Law of Libel and Liberty of the Press

the two publications which we have chosen to head this article, possess considerable merit, and we do not hesitate to recommend them to our readers, as worthy of an attentive perusal.

The first, though no name appears in the title-page, is the acknowledged production of a known and tried friend of the people.^[*] It consists of a series of essays, all of which, except the last, appeared nearly two years since in a weekly newspaper. It comprises a summary exposure of many of the abominations contained in what is called the Law of Libel, as well as in the administration of that Law; and a brief review of the acts of a body of men, now sunk into obscurity, who were at one time notorious under the name of the Constitutional Association. We will not say that the author has completely exhausted the subject, but we consider no small praise to be his due, for having said so much, and so much to the purpose, in the narrow compass within which, by the original design, he was unavoidably confined.

Mr. Mence’s work attracted our attention, from being advertised as dedicated to the Constitutional Association. What might be expected from a work, appearing under such auspices, our readers have no occasion to be informed. We, however, had not proceeded far in the perusal, before we found Mr. Mence to be, not a humble aspirant after ministerial patronage, content to lend himself to the purposes of those who would keep the human mind in perpetual bondage; but one who does not shrink from exposing, even at the risk of his professional success, the vices of existing institutions; one who dares give utterance to great and important truths, however little acceptable, to the rich and powerful, and who would be, for that reason alone, deserving of high praise, had he executed his task with far less ability than he has displayed.

Without entering into a critical examination of the merits and defects of these two works, we embrace this opportunity of delivering our sentiments upon the highly important subject to which they refer: availing ourselves of the language of either or both of them, as often as it appears peculiarly adapted to our purpose.

We shall divide our remarks into two parts; in one of which we shall discuss the Edition: current; Page: [4] general question, to what extent restraints upon the freedom of the press can be considered as warranted by sound principles of political philosophy; and in the other, we shall take a brief review of the English Law, and of the doctrines of English Lawyers, on this subject; and we pledge ourselves to prove, that the Law of England is as unfavourable to the liberty of the press, as that of the most despotic government which ever existed; and, consequently, that whatever degree of that liberty is enjoyed in this country, exists, not in consequence of the law, but in spite of it.

The general question has usually been disposed of in a very summary way. It has, in fact, been regularly assumed, first, that to employ the press in any other than a certain manner, is inconceivably wicked; and secondly, that, for this reason, it is the duty of the magistrate to prevent it, by fine and imprisonment, if not by means still more certainly and more promptly effectual.

The author of the article “Liberty of the Press,” in the Supplement to the Encyclopaedia Britannica, has, however, set the example of rather a different sort of reasoning; and (what was never completely or consistently done before) he has pointed out the considerations on which this question really turns. We have no higher ambition than that of treading in his steps; and, taking his principles as our guide, we shall endeavour to unravel the sophistry, and expose the mischievous designs of the enemies to free discussion.

That the press may be so employed as to require punishment, we are very far from denying: it may be made the instrument of almost every imaginable crime,

There are some species of acts, however, of which the press if not the sole, may, at any rate, be regarded as the most potent instrument: these are, the publication of facts, and the expression of opinions; and to one or other of these heads belong those uses of the press, against which the Law of Libel is principally directed.

It is not pretended that, in the language of English Law, the word Libel is strictly confined to one meaning. It includes, on the contrary, a number of acts, of a very heterogeneous nature, resembling one another scarcely at all, except in having penalties attached to them by the authorized interpreters of the law. A threatening letter, demanding money, is a libel. An indecent picture is a libel. For the present, however, we may confine our remarks to the question regarding the publication of facts and the expression of opinions.

To begin with the latter. If the magistrate is to be intrusted with power to suppress all opinions which he, in his wisdom, may pronounce to be mischievous—to what control can this power be subjected? What security is it possible to take against its abuse? For without some security all power, and of course this power, is sure to be abused, just as often as its abuse can serve any purpose of the holder.

It is the boast of English lawyers that the offence of treason is defined; so strictly defined, that nothing is ambiguous, nothing arbitrary, nothing left to the discretion of the judge. This, they tell us, is one of the chief bulwarks of our liberty, implying, that if it were left to the judge to say what should, and what should not be Edition: current; Page: [6] treason, every thing would be treason which the government did not like. Yet why should definition be required in the case of treason, not required in the case of libel? Is the government less interested in misdecision? Is the judge less dependent on the government? Is a packed special jury less subservient? Or are the judge and jury angels when they judge of libel, men only when they judge of treason?

It would be hardy to assert, that to give the right of pronouncing upon libels to the judge, is any thing more than another name for giving it to the government. But there are many subjects, and these the most important of all, on which it is the interest of the government, not that the people should think right, but, on the contrary, that they should think wrong: on these subjects, therefore, the government is quite sure, if it has the power, to suppress, not the false and mischievous opinions, but the great and important truths. It is the interest of rulers that the people should hold slavish opinions in politics: it is equally so, that they should hold slavish opinions in religion: all opinions, therefore, whether in politics or religion, which are not slavish, the government, if it dares, will be sure to suppress. It is the interest of rulers that the people should believe all their proceedings to be the best possible, every thing, therefore, which has a tendency to make them think otherwise, and among the rest, all strictures, however well deserved, government will use its most strenuous exertions to prevent. If these endeavours could succeed, if it could suppress all censure, its dominion, to whatever degree it might pillage and oppress the people, would be for ever secured.

This is so palpable, that a man must be either insincere or imbecile to deny it: and no one, we suppose, will openly affirm that rulers should have the power to suppress all opinions which they may call mischievous—all opinions which they may dislike. Where, then, is the line to be drawn? At what point is the magistrate’s discretionary power of suppressing opinions to end? Can it be limited in such a manner as to leave him the power of suppressing really mischievous opinions, without giving him that of silencing every opinion hostile to the indefinite extension of his power?

It is manifest, even at first sight, that no such limit can be set. If the publication of opinions is to be restrained, merely because they are mischievous, there must be somebody to judge, what opinions are mischievous, and what the reverse. It is obvious, that there is no certain and universal rule for determining whether an opinion is useful or pernicious; and that if any person be authorized to decide, unfettered by such a rule, that person is a despot. To decide what opinions shall be permitted, and what prohibited, is to choose opinions for the people, since they cannot adopt opinions which are not suffered to be presented to their minds. Whoever chooses opinions for the people, possesses absolute control over their actions, and may wield them for his own purposes with perfect security.

It thus appears, by the closest ratiocination, that there is no medium between perfect freedom of expressing opinions, and absolute despotism. Whenever you Edition: current; Page: [7] invest the rulers of the country with any power to suppress opinions, you invest them with all power; and absolute power of suppressing opinions would amount, if it could be exercised, to a despotism far more perfect than any which has yet existed, because there is no country in which the power of suppressing opinions has ever, in practice, been altogether unrestrained.

How, then, it may be asked, if to have any power of silencing opinions is to have all power—since the government of Great Britain certainly has that power in a degree—how do we account for the practical freedom of discussion, which to a considerable extent undoubtedly prevails in this country? The government having the power to destroy it, why is it suffered to exist?

Why? For the same reason for which we have a habeas corpus act,^[*] with a government possessing the power to suspend or repeal it: for the same reason for which a jury is sometimes allowed to acquit a prisoner, whom the aristocracy wish to destroy, for the same reason for which we are not taxed up to the highest amount which could be extorted from us, without impairing our power of being useful slaves. The aristocracy do not submit to these restraints because they like them, but because they do not venture to throw them off. This is conformable to the theory of the British constitution itself.

Even a Turkish Sultan is restrained by the fear of exciting insurrection. The power of shackling the press may, like all other power, be controlled in its exercise by public opinion, and to a very great, though far from a sufficient, extent, it has been and is so controlled in Great Britain. By law, however—notwithstanding the assertions of lawyers, which assertions, when it suits them, they never scruple to contradict—liberty of discussion, on any topic by which the interests of the aristocracy can be affected, does not exist at all in this country, as we have already shewn, upon general principles, and shall prove in the sequel from the actual words of the highest legal authorities.

The preliminary inquiry, however, would not be complete, unless, having discussed the consequences of restraining the press, we were also to inquire what would be the consequences of leaving it free.

It is evident, at first sight, that, whatever might be the evils of freedom, they could not be worse than the evils of restraint. The worst that could happen, if the people chose opinions for themselves, would be, that they would choose wrong opinions. But this evil, as we have seen, is not contingent, but unavoidable, if they allow any other person to choose opinions for them. Nor would it be possible that the opinions, however extravagant, which might become prevalent in a state of freedom, could exceed in mischievousness those which it would be the interest, and therefore the will, of rulers, to dictate, since there cannot be more mischievous opinions, than those which tend to perpetuate arbitrary power. There would, however, be one great difference. Under a free system, if error would be Edition: current; Page: [8] promulgated, so would truth: and truth never fails, in the long run, to prevail over error. Under a system of restraint, the errors which would be promulgated from authority would be the most mischievous possible, and would not be suffered to be refuted.

That truth, if it has fair play, always in the end triumphs over error, and becomes the opinion of the world, is a proposition which rests upon the broadest principles of human nature, and to which it would be easy to accumulate testimonials from almost every author, whatever may be his political leanings, who has distinguished himself in any branch of politics, morals, or theology. It is a proposition which the restrictors themselves do not venture to dispute. They continually protest, that their opinions have nothing to fear from discussion; the sole effect of which, according to them, is, to exhibit their irrefragable certainty in a still stronger light than before. And yet they do not scruple to punish men for doing that which, if their own assertions be correct, merits not punishment, but reward.

Although, however, the worst enemies of discussion, do not deny, as a general proposition, its tendency to unveil the truth, there is a certain number of subjects on which, if they are to be believed, discussion tends, not to enlighten, but to mislead. Among these are all the subjects on which it is the interest of rulers that the people should be misled; the political religion of the country, its political institutions, and the conduct and character of its rulers.

On the first of these topics, we have delivered our opinions so fully in our third number,^[*] that we shall in the present confine ourselves principally to the three latter: all of which substantially resolve themselves into one.

That there is no subject of greater importance, no one needs to be told: and to say this, is to say that there is no subject on which it is of greater importance that the people should be rightly informed. As the stability of a good government wholly depends upon its being acknowledged by the people to be good, so, on the other hand, the reform of a bad one wholly depends upon its being believed by the people to be bad. In the correctness of the estimate which the people form of the goodness of their government, their whole happiness is involved; since misgovernment includes every misery which is capable of afflicting mankind: and misgovernment is alike the consequence, whether the people believe a good government to be a bad one, or a bad government to be a good one.

We have been thus particular in laying down first principles, because the language held on this subject by rulers implies, that it is indeed the greatest of calamities, for the people to believe a good government to be bad, but that their considering a bad government to be good, is no evil at all, or at most a very trifling one. The evil, however, as we have already observed, is in both cases the same; or rather, the one is an evil, chiefly because it leads to the other: that the people should Edition: current; Page: [9] think ill of a good government is principally to be lamented, because it may occasion their acquiescence in a worse.

If, therefore, there be any subject on which the people cannot, without the greatest danger, trust the power of choosing opinions for them out of their own hands, it is this. And if such power cannot safely be given to any one, least of all can it be given to the rulers of the country.

If the people were compelled to take their opinions implicitly from some one who might have an interest in persuading them that their government is worse than it is, the greatest evils, it is admitted, would be the consequence. To think ill of a good government, and well of a bad one, are evils of equal magnitude. If, therefore, the privilege of dictating opinions to the people, on the subject of their government, be intrusted to persons interested in persuading them that their government is better than it is, the mischief cannot consistently be affirmed to be less. That rulers are so interested, will not be denied. What inference, then, are we to draw? or rather, how can the inference be evaded, that, if rulers are suffered to choose what opinions the people shall hold concerning their government, all the evils of misrule are rendered perpetual?

Such a choice, however, is made by rulers, as often as they inflict punishment upon any person for criticizing institutions, or censuring the conduct of government: unless they are willing to prohibit, under equal penalties, the expression of praise.

To forbid the expression of one opinion, and give encouragement to that of another, is surely to make a choice. To punish censure of rulers, while praise is permitted, is to say, ’tis fit that the people should think well of their government, whether good or bad; and to take the most effectual mode of compelling them to do so.

Against this reasoning it is impossible that any rational objection can be urged. Cavils, indeed, may be brought against it: but there are few conclusions of equal importance, the proof of which affords so little hold even for cavil.

When it is asserted, that to restrain discussion is to choose opinions for the people, and that rulers, if permitted to dictate opinions to their subjects, having an interest in choosing the most mischievous of all opinions, will act as that interest directs; there is only one objection which can by possibility be raised. It cannot be said, that to fetter discussion is not to choose opinions, nor that rulers are not interested in making a bad choice. But, it may be said, that our rulers are men in whom the confidence of the people may be reposed; and that, although it be confessedly their interest to make a bad choice, they will disregard that interest, and make a good one.

To such a pinnacle of absurdity men may always be driven, when they attempt to argue in defence of mischievous power. They begin by boldly denying the possibility of abuse: when this can no longer be maintained, they fly for refuge to the characters of the individuals, and insist with equal pertinacity, that in their Edition: current; Page: [10] hands power may be trusted without fear of being abused. This is a compliment of which the rulers for the time being, be they who they may, always receive as much as they can pay for: dead rulers are not so fortunate. That all rulers in time past abused their power when they could, is allowed: but an exception is made in favor of the present. This is a species of reasoning, however, which will pass current with nobody in the present day: we cannot be forced back to the times when rulers were thought not to be made like human beings, but to be free from all the passions and appetites by which other men are misled. If uncontrolled power can exist, and not be abused, then away with the British, and all other constitutions, and let us return to the despotism of our wise and venerable ancestors. But if men will abuse all other powers, when unrestrained, so they will that of controlling the press: if rulers will avail themselves of all other means to render themselves despotic, they will not pass over an expedient so simple and effectual as that of suppressing, in as far as they dare, all opinions hostile to the extension of their authority. And perfect freedom of discussion is, as we have already proved, the only alternative.

The objections which have been urged against the principle of free discussion, though infinitely diversified in shape, are at bottom only one assertion: the incapacity of the people to form correct opinions. This assumption is indeed the stronghold of all the disguised or undisguised partisans of despotism. It has been the unremitting, and hitherto, unhappily, the successful endeavour of rulers, to make it be believed that the most dreadful calamities would be the effect of any attempt to obtain securities that their power should be employed for the benefit, not of themselves, but of the community. With this view, it has been their uniform practice to vilify those whom they are striving to enslave. If the people were permitted to choose opinions for themselves, they would be sure, it is alleged, to choose the most mischievous and dangerous opinions. Being utterly incapable either of thinking or of acting for themselves, they are quite sure, unless kept in awe by priests and aristocracies, to become blind instruments in the hands of factious demagogues, who would employ them to subvert all establishments, and to throw every thing into the wildest anarchy and confusion. This language, by the way, is a practical illustration of the impartiality of the Law of Libel. It restrains all declaration, even of unfavourable truth with regard to the aristocracy: it gives full indulgence, and there is plenty of encouragement, to the propagation of all manner of unfavourable lies against the people. The conspiracy have thus all that is necessary for their purpose. Give a dog a bad name, and hang him, so they try with the people. Whether the object be to coerce them by standing armies, or to muzzle them by libel law, the motive always is pure loving-kindness, to save the unoffending, that is, the aristocratic part of mankind, from the jaws of those ravenous wolves and tigers, the people.

Such a language is calculated to act upon men by their fears, not by their reason, otherwise a little reflection would show, that the incapacity of the people, were it admitted, proves nothing, or, at least, nothing to the purpose. The practical Edition: current; Page: [11] conclusion would be the same, even if the people were so destitute of reasoning power, as to be utterly incapable of distinguishing truth from falsehood: since there is no alternative, but to let them choose their own opinions, or to give the choice to persons interested in misleading them.

An ignorant man, even if he decide at hap-hazard, has at least a chance of being sometimes in the right. But he who adopts every opinion which rulers choose to dictate, is always in the wrong, when it is their interest that he should be so, that is, on the most momentous of all topics.

Another question, which it does not suit those who make the ignorance of the people a plea for enslaving them to put, is, why are they ignorant? because to this question there can be only one answer, namely, that if they are ignorant, it is precisely because that discussion, which alone can remove ignorance, has been withheld from them. And although their masters may find it convenient to speak of their ignorance as incurable, we take the liberty of demurring to this conclusion, until the proper remedy shall have been tried. This remedy is, instruction, and of instruction, discussion is the most potent instrument. Discussion, therefore, has a necessary tendency to remedy its own evils. For the evils which spring from an undue veneration for authority, there is no such cure and the longer the disease continues, without the remedying influence of discussion, the more inveterate it becomes.

But, the assertion itself, by which so many terrors have been conjured up—the incapacity of the people to choose correct opinions—upon what evidence does it rest? Upon history? No for history proves, that just in proportion as the people have been permitted to choose opinions for themselves, in that proportion have they been moral, intelligent, and happy: and it is precisely in those countries in which the greatest pains has been taken to shut out discussion, that the people, when once roused from their habitual apathy, have proved themselves to be most ignorant and ferocious. No people which had ever enjoyed a free press, could have been guilty of the excesses of the French Revolution. By what artifices, then, have governments contrived to spread a vague apprehension of danger from discussion so widely among the unthinking part of mankind? By availing themselves of that universal law of human nature, by which men are prone to dread whatever they do not understand, and they who foresee the least, uniformly fear the most. The evils which they endure, habit has rendered tolerable but change, because they cannot foresee its consequences, is the object of their terror and aversion. And though history does not prove that discussion produces evil, but the contrary, there is abundant proof from history, that it produces change: change, not indeed in any thing good, but in every thing that is bad, bad laws, bad judicature, and bad government. That it leads to such changes is the very reason for which it is most to be desired, but it is also the reason why short-sighted persons hold it in terror.

Nor is there any difficulty in convincing the understanding of any one who will coolly apply his attention to the subject. The real difficulty is, to quiet fears. We Edition: current; Page: [12] cannot confide in persons whose fears appear to us to fall always in the wrong place. Nothing is more to be feared than a habit of fearing, whenever any thing is proposed for the good of mankind. The man who is always fearing evil to the many from the many, never from the few, appears to us an object of very rational fear.

The ignorance of the people is a mere pretext for a line of conduct which would have been equally pursued without any such pretext. This appears from the little regard paid to it in the practice of rulers themselves. The proper course in regard to ignorant persons, they say truly, is to guard them against deception: now, as rulers dare not openly lay claim to impeccability, they cannot deny that there may be deception on both sides: on the side of praise, as well as on the side of blame. To praise, however, both of rulers and of institutions, the most unlimited latitude has been given: censure alone has been restricted. Every one is free to represent the government and its functionaries as better than they are; and that to any extent: but woe to him who presumes, with whatever truth, to cast any blame upon either! Does this look as if it were believed that the people are ignorant? No! it looks as if it were feared that they would be too clear-sighted.

It seems not very consistent, in those whose case rests wholly upon the people’s incapacity of judging, to propose as a remedy for that incapacity, that nothing but an ex-parte statement should be presented to them. Is incapacity to judge cured by hearing only one side? Is ignorance remedied by placing it in a situation where the most perfect wisdom could scarcely escape being misled? To make the ignorance of the people a pretext for refusing them the means of judging, when it is precisely on account of their ignorance that they stand most in need of those means, would excite laughter, if it did not excite indignation. In other countries, it is maintained that the people ought not to judge of public affairs. To prevent them from hearing evidence, therefore, is, at any rate, consistent. In this country it is admitted that the people should judge; and it is, nevertheless, asserted, that they should hear only one side!

To support this monstrous absurdity, there is, in addition to the grand assumption of the incapacity of the people, another question which it has been customary to beg. This is, that the people hate their rulers, and are strongly disposed to judge unfavorably, both of them and of their actions. So utterly false is this assumption, that, on the contrary, there is no fact to which the testimony of experience is more unvarying, than to the strong disposition of the people, to think much better of their rulers and of their institutions than they deserve. The love of ease, perhaps the strongest principle of human nature, and beyond all comparison stronger, in the majority of mankind, than the hope of any remote and contingent advantage, is constantly urging them to avoid innovation, and rest satisfied with things as they are;^[*] with what success, every one has it in his power to observe. Who Edition: current; Page: [13] is there that has not seen a hundred instances of evil needlessly endured, for one of good wantonly abandoned and evil adopted? Is there, then, no inconsistency in supposing that in public matters the case is directly reversed? Nor is the love of ease the only principle which is constantly in operation, to warp the judgments of the people in favour of their rulers. He must have looked at mankind with a resolution not to see the truth, who can be blind to the excessive veneration of the poor for title, rank, and riches, a veneration arising from the habitual propensity of mankind to over-estimate advantages which they do not possess, and which was enumerated by Adam Smith among the most fertile sources of false judgments in morality which could be named.^[*] With these two principles strongly on one side, and nothing but reason on the other, knowledge must be far advanced among the people before they learn to venerate rulers only as far as they deserve veneration. Accordingly, all history bears testimony to the constancy with which the most dreadful mis-government has been suffered to prevail in almost every country of the globe: but the advocates of restriction may safely be challenged to produce one instance from history, in which the people have risen against a good government and overthrown it.

So strong, and so durable, is the veneration of the people for their rulers: nor has it ever yet been eradicated by anything short of the most grinding oppression. What epithet, then, can be too severe for the conduct of those who would prevent this feeling from giving way, like all other mischievous feelings, with the progress of civilization; who would deny a hearing to opinions and arguments which tend to weaken the inordinate reverence of the people for every ruler, good or bad, and give free scope to those which tend to render that blind reverence, and all its consequent miseries, everlasting!

Although our sentiments on the subject of free discussion in religion have already been fully stated, we will quote one passage from an essay to which we have before referred, merely to show that the same arguments apply to religion, which we have already stated with a more immediate reference to politics.

The argument drawn from the unsafeness of permitting governments to choose a religion for their subjects, cogent as it is, ranks only as one among a host of arguments, for leaving the people to follow their own reason, in matters of religion, as in every thing else.

In an age when the slightest difference of opinion on such a subject was deemed a perfectly sufficient reason for bringing the unhappy minority to the stake, it was not wonderful that Infidelity also should be considered a crime. But now, when a Churchman no more thinks of persecuting a Calvinist, or a Calvinist of persecuting a Churchman, than we think of punishing a man because he happens to be taller, or shorter, than ourselves; it is truly strange that there should be any one who can so blind himself as not to see, that the same reasons which make him a friend to toleration in other cases, bind him also to tolerate Infidelity.

The expression of opinions having been disposed of, it remains to be considered, whether in any case there is sufficient reason for placing restrictions upon the statement of facts. It must be admitted that the case of facts, and that of opinions, are not precisely similar. False opinions must be tolerated for the sake of the true: since it is impossible to draw any line by which true and false opinions can be separated from one another. There is no corresponding reason for permitting the publication of false statements of fact. The truth or falsehood of an alleged fact, is matter, not of opinion, but of evidence; and may be safely left to be decided by those, on whom the business of deciding upon evidence in other cases devolves.

It is maintained, however, by lawyers, that there ought to be other restrictions upon the statement of facts, besides the punishment of falsehood: there being some facts, as they allege, which, even if true, ought not to be made public. On this it is to be observed, that the same reasoning which proves that there should be perfect freedom of expressing opinions, proves also that there should be perfect freedom of expressing true facts. It is obviously upon facts, that all true opinions must be founded; if rulers, therefore, have, on any subject, on their own conduct, for example, the power of keeping from the knowledge of the people all facts which it does not suit them to disclose, they do, in fact, choose opinions for the people on that subject, just as completely as if they assumed the power of doing so, by a positive enactment.

There is one case, and only one, in which there might appear to be some doubt of Edition: current; Page: [15] the propriety of permitting the truth to be told without reserve. This is, when the truth, without being of any advantage to the public, is calculated to give annoyance to private individuals. That there are such cases must be allowed; and also that it would be desirable, in such cases, that the truth should be suppressed, if it could be done by any other means than law, or arbitrary power. It must, however, be borne in mind, that, if there are cases in which a truth unpleasant to individuals is of no advantage to the public, there are others in which it is of the greatest; and that the truths which it most imports to the public to know, are precisely those which give most annoyance to individuals, whose vices and follies they expose. Tory lawyers, indeed, for whom no doctrine is too extravagant which tends to uphold their power, or that of their employers, have asserted that one man has no right whatever to censure another: that to do so is an act of judicial authority which no individual is entitled to exercise: and that to expose vices and follies, instead of being one of the most important of all services to mankind, is a gross and unwarrantable usurpation of superiority.^* We hope that none but Tory lawyers are hardy enough to profess concurrence in doctrines like these. Since, then, there is no one who can be trusted to decide which are useful, which the unimportant truths; and the consequences of suppressing both would, beyond comparison, exceed in mischievousness the consequences of allowing both to be heard; the practical conclusion needs not to be stated.

We have yet to notice a shift, to which recourse has frequently been had, since the spread of liberal opinions has rendered it scarcely safe to acknowledge the same degree of enmity to discussion, which was formerly avowed. We allude to the doctrine, that calm and fair discussion should be permitted, but that ridicule and invective ought to be chastised.

This is so much the doctrine which has been fashionable of late, that most of our readers probably believe it to be the law: and so, according to the dicta of judges, it is; but according to other dicta of the same judges, it is also the law, that any discussion, unless it be all on one side, and even a bare statement of acknowledged facts, is a libel.

The doctrine, however, being as we have said, a fashionable one, it is necessary to say something on it; and we observe, in the first place, that if argument may be permitted with safety, there can be little hazard in tolerating ridicule and invective; since, on all questions of importance, it is, in the long run, the balance of argument which always determines the decision of the majority. First, from the very nature of the weapons themselves: the operation of invective and ridicule being in a great measure limited to those whose minds are already made up. They may stimulate partizans, but they are not calculated to make converts. If a man does not renounce his opinion from conviction, it is scarcely by hearing himself laughed at, or reviled Edition: current; Page: [16] for holding it, that he will be prevailed upon to give it up. Such means usually have no effect but to make him adhere to his opinion still more pertinaciously than before. And secondly, because ridicule and invective, if they may be used on one side, may be used also on the other; and against falsehood, for obvious reasons, with greater effect than against truth.

In the next place, if exclusion is to be put upon ridicule and invective, why is it not impartial? If any advantage can be derived from the employment of such weapons, why is it permitted to one set of opinions, withheld from another? Or is it that ridicule and invective then only tend to mislead, when they are employed on the side adverse to rulers? To deny any advantage to censure, which is extended to praise, is the same thing, though in a less aggravated degree, with the total prohibition of censure. Its effect, in as far as it has any, is to give an undue preponderance to praise: its tendency is, to make the people think better of their rulers than they deserve; and, to that extent rulers are enabled to oppress with impunity.

