spirit and with what views he entered upon the duties of an office so new to the country and to himself as that of Professor of Jurisprudence.

What Lectures of this kind ought to be.

Great defects of those which I shall actually deliver: particularly as to the method and style:-having thought it better to gain (as far as I could) an extensive and accurate knowledge of my subject than-etc.

The research, necessary for this, extremely extensive; should have gone on for ever.-New language,-(Illness and debility.) In the course of a few years, shall be able to produce something more worth hearing.

Shall be obliged to omit much of what I had intended to embrace. There is none of the details which will not need as much illustration as the principal heads. (Lord Hale's illustration.) And if I descended far into the detail, the Lectures would be endless. I must therefore content myself with a general outline, descending here and there into the detail, so often as it is peculiarly interesting and important.

It is necessary to recollect that the terms, circumlocutions, etc. used in these Lectures (so far as new) are merely explanatory. In applying any actual system, the terms of that system must be observed. So of its arrangements, etc., which are connected with its terms.

The principles of General Jurisprudence will not coincide with any actual system, but are intended to facilitate the acquisition of any, and to show their defects.

In the ordinary business of life, these systems must, of course, be applied as they are.

Reconciliation of divorce between Philosophy and Practice.

Will thank my hearers to attend at the conclusion of every Lecture, and to ply me with questions and demands for explanation. This will not only enable me to clear up obscurities, but to produce much of which I have read, and upon which I have thought, but which in solitary composition escapes the recollection.

Also to criticize with unsparing severity; for it is only by this that I can ever learn to accommodate my future Lectures to the wants of students.

Uses of this friendly intercourse, or 'amica collatio:' particularly to young men writing. No time, that I shall not be willing to give. My heart in the subject: nor will anything be disagreeable, but the chilling indifference which I cannot help anticipating.

It will easily be understood that I have never entertained the project of rendering such a book acceptable to any but men seriously interested in the great questions of Law and Morals which lie at the foundation of human society: To the discriminating, and therefore indulgent, judgment of that narrow public which is constantly tending towards the ends my husband pursued, and through whom his labours (which to him seemed barren) may hereafter be rendered fruitful, I humbly and earnestly commend it.

I must add, with gratitude, that my labour has been cheered by an ever-increasing expression of interest in it, from men eminent in Jurisprudence, and in the moral sciences generally, in this and other countries;-strangers to all but the mind and character of the Author as displayed in his published book. They have exhorted me not to suffer myself to be deterred by want of completeness, or by defects of style, from giving to the world 'any, the slightest, intimations of Mr. Austin's opinions on the subjects to which he had devoted himself,' or of his method of inquiry and arrangement. Such exhortations coming from men whose voice is authoritative, it seemed my duty to obey.

I am indebted to several gentlemen for encouragement, counsel, and assistance: especially, I have to acknowledge the invaluable and persevering aid I have received from friends of Mr. Austin, who found time, in the midst of their own pressing avocations, to attend to my doubts and difficulties. Their sanction was peculiarly important, since they had been among the most assiduous and attentive hearers of Mr. Austin's Lectures, and were acquainted with his modes of thinking and expression. Without such a sanction, I should hardly have dared to publish matter in which, from the state of the manuscripts, some exercise of discretion was inevitable.

It would be impertinent to affect to regard the care they have bestowed on the work in its passage through the press, as an obligation conferred on me. What they have done has been done out of reverence for the memory of the Author, and zeal for the advancement of his science. Nor should I venture to make any public acknowledgment of it, did it not appear to me necessary for my own justification, and for the satisfaction of the reader.

SARAH AUSTIN.

Weybridge, April, 1863.

OUTLINE OF THE COURSE OF LECTURES.

'Dum potentes aliud agunt, jurisconsulti eruditi, prudentes, bene animati, conferant capita privatim, cogitentque de jure constituendo, ut reddant certius quam nunc: posset is labor præludere principum auctoritati.'LEIBNITZ.

[In the original edition of 'The Province of Jurisprudence determined,' published in 1832, the following passage is inserted in the Preface.

In 1831 I published an Outline of my Course: Which outline, carefully corrected and somewhat enlarged, I append to the following treatise. For the following treatise is a detached portion of the Course: And unless the disquisitions composing the treatise be viewed with their relations to the subject and scope of the Course, and the arrangement which I give to the subject, their pertinence and importance can hardly be seen completely. To lighten to the reader the labour of catching the arrangement, I have placed, at the end of the Outline, an Abstract of the Outline itself.

As the Outline relates not only to the matter of the original Volume, but to the entire Course, it has been thought advisable to prefix, instead of appending it.-S. A.]

LECT. I-VI

PRELIMINARY EXPLANATIONS.

I. I shall determine the province of Jurisprudence. II. Having determined the province of Jurisprudence, I shall distinguish general jurisprudence, or the philosophy of positive law, from what may be styled particular jurisprudence, or the science of particular law that is to say, the science of any such system of positive law as now actually

obtains, or once actually obtained, in a specifically deter- LECT. I-VI mined nation, or specifically determined nations.