Suppose, for instance, that a writer is permitted to say, in as many words, that ministers or parliament have acted improperly, have engaged, for instance, in an unjust war; but, if he says this, and moreover expresses indignation that it should be so, he is punished. By expressing indignation, he gives it to be understood, that the evil, in his opinion, is great, and its authors deserving of punishment. If he refrains from expressing indignation, he virtually says, that the evil is not great, and its authors not deserving of punishment. Is it of no consequence, then, that the public should be informed, whether an evil is great or small? whether its authors are criminal, or the reverse? We fully subscribe to the manly and liberal sentiments of Mr. Mence on this subject. “It is not only no crime, but a positive duty, never to state crimes drily and coldly, and without the language of just and honest indignation. And our law, or supposed law of libel, by repressing the exercise of this duty, ministers to and encourages every kind of vice; and corrupts and undermines the manners and morals of the people.” (Vol. I, p. 162.)

Great as are these evils, they are not the greatest which the prohibition of ridicule and invective carries along with it: nor is it for the mere purpose of securing exclusively to themselves any advantage which such weapons can bestow, that rulers cling so closely to the privilege of putting them down. It is because they know well that, if they are permitted to suppress ridicule and invective, they have it in their power to suppress all unfavourable representation. Who is to judge, what is invective, and what is fair and temperate discussion? None but rulers themselves: for no line can be drawn. All censure is invective. To censure is to ascribe misconduct. Even error is misconduct, in those to whose management the great affairs of a community are intrusted. When to err is to put to hazard the welfare of a nation, it is a crime for those who cannot avoid error to remain at the helm. To impute even error, therefore, is equivalent to invective, and might be construed as employing it. The mere statement of a great crime is itself Edition: current; Page: [17] invective. It implies, and is meant to imply, moral guilt: if it fails of doing so, the statement is so far imperfect. It is impossible, therefore, to prohibit invective, without prohibiting all discussion, or leaving it to rulers to decide what sort of discussion shall be punished, and what left free.

And while indecent discussion is prohibited by law, they always will be synonymous.

The doctrine which we have now exposed, is merely one of the shifts to which English rulers, from their peculiar situation, have been compelled to have recourse.

In other countries, where the system to be upheld is one of undisguised despotism, the utter incapacity of the people to judge rightly, and the unspeakable wickedness of their presuming to judge at all, on the subject of government, are the avowed doctrines of rulers. The people, it is there contended, have no business to form any opinion on the acts of government. They have nothing to do with their rulers except to obey them.^[*] The magistrate, as he ought to have absolute control over the actions of all under his dominion, ought likewise to have power equally unlimited over their opinions. And this doctrine, if it has no other merit, has at least the recommendation of consistency.

The language of English rulers, down to the Revolution in 1688, was precisely similar. At that period, however, a new government was established, and this government, having come in upon the popular ground of resistance to kings, could not avoid admitting, that the people ought to be permitted to judge both of rulers and of institutions; since to deny this, would have been to give up the principle upon which its own dominion was founded. At the same time, having the same interests as any other government, it was desirous of suppressing, as far as possible, all censure upon its proceedings. Accordingly, the course which, since that time, it has pursued, has been one of perpetual compromise. It has admitted, in the fullest and most unequivocal terms, that discussion on all subjects of government and legislation ought to be free. It has even maintained, that the privilege of canvassing the acts of their government, is the birthright of Englishmen: that we owe to it all that we hold dear, that, without it, there can be no Edition: current; Page: [18] security for good government. At the same time, in the teeth of these large professions, it has maintained, that censure of established governments ought not to be permitted; and it has assumed to itself, in practice, the privilege of visiting such censure, as often as it has thought fit, with some of the severest penalties of the law.

In this see-saw, English rulers have been followed by English lawyers. We shall select our first instances from Mr. Holt’s celebrated treatise on the Law of Libel: a work which, having been declared by the late Lord Ellenborough from the bench to contain an accurate expression of his own sentiments, and being now generally received among lawyers as one of their standard works, may be considered unexceptionable authority, both for the law itself, and for the sentiments of rulers upon it. Observe what he says of the unspeakable importance of free discussion:

Judging from this passage, who would not conceive it to be the doctrine of English lawyers, that mankind are indebted for all that is of greatest value, to censure of existing institutions: such censure as tends to produce the most radical changes, both in church and state, and even the dethronement and destruction of a bad sovereign?

Now mark the language of the same writer, only a few pages afterwards.

“In every society, therefore, the liberty of the press may justly be restricted within those limits which are necessary to maintain the establishment, and are necessary to maintain its exercise.” (Pp. 45-6.)

“Every society” admits of no exception. It includes the worst governed, as well as the best. According to Mr. Holt, therefore, in this passage, all governments, no matter how bad, should be maintained. They are establishments, and that alone is a sufficient recommendation. It is to a free press, indeed, that we owe “a church reformed from the errors of superstition, and a system of liberty equally remote from feudal anarchy and monarchical despotism;” but as these were obtained by overthrowing a former system, and as “the limits necessary to maintain the establishment” are by no means to be passed, the writings which led to the Revolution ought to have been suppressed, and that great event, with all its glorious consequences, ought never to have been suffered to take place.

The difference, therefore, between the doctrine of rulers in England, and that of rulers elsewhere, exists only in name; and is not indicative of any difference in their real sentiments, but only in their power of giving expression to them without danger.

If there be any truth in the great principles of human nature, or any validity in the reasoning, upon which the British constitution is founded, there is no ruler who would not, if he could, suppress all censure of himself, of his measures, or of any of the arrangements which contribute to this authority. The British constitution supposes, that rulers always wish to abuse their power, and, of course, wish to remove every check which has a tendency to prevent them from abusing their power. But the great check to abuses of all sorts, is a free press. It is of the utmost importance, therefore, to observe, that all rulers have the strongest possible interest in destroying the freedom of the press: that they are under an absolute necessity of hating it; and that although they may not, at any one moment, have a fixed and regular plan for effecting its destruction, they are obstinately averse to any, even the most trifling, extension of it; and are eager to seize every opportunity for restraining it within the narrowest practicable limits.

The necessity for veiling this disposition by the tricks of language, has taught our rulers to devise a number of artful phrases, by the help of which they contrive, in the same breath, to give and take away the right of free discussion, and which, as often as they have occasion for the punishment of an obnoxious writer, serve them to beg the question in favour of their object. A trick of this kind, which has done them much good service, is the well-known profession, that they are friends to the liberty of the press, but enemies to its licentiousness.

Let us examine what this means. The liberty of the press, we are told, is good, that is, as we suppose, discussion, if not in all cases, at any rate in some cases, ought to be free. But the licentiousness of the press, it seems, is an evil; which we must presume to mean, that there are certain other cases in which discussion ought not to be free: but what cases? Of this we are not informed, for the word licentiousness, far from marking the distinction, is merely a vague epithet of blame. Their meaning, therefore, must be, that they are to judge what is the liberty of the press, and what is licentiousness. But this is to have the whole power of choosing opinions for the people. Allow them to decide what is, or is not licentiousness, and every thing will be licentiousness which implies censure of themselves, which involves any doctrine hostile to the indefinite increase and perpetual duration of their power. With them, indeed, to use the language of Mr. Mence, “the liberty of the press is a liberty of flattering, fawning, trifling, prosing, but not of writing freely, or fairly, or usefully, or in a way to engage attention, or have a chance of exciting interest, upon men or manners, or upon political, or legal, or religious, or moral subjects.” (Vol. I, p. 206.)

It now remains to exhibit the actual state of the law of this country, with respect to the liberty of the press.

It is proper here to take notice of a very elaborate attempt made by Mr. Mence, to prove that the law really is not so unfavourable to free discussion as is commonly supposed.

The whole of the law by which the offence of libel is created, exists only in the state of common or unwritten law, of precedent, or custom. But this circumstance is so far from being peculiar to libel, that more than one half of the law of England exists in no other shape.

Mr. Mence alleges, and endeavours to prove—perhaps (for we shall not enter into so unimportant an inquiry) he has succeeded in proving, that the precedents on which the law of libel is founded, are not older than the star-chamber (printing itself, indeed, was not older); and from this he infers, that they are not, to use a legal phrase, good law; that there is, therefore, no law of libel, and that the punishments which have been inflicted upon alleged libellers are illegal.^[*] Mr. Mence, however, is not the interpreter of the law. It belongs to the judges, and to them alone, to say what is, and what is not law. It is true, that the instances of omission are far more numerous than the instances of execution, and in the eye of reason, are equally entitled to be considered as precedents. It is true, that the judge hears a case, or refuses to hear it, as he pleases, and, therefore, makes the law, toties quoties, under the guise of declaring it. Nothing, indeed, can be more shocking, more grossly inconsistent with all ideas of good law, or good judicature, than this; but it is an evil inseparable from a system of common law, and if the law of libel be not, technically speaking, good law, we can scarcely be said to have any law at all, since even statutes are for the most part built upon the common law, and taking the offence for granted, confine themselves to regulating the punishment.

It is of little importance in itself, what the law is, if the practice be bad: but it is of the greatest importance that the public should not be made to believe that the law, if it were executed, would afford a security, when in reality it would afford no security at all; and it is because Mr. Mence has taken, as we conceive, so erroneous a view of this question, that we think it necessary to caution our readers against being misled by an author, from whom, in other respects, they may derive so much information.

Our own view of the state of the law will be collected, partly from Mr. Holt’s work, which is a digest of the cases, and which, as we have already observed, carries with it all the weight of Lord Ellenborough’s authority,^[†] partly from the dicta of judges themselves.

The object being to asertain, what meaning the English law attaches to the term libel, it is natural to begin by asking, what definition of libel it affords? To which we answer, none: nothing which deserves the name of a definition ever having been adduced.

Mr. Holt says, “A libel is a malicious defamation, expressed either in printing or writing, or by signs, pictures, &c., tending either to blacken the memory of one who is dead, with an intent to provoke the living, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt and ridicule.” (P. 50.)

What can be more absurd than to put forth such a definition as this, with great parade too of exactness, and fortified by references to no less than six legal authorities;^[*] and in the very next sentence, enumerating the species of libel, to talk of libels against religion, against morality, against the constitution.^[†] Mr. Holt’s definition, by whomsoever devised, was obviously intended only for private libel; and if applied to any thing else, is unintelligible. It necessarily supposes a person libelled. Religion, morality, &c. are not persons, either dead or alive, but abstract terms. Considered only as a definition of private libel, it is abundantly mischievous, since it informs us, that to give publicity to vice, in other words, to take the only effectual security against its overspreading the earth, is, according to English law, a crime. And this doctrine, Mr. Holt, in another place, does not scruple openly to avow.^[‡]

This is, at any rate, an attempt to define. In most law books, if we look for a definition of libel, we find nothing but a fiction, Libel is punishable, we are there told, because it tends to provoke a breach of the peace. The person libelled, may, out of resentment, commit the crime of assault against his accuser: it is fit, therefore, that the law should extend its protecting shield over the libeller, and save him from the chance of a broken head, by inflicting upon him a year’s imprisonment. A tweak by the nose, according to this doctrine, should be more criminal than any libel, for it is certainly far more likely to provoke the species of retaliation alluded to, Miserable as this fiction is, it has served as a foundation to lawyers for building up the excellent law maxim, “the greater the truth, the greater the libel.” A bad man, it is alleged, is more easily provoked than a good man! and a true accusation being usually more cutting than a false one, exposes the accuser to a greater hazard of being knocked down!

The reader may be curious to learn for what purpose this ludicrous fiction was invented. The purpose was, to render libel a penal offence, instead of being merely a civil injury. Had it been classed among private offences, under the head of injuries to reputation, it would have been necessary to prove, in the first place, that an injury had really been sustained; and then the damages awarded would not have exceeded a fair compensation for the actual injury which had been proved. To make it a public offence, it was erected into a sort of virtual breach of the peace, which, again, by another equally contemptible fiction, is the king’s peace; and thus, a libel against an individual became an offence against the king. Englishmen, who have been accustomed to hear, and to believe, that the law is the perfection of human reason,^[*] will be astonished to learn, that there is scarcely one, even of its good principles, which has any thing better than such fictions as the above for its basis. In fictione juris semper aequitas, say the lawyers. It is an assertion which they would not venture to put forth, were not the apathy of the public a sufficient security for its being believed without inquiry. Yet here is, at any rate, one instance, (and every one who has examined the law without a resolution to find every thing as it should be,^[†] can supply many more), in which such fictions have been devised for the most mischievous of all purposes.

This technical definition answered to admiration, so long as there were no libels but against individuals, all the rest being heresy or treason; but when times altered, and it was no longer practicable to hang, draw, and quarter men for libel, judges were put to their shifts for a definition which should give them power really unlimited, without the appearance. The late Lord Ellenborough, who, from his greater boldness of character, was in the habit of giving utterance to the pernicious doctrine with less of restraint and disguise than is usual, once said from the bench, that a libel was any thing which hurts the feelings of any body.^[‡] This was acknowledging more than was quite safe. It was admitting, that, according to English law, as administered by English judges, it is a crime to impute either error or criminality to public functionaries or to individuals; since to impute even error to any one, if it does not in all cases actually hurt his feelings, has, at least, always a tendency to do so.

The words of an indictment for public libel, which, in the absence of a definition, are, it must be presumed, intended to give some indication of the meaning and import of the charge, are “tending to bring our Lord the King and his Edition: current; Page: [23] administration,” or “the constitution and government of these realms,” or “the two Houses of Parliament,” or “the administration of justice, the trial by jury,” &c. “into great and public hatred and contempt.”^[*]

Lord Ellenborough’s dictum itself is not better adapted to bear out the judge in the most mischievous exertion of power, than this. It is criminal to bring rulers into “hatred and contempt.” But hatred is the legitimate consequence of guilt, contempt the legitimate consequence of folly. To impute either guilt or folly, either intentional or unintentional error, to rulers, is, therefore, by English law, a crime.

The attempts at definition, bad as they are, have only been exceptions the general rule has been, to maintain, that libel, though it ought to be punished, cannot, and ought not to be defined. The conspiracy, in truth, have a good reason for leaving the offence of libel undefined: for they would not dare to include in a definition all that the support of the conspiracy requires to be included. They would not dare to assume, by a specific law, all the power which they hope to enjoy by usurpation. Were they to make a definition which included all that they wish to be included, common feeling would be shocked, neither they nor other men would bear to look at it. Nothing, however, can be more gross than the inconsistency into which this necessarily drives them. They insist that libel cannot be defined, yet they say that twelve unlettered men are to judge what is libel and what is not. How can any man know what is included in a general rule, if he knows not what that rule is?

On the subject of libels against the constitution, the following is the language of Mr. Holt.

Considering the parade of logic, which characterizes Mr. Holt’s book, it is not a little remarkable that, on the most important point of all, he should be detected in using language so utterly destitute of any definite or precise meaning. Such Edition: current; Page: [24] vagueness can have but one object; namely, to hide the absolute power which the words that he uses are intended to confer upon the judge.

In the first place, he is pleased to represent the constitution as a person, and talks of defaming the constitution, calumniating the constitution, as if an abstract term could be defamed or calumniated. Then it is wantonly to defame, and indecorously to calumniate. Whether any thing be added to, or taken from the sense by these epithets, we profess ourselves unable to understand.

What is the constitution? merely the aggregate of the securities for good government, which are provided by the existing law, whatever those securities may be, more or less complete.^[*] This must be the meaning of the word, constitution, if it has any; and if by a sort of metaphor we speak of the constitution as being calumniated, we can only mean, that these securities are represented as insufficient for the prevention of mis-government; that the constitution is represented as not attaining its end.

Consider what is implied, when it is said, that the securities for good government which, being taken collectively, we call the constitution, are inadequate to their end. It is implied, that, to a certain extent at least, if not altogether, we are as if we had no constitution; and that rulers have the power to tyrannize over us with impunity. If this be true, it will not be openly asserted that, to make it known would not be highly meritorious. The supposition, therefore, must be, that it is not true. This cannot be proved, without suffering those who deny it to be heard. It is, therefore, taken for granted without proof.

It being, therefore, according to this doctrine, allowable for English rulers to take for granted, without proof, that their own form of government is the best possible, it must be equally allowable for all other rulers to make the same assumption in favour of theirs. It will not, however, be contended, that all forms of government are the best. The doctrine, therefore, of the law of England, as expounded by Mr. Holt, is, that any rulers, in any country, may justly assume that the most detestable of all governments is the best, and upon that assumption may with perfect propriety inflict punishment to any extent upon all who presume to call in question its excellence.

Higher authorities than Mr. Holt have propounded the same doctrine. Lord Camden says,

“All governments must set their faces against libels, and whenever they come before a court and a jury, they will set their faces against them. And if juries do not prevent them, they may prove fatal to liberty, destroy government, and introduce anarchy; but tyranny is better than anarchy, and the worst government better than none at all.”^*

It is here pretty distinctly intimated, that the worst government is justified in punishing all who hold it up to that detestation which it deserves; and the premises are equally edifying with the conclusion: if a tyrannical government be subverted, it is possible that anarchy may ensue; and anarchy, in the opinion of Lord Camden and of Mr. Holt, is a greater evil than the worst possible government. Adam Smith, indeed, thought differently; in the opinion of that great philosopher and practical judge of human nature, despotism is “more destructive of leisure and security, than anarchy itself.”^* His lordship is welcome, however, as far as we are concerned, to whatever advantage he can derive from this assumption. But we submit that, if the worst possible government may be succeeded by anarchy, it may also be succeeded by a good government; and how must his mind be constituted who, if it were necessary, would fear to risk a few years, even of anarchy, for such a possibility!

In this investigation we have purposely avoided making the supposition, that the British constitution really is not the best possible. It is obvious, however, how much, if it be not, the strength of the argument is increased.

If we were as firmly convinced that the British constitution is, as we are convinced that it is not, the best possible government, we should be willing to expose even such a government to a very considerable degree of risk, rather than support it by means, which if they may be used for the preservation of the best government, may be equally used to perpetuate all the atrocities of the worst. But if the constitution be really imperfect—and who shall say that it is otherwise, if gainsayers are not suffered to be heard? then how greatly is the atrocity aggravated! and what are we to think of those who wickedly endeavour to prop up a bad cause, by means which even the best ought to reject with horror!

Mr. Holt seems to have been in some degree aware, that the mischievous purpose of the law would shew itself even through the vague and evasive language in which he has clothed it. After telling us that the judges have the power to punish every thing which they may pronounce intended to “despoil the constitution of its best support, the veneration, esteem, and affection of the people,” he has thought it expedient to say something with a view to make it appear that they have not this power.

It is not easy to enumerate all the gratuitous assumptions, all the shifts and evasions, which this one passage contains.

In the first place, it is assumed, that to “endanger the permanence of government” (such are the words of Mr. Holt) can have no object but to “revive the original anarchy:” which is precisely the assumption by which all bad rulers, from time immemorial, have begged the question in favour of themselves.

In the next place, we are informed that the right of unfavourable representation is allowed, so far as is necessary to “remind kings of their duty, and parliaments of their trusts;” but not to such a degree as to “spread disaffection through the state.” So said the Mogul emperor: his subjects might state their grievances for his information, and if he thought fit, he would redress them; with this reservation, however, that if he should happen to take offence at their representations, he might cut off their heads upon the spot.^[*]

But, thirdly, it seems, even this limited right of unfavourable representation is allowed only in good times; the question, what are and are not good times, being of course left to be decided by the government itself. It is not difficult to see what, by such a judge, would be pronounced to be good times. So long as the people were perfectly quiet, and any breath of censure which might be heard boded no danger to profitable abuses, that censure might be tolerated, simply because there would be no motive for its suppression. But as soon as a feeling began to be excited, that there was something wrong, something calling for reformation; as soon as there began to be a chance, that unfavourable representations, if they continued, might at length have the effect of forcing upon rulers some degree of amendment; then would be the time for declaring that the “permanence and due weight of government” were endangered: then would be the time for suspending the habeas corpus act, and extending, like Mr. Pitt, the strong arm of power, to crush every writer who presumed to insinuate, that all was not for the best.^[†]

One admission, however (we shall see how far it is sincere), is made in the above passage; that the constitution does permit censure, if not at all times, and on Edition: current; Page: [27] all subjects, yet at some times, and on some subjects. Now mark the language of Mr. Holt, a few pages afterwards:

“If” a writer, “forgetting the wholesome respect which is due to authority and to the maintenance of every system, proposes to reform the evils of the state by lessening the reverence of the laws; the law, under such circumstances, considers him as abusing to the purposes of anarchy, what it has given him for the purposes of defence.” (P. 103.)

It is not to the doctrine, that not only a good system, but every system ought to be maintained, that we would at present direct the attention of our readers. It is to the declaration, that nothing must be done tending to lessen the reverence for the laws: that to whatever degree a law may be bad, its badness shall not be suffered to be exposed, nor any representation to be made which shall convince the people of the necessity for its repeal. What, then, is to be said of the assertions that “the constitution acknowledges the best interest of the state to be truth”; that it “opens a ready ear to honest and useful truth of all kinds?” What, but that they are cant, disgusting from its hypocrisy, as mischievous as false, and put forth solely to deceive the people into a belief that the constitution and the law are much better than they really are?

From libels on the constitution, Mr. Holt passes to libels on the king and his government, and to this subject we shall follow him, promising to the reader, that, after all that we have already said, we shall not detain him long.

From Mr. Holt’s general view of the law on this subject, one passage has been already extracted. We now give it entire.

For the exposure of this doctrine, a few words are sufficient.

In the first place, the distinction between the censure which is permitted, and the censure which is prohibited, turns out to be, not any thing in the censure itself, but something in the intention. By what evidence is the intention to be ascertained? By Edition: current; Page: [28] the greater severity of the censure? No: for it surely does not follow, that a man must necessarily intend to misrepresent because he censures severely; unless it is contended that governments can never act in such a manner as to merit severe censure.

To obtain reform, you must point out defects. By pointing out defects, you bring discredit on the government. By pointing out defects and seeking remedies, you shew your malice. Yes; the same sort of malice which a man shews towards himself by going to a physician to know the defects of his constitution, and how to remedy them.

Some parts of Mr. Holt’s language, however, seem to insinuate, what he himself in other places denies, that censure may be freely applied, provided it be without assigning bad motives. “The law,” says he, “in this respect, follows in the line of our duty. Invective, and the assignment of bad motives, can evidently answer no good purpose. No man assuredly can justify such contumely, even towards a private individual, and society at least should have dignity enough to communicate something of its sacredness to its officers.” (P. 103.)

What is meant by the dignity of society, and communicating sacredness to its officers, we do not pretend to understand. What Mr. Holt, or the judges, would consider as bad motives, we do not know. Perhaps, by bad motives he means criminality, as distinguished from innocent error; and, in that case, we utterly deny the assertion, that no good purpose is to be answered by exposing it. Is it of no importance that the public should know the character of those in whose hands the disposal of their whole happiness is placed? Apply this doctrine to the crimes of individuals: would Mr. Holt assert that it can answer no good purpose to distinguish between wilful murder and accidental homicide?

This part of the law of libel, as expounded by the judges, and by Mr. Holt, is, like all other parts of it, purposely left in such a state of vagueness, as to place every public writer absolutely at the mercy of the judge.

“Every thing,” says Mr. Holt, “is a libel, the purpose of which is, to misrepresent and find a handle for faction.” But what is faction? Every man opposing ministers. What is misrepresentation? Falsehood. Who is to judge what is falsehood? The government: and the government, therefore, is to judge in its own cause; the government is to decide upon the truth or falsehood of a charge of error or crime against itself, and if it pronounces the charge to be false, it is to have the power of inflicting punishment, to any extent, upon the accuser!

It may be thought, perhaps, that Mr. Holt has distorted the law. To prove that he has not, we shall next quote some of the dicta of judges; than which nothing can be more explicit, as to the illegality of all censure upon the government.

According to this judge, nothing is to be permitted which tends to possess the people with an ill opinion of the government; that all censure has this for its object, it is unnecessary to remark. All censure, therefore, is prohibited.

From this we learn two things; first, that nothing is permitted to be said which can be construed as either directly or by implication a reproach upon the government. And secondly, that all persons whatever, public or private, are guaranteed by the law against all exposure of any misconduct, however glaring, and however hurtful to the community.

This doctrine, which is honoured with the peculiar approbation of Mr. Holt (p. 111), is in substance the same with that which we last quoted, with this addition, that it contains a prohibition of strictures, even upon particular measures. The “administration of his majesty, or his ministers,” is not to be reflected upon.

On the trial of Woolston for a deistical work,^[*] the Court said, “that the Christian religion is established in this kingdom, and therefore they would not allow any books to be written which should tend to alter that establishment.”^§ Christianity is to be made an instrument of persecution because it is an establishment; no books are to be written which tend to alter establishments. What sort of a doctrine is this?

Having commented at so much length upon similar doctrines, we are under no inducement to spend time upon this.

The two trials of Mr. Wooler, in the year 1817, for seditious libels, teem with similar dicta, both of the attorney-general who prosecuted, and the judge who presided. We quote a report which was printed verbatim from the manuscript of an eminent short-hand writer. On that occasion, the then attorney-general, the present Master of the Rolls, and, if report say true, the future Lord Chancellor, delivered himself in the following terms:

It would appear at first sight, to an incautious reader, that the improved spirit of the times had produced some effect, even upon his majesty’s attorney-general. The doctrine, that all censure of ministers is a libel, was no longer dared to be openly avowed. What was avowed, however, is, that when ministers aim at subverting the constitution, at subverting that, which, according to the attorney-general, is our only security against every horror which mankind have, at any period of history, endured from bad rulers; that when ministers aim at taking away this security, and plunging us into these evils, no one shall be allowed to say so. That this is an unfair interpretation we deny. Is it, or is it not, possible, that ministers should wish to be absolute? If it be answered, that such a design is possible, but that in this instance it was unjustly ascribed to them, we answer, that if despotism has been the aim of some ministers, it may be the aim of the present, and we are not to believe that to be impossible which all experience proves to be certain, merely because the attorney-general thinks proper to deny it. This modest claim, however, he did not scruple to prefer. “They (the ministers) would not make Edition: current; Page: [31] their will the general law, but it is not that they dare not, but, I take leave to state, because they cannot and will not.”^*

Here we are asked to believe that ministers are not men of ordinary virtue, nor even men of extraordinary virtue, but something infinitely superior to all men who ever did, or can exist. Not so says the law of England. That law always presumes that men act according to their interest. So far is this principle carried, that, if a man has a single shilling to gain by perjury, the law presumes that he will perjure himself for that shilling, and refuses to hear his evidence. And here we are called upon to take it for granted, not only that the strongest conceivable temptations are weaker than the virtue of ministers, but that a man ought to be severely punished for insinuating the contrary. And why? Because such is the ipse dixit of his majesty’s attorney-general.

The present Chief Justice Abbott, on the same occasion, was pleased to deliver, as has been recently the usual practice, two contrary doctrines; both of which, of course, by his pronouncing them, became equally the law of the land.

This is one doctrine. Shortly afterwards he, in a passage too long to quote, propounds, and praises Lord Holt for propounding, the other.^[*] This is, that it is libellous in any way to reflect upon, that is, to censure, the government, and to bring into discredit, that is again to censure, the two Houses of Parliament.

We will take the least bad doctrine of the two; that which asserts that reasoning is permitted, but slander and calumny prohibited.

What is the use of reasoning? To draw conclusions, we suppose. All reasoning is, we apprehend, for the sake of the conclusion. Reasoning, it seems, is fit and proper: is it proper to draw conclusions? If they are favourable, yes, if unfavourable, no; because in that case, they are slander and calumny.

We might quote many cases posterior to this, but we shall stop here, partly because we have already exhibited enough, partly because the more recent trials have not been published in an equally authoritative form. It is not because there is nothing to say on the trial of Mr. Harvey for a libel on a living king, or on that of Mr. John Hunt, for a libel on a dead one,^[†] that we refrain from particularly Edition: current; Page: [32] alluding to what was said by lawyers and judges on those memorable occasions. It is because it was not in our power to quote any better authority than newspaper reports; and it is not enough for us that our assertions are true; we would have them exempt even from the possibility of suspicion.

We notice the head “Libels against the two Houses of Parliament,”^[*] only to say that, according to Mr. Holt, the one thing to which all the influence of public opinion over those assemblies is owing, the publication of their proceedings—is illegal.

Under the head, “Libels against Courts of Justice,”^[†] Mr. Holt says.

“Any public reflection,” he continues, “on the ministration of justice, is unquestionably libellous.”^[‡]

Here are two assertions, the one, that the law permits censure, the other that it does not. We shall now see which of them is borne out by the dicta of judges. And we shall content ourselves with quoting the first case, related under this branch of his subject, by Mr. Holt himself.

The law has afforded a remedy! Yes; the injured party, if he can afford it, may move the very judge by whom he was condemned, for a new trial, and if by miracle he should obtain it, he may go again to be tried before the same, or a brother judge, subject to the same sinister interest,^[§] and a jury under the same influence. We Edition: current; Page: [33] may be permitted to doubt, however, whether his chance of obtaining redress in this way be so considerable, as to render all other means superfluous; or whether he would have any chance whatever of obtaining it, if he had not the means of influencing public opinion in his favour.

The doctrine inculcated in the above dictum, that it is criminal to censure the proceedings of a court of judicature, and that whoever presumes to do so, is an enemy to the administration of justice, became unhapply, by the artifices of judges and the influence of rulers, deeply rooted in the minds of Englishmen. It was long the prevailing cry, that the administration of justice must be preserved free from suspicion, that no reflections must be permitted on the administration of justice: as if any mischief could be done to good judges, and good judicature, by the exposure of bad; as if it were not the greatest possible injury to a good judge, to render it impossible for the public to distinguish him from a bad one.

So far is the conduct of judges from requiring no surveillance, that there is scarcely any set of public functionaries, whose conduct requires it so much. Receiving their appointments from government, having, of necessity, from the course they must have adopted to obtain those appointments, all their leanings on the side of power; having, most of them, sons and nephews at the bar, for whom they are in the habit of looking to advancement and patronage at the hands of government; vested with power, which, if thrown into the scale of government, goes so far to render it despotic, that no sacrifice, on the part of rulers, can be too great, by which their co-operation can be obtained, it is not easy for any set of persons to be exposed to stronger temptations: and that those temptations have invariably proved too strong for the virtue even of the best judges, we have only to look at the records of libel cases, to be convinced.

We regard it, then, as one of the most favourable signs of the times, that this indiscriminating reverence for all the instruments of judicature is giving way; that the proceedings of judges begin to obtain their due share of examination, and their misconduct of reprobation. And we take this opportunity of declaring our conviction, that this great and salutary change has been in a great degree owing to the indefatigable exertions of the Morning Chronicle; a journal, in which we have now been long accustomed to look for excellence of all sorts, but which has displayed, more particularly, in its strictures on the language and conduct of judicial functionaries, a degree of true courage, of ability, and of morality in its highest and least common shape, which it has been but too rarely our lot to witness in the periodical press of this country.

The two following conclusions may now, we think, be regarded as fully established:

That the law of England, as delivered by its authorized interpreters, the judges, however earnestly the same judges may occasionally disavow this doctrine, prohibits all unfavourable representation with respect to institutions, and with respect to the government and its acts.

And, consequently, that if any freedom of discussion is permitted to exist, it is only because it cannot be repressed; the reason why it cannot be repressed, being, the dread of public opinion.

And now, having established these two propositions, we have only further to recommend them to the most serious consideration of our readers.

The importance of free discussion, though frequently dwelt upon by public writers, is seldom fully appreciated by those who, not being themselves exposed to the danger of becoming its martyrs, erroneously consider themselves little affected by its violations. It concerns in fact equally every member of the community. It is equal in value to good government, because without it good government cannot exist. Once remove it, and not only are all existing abuses perpetuated, but all which, in the course of successive ages, it has overthrown, revive in a moment, along with that ignorance and imbecility, against which it is the only safeguard. Conceive the horrors of an oriental despotism—from this and worse we are protected only by the press. Carry next the imagination, not to any living example of prosperity and good government, but to the furthest limit of happiness which is compatible with human nature; and behold that which may in time be attained, if the restrictions under which the press still groans, merely for the security of the holders of mischievous power, be removed. Such are the blessings of a free press: and again and again be it repeated, there cannot be a free press without freedom of censure.

On Marriage

she to whom my life is devoted has wished for a written exposition of my opinions on the subject which, of all connected with human Institutions, is nearest to her happiness. Such as that exposition can be made without her to suggest and to decide, it is given in these pages: she, herself, has not refused to put into writing for me, what she has thought and felt on the same subject, and there I shall be taught all perhaps which I have, and certainly all which I have not, found out for myself. In the investigation of truth as in all else, “it is not good for man to be alone.”^[*] And more than all, in what concerns the relations of Man with Woman, the law which is to be observed by both should surely be made by both; not, as hitherto, by the stronger only.

How easy would it be for either me or you, to resolve this question for ourselves alone! Its difficulties, for difficulties it has, are such as obstruct the avenues of all great questions which are to be decided for mankind at large, and therefore not for natures resembling each other, but for natures or at least characters tending to all the points of the moral compass. All popular morality is as I once said to you a compromise among conflicting natures, each renouncing a certain portion of what its own desires call for, in order to avoid the evils of a perpetual warfare with all the rest. That is the best popular morality, which attains this general pacification with the least sacrifice of the happiness of the higher natures, who are the greatest, indeed the only real, sufferers by the compromise: for they are called upon to give up what would really make them happy; while others are commonly required only to restrain desires the gratification of which would bring no real happiness. In the adjustment, moreover, of the compromise, the higher natures count only in proportion to their number, how small! or to the number of those whom they can influence: while the conditions of the compromise weigh heavily upon them in the ratio of their greater capacity of happiness, and its natural consequence, their keener sense of want and disappointment when the degree of happiness which they know would fall to their lot but for untoward external circumstances, is denied them.

By the higher natures I mean those characters who from the combination of natural and acquired advantages, have the greatest capacity of feeling happiness, Edition: current; Page: [38] Edition: current; Page: [39] and of bestowing it. Of bestowing it in two ways: as being beautiful to contemplate, and therefore the natural objects of admiration and love; and also as being fitted, and induced, by their qualities of mind and heart, to promote by their actions, and by all that depends upon their will, the greatest possible happiness of all who are within the sphere of their influence.

Folio 1r of “On Marriage”

British Library of Political and Economic Science

If all persons were like these, or even would be guided by these, morality might be very different from what it must now be; or rather it would not exist at all as morality, since morality and inclination would coincide. If all resembled you, my lovely friend, it would be idle to prescribe rules for them. By following their own impulses under the guidance of their own judgment, they would find more happiness, and would confer more, than by obeying any moral principles or maxims whatever; since these cannot possibly be adapted beforehand to every peculiarity of circumstance which can be taken into account by a sound and vigorous intellect worked by a strong will, and guided by what Carlyle calls “an open loving heart.”^[*] Where there exists a genuine and strong desire to do that which is most for the happiness of all, general rules are merely aids to prudence, in the choice of means; not peremptory obligations. Let but the desires be right, and the “imagination lofty and refined”:^[†] and provided there be disdain of all false seeming, “to the pure all things are pure.”^[‡]

It is easy enough to settle the moral bearings of our question upon such characters. The highest natures are of course impassioned natures; to such, marriage is but one continued act of self-sacrifice where strong affection is not, every tie therefore which restrains them from seeking out and uniting themselves with some one whom they can perfectly love, is a yoke to which they cannot be subjected without oppression: and to such a person when found, they would naturally, superstition apart, scorn to be united by any other tie than free and voluntary choice. If such natures have been healthily developed in other respects, they will have all other good and worthy feelings strong enough to prevent them from pursuing this happiness at the expense of greater suffering to others, and that is the limit of the forbearance which morality ought in such a case to enjoin.

But will the morality which suits the highest natures, in this matter, be also best for all inferior natures? My conviction is, that it will, but this can be only a happy accident. All the difficulties of morality in any of its branches, grow out of the conflict which continually arises between the highest morality and even the best popular morality which the degree of developement yet attained by average human nature, will allow to exist.

If all, or even most persons, in the choice of a companion of the other sex, were led by any real aspiration towards, or sense of, the happiness which such companionship in its best shape is capable of giving to the best natures, there would never have been any reason why law or opinion should have set any limits to the most unbounded freedom of uniting and separating: nor is it probable that popular morality would ever, in a civilized or refined people, have imposed any restraint upon that freedom. But, as I once said to you, the law of marriage as it now exists, has been made by sensualists, and for sensualists, and to bind sensualists. The aim and purpose of that law is either to tie up the sense, in the hope by so doing, of tying up the soul also, or else to tie up the sense because the soul is not cared about at all. Such purposes never could have entered into the minds of any to whom nature had given souls capable of the higher degrees of happiness: nor could such a law ever have existed but among persons to whose natures it was in some degree congenial, and therefore more suitable than at first sight may be supposed by those whose natures are widely different.

There can, I think, be no doubt that for a long time the indissolubility of marriage acted powerfully to elevate the social position of women. The state of things to which in almost all countries it succeeded, was one in which the power of repudiation existed on one side but not on both: in which the stronger might cast away the weaker, but the weaker could not fly from the yoke of the stronger. To a woman of an impassioned character, the difference between this and what now exists, is not worth much; for she would wish to be repudiated, rather than to remain united only because she could not be got rid of. But the aspirations of most women are less high. They would wish to retain any bond of union they have ever had with a man to whom they do not prefer any other, and for whom they have that inferior kind of affection which habits of intimacy frequently produce. Now, assuming what may be assumed of the greater number of men, that they are attracted to women solely by sensuality or at best by a transitory taste; it is not deniable, that the irrevocable vow gave to women when the passing gust had blown over, a permanent hold upon the men who would otherwise have cast them off. Something, indeed much, of a community of interest, arose from the mere fact of being indissolubly united: the husband took an interest in the wife as being his wife, if he did not from any better feeling: it became essential to his respectability that his wife also should be respected; and commonly when the first revulsion of feeling produced by satiety, went off, the mere fact of continuing together, if the woman had anything loveable in her and the man was not wholly brutish, could hardly fail to raise up some feeling of regard and attachment. She obtained also, what is often far more precious to her, the certainty of not being separated from her children.

Now if this be all that human life has for women, it is little enough; and any woman who feels herself capable of great happiness, and whose aspirations have not been artificially checked, will claim to be set free from only this, to seek for Edition: current; Page: [41] more. But women in general, as I have already remarked, are more easily contented. And this I believe to be the cause of the general aversion of women to the idea of facilitating divorce. They have a habitual belief that their power over men is chiefly derived from men’s sensuality; and that the same sensuality would go elsewhere in search of gratification, unless restrained by law and opinion. They, on their part, mostly seek in marriage, a home, and the state or condition of a married woman, with the addition or not as it may happen, of a splendid establishment &c. &c. These things once obtained, the indissolubility of marriage renders them sure of keeping. And most women, either because these things really give them all the happiness they are capable of, or from the artificial barriers which curb all spontaneous movements to seek their greatest felicity, are generally more anxious not to peril the good they have than to go in search of a greater. If marriage were dissoluble, they think they could not retain the position once acquired; or not without practising upon the affections of men by those arts, disgusting in the extreme to any woman of simplicity, by which a cunning mistress sometimes establishes and retains her ascendancy.

These considerations are nothing to an impassioned character; but there is something in them, for the characters from which they emanate—is not that so? The only conclusion, however, which can be drawn from them, is one for which there would exist ample grounds even if the law of marriage as it now exists were perfection. This conclusion is, the absurdity and immorality of a state of society and opinion in which a woman is at all dependent for her social position upon the fact of her being or not being married. Surely it is wrong, wrong in every way, and on every view of morality, even the vulgar view,—that there should exist any motives to marriage except the happiness which two persons who love one another feel in associating their existence.

The means by which the condition of a married woman is rendered artificially desirable, are not any superiority of legal rights, for in that respect single women, especially if possessed of property, have the advantage, the civil disabilities are greatest in the case of the married woman. It is not law, but education and custom which make the difference. Women are so brought up, as not to be able to subsist in the mere physical sense, without a man to keep them: they are so brought up as not to be able to protect themselves against injury or insult, without some man on whom they have a special claim, to protect them, they are so brought up, as to have no vocation or useful office to fulfil in the world, remaining single; for all women who are educated for anything except to get married, are educated to be married, and what little they are taught deserving the name useful, is chiefly what in the ordinary course of things will not come into actual use, unless nor until they are married. A single woman therefore is felt both by herself and others as a kind of excrescence on the surface of society, having no use or function or office there. She is not indeed precluded from useful and honorable exertion of various kinds, but a married woman is presumed to be a useful member of society unless there is Edition: current; Page: [42] evidence to the contrary; a single woman must establish, what very few either women or men ever do establish, an individual claim.

All this, though not the less really absurd and immoral even under the law of marriage which now exists, evidently grows out of that law, and fits into the general state of society of which that law forms a part; nor could continue to exist if the law were changed, and marriage were not a contract at all, or were an easily dissoluble one. The indissolubility of marriage is the keystone of woman’s present lot, and the whole comes down and must be reconstructed if that is removed.

And the truth is, that this question of marriage cannot properly be considered by itself alone. The question is not what marriage ought to be, but a far wider question, what woman ought to be. Settle that first, and the other will settle itself. Determine whether marriage is to be a relation between two equal beings, or between a superior and an inferior, between a protector and a dependent; and all other doubts will easily be resolved.

But in this question there is surely no difficulty. There is no natural inequality between the sexes; except perhaps in bodily strength; even that admits of doubt: and if bodily strength is to be the measure of superiority, mankind are no better than savages. Every step in the progress of civilization has tended to diminish the deference paid to bodily strength, until now when that quality confers scarcely any advantages except its natural ones: the strong man has little or no power to employ his strength as a means of acquiring any other advantage over the weaker in body. Every step in the progress of civilization has similarly been marked by a nearer approach to equality in the condition of the sexes; and if they are still far from being equal, the hindrance is not now in the difference of physical strength, but in artificial feelings and prejudices.

If nature has not made men and women unequal, still less ought the law to make them so. It may be assumed, as one of those propositions which would almost be made weaker by anything so ridiculous as attempting to prove them, that men and women ought to be perfectly coequal: that a woman ought not to be dependent on a man, more than a man on a woman, except so far as their affections make them so, by a voluntary surrender, renewed and renewing at each instant by free and spontaneous choice.

But this perfect independence of each other for all save affection, cannot be, if there be dependence in pecuniary circumstances: a dependence which in the immense majority of cases must exist, if the woman be not capable, as well as the man, of gaining her own subsistence.

The first and indispensable step, therefore, towards the enfranchisement of woman, is that she be so educated, as not to be dependent either on her father or her husband for subsistence: a position which in nine cases out of ten, makes her either the plaything or the slave of the man who feeds her; and in the tenth case, only his humble friend. Let it not be said that she has an equivalent and compensating advantage in the exemption from toil: men think it base and servile in men to accept Edition: current; Page: [43] food as the price of dependence, and why do they not deem it so in women? solely because they do not desire that women should be their equals. Where there is strong affection, dependence is its own reward: but it must be voluntary dependence; and the more perfectly voluntary it is,—the more exclusively each owes every thing to the other’s affection and to nothing else,—the greater is the happiness. And where affection is not, the woman who will be dependent for the sake of a maintenance, proves herself as low-minded as a man in the like case—or would prove herself so, if that resource were not too often the only one her education has given her, and if her education had not also taught her not to consider as a degradation, that which is the essence of all prostitution, the act of delivering up her person for bread.

It does not follow that a woman should actually support herself because she should be capable of doing so: in the natural course of events she will not. It is not desirable to burthen the labour market with a double number of competitors. In a healthy state of things, the husband would be able by his single exertions to earn all that is necessary for both; and there would be no need that the wife should take part in the mere providing of what is required to support life: it will be for the happiness of both that her occupation should rather be to adorn and beautify it. Except in the class of actual day-labourers, that will be her natural task, if task it can be called which will in so great a measure, be accomplished rather by being than by doing.

We have all heard the vulgar talk that the proper employments of a wife are household superintendence, and the education of her children. As for household superintendence, if nothing be meant but merely seeing that servants do their duty, that is not an occupation, every woman who is capable of doing it at all can do it without devoting anything like half an hour every day to that purpose peculiarly. It is not like the duty of a head of an office, to whom his subordinates bring their work to be inspected when finished: the defects in the performance of household duties present themselves to inspection: skill in superintendance consists in knowing the right way of noticing a fault when it occurs, and giving reasonable advice and instruction how to avoid it; and more depends upon establishing a good system at first, than upon a perpetual and studious watchfulness. But if it be meant that the mistress of a family shall herself do the work of servants, that is good and will naturally take place in the rank in which there do not exist the means of hiring servants; but nowhere else.

Then as to the education of children; if by that term be meant, instructing them in particular arts or particular branches of knowledge, it is absurd to impose that upon mothers: absurd in two ways: absurd to set one-half of the adult human race to perform each on a small scale, what a much smaller number of teachers could accomplish for all, by devoting themselves exclusively to it; and absurd to set all mothers doing that for which some persons must be fitter than others, and for which average mothers cannot possibly be so fit as persons trained to the profession. Here again, when the means do not exist of hiring teachers, the mother is the natural Edition: current; Page: [44] teacher: but no special provision needs to be made for that case. Whether she is to teach or not, it is desirable that she should know; because knowledge is desirable for its own sake; for its uses, for its pleasures, and for its beautifying influence when not cultivated to the neglect of other gifts. What she knows, she will be able to teach to her children if necessary: but to erect such teaching into her occupation whether she can better employ herself or not, is absurd.

The education which it does belong to mothers to give, and which if not imbibed from them is seldom obtained in any perfection at all, is the training of the affections; and through the affections, of the conscience, and the whole moral being. But this most precious, and most indispensable part of education, does not take up time; it is not a business, an occupation; a mother does not accomplish it by sitting down with her child for one or two or three hours to a task. She effects it by being with the child; by making it happy, and therefore at peace with all things, by checking bad habits in the commencement; by loving the child, and by making the child love her. It is not by particular efforts, but imperceptibly and unconsciously that she makes her own character pass into the child; that she makes the child love what she loves, venerate what she venerates, and imitate as far as a child can, her example. These things cannot be done by a hired teacher; and they are better and greater, than all the rest. But to impose upon mothers what hired teachers can do, is mere squandering of the glorious existence of a woman fit for woman’s highest destiny. With regard to such things, her part is to see that they are rightly done, not to do them.

The great occupation of woman should be to beautify life: to cultivate, for her own sake and that of those who surround her, all her faculties of mind, soul, and body; all her powers of enjoyment, and powers of giving enjoyment; and to diffuse beauty, and elegance, and grace, everywhere. If in addition to this the activity of her nature demands more energetic and definite employment, there is never any lack of it in the world. If she loves, her natural impulse will be to associate her existence with him she loves, and to share his occupations; in which if he loves her (with that affection of equality which alone deserves to be called love) she will naturally take as strong an interest, and be as thoroughly conversant, as the most perfect confidence on his side can make her.

Such will naturally be the occupations of a woman who has fulfilled what seems to be considered as the end of her existence, and attained what is really its happiest state, by uniting herself to a man whom she loves. But whether so united or not, women will never be what they should be, nor their social position what it should be, until women, as universally as men, have the power of gaining their own livelihood: until, therefore, every girl’s parents have either provided her with independent means of subsistence, or given her an education qualifying her to provide those means for herself. The only difference between the employments of women and those of men will be, that those which partake most of the beautiful, or Edition: current; Page: [45] which require delicacy and taste rather than muscular exertion, will naturally fall to the share of women: all branches of the fine arts in particular.

In considering, then, what is the best law of marriage, we are to suppose that women already are, what they would be in the best state of society; no less capable of existing independently and respectably without men, than men without women. Marriage, on whatever footing it might be placed, would be wholly a matter of choice, not, as for a woman it now is, something approaching to a matter of necessity; something, at least, which every woman is under strong artificial motives to desire, and which if she attain not, her life is considered to be a failure.

These suppositions being made; and it being no longer any advantage to a woman to be married; merely for the sake of being married, why should any woman cling to the indissolubility of marriage, as if it could be for the good of one party that it should continue when the other party desires that it should be dissolved?

It is not denied by anyone, that there are numerous cases in which the happiness of both parties would be greatly promoted by a dissolution of marriage. We will add, that when the social position of the two sexes shall be perfectly equal, a divorce if it be for the happiness of either party, will be for the happiness of both. No one but a sensualist would desire to retain a merely animal connexion with a person of the other sex, unless perfectly assured of being preferred by that person, above all other persons in the world. This certainty never can be quite perfect under the law of marriage as it now exists: it would be nearly absolute, if the tie were merely voluntary.

Not only there are, but it is in vain to hope that there will not always be, innumerable cases, in which the first connexion formed will be one the dissolution of which if it could be, certainly would be, and ought to be, effected. It has long ago been remarked that of all the more serious acts of the life of a human being, there is not one which is commonly performed with so little of forethought or consideration, as that which is irrevocable, and which is fuller of evil than any other act of the being’s whole life if it turn out ill. And this is not so astonishing as it seems: The imprudence, while the contract remains indissoluble, consists in marrying at all: If you do marry, there is little wisdom shewn by a very anxious and careful deliberation beforehand. Marriage is really, what it has been sometimes called, a lottery; and whoever is in a state of mind to calculate the chances calmly and value them correctly, is not at all likely to purchase a ticket. Those who marry after taking great pains about the matter, generally do but buy their disappointment dearer. For the failures in marriage are such as are naturally incident to a first trial; the parties are inexperienced, and cannot judge. Nor does this evil seem to be remediable. A woman is allowed to give herself away for life, at an age at which she is not allowed to dispose of the most inconsiderable landed estate what then? if people are not to marry until they have learnt prudence, they will seldom marry Edition: current; Page: [46] before thirty: can this be expected, or is it to be desired? To direct the immature judgment, there is the advice of parents and guardians: a precious security! The only thing which a young girl can do, worse than marrying to please herself, is marrying to please any other person. However paradoxical it may sound to the ears of those who are reputed to have grown wise as wine grows good, by keeping, it is yet true, that A, an average person, can better know what is for his own happiness, than B, an average person, can know what is for A’s happiness. Fathers and mothers as the world is constituted, do not judge more wisely than sons and daughters; they only judge differently: and the judgments of both being of the ordinary strength, or rather of the ordinary weakness, a person’s own self has the advantage of a considerably greater number of data to judge from, and the further one of a stronger interest in the subject. Foolish people will say, that being interested in the subject is a disqualification; strange that they should not distinguish between being interested in a cause as a party before a judge, i.e., interested in deciding one way, right or wrong,—and being interested as a person is in the management of his own property, interested in deciding right. The parties themselves are only interested in doing what is most for their happiness; but their relatives may have all sorts of selfish interests to promote by inducing them to marry or not to marry.

The first choice, therefore, is made under very complicated disadvantages. By the fact of its being the first, the parties are necessarily inexperienced in the particular matter; they are commonly young (especially the party who is in greatest peril from a mistake) and therefore inexperienced in the knowledge and judgment of mankind and of themselves generally: and finally, they have seldom had so much as an opportunity afforded them, of gaining any real knowledge of each other, since in nine cases out of ten they have never been once in each other’s society completely unconstrained, or without consciously or unconsciously acting a part.

The chances therefore are many to one against the supposition that a person who requires, or is capable of, great happiness, will find that happiness in a first choice: and in a very large proportion of cases the first choice is such that if it cannot be recalled, it only embitters existence. The reasons, then, are most potent for allowing a subsequent change.

What there is to be said in favor of the indissolubility, superstition apart, resolves itself into this: that it is highly desirable that changes should not be frequent; and desirable that the first choice should be, even if not compulsorily, yet very generally, persevered in: That consequently we ought to beware lest in giving facilities for retracting a bad choice, we hold out greater encouragement than at present for making such a choice as there will probably be occasion to retract.

It is proper to state as strongly as possible the arguments which may be advanced in support of this view of the question.

Repeated trials for happiness, and repeated failures, have the most mischievous Edition: current; Page: [47] effect on all minds. The finer spirits are broken down, and disgusted with all things: their susceptibilities are deadened, or converted into sources of bitterness, and they lose the power of being ever contented. On the commoner natures the effects produced are not less deplorable. Not only is their capacity of happiness worn out, but their morality is depraved: all refinement and delicacy of character is extinguished; all sense of any peculiar duties or of any peculiar sacredness attaching to the relation between the sexes, is worn away; and such alliances come to be looked upon with the very same kind of feelings which are now connected with a passing intrigue.

Thus much as to the parties themselves, but besides the parties, there are also to be considered their children; beings who are wholly dependent both for happiness and for excellence upon their parents; and who in all but the extreme cases of actual profligacy, or perpetual bickering and disunion, must be better cared for in both points if their parents remain together.

So much importance is due to this last consideration, that I am convinced, if marriage were easily dissoluble, two persons of opposite sexes who unite their destinies would generally, if they were wise, think it their duty to avoid having children until they had lived together for a considerable length of time, and found in each other a happiness adequate to their aspirations. If this principle of morality were observed, how many of the difficulties of the subject we are considering would be smoothed down! To be jointly the parents of a human being, should be the very last pledge of the deepest, holiest, and most durable affection, for that is a tie which independently of convention, is indeed indissoluble: an additional and external tie, most precious where the souls are already indissolubly united, but simply burthensome while it appears possible to either that they should ever desire to separate.

It can hardly be anticipated, however, that such a course will be followed by any but by those who to the greatest loftiness and delicacy of feeling, unite the power of the most deliberate reflexion. If the feelings be obtuse, the force of these considerations will not be felt; and if the judgment be weak or hasty, whether from inherent defect or from inexperience, people will fancy themselves in love for their whole lives with a perfect being, when the case is far otherwise, and will suppose they risk nothing by creating a new relationship with that being, which can no longer be got rid of. It will therefore most commonly happen that when circumstances arise which induce the parents to separate, there will be children to suffer by the separation: nor do I see how this difficulty can be entirely got over, until the habits of society allow of a regulated community of living, among persons intimately acquainted, which would prevent the necessity of a total separation between the parents even when they had ceased to be connected by any nearer tie than mutual good will, and a common interest in their children.