Note. Of all the concise expressions which I have turned in my mind, 'the philosophy of positive law' indicates the most significantly the subject and scope of my Course. I have borrowed the expression from a treatise by Hugo, a celebrated professor of jurisprudence in the University of Göttingen, and the author of an excellent history of the Roman Law. Although the treatise in question is entitled 'the law of nature,' it is not concerned with the law of nature in the usual meaning of the term. In the language of the author, it is concerned with the law of nature as a philosophy of positive law.' But though this last expression is happily chosen, the subject and scope of the treatise are conceived indistinctly. General jurisprudence, or the philosophy of positive law, is blended and confounded, from the beginning to the end of the book, with the portion of deontology or ethics, which is styled the science of legislation. Now general jurisprudence, or the philosophy of positive law, is not concerned directly with the science of legislation. It is concerned directly with principles and distinctions which are common to various systems of particular and positive law; and which each of those various systems inevitably involves, let it be worthy of praise or blame, or let it accord or not with an assumed measure or test. Or . (changing the phrase) general jurisprudence, or the philosophy of positive law, is concerned with law as it necessarily is, rather than with law as it ought to be with law as it must be, be it good or bad, rather than with law as it must be, if it be good.

:

The subject and scope of general jurisprudence, as contradistinguished to particular jurisprudence, are well expressed by Hobbes in that department of his Leviathan which is concerned with civil (or positive) laws. By civil laws (says he), I understand the laws that men are therefore bound to observe, because they are members, not of this or that commonwealth in particular, but of a commonwealth. For the knowledge of particular laws belongeth to them that profess the study of the laws of their several countries: but the knowledge of civil laws in general, to any man. The ancient law of Rome was called their "civil law" from the word civitas, which signifies a commonwealth: And those countries which, having been under the Roman empire, and governed by that law, still retain such part thereof as they think fit, call that part the "civil law," to distinguish it from the rest of their own civil laws. But that is not it I intend to speak of. My design is to show, not what is law here or there, but what is law: As Plato, Aristotle, Cicero, and divers others have done, without taking upon them the profession of the study of the law.'

Having distinguished general from particular jurisprudence, I shall show that the study of the former is a necessary or useful preparative to the study of the science of legislation. I shall also endeavour to show, that the study

5

The matter contained in the above section of the Outline does not appear to be further developed in the ensuing lectures. The distinction appears to be assumed, and the author, in the lecture marked XII., immediately proceeds to

VOL. I.

D

address himself to the subject of general
jurisprudence. The subject here referred
to will, however, be found more enlarged
upon in an essay entitled On the Study
of Jurisprudence,' printed towards the
end of the second volume.-R.C.

LECT. I-VI of general jurisprudence might precede or accompany with advantage the study of particular systems of positive law.

LECT. XII-
XXVII

Note.-Expounding the principles and distinctions which are the appropriate matter of general jurisprudence, I shall present them abstracted or detached from every particular system. But when such a principle or distinction, as so abstracted or detached, may seem to need exemplification, I shall also endeavour to present it with one or both of the forms wherein it respectively appears in the two particular systems which I have studied with some accuracy: namely, the Roman Law and the Law of England.

III. Having determined the province of jurisprudence, and distinguished general from particular jurisprudence, I shall analyse certain notions which meet us at every step, as we travel through the science of law. Of these leading notions, or these leading expressions, the most important and remarkable are the following:

Person and Thing. Fact or Event, and Incident. Act, Forbearance, and Omission.

Legal Duty, relative or absolute. Legal Right. Legal Rights in rem, with their corresponding Offices; and Legal Rights in personam, with their corresponding Obligations. Legal Privilege. Permission (by the Sovereign or State), and Political or Civil Liberty.

Delict or Injury, civil or criminal.

Culpa (in the largest sense of the term), or The Grounds or Causes of Imputation: a notion involving the notions of Wish or Desire, of Wish as Motive, and of Wish as Will; of Intention, of Negligence, of Heedlessness, and of Temerity or Rashness. The grounds or causes of Non-Imputation e. g. Infancy, Insanity, Ignorantia Facti, Ignorantia Juris, Casus or Mishap, Vis or Compulsion.

Legal Sanction, civil or criminal.

Note. Though every right implies a corresponding duty, every duty does not imply a corresponding right. I therefore distinguish duties into relative and absolute. A relative duty is implied by a right to which that duty answers. An absolute duty does not answer, or is not implied by, an answering right.

Persons are capable of taking rights, and are also capable of incurring duties. But a person, not unfrequently, is merely the subject of a right which resides in another person, and avails against third persons. And considered as the subject of a right, and of the corresponding duty, a person is neither invested with a right, nor subject to a duty. Considered as the subject of a right, and of the corresponding duty, a person occupies a position analogous to that of a thing. Such, for example, is the position of the servant or apprentice, in respect of the master's right to the servant or apprentice, against third persons or strangers.

Things are subjects of rights, and are also subjects of the duties to which those rights correspond. But, setting aside a fiction which I shall state and