There is yet another argument which may be urged against facility of divorce. It is this. Most persons have but a very moderate capacity of happiness; but no person Edition: current; Page: [48] ever finds this out without experience, very few even with experience: and most persons are constantly wreaking that discontent which has its source internally, upon outward things. Expecting therefore in marriage, a far greater degree of happiness than they commonly find; and knowing not that the fault is in their own scanty capabilities of happiness—they fancy they should have been happier with some one else: or at all events the disappointment becomes associated in their minds with the being in whom they had placed their hopes—and so they dislike one another for a time—and during that time they would feel inclined to separate: but if they remain united, the feeling of disappointment after a time goes off, and they pass their lives together with fully as much of happiness as they could find either singly or in any other union, without having undergone the wearing of repeated and unsuccessful experiments.

Such are the arguments for adhering to the indissolubility of the contract, and for such characters as compose the great majority of the human race, it is not deniable that these arguments have considerable weight.

That weight however is not so great as it appears. In all the above arguments it is tacitly assumed, that the choice lies between the absolute interdiction of divorce, and a state of things in which the parties would separate on the most passing feeling of dissatisfaction. Now this is not really the alternative. Were divorce ever so free, it would be resorted to under the same sense of moral responsibility and under the same restraints from opinion, as any other of the acts of our lives. In no state of society but one in which opinion sanctions almost promiscuous intercourse, (and in which therefore even the indissoluble bond is not practically regarded,) would it be otherwise than disreputable to either party, the woman especially, to change frequently, or on light grounds. My belief is, that in a tolerably moral state of society, the first choice would almost always, especially where it had produced children, be adhered to, unless in case of such uncongeniality of disposition as rendered it positively uncomfortable to one or both of the parties to live together, or in case of a strong passion conceived by one of them for a third person. Now in either of these cases I can conceive no argument strong enough to convince me, that the first connexion ought to be forcibly preserved.

I see not why opinion should not act with as great efficacy, to enforce the true rules of morality in this matter, as the false. Robert Owen’s definitions^* of chastity Edition: current; Page: [49] and prostitution, are quite as simple and take as firm a hold of the mind as the vulgar ones which connect the ideas of virtue and vice with the performance or non-performance of an arbitrary ceremonial.

The arguments, therefore, in favour of the indissolubility of marriage, are as nothing in comparison with the far more potent arguments for leaving this like the other relations voluntarily contracted by human beings, to depend for its continuance upon the wishes of the contracting parties. The strongest of all these arguments is that by no other means can the condition and character of women become what it ought to be.

When women were merely slaves, to give them a permanent hold upon their masters was a first step towards their elevation. That step is now complete: and in the progress of civilization, the time has come when women may aspire to something more than merely to find a protector. The condition of a single woman has ceased to be dangerous and precarious: the law, and general opinion, suffice without any more special guardianship, to shield her in ordinary circumstances from insult or injury: woman in short is no longer a mere property, but a person, who is counted not solely on her husband’s or father’s account but on her own. She is now ripe for equality. But it is absurd to talk of equality while marriage is an indissoluble tie. It was a change greatly for the better, from a state in which all the obligation was on the side of the weaker, all the rights on the side of the physically stronger, to even the present condition of an obligation nominally equal on both. But this nominal equality is not real equality. The stronger is always able to relieve himself wholly or in a great measure, from as much of the obligation as he finds burthensome: the weaker cannot. The husband can ill-use his wife, neglect her, and seek other women, not perhaps altogether with impunity, but what are the penalties which opinion imposes on him, compared with those which fall upon the wife who even with that provocation, retaliates upon her husband? It is true perhaps that if divorce were permitted, opinion would with like injustice, try the wife who resorted to that remedy, by a harder measure than the husband. But this would be of less consequence. Once separated she would be comparatively independent of opinion: but so long as she is forcibly united to one of those who make the opinion, she must to a great extent be its slave.

Austin’s Lectures on Jurisprudence

if we could anticipate early or brilliant success for this work, we should think more highly of the wisdom of the book-buying public than we fear there are grounds for. This is a reading age; and precisely because it is so reading an age, any book which is the result of profound meditation, is perhaps less likely to be duly and profitably read than at a former period. The world reads too much, and too quickly, to read well. When books were few, to get through one was a work of time and labour: what was written with thought was read with thought, and with a desire to extract from it as much of the materials of knowledge as possible. But when almost every person who can spell, can and will write, what is to be done? It is difficult to know what to read, except by reading every thing; and so much of the world’s business is now transacted through the press, that it is necessary to know what is printed if we desire to know what is going on Opinion weighs with so vast a weight in the balance of events, that ideas of no value in themselves, are of importance from the mere circumstance that they are ideas, and have a bona fide existence as such anywhere out of Bedlam. The world, in consequence, gorges itself with intellectual food of all qualities, and in order to swallow the more, bolts it. Nothing is now read slowly, or twice over. Books are run through with no less rapidity, and scarcely leave a more durable impression than a newspaper article. It is for this, among other causes, that so few books are produced of any value. The lioness in the fable boasted that though she produced only one at a birth, that one was a lion.^[*] But if each lion only counted for one, and each leveret for one, the advantage would all be on the side of the hare. When every unit is individually weak, it is only multitude that tells. Who wonders that the newspapers should carry all before them? A book produces no greater effect than an article, and there can be three hundred and sixty-five of these in one year. He, therefore, who should and would write a book, and write it in the proper manner of writing a book, now dashes down his first hasty thoughts, or what he mistakes for thoughts, in a periodical. And the public is in the predicament of an indolent man, who cannot bring himself to apply his mind vigorously to his own affairs, and over whom, Edition: current; Page: [54] therefore, not he who speaks most wisely, but he who speaks most frequently, obtains the influence.

At such a period, any person who once more gives to mankind a philosophical work, which he has conscientiously endeavoured to make as good as he could, by unsparing labour and meditation, make it, performs an act the more meritorious, as it is the less likely to meet with any reward; and if, like Mr. Austin, he is qualified for the more successful and profitable kinds of literary composition, yet deliberately prefers the more instructive, the greater is his deserving. There are passages in the volume before us, which shew that if the author chose, he could excel as a popular writer; and the mere clippings and parings of a work like this, would be material enough to be wrought up into more than one popular book. But Mr. Austin knows, that in order to make an impression upon careless, rapid, and impatient readers, it is necessary to avoid calling upon them for a vigorous effort of attention, and that without such an effort, no ideas can be imbibed but such as are loose and vague. And knowing that there are many persons who are competent to explain popularly, all that can be popularly explained; for one who can follow out a long train of thought, and conceive and express it at once with clearness and with precision, that the former may teach the people, but it belongs to the latter only to teach the teachers of the people; our author has chosen for himself the higher, and more difficult, though less conspicuous and less honoured part.

He has accordingly produced a work which requires to be read, in the antique sense of that term, not as we read a novel, but rather as men read for honours at the University. But the work will repay those who shall so read it. As all know who have ever really learnt any thing, real knowledge never comes by easy reading. Nobody ever set about learning Latin by running through the Latin Grammar. Mr. Austin’s work is part of the grammar of a science. As such, it is not a book for any but persons who are really anxious to learn; but to them, it is such a book as they delight in. The author’s style is a model of perspicuity: the concatenation of his propositions is free from all obscurity; and the reader will find no difficulty but that which is inseparable from the attempt to communicate precise ideas.

The volume consists of the preliminary lectures of a course delivered by Mr. Austin at the University of London, and which we had the good fortune of hearing. An outline of the entire course is annexed to the present publication.

We shall endeavour to give as sufficient a conception as can be given in a few words, of what our author understands by Jurisprudence, as distinguished from the philosophy of Legislation.

Both these sciences are conversant with laws; namely, laws in the strict sense, laws set to man by man, in the character of a political superior. But though the subject-matter of both sciences be the same, both do not look at it under the same aspect.

The philosophy of legislation is conversant with laws, as a contrivance for accomplishing certain ends. It considers what are the purposes of law; and judges Edition: current; Page: [55] of the means, according as they are well or ill adapted to the accomplishment of those purposes. It teaches the requisites of a good law; and what particular laws would be good or bad, either universally, or under any supposable set of circumstances.

Jurisprudence, on the other hand, does not take any direct cognizance of the goodness or badness of laws, nor undertake to weigh the motives which lead to their establishment: it assumes their existence as a fact, and treats of their nature and properties, as a naturalist treats of any natural phenomenon. It furnishes an analytical exposition, not indeed of any particular system of existing laws, but of what is common to all or most systems of law.

In the first place, the very notion of a law is an extremely complex idea: that of a body of laws, still more so. These ideas have to be analyzed. The component elements of a law, and of a body of laws, and the suppositions which they involve, must be precisely determined and cleared up. For instance, a law supposes a political superior from whom the law emanates: what is a political superior? All laws create obligations, and are clothed with sanctions; all laws (certain peculiar cases excepted) create rights, but what is meant by an obligation, a sanction, a right? Every body of laws recognises a distinction between civil law and criminal law, between private law and constitutional law: is there any rational foundation for these distinctions, and what is it?

Further, laws operate only by creating rights, and duties, or obligations. The rights and duties which the law of any country creates, are the law itself. Now these rights and duties fall so naturally into certain classes, form themselves so naturally into certain groups, that in all or almost all bodies of law, which men have tried to reduce into any thing like a systematic order, an effort has been made to grasp these very groups, and bind them together by appropriate technical terms. But the attempt has generally been a most lame and impotent one,^[*] partly for want of what may be called the coup d’oeil of a practised logician, which enables him, like an experienced general, to survey an entire field at once, and either comprehend an actual arrangement, or frame an imaginary one, without being bewildered by the multitude of details; and still more for want of mastery over the casual associations connected with familiar terms, and of the capacity to wield every word as a mere instrument to convey a thought; an instrument which may be taken up and laid down at pleasure. The classes which have been formed are not properly classes at all, for they are not separated by plain well-marked boundaries, but cross one another in all directions. It is impossible to define them, because no property can be found common to an entire class; or none but what may also be found in something that is absurdly left out of the class. Yet, as before observed, the authors of these unskilful classifications have always had indistinctly before their eyes Edition: current; Page: [56] certain natural groups, which they have been ineffectually attempting to hit, and to find some means of circumscribing within the bounds of a general expression. Hence, if we were to strip off from the arrangement and technical language of each system of law, whatever is purely accidental, and (as it may be termed) historical, having a reference solely to the peculiar history of the institutions of the particular people; if we were to take the remainder, and regularize and correct it according to its own general conception and spirit; we should bring the nomenclature and arrangement of all systems of law existing in any civilized society, to something very nearly identical.

Now the science of jurisprudence, as our author conceives it, endeavours to disentangle these natural groups (with which all classifications coincide in the gross, and none accurately) from the environment which surrounds them, of terms without any precise meaning, except perhaps a historical one, and distinctions answering to no difference, except, perhaps, one which has ceased to exist. The natural groups are thus brought into strong relief, a distinct conception is gained of their boundaries; and compact and precise names may be obtained to designate them by. When this is done, a commanding view may be taken of the detailed provisions of any existing body of law, the rights and duties which it establishes: they may be rendered cognoscible, as Mr. Bentham would say;^[*] a common framework is obtained, into the compartments of which all bodies of law may be distributed; and a systematic exposition might be given with comparative ease, either of one or of any number of legal systems, in parallel columns.

Thus prepared, the student of any existing system of law would no longer find it a mass of inextricable confusion; he would be enabled, in a comparatively short time, to obtain a far more perfect mastery of the system than was ever possessed by those who made it. An expository law book would then be so constructed as to be a lesson of clear ideas, instead of being almost enough to incapacitate the mind from ever forming one. And the legislator who would either reduce any existing body of laws into a code, or draw up an improved system, would reap two benefits. The whole of the rights and duties which past legislators have thought it desirable to create, would be brought compendiously under his view; and he would have an arrangement, and a technical language ready made, which would be an excellent basis for him to start from in framing his own. For though classification is not made by nature, but is wholly an affair of convenience, one most important part of the convenience of any classification is, that it shall coincide, as far as possible, with the mode in which the ideas have a natural tendency to arrange themselves.

Unfortunately, the science of jurisprudence as thus conceived, mostly remains still to be created. No person, however, is qualified to do more towards creating it Edition: current; Page: [57] than the author whose work is now before us. Whatever assistance is to be derived on the one hand from the Roman lawyers and their German successors; on the other, from our own immortal Bentham, he has thoroughly possessed himself of. And his course of lectures, if it were completed as it has been begun, would, we think, leave little for any successor in the same field. The present work, however, is merely an introduction; and even in his oral lectures, the Professor had not space to complete more than a small part of his intended scheme. There are portions, however, of what he has actually delivered (and which we hope may one day be published) still more instructive and interesting than what is here given.

The volume now published is occupied in “determining the province of jurisprudence,” by analyzing the notion of a law, in the strict sense of the term, namely, a law set by a political superior,—and discriminating it from whatever else has received the name of law; whereof our author distinguishes three kinds, namely, laws set to man by God, laws (analogically so called) which may be said to be prescribed by opinion; and laws so called only by metaphor, as when we speak of the law of gravitation.^[*]

These various notions are defined and discriminated from one another with rare logical power, and superiority over the trammels of language. In addition to this main object of the work, it abounds in valuable discussions on incidental topics. To mention only one of these discussions, (the largest, and most important,) that great question which has occupied so many of the most gifted minds, the foundation of moral obligation, and the nature of the standard or test of right and wrong, whether it be utility or an instinctive principle, forms the principal subject of no less than three lectures; being introduced under the head of the Divine Law, in the form of an inquiry, in what way the unrevealed portion of that law is made known to us.^[†] This investigation will be the most interesting part of the present volume to the general reader. Mr. Austin is a strong partisan of the doctrine which considers utility as the test or index to moral duty. Though he has stated some, he has omitted others of the essential explanations with which we think that this doctrine should be received; but he has treated the question in a most enlarged and comprehensive spirit, and in the loftiest tone of moral feeling, and has discussed certain branches of it in a manner which we have never seen equalled.

Valuable as this work is in the intrinsic merits of its contents, its greatest value, after all, is, we think, as a logical discipline to the mind. We hardly ever read a book which appears to us, if duly studied, to have so great a tendency to accustom the mind to habits of close and precise thinking, of using every word with a meaning, or meanings accurately settled, rigidly adhered to, and always present to the mind; of never leaving off with a half-solution of a doubt or difficulty, but sticking to it till nothing remains unexplained.

Mr. Austin’s style is more remarkable for clearness and precision than ease; but it is perfectly unaffected; and his language is the rich, expressive, homely English, of his favourite writers, Hobbes and Locke.

It would be injustice to our author to conclude this notice without affording him an opportunity of speaking for himself; but it would be still greater injustice to exhibit a mere fragment of a philosophic investigation, the merit of which must of course be mainly dependent upon its connected and systematic character. Our specimens must necessarily be selected from the merely parenthetical passages. The following may perhaps serve, as well as any others, to give a conception of our author’s general turn of thought and expression.

The first passage that we shall quote is a Pisgah view^[*] of the future improvement of the moral sciences:

We had marked several passages for quotation: but space presses, and we must conclude with the following estimate of Dr. Paley:

Reform in Education

in a recent number we briefly announced the appearance of this important document in an English form.^[*] We now return to it, because the reception of Mr. Roebuck’s motion by the House of Commons,^[†] and the appointment of a committee to consider the subject of national education,^[‡] are tokens, among many others, that the present is an auspicious moment for inviting the attention of the English public to that highest and most important of all the objects which a government can place before itself, and to the great things which have been accomplished by another nation in the prosecution of that object.

The value of M. Cousin’s Report does not consist in the details, though without the details it would be comparatively of little interest. It throws no new or unexpected light upon the means of educating a people; it simply enables us to realize the fact that a government exists virtuous enough to will the end. The machinery is no other than that which common sense suggests, and would suggest to any government animated by the same spirit. Schools for all,^[§] without distinction of sect, and without imposing upon any sect the creed or observances of another, the superintendence shared between a Minister of Public Instruction, and local committees of a most democratic constitution, (a fact perfectly accordant with the spirit of the Prussian government, whose municipal institutions are among the freest in Europe;) and finally, that without which the remainder of the system would be of little value, schools for teachers.^[¶] In all this there is nothing intricate or recondite; what is memorable is not the conception, but that it has found hands to execute it: that the thing is actually done, done within two days’ journey of our own shores, done throughout a great country, and by a government unrivalled in the art of doing well whatever it does at all, because surpassing all other Edition: current; Page: [64] governments in the systematic choice, for whatever it wishes done, of the persons fittest for doing it.

The spirit which has accomplished this, with us is still to be created; and in the hope of contributing to the creation of such a spirit, Mrs. Austin has employed herself in rendering M. Cousin’s Report accessible to the English reader.

The preface, from which the above is an extract, well deserves to be separately printed and widely circulated; by the force and conclusiveness with which it combats the shallow opinions and groundless feelings which oppose themselves in this country to a national education, and by the happy union which it exhibits of an earnest spirit and a conciliatory and engaging tone.

If, as from a speech of the Lord Chancellor a year ago^[*] we might suppose to be his opinion, it were enough that schools exist, and it mattered not what they teach, or in what method they teach it, we might in this country expect to see all the ends of a national education speedily attained with little assistance from government.

The £20,000 granted by Parliament last year for building schoolhouses called forth private contributions of nearly treble the amount. Independently of all this, we have the immense endowments which the charity commissioners have brought to light, and proved to have been for generations embezzled and wasted. As far, therefore, as quantity of teaching is concerned, the education of our people is, or will speedily be, amply provided for. It is the quality which so grievously demands the amending hand of government. And this is the demand which is principally in danger of being obstructed by popular apathy and ignorance. The very first condition of improvement is not yet realized; the public are not sufficiently Edition: current; Page: [65] discontented. They are not yet alive to the bad quality of the existing tuition. The very people who furnish so vast an annual sum for the maintenance of schools, often oppose themselves to the wish of their own schoolmasters to give valuable instruction. With many of these patrons of education, whose support Lord Brougham fears will be withdrawn if a state provision be made for education,^[*] the constant alarm is, not lest too little, but lest too much, should be taught. And even where the state of their inclinations is unexceptionable, can we expect any judgment or intelligence in providing education for their inferiors in the scale of society, from people who allow the places of education for their own children to be in the wretched state in which we find almost all the schools for the higher and middle classes of England? Are not those schools, and the influence which parents exercise over them, correctly described in the following passage:

To quote another author:

What wonder, then, if they who so ill provide for what most nearly concerns themselves, should be the wretchedest purveyors for the wants of others? What wonder that, as Sir William Molesworth affirmed in his speech on seconding Mr. Roebuck’s motion,

“The schoolmaster,” (says the Cornish paper from which we take our report of Edition: current; Page: [67] this excellent speech,) “the schoolmaster may be abroad,^* but it is in quest of his daily bread, which he earns hardly and ungratefully,” and with as little thought and as little labour to himself as possible.

Well was it said by Sir W. Molesworth, that,

Such should be the main object of the committee recently appointed by the House of Commons: and a committee being essentially an unfit instrument for conducting inquiries which must be protracted far beyond the duration of the session, and for collecting from all parts of the country evidence much of which can be obtained only on the spot, the best proof which the committee could afford of wisdom and zeal in the cause, would be to follow the example of the committee on municipal corporations, and recommend an address to the king for the appointment of a commission, to inquire into the quality of the existing popular education in all its branches.^[†]

The sort of facts which such an inquiry would elicit, may be judged by the passages we are about to quote from a series of Lectures on Christian Education, delivered in 1829 and published in 1830, by Dr. Biber; a man of remarkable powers and attainments, and a most unexceptionable witness to the narrowing and perverting tendency of the religious instruction pretended to be given at our schools; as his own religious sentiments are most fervent, and his hostility to latitudinarianism in religion touches the verge of intolerance.

Of the Church-of-England, or self-styled National, schools:

Of the Lancasterian schools:

Lastly, of the infant schools: and this is the most frightful perversion of all. That any kind of technical instruction should, in vulgar and unintelligent hands, degenerate into mechanical routine, is less wonderful: but that an institution designed for moral culture only—a place where the child learned nothing, in the Edition: current; Page: [71] vulgar sense of learning, but only learned to live; that places designed exclusively for the cultivation of the kindly affections, should by dulness, hardness, and miserable vanity, be converted into places for parroting gibberish; this is a more wretched example than any other, of the state of mind of the people who subscribe the 1,200,000l. which Lord Brougham is afraid they should prefer to keep in their pockets if more rational views of education were substituted for their own.^[*]

We can add nothing to this. Surely every member of the committee of the House of Commons who reads it, will be eager to make the labours of that committee instrumental to the reform of such abominations.

We conclude in the words of the same author, with the following general summary, every word of which accords with all our own information.

On Punishment

the free and bold spirit of inquiry, and the benevolence of heart, which breathe through this little tract, and which are characteristic of the supposed writer, render his speculations on the now hacknied subject of penal law, deserving of an attention, which the degree of truth or of practical applicability which they possess, would not of itself have entitled them to. The author, in fact, deals with punishment as Mr. Owen deals with the institution of private property. He makes out a case of manifest hardship and cruelty against the one, as Mr. Owen does against the other, and with as little difficulty, for the materials are ample; and like Mr. Owen, he helps out his case by including in his enumeration not only the evils inseparable from the institution itself, but all those which are actually attendant on it in its present form, however easily remediable. He then gravely proposes that punishment should be abolished, and the prevention of crime attempted by other means; as one might conceive a philanthropist enlarging upon the nauseousness of medicine, its injurious effects upon the constitution, the hardship of administering it to persons who are ill and helpless and not their own masters, and concluding that medicine be abolished, and that mankind should endeavour to preserve their health in some other manner.

The author’s substitute for punishment is itself a punishment, though one of the mildest kind. He proposes that those who are convicted of offences, whether of the slightest or of the gravest description, should be no otherwise ill-treated than by being compelled to live as a community apart, in a portion of the country specially allotted to them, in which they should have the same opportunities of gaining their livelihood as the rest of the the community, and from which they should be liberated on proof of continued good conduct. Within this district there should be a smaller enclosure, to which those should be again banished who have violated the laws of the criminal community to which they were first relegated; and within this second a third, in which again, as the last resort, there should be a prison. But no one is to be incarcerated in this prison without having the alternative offered to him of going into perpetual exile.

In the subordinate arrangements there is some good sense and much ingenuity, and as one among many systems of reformatory discipline, the plan of our author seems worthy to be tried by way of experiment upon the less corrupted of the persons convicted of minor offences. But as a plan of systematic treatment for all Edition: current; Page: [78] offenders, to be adopted in lieu of every other punishment, it would be a more utter failure than the worst of the penal systems, for it would fail to deter from crime. On whom would the penalty of temporary banishment from the society of the honest, operate as a sufficient motive to restrain from the violation of the laws? Upon the honest; upon those who are already sufficiently restrained by their own disposition, or by the opinion of one another. All who required restraint, would find this restraint inefficacious; and if all who, in any manner violated the laws, were removed into such a place of reformation, the inhabitants of the reformatory would speedily outnumber the remainder of the community, and would become themselves the rulers of the country.

Even this consequence were it admitted by the author, would not, perhaps, decide the question in his mind; for he considers the infliction of punishment for the purpose of prevention, as in itself an immorality and an injustice.

“To punish one man,” says he, “in order that some other unknown person may be deterred from the commission of crime, is an iniquitous practice, and cannot be justified even if its consequences, so far as the public is affected by the exhibition, were beneficial in ever so great a degree, and could be calculated upon with certainty.” [P. 72.]

He calls the infliction of punishment “for example’s sake,” a debasing practice: and expresses his “earnest wishes that so wicked a principle may never again be adopted as the motive and guide by which the high and mighty may rule their low and erring brethren.” (P. 73.)

Here is much good indignation thrown away on an occasion, when there is nothing to call for it but a form of words. You do not punish one person in order that another may be deterred. The other is deterred, not by the punishment of the first, but by the expectation of being punished himself: and as the punishment you threaten him with, would have no effect upon his conduct, unless he believed that it would really be inflicted, you are obliged to prove the reality of your intention, by keeping your word whenever either he, or any other person, disregards your prohibition. This is no injustice to the sufferer, because he, too, has been warned beforehand; unless indeed, not the punishment merely, but the law itself, be unjust, and an improper restriction upon his freedom. If the acts which the law prohibits, were such as he had no right to do, and if he had full warning of all the consequences to which he would subject himself by violating it, he has no ground of complaint that its full penalties are inflicted, not to deter others, but in order that what really deters others, the threat of punishment to themselves, may not be an idle mockery.

Our author’s objection is only valid against either ex post facto laws, or laws which are in themselves unjust, independently of the means by which they are enforced. In all other cases the offender himself, and not the legislator, is responsible for the evil which falls upon him by his voluntary breach of a just law.

We may add, that if the principles laid down by our author constitute a valid Edition: current; Page: [79] objection to the existing notions of punishment, they apply with exactly the same force to his own system of banishment to a particular place. If what he acknowledges to be “the fundamental principle that should govern the criminal code of every enlightened state, viz. protection of person and property,” (p. 23,) will justify the infliction of the smallest atom of pain upon offenders, it will justify the infliction of any amount necessary for the end; unless such as would outweigh all the benefits of which the security of person or property is the cause. The only right by which society is warranted in inflicting any pain upon any human creature, is the right of self-defence; and if this will justify it in interfering with the natural liberty of its offending members, by the degree of coercion implied in removing them to the reformatory and keeping them there, it will warrant any greater degree of coercion which may be found necessary to protect the innocent part of the community against their encroachments. On any other principle, instead of relegating offenders to a particular part of the country, or tendering to them the alternative of voluntary exile, the utmost rights of honest people would extend no further than to remove out of harm’s way, by going into exile themselves. But this is surely being scrupulous in the wrong place. If we were attacked by robbers or savages, and in danger of our lives, no one ever questioned our right to defend ourselves even to the death of the assailant; and we cannot conceive a greater piece of inconsistency than, admitting this, to deny us the liberty of declaring beforehand to all robbers, that if they attack us we will put them to death. No doubt if we can protect ourselves as effectually with less evil to them, it is our duty to do so; and we ought to try the experiment in all ways which afford a chance of success, before we give it up as hopeless. But our right to punish, is a branch of the universal right of self-defence, and it is a mere subtlety to set up any distinction between them.

Some of the author’s minor suggestions are well deserving of the attention of an enlightened legislature. We would notice in particular [p. 95] his idea of restraining juvenile delinquency by holding the parents legally responsible instead of the children.

Smith on Law Reform

this is such a pamphlet as we have long wished to see. The question of Law Reform has usually either been treated bit by bit, on the principle of suggesting no more at once than could be carried at once, or it has been kept so completely in generalibus that although the existing system might be shown to be bad, it seemed as if nothing could be done to amend it except by beginning from the foundations and reconstructing the whole fabric. There was wanted a writer who, with the requisite knowledge of the existing law, but with the capacity also of distinguishing principles of universal legislation from the technicalities of a conventional system, should review the whole of our jurisprudence, and examine how much of the absurdity which disfigures, and the complication which embarrasses it, is capable of being removed in that piecemeal mode in which parliament legislates, and in a country like ours, or, at least, in the present state of general opinion, must legislate.

Mr. Smith has attempted a portion of this task, and has executed it with a high degree of merit. He thoroughly understands his subject, he has the art of popular and lively exposition, and on the whole we know not any work where in so small a compass so great a number of important law reforms, practicable at the present moment, are pointed out, and the expediency of them so briefly and forcibly, and at the same time popularly demonstrated. The defects upon which he chiefly animadverts are some of the peculiarities of the system of pleading; some of the exclusionary rules of evidence; the doctrine of feudal tenures, which, although now a mere mass of fiction, still continues to encumber, by the technical consequences which it involves, the whole of our law of real property, and the fact that three different and conflicting systems of law, administered by three sets of courts, (common law, equity, and ecclesiastical,) co-exist, insomuch that the very same property would often be assigned by these different systems to different persons; and the unseemly spectacle is exhibited of one court giving relief, as it is called, from the disposition of property which would be lawfully and regularly made by another. The practical mischiefs of a most serious kind, arising from these defects in our legal system, are pointed out in a masterly manner by Mr. Smith. The following passage may convey an idea of his style:

The Negro Question^*

Your last month’s Number contains a speech against the “rights of Negroes,”^[*] the doctrines and spirit of which ought not to pass without remonstrance. The author issues his opinions, or rather ordinances, under imposing auspices, no less than those of the “immortal gods.” [P. 675.] “The Powers,” “the Destinies,” announce through him, not only what will be, but what shall be done; what they “have decided upon, passed their eternal act of parliament for.” [Ibid.] This is speaking “as one having authority;”^[†] but authority from whom? If by the quality of the message we may judge of those who sent it, not from any powers to whom just or good men acknowledge allegiance. This so-called “eternal Act of Parliament” is no new law, but the old law of the strongest,—a law against which the great teachers of mankind have in all ages protested:—it is the law of force and cunning; the law that whoever is more powerful than another, is “born lord” of that other, the other being born his “servant,” [pp. 676-7,] who must be “compelled to work” for him by “beneficent whip,” if “other methods avail not.” [P. 675.] I see nothing divine in this injunction. If “the gods” [ibid.] will this, it is the first duty of human beings to resist such gods. Omnipotent these “gods” are not, for powers which demand human tyranny and injustice cannot accomplish their purpose unless human beings co-operate. The history of human improvement is the record of a struggle by which inch after inch of ground has been wrung from these maleficent powers, and more and more of human life rescued from the iniquitous dominion of the law of might. Much, very much of this work still remains to do, but the progress made in it is the best and greatest achievement yet performed by mankind, and it was hardly to be expected at this period of the world that we should be enjoined, by way of a great reform in human affairs, to begin undoing it.

The age, it appears, is ill with a most pernicious disease, which infects all its proceedings, and of which the conduct of this country in regard to the Negroes is a Edition: current; Page: [88] prominent symptom—the Disease of Philanthropy. “Sunk in deep froth-oceans of Benevolence, Fraternity, Emancipation-principle, Christian Philanthropy, and other most amiable-looking, but most baseless, and, in the end, baleful and all-bewildering jargon,” the product of “hearts left destitute of any earnest guidance, and disbelieving that there ever was any, Christian or heathen,” the “human species” is “reduced to believe in rose-pink sentimentalism alone.” [P. 671.] On this alleged condition of the human species I shall have something to say presently. But I must first set my anti-philanthropic opponent right on a matter of fact. He entirely misunderstands the great national revolt of the conscience of this country against slavery and the slave-trade, if he supposes it to have been an affair of sentiment. It depended no more on humane feelings than any cause which so irresistibly appealed to them must necessarily do. Its first victories were gained while the lash yet ruled uncontested in the barrack-yard and the rod in schools, and while men were still hanged by dozens for stealing to the value of forty shillings. It triumphed because it was the cause of justice; and, in the estimation of the great majority of its supporters, of religion. Its originators and leaders were persons of a stern sense of moral obligation, who, in the spirit of the religion of their time, seldom spoke much of benevolence and philanthropy, but often of duty, crime, and sin. For nearly two centuries had negroes, many thousands annually, been seized by force or treachery and carried off to the West Indies to be worked to death, literally to death; for it was the received maxim, the acknowledged dictate of good economy, to wear them out quickly and import more. In this fact every other possible cruelty, tyranny, and wanton oppression was by implication included. And the motive on the part of the slave-owners was the love of gold; or, to speak more truly, of vulgar and puerile ostentation. I have yet to learn that anything more detestable than this has been done by human beings towards human beings in any part of the earth. It is a mockery to talk of comparing it with Ireland. [P. 672.] And this went on, not, like Irish beggary, because England had not the skill to prevent it,—not merely by the sufferance, but by the laws of the English nation. At last, however, there were found men, in growing number, who determined not to rest until the iniquity was extirpated; who made the destruction of it as much the business and end of their lives, as ordinary men make their private interests; who would not be content with softening its hideous features, and making it less intolerable to the sight, but would stop at nothing short of its utter and irrevocable extinction. I am so far from seeing anything contemptible in this resolution, that, in my sober opinion, the persons who formed and executed it deserve to be numbered among those, not numerous in any age, who have led noble lives according to their lights, and laid on mankind a debt of permanent gratitude.

After fifty years of toil and sacrifice, the object was accomplished, and the negroes, freed from the despotism of their fellow-beings, were left to themselves, and to the chances which the arrangements of existing society provide for those Edition: current; Page: [89] who have no resource but their labour. These chances proved favourable to them, and, for the last ten years, they afford the unusual spectacle of a labouring class whose labour bears so high a price that they can exist in comfort on the wages of a comparatively small quantity of work. This, to the ex-slave-owners, is an inconvenience; but I have not yet heard that any of them has been reduced to beg his bread, or even to dig for it, as the negro, however scandalously he enjoys himself, still must: a carriage or some other luxury the less, is in most cases, I believe, the limit of their privations—no very hard measure of retributive justice, those who have had tyrannical power taken away from them, may think themselves fortunate if they come so well off; at all events, it is an embarrassment out of which the nation is not called on to help them: if they cannot continue to realize their large incomes without more labourers, let them find them, and bring them from where they can best be procured, only not by force. Not so thinks your anti-philanthropic contributor. That negroes should exist, and enjoy existence, on so little work, is a scandal in his eyes, worse than their former slavery. It must be put a stop to at any price. He does not “wish to see” them slaves again “if it can be avoided;” but “decidedly” they “will have to be servants,” “servants to the whites,” [p. 667,] “compelled to labour,” and “not to go idle another minute.” [P. 674.] “Black Quashee,” [p. 674,] “up to the ears in pumpkins,” [p. 671,] and “working about half an hour a day,” [p. 672,] is to him the abomination of abominations. I have so serious a quarrel with him about principles, that I have no time to spare for his facts; but let me remark, how easily he takes for granted those which fit his case. Because he reads in some blue-book of a strike for wages in Demerara,^[*] such as he may read of any day in Manchester, he draws a picture of negro inactivity, copied from the wildest prophecies of the slavery party before emancipation. If the negroes worked no more than “half an hour a day,” would the sugar crops, in all except notoriously bad seasons, be so considerable, so little diminished from what they were in the time of slavery, as is proved by the Customhouse returns?^[†] But it is not the facts of the question, so much as the moralities of it, that I care to dispute with your contributor.

A black man working no more than your contributor affirms that they work, is, he says, “an eye-sorrow,” a “blister on the skin of the state,” [p. 676,] and many other things equally disagreeable; to work being the grand duty of man. “To do competent work, to labour honestly according to the ability given them; for that, and for no other purpose, was each one of us sent into this world.” Whoever prevents him from this his “sacred appointment to labour while he lives on earth” is “his deadliest enemy.” If it be “his own indolence” that prevents him, “the first Edition: current; Page: [90] right he has” is that all wiser and more industrious persons shall, “by some wise means, compel him to do the work he is fit for.” [P. 673.] Why not at once say that, by “some wise means,” every thing should be made right in the world? While we are about it, wisdom may as well be suggested as the remedy for all evils, as for one only. Your contributor incessantly prays Heaven that all persons, black and white, may be put in possession of this “divine right of being compelled, if permitted will not serve, to do what work they are appointed for.” [P. 674.] But as this cannot be conveniently managed just yet, he will begin with the blacks, and ^awill^a make them work for certain whites, those whites not working at all; that so “the eternal purpose and supreme will” [ibid.] may be fulfilled, and “injustice,” which is “for ever accursed,” may cease. [P. 676.]

This pet theory of your contributor about work, we all know well enough, though some persons might not be prepared for so bold an application of it. Let me say a few words on this “gospel of work”^[*]—which, to my mind, as justly deserves the name of a cant as any of those which he has opposed, while the truth it contains is immeasurably farther from being the whole truth than that contained in the words Benevolence, Fraternity, or any other of his catalogue of contemptibilities. To give it a rational meaning, it must first be known what he means by work. Does work mean every thing which people do? No; or he would not reproach people with doing no work. Does it mean laborious exertion? No; for many a day spent in killing game, includes more muscular fatigue than a day’s ploughing. Does it mean useful exertion? But your contributor always scoffs at the idea of utility.^[†] Does he mean that all persons ought to earn their living? But some earn their living by doing nothing, and some by doing mischief; and the negroes, whom he despises, still do earn by labour the “pumpkins” they consume and the finery they wear.

Work, I imagine, is not a good in itself. There is nothing laudable in work for work’s sake. To work voluntarily for a worthy object is laudable; but what constitutes a worthy object? On this matter, the oracle of which your contributor is the prophet has never yet been prevailed on to declare itself. He revolves in an eternal circle round the idea of work, as if turning up the earth, or driving a shuttle or a quill, were ends in themselves, and the ends of human existence. Yet, even in the case of the most sublime service to humanity, it is not because it is work that it is worthy; the worth lies in the service itself, and in the will to render it—the noble feelings of which it is the fruit; and if the nobleness of will is proved by other evidence than work, as for instance by danger or sacrifice, there is the same Edition: current; Page: [91] worthiness. While we talk only of work, and not of its object, we are far from the root of the matter; or if it may be called the root, it is a root without flower or fruit.

In the present case, it seems, a noble object means “spices.” “The gods wish, besides pumpkins, that spices and valuable products be grown in their West Indies”—the “noble elements of cinnamon, sugar, coffee, pepper black and grey,” “things far nobler than pumpkins.” [Pp. 674-5.] Why so? Is what supports life, inferior in dignity to what merely gratifies the sense of taste? Is it the verdict of the “immortal gods” that pepper is noble, freedom (even freedom from the lash) contemptible? But spices lead “towards commerces, arts, polities, and social developements.” [P. 674.] Perhaps so; but of what sort? When they must be produced by slaves, the “polities and social developements” they lead to are such as the world, I hope, will not choose to be cursed with much longer.

The worth of work does not surely consist in its leading to other work, and so on to work upon work without end. On the contrary, the multiplication of work, for purposes not worth caring about, is one of the evils of our present condition. When justice and reason shall be the rule of human affairs, one of the first things to which we may expect them to be applied is the question, How many of the so-called luxuries, conveniences, refinements, and ornaments of life, are worth the labour which must be undergone as the condition of producing them? The beautifying of existence is as worthy and useful an object as the sustaining of it; but only a vitiated taste can see any such result in those fopperies of so-called civilization, which myriads of hands are now occupied and lives wasted in providing. In opposition to the “gospel of work,” I would assert the gospel of leisure, and maintain that human beings cannot rise to the finer attributes of their nature compatibly with a life filled with labour. I do not include under the name labour such work, if work it be called, as is done by writers and afforders of “guidance,” an occupation which, let alone the vanity of the thing, cannot be called by the same name with the real labour, the exhausting, stiffening, stupefying toil of many kinds of agricultural and manufacturing labourers. To reduce very greatly the quantity of work required to carry on existence, is as needful as to distribute it more equally; and the progress of science, and the increasing ascendancy of justice and good sense, tend to this result.

There is a portion of work rendered necessary by the fact of each person’s existence: no one could exist unless work, to a certain amount, were done either by or for him. Of this each person is bound, in justice, to perform his share; and society has an incontestable right to declare to every one, that if he work not, at this work of necessity, neither shall he eat. Society has not enforced this right, having in so far postponed the rule of justice to other considerations. But there is an ever-growing demand that it be enforced, so soon as any endurable plan can be devised for the purpose. If this experiment is to be tried in the West Indies, let it be tried impartially; and let the whole produce belong to those who do the work which produces it. We would not have black labourers compelled to grow spices which Edition: current; Page: [92] they do not want, and white proprietors who do not work at all exchanging the spices for houses in Belgrave Square. We would not withhold from the whites, any more than from the blacks, the “divine right” of being compelled to labour. [P. 674.] Let them have exactly the same share in the produce that they have in the work. If they do not like this, let them remain as they are, so long as they are permitted, and make the best of supply and demand.

Your contributor’s notions of justice and proprietary right are of another kind than these. Acording to him, the whole West Indies belong to the whites: the negroes have no claim there, to either land or food, but by their sufferance. “It was not Black Quashee, or those he represents, that made those West India islands what they are.” [Ibid.] I submit, that those who furnished the thews and sinews^[*] really had something to do with the matter. “Under the soil of Jamaica the bones of many thousand British men”—“brave Colonel Fortescue, brave Colonel Sedgwick, brave Colonel Brayne,” and divers others, “had to be laid.” [P. 676.] How many hundred thousand African men laid their bones there, after having had their lives pressed out by slow or fierce torture? They could have better done without Colonel Fortescue, than Colonel Fortescue could have done without them. But he was the stronger, and could “compel;” what they did [p. 674] and suffered therefore goes for nothing. Not only they did not, but it seems they could not have cultivated those islands. “Never by art of his” (the negro) “could one pumpkin have grown there to solace any human throat.” [P. 675.] They grow pumpkins, however, and more than pumpkins, in a very similar country, their native Africa. We are told to look at Haiti: what does your contributor know of Haiti? “Little or no sugar growing, black Peter exterminating black Paul, and where a garden of the Hesperides might be, nothing but a tropical dog-kennel and pestiferous jungle.” [Ibid.] Are we to listen to arguments grounded on hearsays like these? In what is black Haiti worse than white Mexico? If the truth were known, how much worse is it than white Spain?

But the great ethical doctrine of the Discourse, than which a doctrine more damnable, I should think, never was propounded by a professed moral reformer, is, that one kind of human beings are born servants to another kind. “You will have to be servants,” he tells the negroes, “to those that are born wiser than you, that are born lords of you—servants to the whites, if they are (as what mortal can doubt that they are?) born wiser than you.” [Pp. 676-7.] I do not hold him to the absurd letter of his dictum; it belongs to the mannerism in which he is enthralled like a child in swaddling clothes. By “born wiser,” I ^bwill^b suppose him to mean, born more capable of wisdom: a proposition which, he says, no mortal can doubt, but which I will make bold to say, that a full moiety of all thinking persons, who have attended Edition: current; Page: [93] to the subject, either doubt or positively deny. Among the things for which your contributor professes entire disrespect, is the analytical examination of human nature. It is by analytical examination that we have learned whatever we know of the laws of external nature; and if he had not disdained to apply the same mode of investigation to the laws of the formation of character, he would have escaped the vulgar error of imputing every difference which he finds among human beings to an original difference of nature. As well might it be said, that of two trees, sprung from the same stock, one cannot be taller than another but from greater vigour in the original seedling. Is nothing to be attributed to soil, nothing to climate, nothing to difference of exposure—has no storm swept over the one and not the other, no lightning scathed it, no beast browsed on it, no insects preyed on it, no passing stranger stript off its leaves or its bark? If the trees grew near together, may not the one which, by whatever accident, grew up first, have retarded the other’s developement by its shade? Human beings are subject to an infinitely greater variety of accidents and external influences than trees, and have infinitely more operation in impairing the growth of one another, since those who begin by being strongest, have almost always hitherto used their strength to keep the others weak. What the original differences are among human beings, I know no more than your contributor, and no less; it is one of the questions not yet satisfactorily answered in the natural history of the species. This, however, is well known—that spontaneous improvement, beyond a very low grade,—improvement by internal developement, without aid from other individuals or peoples—is one of the rarest phenomena in history; and whenever known to have occurred, was the result of an extraordinary combination of advantages; in addition doubtless to many accidents of which all trace is now lost. No argument against the capacity of negroes for improvement, could be drawn from their not being one of these rare exceptions. It is curious withal, that the earliest known civilization was, we have the strongest reason to believe, a negro civilization. The original Egyptians are inferred, from the evidence of their sculptures, to have been a negro race: it was from negroes, therefore, that the Greeks learnt their first lessons in civilization; and to the records and traditions of these negroes did the Greek philosophers to the very end of their career resort (I do not say with much fruit) as a treasury of mysterious wisdom. But I again renounce all advantage from facts: were the whites born ever so superior in intelligence to the blacks, and competent by nature to instruct and advise them, it would not be the less monstrous to assert that they had therefore a right either to subdue them by force, or circumvent them by superior skill, to throw upon them the toils and hardships of life, reserving for themselves, under the misapplied name of work, its agreeable excitements.

Were I to point out, even in the briefest terms, every vulnerable point in your contributor’s Discourse, I should produce a longer dissertation than his. One instance more must suffice. If labour is wanted, it is a very obvious idea to import labourers; and if negroes are best suited to the climate, to import negroes. This is a Edition: current; Page: [94] mode of adjusting the balance between work and labourers, quite in accordance with received principles: it is neither before nor behind the existing moralities of the world: and since it would accomplish the object of making the negroes work more, your contributor at least, it might have been supposed, would have approved of it. On the contrary, this prospect is to him the most dismal of all; for either “the new Africans, after labouring a little,” will “take to pumpkins like the others,” or if so many of them come that they will be obliged to work for their living, there will be “a black Ireland.” [P. 672.] The labour market admits of three possibile conditions, and not, as this would imply, of only two. Either, first, the labourers can live almost without working, which is said to be the case in Demerara; or, secondly, which is the common case, they can live by working, but must work in order to live; or, thirdly, they cannot by working get a sufficient living, which is the case in Ireland. Your contributor sees only the extreme cases, but no possibility of the medium. If Africans are imported, he thinks there must either be so few of them, that they will not need to work, or so many, that although they work, they will not be able to live.

Let me say a few words on the general quarrel of your contributor with the present age. Every age has its faults, and is indebted to those who point them out. Our own age needs this service as much as others; but it is not to be concluded that it has degenerated from former ages, because its faults are different. We must beware, too, of mistaking its virtues for faults, merely because, as is inevitable, its faults mingle with its virtues and colour them. Your contributor thinks that the age has too much humanity, is too anxious to abolish pain. I affirm, on the contrary, that it has too little humanity—is most culpably indifferent to the subject: and I point to any day’s police reports as the proof. I am not now accusing the brutal portion of the population, but the humane portion; if they were humane enough, they would have contrived long ago to prevent ^cthese^c daily atrocities. It is not by excess of a good quality that the age is in fault, but by deficiency—deficiency even of philanthropy, and still more of other qualities wherewith to balance and direct what philanthropy it has. An “Universal Abolition of Pain Association” [p. 670] may serve to point a sarcasm, but can any worthier object of endeavour be pointed out than that of diminishing pain? Is the labour which ends in growing spices noble, and not that which lessens the mass of suffering? We are told [p. 675], with a triumphant air, as if it were a thing to be glad of, that “the Destinies” proceed in a “terrible manner;” and this manner will not cease “for soft sawder or philanthropic stump-oratory;” but whatever the means may be, it has ceased in no inconsiderable degree, and is ceasing more and more: every year the “terrible manner,” in some department or other, is made a little less terrible. Is our cholera comparable to the old pestilence—our hospitals to the old lazar-houses—our workhouses to the hanging of vagrants—our prisons to those visited by Howard? It is precisely Edition: current; Page: [95] because we have succeeded in abolishing so much pain, because pain and its infliction are no longer familiar as our daily bread, that we are so much more shocked by what remains of it than our ancestors were, or than in your contributor’s opinion we ought to be.

But (however it be with pain in general) the abolition of the infliction of pain by the mere will of a human being, the abolition, in short, of despotism, seems to be, in a peculiar degree, the occupation of this age; and it would be difficult to shew that any age had undertaken a worthier. Though we cannot extirpate all pain, we can, if we are sufficiently determined upon it, abolish all tyranny, one of the greatest victories yet gained over that enemy is slave-emancipation, and all Europe is struggling, with various success, towards further conquests over it. If, in the pursuit of this, we lose sight of any object equally important; if we forget that freedom is not the only thing necessary for human beings, let us be thankful to any one who points out what is wanting; but let us not consent to turn back.

That this country should turn back, in the matter of negro slavery, I have not the smallest apprehension. There is, however, another place where that tyranny still flourishes, but now for the first time finds itself seriously in danger. At this crisis of American slavery, when the decisive conflict between right and iniquity seems about to commence, your contributor steps in, and flings this missile, loaded with the weight of his reputation, into the abolitionist camp. The words of English writers of celebrity are words of power on the other side of the ocean: and the owners of human flesh, who probably thought they had not an honest man on their side between the Atlantic and the Vistula, will welcome such an auxiliary. Circulated as his dissertation will probably be, by those whose interests profit by it, from one end of the American Union to the other, I hardly know of an act by which one person could have done so much mischief as this may possibly do, and I hold that by thus acting, he has made himself an instrument of what an able writer in the Inquirer justly calls “a true work of the devil.”^[*]

Statement on Marriage

being about, if I am so happy as to obtain her consent, to enter into the marriage relation with the only woman I have ever known, with whom I would have entered into that state; and the whole character of the marriage relation as constituted by law being such as both she and I entirely and conscientiously disapprove, for this among other reasons, that it confers upon one of the parties to the contract, legal power and control over the person, property, and freedom of action of the other party, independent of her own wishes and will; I, having no means of legally divesting myself of these odious powers (as I most assuredly would do if an engagement to that effect could be made legally binding on me), feel it my duty to put on record a formal protest against the existing law of marriage, in so far as conferring such powers; and a solemn promise never in any case or under any circumstances to use them. And in the event of marriage between Mrs. Taylor and me I declare it to be my will and intention, and the condition of the engagement between us, that she retains in all respects whatever the same absolute freedom of action, and freedom of disposal of herself and of all that does or may at any time belong to her, as if no such marriage had taken place, and I absolutely disclaim and repudiate all pretension to have acquired any rights whatever by virtue of such marriage.

Remarks on Mr. Fitzroy’s Bill for the More Effectual Prevention of Assaults on Women and Children

the bill brought into parliament by mr. fitzroy, as the organ of the Home Office, enlarging the powers of magistrates to inflict summary penalties for brutal assaults on women and children, is excellent in design; and if in execution it falls short of what is required to deal adequately with the enormity of the evil, the speech of the Mover indicated that he felt its imperfection, and had done as much as he thought it prudent to attempt without assurance of support.^[*] There have since been signs, both in and out of Parliament, that the Minister formed a lower estimate than necessary of what the public would receive at his hands, and that a measure far more likely to be efficacious would have been well received. The following remarks, on what the writer deems the shortcomings of the present Bill, are offered for the consideration of those who interest themselves in its success.

The speech of the Mover showed him to be strongly impressed with the horrible amount of domestic brutality which the law at present existing leaves unrepressed; and he made a selection of recent cases, exhibiting the disgraceful contrast which every reader of police reports is accustomed to see, between the flagrancy of the offence and the insignificance of the penalty.^[†] If any deficiency could be remarked in the statement, it is, that all the instances cited were cases of outrage against women, to the exclusion of the brutalities inflicted both by men and women on the still more helpless children. Without reckoning the frightful cases of flogging and starving which so often come to light, there have been two cases within the last few weeks in each of which a woman, entrusted with the care of an infant three or four years old, caused its death by burning with fire.^[‡] In one of these cases the woman had forced the infant to grasp a red hot coal in its hand, and Edition: current; Page: [104] hold it there for some minutes; and being put on trial before the child had died, but when it was already certain that he would be a cripple for life, was sentenced, not by a police magistrate, but by the Central Criminal Court at the Old Bailey, to—a fortnight’s imprisonment! Such cases prove that there is more amiss than an extension of the powers of the subordinate Courts will remedy; that there is not merely a want of power in the administrators of criminal justice to treat such culprits with a severity sufficient for example, but, in some cases at least, a want of will. Merely to authorize a greater amount of punishment for these offences, at the discretion of a judicial officer, is no guarantee against their continuing to be perpetrated with almost as near an approach to impunity as at present. To increase the penalty is an indication of intention on the part of the Legislature. To see that the intention be fulfilled ought to be the care of those with whom rests the choice of judges and of magistrates.

By the existing law, the utmost punishment which can be inflicted by summary sentence is five pounds fine, or two months’ imprisonment.^[*] The Bill raises this limit to a fine of twenty pounds, or imprisonment for six months, with or without hard labour.^[†] With regard to the fine, when the prisoner cannot pay it, the power of fining is nugatory. When he can, it is revolting to the commonest sense of justice that any one should be able to buy the privilege of inflicting atrocious cruelty by paying twenty pounds. From the newspaper reports it appears to be the practice of police magistrates, not to pass sentence of imprisonment unless they have first ascertained that the prisoner cannot pay the fine. It is only because these criminals are usually of the most reckless and therefore the most needy portion of the labouring classes, that this power of compounding by payment of blood-money does not operate as an actual licence to the offences intended to be repressed.

Remains the penalty of imprisonment, “with or without” the addition of labour. The remark is applicable to the question of secondary punishment in general, and peculiarly to these offences, that the alternative of imprisonment with or without labour is equivalent to that of conviction with or without punishment. Can it be supposed that any amount of imprisonment without labour (unless in the few jails in which the salutary rule of separation of prisoners has been made universal) has a deterring effect upon criminals of the class who come under the proposed enactment? What is a prison to them? A place where, probably, they are better fed, better clothed, better lodged, than in their own dwellings, with an abundance of society of their own description, while they are exempted from the hard work by which they earned their living until the justice of their country undertook to punish them. In return for this release from all the most disagreeable circumstances of their ordinary condition, they suffer the inconvenience of not being able to get gin Edition: current; Page: [105] and tobacco; that is, they are treated exactly as if they were in the union workhouse, except the hard labour. Even alms are not given to the able-bodied at the expense of the parish, though but for a day, without a day’s work in exchange for it;^[*] and surely, now that attention has been awakened to these subjects, it must soon be recognized that when imprisonment is imposed as a punishment, even if only for a day, either solitude or hard labour (for those who are capable of it) ought invariably to be a part of the sentence. In the case of the poor, the addition of labour is not even a punishment. Their life when at large must be one of labour, and generally of a restraint even upon their power of locomotion, almost equal to that of imprisonment. With the addition of labour, imprisonment to the ordinary labourer scarcely amounts to a punishment; without labour it is a holiday.

But neither with labour nor without it, is imprisonment in any form a suitable or a sufficient penalty for crimes of brutality. For these nothing will be effectual but to retaliate upon the culprit some portion of the physical suffering which he has inflicted. The beneficial efficacy of the enactment now in contemplation will, it is safe to prophesy, depend on the adoption or not of Mr. Phinn’s amendment, making corporal punishment a part of the penalty.^[†] The Mover himself did not disguise his conviction that nothing less than this would be adequate to the exigency;^[‡] and it is earnestly to be hoped that the many adhesions which the suggestion has since received, including that of one of the most intelligent of the London police magistrates,^* will induce Mr. Fitzroy to incorporate it in the Bill.

Overwhelming as are the objections to corporal punishment except in cases of personal outrage, it is peculiarly fitted for such cases. The repulsiveness to standers by, and the degradation to the culprit, which make corporal maltreatment so justly odious as a punishment, would cease to adhere to it, if it were exclusively reserved as a retribution to those guilty of personal violence. It is probably the only punishment which they would feel. Those who presume on their consciousness of animal strength to brutally illtreat those who are physically weaker, should be made to know what it is to be in the hands of a physical strength as much greater than their own, as theirs than that of the subjects of their tyranny. It is the moral medicine needed for the domineering arrogance of brute power After one or two Edition: current; Page: [106] cases of flogging for this description of crime, we should hear no more of outrages upon women or children for a long time to come. Probably such outrages would cease altogether, as soon as it became well known that the punishment of flogging would be inflicted for them.

With this penalty in the Act, and a clear understanding on the part of magistrates that it was not intended as a brutum fulmen, nor to be reserved for those horrible cases for which, as a matter of moral retribution, hanging would scarcely be punishment enough; if the administration of the law were such that the ruffianly part of the population would know that they could not give loose to their brutal rage without imminent risk of incurring in fact, and not nominally, the only punishment which they would dread; the enactment would do more for the improvement of morality, and the relief of suffering, than any Act of Parliament passed in this century, not excepting, perhaps, the Act for the abolition of slavery.^[*] But this salutary impression can only be made by rendering punishment prompt and certain in infliction, as well as efficacious in kind; by avoiding, therefore, to let in, by the terms of the Act itself, certainty of delay, and probable chances of escape. This would, however, be an inevitable effect of adopting another amendment, of which notice has been given, allowing an appeal to the quarter sessions.^[†] An appeal is often a necessary evil, but in such a case as this, a palpably unnecessary one. These are not cases in which a magistrate, or two magistrates, are likely to err on the side of inflicting too severe a sentence; there is abundant experience that the danger of error is all on the contrary side.

A government which should pass an act embodying these provisions, would confer a more immediate and a more certain benefit on the community, than it is often in the power of legislators to ensure by any enactment. The beneficial fruits of such a law are not to be measured by the crime and suffering which it would directly prevent, though these would be sufficient to stamp it as one of the most beneficent acts yet done by Government for the improvement of our institutions. A measure such as this, is of wider scope, and still more extensive beneficence. It is a measure of moral education. All parties now acknowledge that it is the urgent duty of Government to provide that the people be educated, could they but discover how it is to be done; and the present Ministry made it one of their pledges, on coming into office, that they would do something effectual for education.^[‡] But even if the measure they contemplate were far more considerable than they probably have it in their power to make it, what chance is there for education, if the schools teach one lesson, and the laws another contradictory to it? The administration of criminal Edition: current; Page: [107] justice is one of the chief instruments of moral education of the people. Its lessons of morality are of the utmost importance for good or for ill; for they take effect upon that part of the population which is unreached by any other moralizing influences, or on which others have been tried, and have failed of their effect. The lessons which the law teaches, it cannot fail of teaching impressively. The man who is brought, or who knows himself liable to be brought, to answer for his conduct at the bar of justice, cannot slight or despise the notions of right and wrong, the opinions and feelings respecting conduct and character, which he there finds prevailing. It is the one channel through which the sentiments of the well-conducted part of the community are made operative perforce on the vilest and worst. Yet, in this day of ragged schools, and model prisons, and plans for the reformation of criminals, the most important instrument which society has for teaching the elements of morality to those who are most in need of such teaching, is scarcely used at all. So potent an engine must necessarily act in one way or another, and when it does not act for good, it acts for evil. Is there any system of moral instruction capable of being devised for the populace, which could stand against the lessons of a diametrically opposite tendency, daily given by the criminal courts? The law and the tribunals are terribly in earnest when they set about the protection of property. But violence to the person is treated as hardly deserving serious notice, unless it endangers life; and even then, unless premeditated intention is proved by such superfluity of evidence that neither ingenuity nor stupidity can escape from admitting it, the criminal generally gets off almost scot free.^* It is of little avail to talk of inculcating justice, or kindness, or self-control, while the judicial and police courts teach by actions, so much more efficacious than words, that the most atrocious excesses of ungovernable violence are, in the eyes of the authorities, something quite venial. The law has the forming of the character of the lowest classes in its own hands. A tithe of the exertion and money now spent in attempting to reform criminals, if spent in reforming the minor criminal laws and their administration, would produce a real diminution of crime, instead of an imaginary reformation of criminals. But then, it must be allowed, it would not serve to fill so much of philanthropic gentlemen’s time.

Not only is education by the course of justice the most efficacious, in its own Edition: current; Page: [108] province, of all kinds of popular education, but it is also one on which there needs be no difference of opinion. Churches and political parties may quarrel about the teaching of doctrines, but not about the punishment of crimes. There is diversity of opinion about what is morally good, but there ought to be none about what is atrociously wicked. Whatever else may be included in the education of the people, the very first essential of it is to unbrutalise them; and to this end, all kinds of personal brutality should be seen and felt to be things which the law is determined to put down. The Bill of Mr. Fitzroy is a step in the right direction; but, unless its provisions are strengthened, it will be rather an indication of the wish, than a substantial exercise of the power, to repress one of the most odious forms of human wickedness.

A Few Words on Non-Intervention

there is a country in europe, equal to the greatest in extent of dominion, far exceeding any other in wealth, and in the power that wealth bestows, the declared principle of whose foreign policy is, to let other nations alone. No country apprehends or affects to apprehend from it any aggressive designs. Power, from of old, is wont to encroach upon the weak, and to quarrel for ascendancy with those who are as strong as itself. Not so this nation. It will hold its own, it will not submit to encroachment, but if other nations do not meddle with it, it will not meddle with them. Any attempt it makes to exert influence over them, even by persuasion, is rather in the service of others, than of itself: to mediate in the quarrels which break out between foreign States, to arrest obstinate civil wars, to reconcile belligerents, to intercede for mild treatment of the vanquished, or finally, to procure the abandonment of some national crime and scandal to humanity, such as the slave-trade. Not only does this nation desire no benefit to itself at the expense of others, it desires none in which all others do not as freely participate. It makes no treaties stipulating for separate commercial advantages. If the aggressions of barbarians force it to a successful war, and its victorious arms put it in a position to command liberty of trade, whatever it demands for itself it demands for all mankind. The cost of the war is its own; the fruits it shares in fraternal equality with the whole human race. Its own ports and commerce are free as the air and the sky: all its neighbours have full liberty to resort to it, paying either no duties, or, if any, generally a mere equivalent for what is paid by its own citizens, nor does it concern itself though they, on their part, keep all to themselves, and persist in the most jealous and narrow-minded exclusion of its merchants and goods.

A nation adopting this policy is a novelty in the world; so much so, it would appear, that many are unable to believe it when they see it. By one of the practical paradoxes which often meet us in human affairs, it is this nation which finds itself, in respect of its foreign policy, held up to obloquy as the type of egoism and selfishness; as a nation which thinks of nothing but of out-witting and out-generalling its neighbours. An enemy, or a self-fancied rival who had been distanced in the race, might be conceived to give vent to such an accusation in a moment of ill-temper. But that it should be accepted by lookers-on, and should pass into a popular doctrine, is enough to surprise even those who have best sounded the depths of human prejudice. Such, however, is the estimate of the Edition: current; Page: [112] foreign policy of England most widely current on the Continent. Let us not flatter ourselves that it is merely the dishonest pretence of enemies, or of those who have their own purposes to serve by exciting odium against us, a class including all the Protectionist writers, and the mouthpieces of all the despots and of the Papacy. The more blameless and laudable our policy might be, the more certainly we might count on its being misrepresented and railed at by these worthies. Unfortunately the belief is not confined to those whom they can influence, but is held with all the tenacity of a prejudice, by innumerable persons free from interested bias. So strong a hold has it on their minds, that when an Englishman attempts to remove it, all their habitual politeness does not enable them to disguise their utter unbelief in his disclaimer. They are firmly persuaded that no word is said, nor act done, by English statesmen in reference to foreign affairs, which has not for its motive principle some peculiarly English interest. Any profession of the contrary appears to them too ludicrously transparent an attempt to impose upon them. Those most friendly to us think they make a great concession in admitting that the fault may possibly be less with the English people, than with the English Government and aristocracy. We do not even receive credit from them for following our own interest with a straightforward recognition of honesty as the best policy. They believe that we have always other objects than those we avow; and the most far-fetched and unplausible suggestion of a selfish purpose appears to them better entitled to credence than anything so utterly incredible as our disinterestedness. Thus, to give one instance among many, when we taxed ourselves twenty millions (a prodigious sum in their estimation) to get rid of negro slavery,^[*] and, for the same object, perilled, as everybody thought, destroyed as many thought, the very existence of our West Indian colonies, it was, and still is, believed, that our fine professions were but to delude the world, and that by this self-sacrificing behaviour we were endeavouring to gain some hidden object, which could neither be conceived nor described, in the way of pulling down other nations. The fox who had lost his tail had an intelligible interest in persuading his neighbours to rid themselves of theirs:^[†] but we, it is thought by our neighbours, cut off our own magnificent brush, the largest and finest of all, in hopes of reaping some inexplicable advantage from inducing others to do the same.

It is foolish attempting to despise all this—persuading ourselves that it is not our fault, and that those who disbelieve us would not believe though one should rise from the dead. Nations, like individuals, ought to suspect some fault in themselves when they find they are generally worse thought of than they think they deserve, and they may well know that they are somehow in fault when almost everybody but themselves thinks them crafty and hypocritical. It is not solely because England Edition: current; Page: [113] has been more successful than other nations in gaining what they are all aiming at, that they think she must be following after it with a more ceaseless and a more undivided chase. This indeed is a powerful predisposing cause, inclining and preparing them for the belief. It is a natural supposition that those who win the prize have striven for it; that superior success must be the fruit of more unremitting endeavour; and where there is an obvious abstinence from the ordinary arts employed for distancing competitors, and they are distanced nevertheless, people are fond of believing that the means employed must have been arts still more subtle and profound. This preconception makes them look out in all quarters for indications to prop up the selfish explanation of our conduct. If our ordinary course of action does not favour this interpretation, they watch for exceptions to our ordinary course, and regard these as the real index to the purposes within. They moreover accept literally all the habitual expressions by which we represent ourselves as worse than we are; expressions often heard from English statesmen, next to never from those of any other country—partly because Englishmen, beyond all the rest of the human race, are so shy of professing virtues that they will even profess vices instead; and partly because almost all English statesmen, while careless to a degree which no foreigner can credit, respecting the impression they produce on foreigners, commit the obtuse blunder of supposing that low objects are the only ones to which the minds of their non-aristocratic fellow-countrymen are amenable, and that it is always expedient, if not necessary, to place those objects in the foremost rank.

All, therefore, who either speak or act in the name of England, are bound by the strongest obligations, both of prudence and of duty, to avoid giving either of these handles for misconstruction: to put a severe restraint upon the mania of professing to act from meaner motives than those by which we are really actuated, and to beware of perversely or capriciously singling out some particular instance in which to act on a worse principle than that by which we are ordinarily guided. Both these salutary cautions our practical statesmen are, at the present time, flagrantly disregarding.

We are now in one of those critical moments, which do not occur once in a generation, when the whole turn of European events, and the course of European history for a long time to come, may depend on the conduct and on the estimation of England. At such a moment, it is difficult to say whether by their sins of speech or of action our statesmen are most effectually playing into the hands of our enemies, and giving most colour of justice to injurious misconception of our character and policy as a people.

To take the sins of speech first: What is the sort of language held in every oration which, during the present European crisis, any English minister, or almost any considerable public man, addresses to parliament or to his constituents? The eternal repetition of this shabby refrain—“We did not interfere, because no English interest was involved;” “We ought not to interfere where no English Edition: current; Page: [114] interest is concerned.” England is thus exhibited as a country whose most distinguished men are not ashamed to profess, as politicians, a rule of action which no one, not utterly base, could endure to be accused of as the maxim by which he guides his private life; not to move a finger for others unless he sees his private advantage in it. There is much to be said for the doctrine that a nation should be willing to assist its neighbours in throwing off oppression and gaining free institutions. Much also may be said by those who maintain that one nation is incompetent to judge and act for another, and that each should be left to help itself, and seek advantage or submit to disadvantage as it can and will. But of all attitudes which a nation can take up on the subject of intervention, the meanest and worst is to profess that it interferes only when it can serve its own objects by it. Every other nation is entitled to say, “It seems, then, that non-interference is not a matter of principle with you. When you abstain from interference, it is not because you think it wrong. You have no objection to interfere, only it must not be for the sake of those you interfere with; they must not suppose that you have any regard for their good. The good of others is not one of the things you care for; but you are willing to meddle, if by meddling you can gain anything for yourselves.” Such is the obvious interpretation of the language used.

There is scarcely any necessity to say, writing to Englishmen, that this is not what our rulers and politicians really mean. Their language is not a correct exponent of their thoughts. They mean a part only of what they seem to say. They do mean to disclaim interference for the sake of doing good to foreign nations. They are quite sincere and in earnest in repudiating this. But the other half of what their words express, a willingness to meddle if by doing so they can promote any interest of England, they do not mean. The thought they have in their minds, is not the interest of England, but her security. What they would say, is, that they are ready to act when England’s safety is threatened, or any of her interests hostilely or unfairly endangered. This is no more than what all nations, sufficiently powerful for their own protection, do, and no one questions their right to do. It is the common right of self-defence. But if we mean this, why, in Heaven’s name, do we take every possible opportunity of saying, instead of this, something exceedingly different? Not self-defence, but aggrandizement, is the sense which foreign listeners put upon our words. Not simply to protect what we have, and that merely against unfair arts, not against fair ^arivalry^a; but to add to it more and more without limit, is the purpose for which foreigners think we claim the liberty of intermeddling with them and their affairs. If our actions make it impossible for the most prejudiced observer to believe that we aim at or would accept any sort of mercantile monopolies, this has no effect on their minds but to make them think that we have chosen a more cunning way to the same end. It is a generally Edition: current; Page: [115] accredited opinion among Continental politicians, especially those who think themselves particularly knowing, that the very existence of England depends upon the incessant acquisition of new markets for our manufactures; that the chase after these is an affair of life and death to us; and that we are at all times ready to trample on every obligation of public or international morality, when the alternative would be, pausing for a moment in that race. It would be superfluous to point out what profound ignorance and misconception of all the laws of national wealth, and all the facts of England’s commercial condition, this opinion presupposes: but such ignorance and misconception are unhappily very general on the Continent; they are but slowly, if perceptibly, giving way before the advance of reason; and for generations, perhaps, to come, we shall be judged under their influence. Is it requiring too much from our practical politicians to wish that they would sometimes bear these things in mind? Does it answer any good purpose to express ourselves as if we did not scruple to profess that which we not merely scruple to do, but the bare idea of doing which never crosses our minds? Why should we abnegate the character we might with truth lay claim to, of being incomparably the most conscientious of all nations in our national acts? Of all countries which are sufficiently powerful to be capable of being dangerous to their neighbours, we are perhaps the only one whom mere scruples of conscience would suffice to deter from it. We are the only people among whom, by no class whatever of society, is the interest or glory of the nation considered to be any sufficient excuse for an unjust act; the only one which regards with jealousy and suspicion, and a proneness to hostile criticism, precisely those acts of its Government which in other countries are sure to be hailed with applause, those by which territory has been acquired, or political influence extended. Being in reality better than other nations, in at least the negative part of international morality, let us cease, by the language we use, to give ourselves out as worse.

But if we ought to be careful of our language, a thousand times more obligatory is it upon us to be careful of our deeds, and not suffer ourselves to be betrayed by any of our leading men into a line of conduct on some isolated point, utterly opposed to our habitual principles of action—conduct such that if it were a fair specimen of us, it would verify the calumnies of our worst enemies, and justify them in representing not only that we have no regard for the good of other nations, but that we actually think their good and our own incompatible, and will go all lengths to prevent others from realizing even an advantage in which we ourselves are to share. This pernicious, and, one can scarcely help calling it, almost insane blunder, we seem to be committing on the subject of the Suez Canal.

It is the universal belief in France that English influence at Constantinople, strenuously exerted to defeat this project, is the real and only invincible obstacle to its being carried into effect. And unhappily the public declarations of our present Prime Minister not only bear out this persuasion, but warrant the assertion that we Edition: current; Page: [116] oppose the work because, in the opinion of our Government, it would be injurious to the interest of England.^[*] If such be the course we are pursuing, and such the motive of it, and if nations have duties, even negative ones, towards the weal of the human race, it is hard to say whether the folly or the immorality of our conduct is the most painfully conspicuous.

Here is a project, the practicability of which is indeed a matter in dispute, but of which no one has attempted to deny that, supposing it realized, it would give a facility to commerce, and consequently a stimulus to production, an encouragement to intercourse, and therefore to civilization, which would entitle it to a high rank among the great industrial improvements of modern times. The contriving of new means of abridging labour and economizing outlay in the operations of industry, is the object to which the larger half of all the inventive ingenuity of mankind is at present given up; and this scheme, if realized, will save, on one of the great highways of the world’s traffic, the circumnavigation of a continent. An easy access of commerce is the main source of that material civilization, which, in the more backward regions of the earth, is the necessary condition and indispensable machinery of the moral; and this scheme reduces practically by one half, the distance, commercially speaking, between the self-improving nations of the world and the most important and valuable of the unimproving. The Atlantic Telegraph is esteemed an enterprise of world-wide importance because it abridges the transit of mercantile intelligence merely. What the Suez Canal would shorten is the transport of the goods themselves, and this to such an extent as probably to augment it manifold.

Let us suppose, then—for in the present day the hypothesis is too un-English to be spoken of as anything more than a supposition—let us suppose that the English nation saw in this great benefit to the civilized and uncivilized world a danger or damage to some peculiar interest of England. Suppose, for example, that it feared, by shortening the road, to facilitate the access of foreign navies to its Oriental possessions. The supposition imputes no ordinary degree of cowardice and imbecility to the national mind; otherwise it could not but reflect that the same thing which would facilitate the arrival of an enemy, would facilitate also that of succour; that we have had French fleets in the Eastern seas before now, and have fought naval battles with them there, nearly a century ago; that if we ever became unable to defend India against them, we ^bshould^b assuredly have them there without the aid of any canal; and that our power of resisting an enemy does not depend upon putting a little more or less of obstacle in the way of his coming, but upon the amount of force which we are able to oppose to him when come. Let us assume, however, that the success of the project would do more harm to England Edition: current; Page: [117] in some separate capacity, than the good which, as the chief commercial nation, she would reap from the great increase of commercial intercourse. Let us grant this: and I now ask, what then? Is there any morality, Christian or secular, which bears out a nation in keeping all the rest of mankind out of some great advantage, because the consequences of their obtaining it may be to itself, in some imaginable contingency, a cause of inconvenience? Is a nation at liberty to adopt as a practical maxim, that what is good for the human race is bad for itself, and to withstand it accordingly? What is this but to declare that its interest and that of mankind are incompatible—that, thus far at least, it is the enemy of the human race? And what ground has it of complaint if, in return, the human race determine to be its enemies? So wicked a principle, avowed and acted on by a nation, would entitle the rest of the world to unite in a league against it, and never to make peace until they had, if not reduced it to insignificance, at least sufficiently broken its power to disable it from ever again placing its own self-interest before the general prosperity of mankind.

There is no such base feeling in the British people. They are accustomed to see their advantage in forwarding, not in keeping back, the growth in wealth and civilization of the world. The opposition to the Suez Canal has never been a national opposition. With their usual indifference to foreign affairs, the public in general have not thought about it, but have left it, as (unless when particularly excited) they leave all the management of their foreign policy, to those who, from causes and reasons connected only with internal politics, happen for the time to be in office. Whatever has been done in the name of England in the Suez affair has been the act of individuals, mainly, it is probable, of one individual;^[*] scarcely any of his countrymen either prompting or sharing his purpose, and most of those who have paid any attention to the subject (unfortunately a very small number) being, to all appearance, opposed to him.

But (it is said) the scheme cannot be executed. If so, why concern ourselves about it? If the project can come to nothing, why profess gratuitous immorality and incur gratuitous odium to prevent it from being tried? Whether it will succeed or fail is a consideration totally irrelevant; except thus far, that if it is sure to fail, there is in our resistance to it the same immorality, and an additional amount of folly; since, on that supposition, we are parading to the world a belief that our interest is inconsistent with its good, while if the failure of the project would really be any benefit to us, we are certain of obtaining that benefit by merely holding our peace.

As a matter of private opinion, the present writer, so far as he has looked into the evidence, inclines to agree with those who think that the scheme cannot be executed, at least by the means and with the funds proposed. But this is a consideration for the shareholders. The British Government does not deem it any part of its business to prevent individuals, even British citizens, from wasting their Edition: current; Page: [118] own money in unsuccessful speculations, though holding out no prospect of great public usefulness in the event of success. And if, though at the cost of their own property, they acted as pioneers to others, and the scheme, though a losing one to those who first undertook it, should, in the same or in other hands, realize the full expected amount of ultimate benefit to the world at large, it would not be the first nor the hundredth time that an unprofitable enterprise has had this for its final result.

There seems to be no little need that the whole doctrine of non-interference with foreign nations should be reconsidered, if it can be said to have as yet been considered as a really moral question at all. We have heard something lately about being willing to go to war for an idea. To go to war for an idea, if the war is aggressive, not defensive, is as criminal as to go to war for territory or revenue; for it is as little justifiable to force our ideas on other people, as to compel them to submit to our will in any other respect. But there assuredly are cases in which it is allowable to go to war, without having been ourselves attacked, or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are. There are few questions which more require to be taken in hand by ethical and political philosophers, with a view to establish some rule or criterion whereby the justifiableness of intervening in the affairs of other countries, and (what is sometimes fully as questionable) the justifiableness of refraining from intervention, may be brought to a definite and rational test. Whoever attempts this, will be led to recognise more than one fundamental distinction, not yet by any means familiar to the public mind, and in general quite lost sight of by those who write in strains of indignant morality on the subject. There is a great difference (for example) between the case in which the nations concerned are of the same, or something like the same, degree of civilization, and that in which one of the parties to the situation is of a high, and the other of a very low, grade of social improvement. To suppose that the same international customs, and the same rules of international morality, can obtain between one civilized nation and another, and between civilized nations and barbarians, is a grave error, and one which no statesman can fall into, however it may be with those who, from a safe and unresponsible position, criticise statesmen. Among many reasons why the same rules cannot be applicable to situations so different, the two following are among the most important. In the first place, the rules of ordinary international morality imply reciprocity. But barbarians will not reciprocate. They cannot be depended on for observing any rules. Their minds are not capable of so great an effort, nor their will sufficiently under the influence of distant motives. In the next place, nations which are still barbarous have not got beyond the period during which it is likely to be for their benefit that they should be conquered and held in subjection by foreigners. Independence and nationality, so essential to the due growth and development of a people further advanced in Edition: current; Page: [119] improvement, are generally impediments to theirs. The sacred duties which civilized nations owe to the independence and nationality of each other, are not binding towards those to whom nationality and independence are either a certain evil, or at best a questionable good. The Romans were not the most clean-handed of conquerors, yet would it have been better for Gaul and Spain, Numidia and Dacia, never to have formed part of the Roman Empire? To characterize any conduct whatever towards a barbarous people as a violation of the law of nations, only shows that he who so speaks has never considered the subject. A violation of great principles of morality it may easily be; but barbarians have no rights as a nation, except a right to such treatment as may, at the earliest possible period, fit them for becoming one. The only moral laws for the relation between a civilized and a barbarous government, are the universal rules of morality between man and man.

The criticisms, therefore, which are so often made upon the conduct of the French in Algeria, or of the English in India, proceed, it would seem, mostly on a wrong principle. The true standard by which to judge their proceedings never having been laid down, they escape such comment and censure as might really have an improving effect, while they are tried by a standard which can have no influence on those practically engaged in such transactions, knowing as they do that it cannot, and if it could, ought not to be observed, because no human being would be the better, and many much the worse, for its observance. A civilized government cannot help having barbarous neighbours: when it has, it cannot always content itself with a defensive position, one of mere resistance to aggression. After a longer or shorter interval of forbearance, it either finds itself obliged to conquer them, or to assert so much authority over them, and so break their spirit, that they gradually sink into a state of dependence upon itself, and when that time arrives, they are indeed no longer formidable to it, but it has had so much to do with setting up and pulling down their governments, and they have grown so accustomed to lean on it, that it has become morally responsible for all evil it allows them to do. This is the history of the relations of the British Government with the native States of India. It never was secure in its own Indian possessions until it had reduced the military power of those States to a nullity. But a despotic government only exists by its military power. When we had taken away theirs, we were forced, by the necessity of the case, to offer them ours instead of it. To enable them to dispense with large armies of their own, we bound ourselves to place at their disposal, and they bound themselves to receive, such an amount of military force as made us in fact masters of the country. We engaged that this force should fulfil the purposes of a force, by defending the prince against all foreign and internal enemies. But being thus assured of the protection of a civilized power, and freed from the fear of internal rebellion or foreign conquest, the only checks which either restrain the passions or keep any vigour in the character of an Asiatic despot, the native Governments either became so oppressive and extortionate as to Edition: current; Page: [120] desolate the country, or fell into such a state of nerveless imbecility, that every one, subject to their will, who had not the means of defending himself by his own armed followers, was the prey of anybody who had a band of ruffians in his pay. The British Government felt this deplorable state of things to be its own work; being the direct consequence of the position in which, for its own security, it had placed itself towards the native governments. Had it permitted this to go on indefinitely, it would have deserved to be accounted among the worst political malefactors. In some cases (unhappily not in all) it had endeavoured to take precaution against these mischiefs by a special article in the treaty, binding the prince to reform his administration, and in future to govern in conformity to the advice of the British Government. Among the treaties in which a provision of this sort had been inserted, was that with Oude.^[*] For fifty years and more did the British Government allow this engagement to be treated with entire disregard; not without frequent remonstrances, and occasionally threats, but without ever carrying into effect what it threatened. During this period of half a century, England was morally accountable for a mixture of tyranny and anarchy, the picture of which, by men who knew it well, is appalling to all who read it. The act by which the Government of British India at last set aside treaties which had been so pertinaciously violated, and assumed the power of fulfilling the obligation it had so long before incurred, of giving to the people of Oude a tolerable government, far from being the political crime it is so often ignorantly called, was a criminally tardy discharge of an imperative duty.^[†] And the fact, that nothing which had been done in all this century by the East India Company’s Government made it so unpopular in England, is one of the most striking instances of what was noticed in a former part of this article—the predisposition of English public opinion to look unfavourably upon every act by which territory or ^crevenue^c are acquired from foreign States, and to take part with any government, however unworthy, which can make out the merest semblance of a case of injustice against our own country.

But among civilized peoples, members of an equal community of nations, like Christian Europe, the question assumes another aspect, and must be decided on totally different principles. It would be an affront to the reader to discuss the immorality of wars of conquest, or of conquest even as the consequence of lawful Edition: current; Page: [121] war; the annexation of any civilized people to the dominion of another, unless by their own spontaneous election. Up to this point, there is no difference of opinion among honest people; nor on the wickedness of commencing an aggressive war for any interest of our own, except when necessary to avert from ourselves an obviously impending wrong. The disputed question is that of interfering in the regulation of another country’s internal concerns; the question whether a nation is justified in taking part, on either side, in the civil wars or party contests of another: and chiefly, whether it may justifiably aid the people of another country in struggling for liberty; or may impose on a country any particular government or institutions, either as being best for the country itself, or as necessary for the security of its neighbours.

Of these cases, that of a people in arms for liberty is the only one of any nicety, or which, theoretically at least, is likely to present conflicting moral considerations. The other cases which have been mentioned hardly admit of discussion. Assistance to the government of a country in keeping down the people, unhappily by far the most frequent case of foreign intervention, no one writing in a free country needs take the trouble of stigmatizing. A government which needs foreign support to enforce obedience from its own citizens, is one which ought not to exist; and the assistance given to it by foreigners is hardly ever anything but the sympathy of one despotism with another. A case requiring consideration is that of a protracted civil war, in which the contending parties are so equally balanced that there is no probability of a speedy issue; or if there is, the victorious side cannot hope to keep down the vanquished but by severities repugnant to humanity, and injurious to the permanent welfare of the country. In this exceptional case it seems now to be an admitted doctrine, that the neighbouring nations, or one powerful neighbour with the acquiescence of the rest, are warranted in demanding that the contest shall cease, and a reconciliation take place on equitable terms of compromise. Intervention of this description has been repeatedly practised during the present generation, with such general approval, that its legitimacy may be considered to have passed into a maxim of what is called international law. The interference of the European Powers between Greece and Turkey, and between Turkey and Egypt, were cases in point. That between Holland and Belgium was still more so. The intervention of England in Portugal, a few years ago, which is probably less remembered than the others, because it took effect without the employment of actual force, belongs to the same category. At the time, this interposition had the appearance of a bad and dishonest backing of the government against the people, being so timed as to hit the exact moment when the popular party had obtained a marked advantage, and seemed on the eve of overthrowing the government, or reducing it to terms. But if ever a political act which looked ill in the commencement could be justified by the event, this was, for, as the fact turned out, instead of giving ascendancy to a party, it proved a really healing Edition: current; Page: [122] measure; and the chiefs of the so-called rebellion were, within a few years, the honoured and successful ministers of the throne against which they had so lately fought.^[*]

With respect to the question, whether one country is justified in helping the people of another in a struggle against their government for free institutions, the answer will be different, according as the yoke which the people are attempting to throw off is that of a purely native government, or of foreigners; considering as one of foreigners, every government which maintains itself by foreign support. When the contest is only with native rulers, and with such native strength as those rulers can enlist in their defence, the answer I should give to the question of the legitimacy of intervention is, as a general rule, No. The reason is, that there can seldom be anything approaching to assurance that intervention, even if successful, would be for the good of the people themselves. The only test possessing any real value, of a people’s having become fit for popular institutions, is that they, or a sufficient portion of them to prevail in the contest, are willing to brave labour and danger for their liberation. I know all that may be said, I know it may be urged that the virtues of freemen cannot be learnt in the school of slavery, and that if a people are not fit for freedom, to have any chance of becoming so they must first be free. And this would be conclusive, if the intervention recommended would really give them freedom. But the evil is, that if they have not sufficient love of liberty to be able to wrest it from merely domestic oppressors, the liberty which is bestowed on them by other hands than their own, will have nothing real, nothing permanent. No people ever was and remained free, but because it was determined to be so; because neither its rulers nor any other party in the nation could compel it to be otherwise. If a people—especially one whose freedom has not yet become prescriptive—does not value it sufficiently to fight for it, and maintain it against any force which can be mustered within the country, even by those who have the command of the public revenue, it is only a question in how few years or months that people will be enslaved. Either the government which it has given to itself, or some military leader or knot of conspirators who contrive to subvert the government, will speedily put an end to all popular institutions: unless indeed it suits their convenience better to leave them standing, and be content with reducing them to mere forms; for, unless the spirit of liberty is strong in a people, those who have the executive in their hands easily work ^dany^d institutions to the purposes of despotism. There is no sure guarantee against this deplorable issue, even in a country which has achieved its own freedom; as may be seen in the present day by striking examples both in the Old and New Worlds: but when freedom has been achieved for them, they have little prospect indeed of escaping this fate. When a Edition: current; Page: [123] people has had the misfortune to be ruled by a government under which the feelings and the virtues needful for maintaining freedom could not develope themselves, it is during an arduous struggle to become free by their own efforts that these feelings and virtues have the best chance of springing up. Men become attached to that which they have long fought for and made sacrifices for, they learn to appreciate that on which their thoughts have been much engaged; and a contest in which many have been called on to devote themselves for their country, is a school in which they learn to value their country’s interest above their own.

It can seldom, therefore—I will not go so far as to say never—be either judicious or right, in a country which has a free government, to assist, otherwise than by the moral support of its opinion, the endeavours of another to extort the same blessing from its native rulers. We must except, of course, any case in which such assistance is a measure of legitimate self-defence. If (a contingency by no means unlikely to occur) this country, on account of its freedom, which is a standing reproach to despotism everywhere, and an encouragement to throw it off, should find itself menaced with attack by a coalition of Continental despots, it ought to consider the popular party in every nation of the Continent as its natural ally, the Liberals should be to it, what the Protestants of Europe were to the Government of Queen Elizabeth. So, again, when a nation, in her own defence, has gone to war with a despot, and has had the rare good fortune not only to succeed in her resistance, but to hold the conditions of peace in her own hands, she is entitled to say that she will make no treaty, unless with some other ruler than the one whose existence as such may be a perpetual menace to her safety and freedom. These exceptions do but set in a clearer light the reasons of the rule; because they do not depend on any failure of those reasons, but on considerations paramount to them, and coming under a different principle.

But the case of a people struggling against a foreign yoke, or against a native tyranny upheld by foreign arms, illustrates the reasons for non-intervention in an opposite way; for in this case the reasons themselves do not exist. A people the most attached to freedom, the most capable of defending and of making a good use of free institutions, may be unable to contend successfully for them against the military strength of another nation much more powerful. To assist a people thus kept down, is not to disturb the balance of forces on which the permanent maintenance of freedom in a country depends, but to redress that balance when it is already unfairly and violently disturbed. The doctrine of non-intervention, to be a legitimate principle of morality, must be accepted by all governments. The despots must consent to be bound by it as well as the free States. Unless they do, the profession of it by free countries comes but to this miserable issue, that the wrong side may help the wrong, but the right must not help the right. Intervention to enforce non-intervention is always rightful, always moral, if not always prudent. Though it be a mistake to give freedom to a people who do not value the boon, it cannot but be right to insist that if they do value it, they shall not be hindered from Edition: current; Page: [124] the pursuit of it by foreign coercion. It might not have been right for England (even apart from the question of prudence) to have taken part with Hungary in its noble struggle against Austria; although the Austrian Government in Hungary was in some sense a foreign yoke. But when, the Hungarians having shown themselves likely to prevail in this struggle, the Russian despot interposed, and joining his force to that of Austria, delivered back the Hungarians, bound hand and foot, to their exasperated oppressors, it would have been an honourable and virtuous act on the part of England to have declared that this should not be, and that if Russia gave assistance to the wrong side, England would aid the right. It might not have been consistent with the regard which every nation is bound to pay to its own safety, for England to have taken up this position single-handed. But England and France together could have done it; and if they had, the Russian armed intervention would never have taken place, or would have been disastrous to Russia alone: while all that those Powers gained by not doing it, was that they had to fight Russia five years afterwards, under more difficult circumstances, and without Hungary for an ally. The first nation which, being powerful enough to make its voice effectual, has the spirit and courage to say that not a gun shall be fired in Europe by the soldiers of one Power against the revolted subjects of another, will be the idol of the friends of freedom throughout Europe. That declaration alone will ensure the almost immediate emancipation of every people which desires liberty sufficiently to be capable of maintaining it: and the nation which gives the word will soon find itself at the head of an alliance of free peoples, so strong as to defy the efforts of any number of confederated despots to bring it down. The prize is too glorious not to be snatched sooner or later by some free country; and the time may not be distant when England, if she does not take this heroic part because of its heroism, will be compelled to take it from consideration for her own safety.

The Contest in America

the cloud which for the space of a month hung gloomily over the civilized world, black with far worse evils than those of simple war, has passed from over our heads without bursting. The fear has not been realized, that the only two first-rate Powers who are also free nations would take to tearing each other in pieces, both the one and the other in a bad and odious cause. For while, on the American side, the war would have been one of reckless persistency in wrong, on ours it would have been a war in alliance with, and, to practical purposes, in defence and propagation of, slavery. We had, indeed, been wronged. We had suffered an indignity, and something more than an indignity, which not to have resented, would have been to invite a constant succession of insults and injuries from the same and from every other quarter. We could have acted no otherwise than we have done: yet it is impossible to think, without something like a shudder, from what we have escaped. We, the emancipators of the slave—who have wearied every Court and Government in Europe and America with our protests and remonstrances, until we goaded them into at least ostensibly co-operating with us to prevent the enslaving of the negro—we, who for the last half-century have spent annual sums equal to the revenue of a small kingdom in blockading the African coast, for a cause in which we not only had no interest, but which was contrary to our pecuniary interest, and which many believed would ruin, as many among us still, though erroneously, believe that it has ruined, our colonies,—we should have lent a hand to setting up, in one of the most commanding positions of the world, a powerful republic, devoted not only to slavery, but to pro-slavery propagandism—should have helped to give a place in the community of nations to a conspiracy of slave-owners, who have broken their connexion with the American Federation on the sole ground, ostentatiously proclaimed, that they thought an attempt would be made to restrain, not slavery itself, but their purpose of spreading slavery wherever migration or force could carry it.^[*]

A nation which has made the professions that England has ^amade^a, does not with impunity, under however great provocation, betake itself to frustrating the objects for which it has been calling on the rest of the world to make sacrifices of what they think their interest. At present all the nations of Europe have sympathized with us; have acknowledged that we were injured, and declared, with rare unanimity, that we had no choice but to resist, if necessary by arms. But the consequences of such a war would soon have buried its causes in oblivion. When the new Confederate States, made an independent Power by English help, had begun their crusade to carry negro slavery from the Potomac to Cape Horn, who would then have remembered that England raised up this scourge to humanity not for the evil’s sake, but because somebody had offered an insult to her flag? Or, even if unforgotten, who would then have felt that such a grievance was a sufficient palliation of the crime? Every reader of a newspaper to the furthest ends of the earth, would have believed and remembered one thing only: that at the critical juncture which was to decide whether slavery should blaze up afresh with increased vigour, or be trodden out—at the moment of conflict between the good and the evil spirit—at the dawn of a hope that the demon might now at last be chained and flung into the pit, England stepped in, and, for the sake of cotton, made Satan victorious.

The world has been saved from this calamity, and England from this disgrace. The accusation would indeed have been a calumny. But to be able to defy calumny, a nation, like an individual, must stand very clear of just reproach in its previous conduct. Unfortunately, we ourselves have given too much plausibility to the ^bcharge: not^b by anything said or done by us as a Government or as a nation, but by the tone of our press, and in some degree, it must be owned, the general opinion of English society. It is too true, that the feelings which have been manifested since the beginning of the American contest—the judgments which have been put forth, and the wishes which have been expressed, concerning the incidents and probable eventualities of the struggle—the bitter and irritating criticism which has been kept up, not even against both parties equally, but almost solely against the party in the right, and the ungenerous refusal of all those just allowances, which no country needs more than our own, whenever its circumstances are as near to those of America ^cat the present moment^c as a cut finger is to an almost mortal wound,—these facts, with minds not favourably disposed to us, would have gone far to make the most odious interpretation of the war in which we have been so nearly engaged with the United States, appear by many degrees the most probable. There is no denying that our attitude towards the contending parties (I mean our moral attitude, for politically there was no other course open to us than neutrality) Edition: current; Page: [129] has not been that which becomes a people who are as sincere enemies of slavery as the English really are, and have made as great sacrifices to put an end to it where they could. And it has been an additional misfortune, that some of our most powerful journals have been, for many years past, very unfavourable exponents of English feeling on all subjects connected with slavery: some, probably, from the influences, more or less direct, of West Indian opinions and interests: others from inbred Toryism, which, even when compelled by reason to hold opinions favourable to liberty, is always adverse to it in feeling; which likes the spectacle of irresponsible power exercised by one person over others; which has no moral repugnance to the thought of human beings born to the penal servitude for life, to which for the term of a few years we sentence our most hardened criminals, but keeps its indignation to be expended on “rabid and fanatical abolitionists” across the Atlantic, and on those writers in England who attach a sufficiently serious meaning to their Christian professions, to consider a fight against slavery as a fight for God.

Now ^dthat^d the mind of England, and it may almost be said, of the civilized part of mankind, has been relieved from the incubus which had weighed on it ever since the Trent outrage, and when we are no longer feeling towards the Northern Americans as men feel towards those with whom they may be on the point of struggling for life or death; now, if ever, is the time to review our position, and consider whether we have been feeling what ought to have been felt, and wishing what ought to have been wished, regarding the contest in which the Northern States are engaged with the South.

In considering this matter, we ought to dismiss from our minds as far as possible those feelings against the North, which have been engendered not merely by the Trent aggression, but by the previous anti-British effusions of newspaper writers and stump orators. It is hardly worth while to ask how far these explosions of ill-humour are anything more than might have been anticipated from ill-disciplined minds, disappointed of the sympathy which they justly thought they had a right to expect from the great anti-slavery people, in their really noble enterprise. It is almost superfluous to remark that a democratic government always shows worst, where other governments generally show best, on its outside; that unreasonable people are much more noisy than the reasonable, that the froth and scum are the part of a violently fermenting liquid that meets the eyes, but are not its body and substance. Without insisting on these things, I contend, that all previous cause of offence should be considered as cancelled, by the reparation which the American Government has so amply made; not so much the reparation itself, which might have been so made as to leave still greater cause of permanent resentment behind it; but the manner and spirit in which they have made it. These have been such as most of us, I venture to say, did not by any means expect. If Edition: current; Page: [130] reparation were made at all, of which few of us felt more than a hope, we thought that it would have been made obviously as a concession to prudence, not to principle. We thought that there would have been truckling to the newspaper editors and supposed fire-eaters who were crying out for retaining the prisoners^[*] at all hazards. We expected that the atonement, if atonement there were, would have been made with reservations, perhaps under protest. We expected that the correspondence would have been spun out, and a trial made to induce England to be satisfied with less; or that there would have been a proposal of arbitration; or that England would have been asked to make concessions in return for justice; or that if submission was made, it would have been made, ostensibly, to the opinions and wishes of Continental Europe. We expected anything, in short, which would have been weak, and timid, and paltry. The only thing which no one seemed to expect, is what has actually happened. Mr. Lincoln’s Government have done none of these things. Like honest men, they have said in direct terms, that our demand was right; that they yielded to it because it was just; that if they themselves had received the same treatment, they would have demanded the same reparation; and that if what seemed to be the American side of a question was not the just side, they would be on the side of justice; happy as they were to find, after their resolution had been taken, that it was also the side which America had formerly defended.^[†] Is there any one, capable of a moral judgment or feeling, who will say that his opinion of America and American statesmen is not raised by such an act, done on such grounds? The act itself may have been imposed by the necessity of the circumstances; but the reasons given, the principles of action professed, were their own choice. Putting the worst hypothesis possible, which it would be the height of injustice to entertain seriously, that the concession was really made solely to convenience, and that the profession of regard for justice was hypocrisy: even so, the ground taken, even if insincerely, is the most hopeful sign of the moral state of the American mind which has appeared for many years. That a sense of justice should be the motive which the rulers of a country rely on, to reconcile the public to an unpopular, and what might seem a humiliating act; that the journalists, the orators, many lawyers, the Lower House of Congress, and Mr. Lincoln’s own naval secretary,^[‡] should be told in the face of the world, by their own Government, that they have been giving public thanks, presents of swords, freedom of cities, all manner of heroic honours to the author^[§] of an act which, though not so intended, was lawless and wrong, and for which the proper remedy is confession and atonement; that this should be the accepted policy (supposing it to be nothing higher) of a Democratic Republic, shows even unlimited democracy to be a better thing than many Englishmen have lately been in the habit of Edition: current; Page: [131] considering it, and goes some way towards proving that the aberrations even of a ruling multitude are only fatal when the better instructed have not the virtue or the courage to front them boldly. Nor ought it to be forgotten, to the honour of Mr. Lincoln’s Government, that in doing what was in itself right, they have done also what was best fitted to allay the animosity which was daily becoming more bitter between the two nations so long as the question remained open. They have put the brand of confessed injustice upon that rankling and vindictive resentment, with which the profligate and passionate part of the American press has been threatening us in the event of concession, and which is to be manifested by some dire revenge, to be taken, as they pretend, after the nation is extricated from its present difficulties. Mr. Lincoln has done what depended on him to make this spirit expire with the occasion which raised it up; and we shall have ourselves chiefly to blame if we keep it alive by the further prolongation of that stream of vituperative eloquence, the source of which, even now, when the cause of quarrel has been amicably made up, does not seem to have run dry.^*

Let us, then, without reference to these jars, or to the declamations of newspaper writers on either side of the Atlantic, examine the American question as it stood from the beginning; its origin, the purpose of both the combatants, and its various possible or probable issues.

There is a theory in England, believed perhaps by some, half believed by many more, which is only consistent with original ignorance, or complete subsequent forgetfulness, of all the antecedents of the contest. There are people who tell us that, on the side of the North, the question is not one of Slavery at all. The North, it seems, have no more objection to Slavery than the South have. Their leaders never say one word implying disapprobation of it. They are ready, on the contrary, to give it new guarantees; to renounce all that they have been contending for, to win back, if opportunity offers, the South to the Union, by surrendering the whole point.

If this be the true state of the case, what are the Southern chiefs fighting about? Their apologists in England say that it is about tariffs, and similar trumpery. They say nothing of the kind. They tell the world, and they told their own citizens when Edition: current; Page: [132] they wanted their votes, that the object of the fight was slavery. Many years ago, when General Jackson was President, South Carolina did nearly rebel (she never was near separating) about a tariff; but no other State abetted her, and a strong adverse demonstration from Virginia brought the matter to a close. Yet the tariff of that day was rigidly protective. Compared with that, the one in force at the time of the secession was a free-trade tariff. This latter was the result of several successive modifications in the direction of freedom; and its principle was not protection for protection, but as much of it only as might incidentally result from duties imposed for revenue. Even the Morrill Tariff^[*] (which never could have been passed but for the Southern secession) is stated by the ^eunimpeachable^e authority of Mr. H.C. Carey to be considerably more liberal than the reformed French Tariff under Mr. Cobden’s Treaty;^[†] insomuch that he, a Protectionist, would be glad to exchange his own protective tariff for Louis Napoleon’s free-trade one.^[‡] But why discuss on probable evidence, notorious facts? The world knows what the question between the North and South has been for many years, and still is. Slavery alone was thought of, alone talked of. Slavery was battled for and against, on the floor of Congress and in the plains of Kansas: on the Slavery question exclusively was the party constituted which now rules the United States: on slavery Fremont was rejected, on slavery Lincoln was elected; the South separated on slavery, and proclaimed slavery as the one cause of separation.

It is true enough that the North are not carrying on war to abolish slavery in the States where it legally exists. Could it have been expected, or even perhaps desired, that they should? A great party does not change, suddenly and at once, all its principles and professions. The Republican party have taken their stand on law, and the existing Constitution of the Union. They have disclaimed all right to attempt anything which that Constitution forbids. It does forbid interference by the Federal Congress with slavery in the Slave States;^[§] but it does not forbid their abolishing it in the district of Columbia; and this they are now doing, having voted, I perceive, in their present pecuniary straits, a million of dollars to indemnify the slave-owners of the district.^[¶] Neither did the Constitution, in their own opinion, require them to permit the introduction of slavery into the Territories, which were not yet States. To prevent this, the Republican party was formed, and to prevent it they are now fighting, as the slave-owners are fighting to enforce it.

The present Government of the United States is not an abolitionist government. Abolitionists, in America, mean those who do not keep within the Constitution; who demand the destruction (as far as slavery is concerned) of as much of it as protects the internal legislation of each State from the control of Congress, who aim at abolishing slavery wherever it exists, by force if need be, but certainly by some other power than the constituted authorities of the Slave States.^* The Edition: current; Page: [134] Republican party neither aim nor profess to aim at this object. And when we consider the flood of wrath which would have been poured out against them if they did, by the very writers who now taunt them with not doing it, we shall be apt to think the taunt a little misplaced. But though not an Abolitionist party, they are a Free-soil party. If they have not taken arms against slavery, they have against its extension. And they know, as we may know if we please, that this amounts to the same thing. The day when slavery can no longer extend itself, is the day of its doom. The slave-owners know this, and it is the cause of their fury. They know, as all know who have attended to the subject, that confinement within existing limits is its death-warrant. Slavery, under the conditions in which it exists in the States, exhausts even the beneficent powers of nature. So incompatible is it with any kind whatever of skilled labour, that it causes the whole productive resources of the country to be concentrated on one or two products, cotton being the chief, which require, to raise and prepare them for the market, little besides brute animal force. The cotton cultivation, in the opinion of all competent judges, alone saves North American slavery; but cotton cultivation, exclusively adhered to, exhausts in a moderate number of years all the soils which are fit for it, and can only be kept up by travelling farther and farther westward. Mr. Olmsted had given a vivid description of the desolate state of parts of Georgia and the Carolinas, once among the richest specimens of soil and cultivation in the world, and even the more recently colonized Alabama, as he shows, is rapidly following in the same downhill track.^[*] To slavery, therefore, it is a matter of life and death to find fresh fields for the employment of slave labour. Confine it to the present States, and the owners of slave property will either be speedily ruined, or will have to find means of reforming and renovating their agricultural system; which cannot be done without treating the slaves like human beings, nor without so large an employment of skilled, that is, of free labour, as will widely displace the unskilled, and so depreciate the pecuniary value of the slave, that the immediate mitigation and ultimate extinction of slavery would be a nearly inevitable and probably rapid consequence.

The Republican leaders do not talk to the public of these almost certain results of success in the present conflict. They talk but little, in the existing emergency, even of the original cause of quarrel. The most ordinary policy teaches them to inscribe on their banner that part only of their known principles in which their supporters are unanimous. The preservation of the Union is an object about which the North are agreed; and it has many adherents, as they believe, in the South generally. That nearly half the population of the Border Slave States are in favour of it is a patent fact, since they are now fighting in its defence. It is not probable that they would be willing to fight directly against slavery. The Republicans well know that if they can re-establish the Union, they gain everything for which they originally Edition: current; Page: [135] contended; and it would be a plain breach of faith with the Southern friends of the Government, if, after rallying them round its standard for a purpose of which they approve, it were suddenly to alter its terms of communion without their consent.

But the parties in a protracted civil war almost invariably end by taking more extreme, not to say higher grounds of principle than they began with. Middle parties and friends of compromise are soon left behind; and if the writers who so severely criticise the present moderation of the Free-soilers are desirous to see the war become an abolition war, it is probable that, if the war lasts long enough, they will be gratified. Without the smallest pretension to see further into futurity than other people, I at least have foreseen and foretold from the first, that if the South were not promptly put down, the contest would become distinctly an anti-slavery one; nor do I believe that any person, accustomed to reflect on the course of human affairs in troubled times, can expect anything else. Those who have read, even cursorily, the most valuable testimony to which the English public have access, concerning the real state of affairs in America—the letters of the Times correspondent, Mr. Russell—must have observed how early and rapidly he arrived at the same conclusion, and with what increasing emphasis he now continually reiterates it. In one of his recent letters he names the end of next summer as the period by which, if the war has not sooner terminated, it will have assumed a complete anti-slavery character.^[*] So early a term exceeds, I confess, my most sanguine hopes; but if Mr. Russell be right, Heaven forbid that the war should cease sooner, for if it lasts till then it is quite possible that it will regenerate the American people.

If, however, the purposes of the North may be doubted or misunderstood, there is at least no question as to those of the South. They make no concealment of their principles. As long as they were allowed to direct all the policy of the Union; to break through compromise after compromise, encroach step after step, until they reached the pitch of claiming a right to carry slave property into the Free States, and, in opposition to the laws of those States, hold it as property there, so long, they were willing to remain in the Union. The moment a President was elected of whom it was inferred from his opinions, not that he would take any measures against slavery where it exists, but that he would oppose its establishment where it exists not,—that moment they broke loose from what was, at least, a very solemn contract, and formed themselves into a Confederation professing as its fundamental principle not merely the perpetuation, but the indefinite extension of slavery. And the doctrine is loudly preached through the new Republic, that slavery, whether black or white, is a good in itself, and ^fis^f the proper condition of the working classes everywhere.

Let me, in a few words, remind the reader what sort of a thing this is, which the Edition: current; Page: [136] white oligarchy of the South have banded themselves together to propagate, and establish, if they could, universally. When it is wished to describe any portion of the human race as in the lowest state of debasement, and under the most cruel oppression, in which it is possible for human beings to live, they are compared to slaves. When words are sought by which to stigmatize the most odious despotism, exercised in the most odious manner, and all other comparisons are found inadequate, the despots are said to be like slave-masters, or slave-drivers. What, by a rhetorical licence, the worst oppressors of the human race, by way of stamping on them the most hateful character possible, are said to be, these men, in very truth, are. I do not mean that all of them are hateful personally, any more than all the inquisitors, or all the buccaneers. But the position which they occupy, and ^gof which they are in arms to vindicate the abstract excellence^g, is that which the united voice of mankind habitually selects as the type of all hateful qualities. I will not bandy chicanery about the more or less of stripes or other torments which are daily requisite to keep the machine in working order, nor discuss whether the Legrees or the St. Clairs^[*] are more numerous among the slave-owners of the Southern States. The broad facts of the case suffice. One fact is enough. There are, Heaven knows, vicious and tyrannical institutions in ample abundance on the earth. But this institution is the only one of them all which requires, to keep it going, that human beings should be burnt alive. The calm and dispassionate Mr. Olmsted affirms that there has not been a single year, for many years past, in which this horror is not known to have been perpetrated in some part or other of the South.^[†] And not upon negroes only; the Edinburgh Review, in a recent number, gave the hideous details of the burning alive of an unfortunate Northern huckster by Lynch law, on mere suspicion of having aided in the escape of a slave.^[‡] What must American slavery be, if deeds like these are necessary under it? and it they are not necessary, and are yet done, is not the evidence against slavery still more damning? The South are in rebellion not for simple slavery, they are in rebellion for the right of burning human creatures alive.

But we are told, by a strange misapplication of a true principle, that the South had a right to separate; that their separation ought to have been consented to, the moment they showed themselves ready to fight for it; and that the North, in resisting it, are committing the same error and wrong which England committed in opposing the original separation of the thirteen colonies. This is carrying the doctrine of the sacred right of insurrection rather far. It is wonderful how easy, and Edition: current; Page: [137] liberal, and complying, people can be in other people’s concerns. Because they are willing to surrender their own past, and have no objection to join in reprobation of their great-grandfathers, they never put ^hto^h themselves the question what they themselves would do in circumstances far less trying, under far less pressure of real national calamity. Would those who profess these ardent revolutionary principles consent to their being applied to Ireland, or India, or the Ionian Islands? How have they treated those who did attempt so to apply them? But the case can dispense with any mere argumentum ad hominem. I am not frightened at the word rebellion. I do not scruple to say that I have sympathized more or less ardently with most of the rebellions, successful and unsuccessful, which have taken place in my time. But I certainly never conceived that there was a sufficient title to my sympathy in the mere fact of being a rebel; that the act of taking arms against one’s fellow citizens was so meritorious in itself, was so completely its own justification, that no question need be asked concerning the motive. It seems to me a strange doctrine that the most serious and responsible of all human acts imposes no obligation on those who do it, of showing that they have a real grievance; that those who rebel for the power of oppressing others, exercise as sacred a right as those who do the same thing to resist oppression practised upon themselves. Neither rebellion, nor any other act which affects the interests of others, is sufficiently legitimated by the mere will to do it. Secession may be laudable, and so may any other kind of insurrection; but it may also be an enormous crime. It is the one or the other, according to the object and the provocation. And if there ever was an object which, by its bare announcement, stamped rebels against a particular community as enemies of mankind, it is the one professed by the South. Their right to separate is the right which Cartouche or Turpin would have had to secede from their respective countries, because the laws of those countries would not suffer them to rob and murder on the highway. The only real difference is, that the present rebels are more powerful than Cartouche or Turpin, and may possibly be able to effect their iniquitous purpose.

Suppose, however, for the sake of argument, that the mere will to separate were in this case, or in any case, a sufficient ground for separation, I beg to be informed whose will? The will of any knot of men who, by fair means or foul, by usurpation, terrorism, or fraud, have got the reins of government into their hands? If the inmates of Parkhurst Prison were to get possession of the Isle of Wight, occupy its military positions, enlist one part of its inhabitants in their own ranks, set the remainder of them to work in chain gangs, and declare themselves independent, ought their recognition by the British Government to be an immediate consequence? Before admitting the authority of any persons, as organs of the will of the people, to dispose of the whole political existence of a country, I ask to see whether their credentials are from the whole, or only from a part. And first, it is necessary Edition: current; Page: [138] to ask, Have the slaves been consulted? Has their will been counted as any part in the estimate of collective volition? They are a part of the population. However natural in the country itself, it is rather cool in English writers who talk so glibly of the ten millions (I believe there are only eight), to pass over the very existence of four millions who must abhor the idea of separation. Remember, we consider them to be human beings, entitled to human rights. Nor can it be doubted that the mere fact of belonging to a Union in some parts of which slavery is reprobated, is some alleviation of their condition, if only as regards future probabilities. But even of the white population, it is questionable if there was in the beginning a majority for secession anywhere but in South Carolina. Though the thing was pre-determined, and most of the States committed by their public authorities before the people were called on to vote; though in taking the votes terrorism in many places reigned triumphant; yet even so, in several of the States, secession was carried only by narrow majorities. In some the authorities have not dared to publish the numbers; in some it is asserted that no vote has ever been taken. Further (as was pointed out in an admirable letter by Mr. Carey),^[*] the Slave States are intersected in the middle, from their northern frontier almost to the Gulf of Mexico, by a country of free labour—the mountain region of the Alleghanies and their dependencies, forming parts of Virginia, North Carolina, Tennessee, Georgia, and Alabama, in which, from the nature of the climate and of the agricultural and mining industry, slavery to any material extent never did, and never will, exist. This mountain zone is peopled by ardent friends of the Union. Could the Union abandon them, without even an effort, to be dealt with at the pleasure of an exasperated slave-owning oligarchy? Could it abandon the Germans who, in Western Texas, have made so meritorious a commencement of growing cotton on the borders of the Mexican Gulf by free labour? Were the right of the slave-owners to secede ever so clear, they have no right to carry these with them; unless allegiance is a mere question of local proximity, and my next neighbour, if I am a stronger man, can be compelled to follow me in any lawless vagaries I choose to indulge.

But (it is said) the North will never succeed in conquering the South; and since the separation must in the end be recognised, it is better to do at first what must be done at last; moreover, if it did conquer them, it could not govern them when conquered, consistently with free institutions. With no one of these propositions can I agree.

Whether or not the Northern Americans will succeed in reconquering the South, I do not affect to foresee. That they can conquer it, if their present determination holds, I have never entertained a doubt; for they are twice as numerous, and ten or twelve times as rich. Not by taking military possession of their country, or marching an army through it, but by wearing them out, exhausting their resources, depriving them of the comforts of life, encouraging their slaves to desert, and Edition: current; Page: [139] excluding them from communication with foreign countries. All this, of course, depends on the supposition that the North does not give in first. Whether they will persevere to this point, or whether their spirit, their patience, and the sacrifices they are willing to make, will be exhausted before reaching it, I cannot tell. They may, in the end, be wearied into recognising the separation. But to those who say that because this may have to be done at last, it ought to have been done at first, I put the very serious question—On what terms? Have they ever considered what would have been the meaning of separation if it had been assented to by the Northern States when first demanded? People talk as if separation meant nothing more than the independence of the seceding States. To have accepted it under that limitation would have been, on the part of the South, to give up that which they have seceded expressly to preserve. Separation, with them, means at least half the Territories; including the Mexican border, and the consequent power of invading and overrunning Spanish America for the purpose of planting there the “peculiar institution”^[*] which even Mexican civilization has found too bad to be endured. There is no knowing to what point of degradation a country may be driven in a desperate state of its affairs; but if the North ever, unless on the brink of actual ruin, makes peace with the South, giving up the original cause of quarrel, the freedom of the Territories; if it resigns to them when out of the Union that power of evil which it would not grant to retain them in the Union—it will incur the pity and disdain of posterity. And no one can suppose that the South would have consented, or in their present temper ever will consent, to an accommodation on any other terms. It will require a succession of humiliations to bring them to that. The necessity of reconciling themselves to the confinement of slavery within its existing boundaries, with the natural consequence, immediate mitigation of slavery, and ultimate emancipation, is a lesson which they are in no mood to learn from anything but disaster. Two or three defeats in the field, breaking their military strength, though not followed by an invasion of their territory, may possibly teach it to them. If so, there is no breach of charity in hoping that this severe schooling may promptly come. When men set themselves up, in defiance of the rest of the world, to do the devil’s work, no good can come of them until the world has made them feel that this work cannot be suffered to be done any longer. If this knowledge does not come to them for several years, the abolition question will by that time have settled itself. For assuredly Congress will very soon make up its mind to declare all slaves free who belong to persons in arms against the Union.^[†] When that is done, slavery, confined to a minority, will soon cure itself; and the pecuniary value of the negroes belonging to loyal masters will probably not exceed the amount of compensation which the United States will be willing and able to give.

The assumed difficulty of governing the Southern States as free and equal commonwealths, in case of their return to the Union, is purely imaginary. If brought back by force, and not by voluntary compact, they will return without the Territories, and without a Fugitive Slave Law. It may be assumed that in that event the victorious party would make the alterations in the Federal Constitution which are necessary to adapt it to the new circumstances, and which would not infringe, but strengthen, its democratic principles. An article would have to be inserted prohibiting the extension of slavery to the Territories, or the admission into the Union of any new Slave State. Without any other guarantee, the rapid formation of new Free States would ensure to freedom a decisive and constantly increasing majority in Congress. It would also be right to abrogate that bad provision of the Constitution (a necessary compromise at the time of its first establishment) whereby the slaves, though reckoned as citizens in no other respect, are counted, to the extent of three-fifths of their number, in the estimate of the population for fixing the number of representatives of each State in the Lower House of Congress.^[*] Why should the masters have members in right of their human chattels, any more than of their oxen and pigs? The President, in his Message, has already proposed that this salutary reform should be effected in the case of Maryland, additional territory, detached from Virginia, being given to that State as an equivalent: thus clearly indicating the policy which he approves, and which he is probably willing to make universal.^[†]

As it is necessary to be prepared for all possibilities, let us now contemplate another. Let us suppose the worst possible issue of this war—the one apparently desired by those English writers whose moral feeling is so philosophically indifferent between the apostles of slavery and its enemies. Suppose that the North should stoop to recognise the new Confederation on its own terms, leaving it half the Territories, and that it is acknowledged by Europe, and takes its place as an admitted member of the community of nations. It will be desirable to take thought beforehand what are to be our own future relations with a new Power professing the principles of Attila and Genghis Khan as the foundation of its Constitution. Are we to see with indifference its victorious army let loose to propagate their national faith at the rifle’s mouth through Mexico and Central America? Shall we submit to see fire and sword carried over Cuba and Porto Rico, and Hayti and Liberia conquered and brought back to slavery? We shall soon have causes enough of quarrel on our own account. When we are in the act of sending an expedition against Mexico to redress the wrongs of private British subjects,^[‡] we should do well to reflect in time that the President of the new Republic, Mr. Jefferson Davis, Edition: current; Page: [141] was ⁱone of the original apostlesⁱ of repudiation. ^jUnless we abandon the principles we have for two generations consistently professed and acted on, we should be at war with the new Confederacy within five years about the African slave-trade. An English Government will hardly be base enough to recognise them, unless they accept all the treaties by which America is at present bound; nor, it may be hoped, even if de facto independent, would they be admitted to the courtesies of diplomatic intercourse, unless they granted in the most explicit manner the right of search. To allow the slave-ships of a Confederation formed for the extension of slavery to come and go, free and unexamined, between America and the African coast, would be to renounce even the pretence of attempting to protect Africa against the man-stealer, and abandon that Continent to the horrors, on a far larger scale, which were practised before Granville Sharp and Clarkson were in existence. But even if the right of intercepting their slavers were acknowledged by treaty, which it never would be, the arrogance of the Southern slaveholders would not long submit to its exercise. Their pride and self-conceit, swelled to an inordinate height by their successful struggle, would defy the power of England as they had already successfully defied that of their Northern countrymen. After our people by their cold disapprobation, and our press by its invective, had combined with their own difficulties to damp the spirit of the Free States, and drive them to submit and make peace, we should have to fight the Slave States ourselves at far greater disadvantages, when we should no longer have the wearied and exhausted North for an ally. The time might come when the barbarous and barbarizing Power, which we by our moral support had helped into existence, would require a general crusade of civilized Europe, to extinguish the mischief which it had allowed, and we had aided, to rise up in the midst of our civilization.

For these reasons I cannot join with those who cry Peace, peace I cannot wish that this war should not have been engaged in by the North, or that being engaged in, it should be terminated on any conditions but such as would retain the whole of the Territories as free soil. I am not blind to the possibility that it may require a long war to lower the arrogance and tame the aggressive ambition of the slave-owners, to the point of either returning to the Union, or consenting to remain out of it with their present limits. But war, in a good cause, is not the greatest evil which a nation can suffer. War is an ugly thing, but not the ugliest of things, the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse. When a people are used as mere human instruments for firing cannon or Edition: current; Page: [142] thrusting bayonets, in the service and for the selfish purposes of a master, such war degrades a people. A war to protect other human beings against tyrannical injustice; a war to give victory to their own ideas of right and good, and which is their own war, carried on for an honest purpose by their free choice—is often the means of their regeneration. A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself. As long as justice and injustice have not terminated their ever renewing fight for ascendancy in the affairs of mankind, human beings must be willing, when need is, to do battle for the one against the other. I am far from saying that the present struggle, on the part of the Northern Americans, is wholly of this exalted character; that it has arrived at the stage of being altogether a war for justice, a war of principle. But there was from the beginning, and now is, a large infusion of that element in it; and this is increasing, will increase, and if the war lasts, will in the end predominate. Should that time come, not only will the greatest enormity which still exists among mankind as an institution, receive far earlier its coup de grâce than there has ever, until now, appeared any probability of; but in effecting this the Free States will have raised themselves to that elevated position in the scale of morality and dignity, which is derived from great sacrifices consciously made in a virtuous cause, and the sense of an inestimable benefit to all future ages, brought about by their own voluntary efforts.

The Slave Power

this volume has a twofold claim to attention; on the author’s account, and on its own. Mr. Cairnes, one of the ablest of the distinguished men who have given lustre to the much-calumniated Irish colleges, as well as to the chair of Political Economy, which Ireland owes to the enlightened public spirit of Archbishop Whately, is known to the thinking part of the public as the contributor to English periodicals of the clearest and most conclusive discussions which have yet appeared on some of the most disputed and difficult economical questions of the time. He has now, in a work of larger dimensions, given the result of the study which, both as a first-rate political economist, and in the higher character of a moral and political philosopher, he has devoted to the American contest. A work more needed, or one better adapted to the need, could scarcely have been produced at the present time. It contains more than enough to give a new turn to English feeling on the subject, if those who guide and sway public opinion were ever likely to reconsider a question on which they have so deeply committed themselves. To all who are still open to conviction, it is an invaluable exposition both of the principles and the facts of the case. The last is as much required as the first; for the strange partiality of the nation which most abhors negro slavery, to those who are urging an internecine war solely for its propagation, could not have existed for a moment, had there not been, not merely a complete misunderstanding of principles, but an utter ignorance of facts.

We believe that we shall, on the present occasion, do a better service to truth and right by helping to extend the knowledge of the contents of Mr. Cairnes’ treatise, than by any comments of our own. Mr. Cairnes opens up the question in so lucid and natural an order, and so exhausts it in all its more important aspects, that a mere condensation of his book would be the most powerful argumentative discourse on the subject, which could well be given in the narrow compass of an article. Not that, as is the case with lax and diffuse writers, his argument gains by ^acondensation. On^a the contrary, it loses greatly. In Mr. Cairnes’ book there is nothing verbose, nothing superfluous; the effect is nowhere weakened by expansion, nor the impression of the whole frittered away by undue expatiating on parts; the work is artistic as well as scientific, observing due proportion, dwelling Edition: current; Page: [146] long enough, and not too long, on each portion of the subject, and passing to a new point exactly when the mind is prepared for it, by having completely appropriated those preceding. An attempt to convey the substance of such a composition in an abridged form, may give some idea of the skeleton, but none of the nerve and muscle: the greatest merit which it could have would be that of stimulating the reader to have recourse to Mr. Cairnes’ own pages.

After sweeping away the idle notion, which never could have been entertained by any one conversant with even the surface of American history, that the quarrel is about tariffs, or anything whatever except slavery, Mr. Cairnes proceeds to the main thesis of his book, viz., that the Slave Power, whose character and aims are the cause of the American contest, is “the most formidable antagonist to civilized progress which has appeared for many centuries, representing a system of society at once retrograde and aggressive, a system which, containing within it no germs from which improvement can spring, gravitates inevitably towards barbarism, while it is impelled by exigencies inherent in its position and circumstances to a constant extension of its territorial domain.” [P. 18.] This is what a man of distinguished ability, who has deeply considered the subject, thinks of the new power, which England, by the moral influence of its opinion and sympathies, is helping to raise up. “The vastness,” he continues, “of the interests at stake in the American contest, regarded under this aspect, appears to me to be very inadequately conceived in this country, and the purpose of the present work is to bring forward this view of the case more prominently than has yet been done.” [Ibid.]

Accordingly, in the first place, Mr. Cairnes expounds the economic necessities under which the Slave Power is placed by its fundamental institution.^[*] Slavery, as an industrial system, is not capable of being everywhere profitable. It requires peculiar conditions. Originally a common feature of all the Anglo-Saxon settlements in America, it took root and became permanent only in the southern portion of them. What is the explanation of this fact? Several causes have been assigned. One is, diversity of character in the original founders of ^bthose^b communities; New England having been principally colonized by the middle and poorer classes, Virginia and Carolina by the higher. The fact was so, but it goes a very little way towards the explanation of the phenomenon, since “it is certain the New Englanders were not withheld from employing slaves by moral scruples;” and if slave labour had been found suitable for the requirements of the country, they would, without doubt, have adopted it in fact, as they actually did in principle. [P. 36.] Another common explanation of the different fortune of slavery in the Northern and in the Southern States is, that the Southern climate is not adapted to white labourers, and that negroes will not work without slavery. The latter half of Edition: current; Page: [147] this statement is opposed to fact. Negroes are willing to work wherever they have the natural inducements to it, inducements equally indispensable to the white race. The climate theory is inapplicable to the Border Slave States, Kentucky, Virginia, and others, whose climate “is remarkably genial, and perfectly suited to the industry of Europeans.” [P. 37.] Even in the Gulf States, the alleged fact is only true, as it is in all other parts of the world, of particular localities. The Southern States, it is observed by M. de Tocqueville, “are not hotter than the south of Italy and Spain.”^[*] In Texas itself there is a flourishing colony of free Germans, who carry on all the occupations of the country, growth of cotton included, by white labour; and “nearly all the heavy out-door work in the city of New Orleans is performed by whites.”[Pp. 38-9.]

What the success or failure of slavery as an industrial system depends on, is the adaptation of the productive industry of the country to the qualities and defects of slave labour. There are kinds of cultivation which even in tropical regions cannot advantageously be carried on by slaves, there are others in which, as a mere matter of profit, slave labour has the advantage over the only kind of free labour which, as a matter of fact, comes into competition with it—the labour of peasant proprietors.

The economic advantage of slave labour is, that it admits of complete organization: “it may be combined on an extensive scale, and directed by a controlling mind to a single end.” [P. 44.] Its defects are, that it is given reluctantly; it is unskilful; it is wanting in versatility. Being given reluctantly, it can only be depended on as long as the slave is watched, but the cost of watching is too great if the workmen are dispersed over a widely-extended area; their concentration, or, in other words, the employment of many workmen at the same time and place, is a condition sine quá non of slavery as an industrial system, while, to enable it to compete successfully with the intense industry and thrift of workmen who enjoy the entire fruits of their own labour, this concentration and combination of labour must be not merely possible, but also economically preferable. The second disadvantage of slave labour is that it is unskilful “not only because the slave, having no interest in his work, has no inducement to exert his higher faculties, but because, from the ignorance to which he is of necessity condemned, he is incapable of doing so.” [P. 45.] This disqualification restricts the profitableness of slavery to the case of purely unskilled labour. “The slave is unsuited for all branches of industry which require the slightest care, forethought, or dexterity. He cannot be made to co-operate with machinery; he can only be trusted with the commonest implements; he is incapable of all but the rudest labour.” [P. 46.] The third defect of slave labour is but a form of the second, its want of versatility. “The difficulty of teaching the slave anything is so great, that the only chance of turning his labour to profit is, when he has once learned a Edition: current; Page: [148] lesson, to keep him to that lesson for life. Where slaves, therefore, are employed, there can be no variety of production. If tobacco be cultivated, tobacco becomes the sole staple, and tobacco is produced whatever be the state of the market, and whatever be the condition of the soil.” [Pp. 46-7.] All this, not as matter of theory merely, but of actual daily experience in the Southern States, is superabundantly proved, as Mr. Cairnes shows, by Southern testimony.^[*]

It follows, first, that slave labour is unsuited for manufactures, and can only, in competition with free labour, be profitably carried on in a community exclusively agricultural. Secondly, that even among agricultural employments it is unsuited to those in which the labourers are, or without great economical disadvantage can be, dispersed over a wide surface; among which are nearly all kinds of cereal cultivation, including the two great staples of the Free States, maize and wheat. “A single labourer can cultivate twenty acres of wheat or Indian corn, while he cannot manage more than two of tobacco, or three of cotton.” [P. 50.] Tobacco and cotton admit, therefore, the possibility of working large numbers within a limited space: and as they also benefit in a far greater degree than wheat or maize by combination and classification of labour, the characteristic advantage of slave labour is at the highest, while its greatest drawback, the high cost of superintendence, is reduced to the minimum. It is to these kinds of cultivation, together with sugar and rice, that in America slave labour is practically confined. Wherever, even in the Southern States, “the external conditions are especially favourable to cereal crops, as in parts of Virginia, Kentucky, and Missouri, and along the slopes of the Alleghanies, there slavery has always failed to maintain itself.” [P. 52.]

But a kind of cultivation suitable to it is not the only condition which the slave system requires in order to be economically profitable. It demands, in addition, an unlimited extent of highly fertile land. This arises from the other two infirmities of slave labour, its unskilfulness and its want of versatility. This point being of the very highest importance, and the foundation of the author’s main argument, we give the statement of it in his own words:

Accordingly, the ruin, and in many cases the abandonment to nature, of what were once the most productive portions of the older Slave States, are facts palpable to the eye, admitted and loudly proclaimed by slave-holders. And hence that pressing demand for the perpetual extension of the area of slavery, that never-ceasing tendency westward, and unceasing struggle for the opening of fresh regions to slave-owners and their human property, which has grown with the growth of the cotton cultivation, and strengthened with its strength; which produced the seizure of Texas, the war with Mexico, the buccaneering expeditions to Central America, and the sanguinary contest for Kansas; which has been the one determining principle of Southern politics for the last quarter of a century; and because at last, though tardily, resisted by the North, has decided the cotton States to break up the Union.

Such being the economic conditions of a slave community like those of the Southern States, the author proceeds to show how this economic system gives rise to a social and^d political organization tending in the highest degree to aggravate the evils which emanate originally from the economic system itself.

moreover, a capitalist employing slave labour requires funds sufficient not merely to maintain his slaves, but to purchase their fee simple from the first.

Side by side with these great land and slave proprietors grows up a white proletariat of the worst kind, known in Southern phraseology as “mean whites” or “white trash.”^[†] The vast districts (becoming, under the deteriorating effects of slave industry, constantly larger,) which are surrendered to nature, and relapse into wilderness,

Such, then, is the constitution of society in the Slave States; “it resolves itself into three classes—the slaves, on whom devolves all the regular industry; the slaveholders, who reap all its fruits; and an idle and lawless rabble who live dispersed over vast plains in a condition little removed from absolute barbarism.” Edition: current; Page: [151] [P. 85.] Of a society thus composed, the political structure is determined by an inexorable law.

Are there, in the social and political system which has now been characterized, any elements of improvement, any qualities which leave room for a reasonable hope of the ultimate, however gradual, correction of its inherent evils? Mr. Cairnes has conclusively shown that the very reverse is the case. Instead of raising themselves to the level of free societies, these communities are urged by the most imperious motives to drag down, if possible, free societies to the level of themselves.

It may be thought, perhaps, that American slavery will, from merely natural causes, share the fate of slavery elsewhere. The institution of slavery was once universal, but mankind have nevertheless improved; the most progressive communities in the ancient and modern world—the Greeks, Romans, Hebrews, mediaeval Europeans—have been afflicted with this scourge, but by the natural progress of improvement have got rid of it, and why, it may be said, should not this also happen in the Southern States? and if so, would not an attempt to anticipate this natural progress, and make emancipation move forward more rapidly than the preparation for it, be full of mischief even to the oppressed race itself?

Mr. Cairnes feels all the importance of this question; and no part of his book is Edition: current; Page: [152] more instructive, or more masterly, than the chapter in which he grapples with it.^[*] He shows, that “between slavery as it existed in classical and mediaeval times, and the system which now erects itself defiantly in North America,” there are such deep-seated distinctions, as render the analogy of the one entirely inapplicable to the other. [P. 98.]

The first distinction is the vital fact of the difference in colour between modern slaves and their masters. In the ancient world, slaves, once freed, became an integral part of free society; their descendants not only were not a class apart, but were the main source from which the members of the free community were recruited; and no obstacle, legal or moral, existed to their attainment of the highest social positions. In America, on the contrary, the freed slave transmits the external brand of his past degradation to all his descendants. However worthy of freedom, they bear an outward mark which prevents them from becoming imperceptibly blended with the mass of the free; and while that odious association lasts, it forms a great additional hindrance to the enfranchisement by their masters, of those whom, even when enfranchised, the masters cannot endure to look upon as their fellow-citizens.

But another difference between ancient and modern slavery, which still more intimately affects the question under discussion, arises from the immense development of international commerce in modern times.

There being thus no inducements for cultivating the intelligence of slaves, the mighty motives which always exist against suffering it to be cultivated, have had full play; and in all the principal Slave States, teaching a slave to read or write is rigorously prohibited, under most severe penalties both to the teacher and the taught.^[*]

There is yet another important distinction between slavery in ancient and in modern times—namely,

The barbarous inhumanity of the slave trade has long been understood; but what has not been so often noticed is the mode in which it operates in giving increased coherence and stability to the system of which it is a part, first, “by bringing the resources of salubrious countries to supplement the waste of human life in torrid regions; and secondly, by providing a new source of profit for slaveholders, which enables them to keep up the institution, when, in the absence of this resource, it would become unprofitable and disappear.” [P. 109.] Thus, in Virginia, when slavery, by exhausting the soil, had eaten away its own profits, and the recolonization of the State by free settlers had actually begun, came suddenly the prohibition of the African slave trade, and nearly at the same time the vast enlargement of the field for slave labour by the purchase of Louisiana, and these two events made slavery in Virginia again profitable, as a means of breeding slaves for exportation and sale to the South.

It is through the existence of this abundant breeding ground for slaves, which enables their number to be kept up and increased, in the face of the most frightful mortality in the places to which they are sent, that slavery is enabled, as it exhausts Edition: current; Page: [154] old lands, to move on to new ones, preventing that condensation of population which, by depriving the “mean whites” of the means of subsisting without regular work, might render them efficient workmen, instead of, as they now are, “more inefficient, more unreliable, more unmanageable” than even the slaves, and so might gradually effect the substitution of free for slave labour. [P. 126.] The consequence is that population under these institutions increases only by dispersion. Fifteen persons to the square mile are its maximum density in the really slave countries; a state of things under which “popular education becomes impracticable; roads, canals, railways must be losing speculations” [p. 129] (in South Carolina “a train has been known to travel a hundred miles with a single passenger” [p. 131]); all civilizing agencies, all powers capable of making improvement penetrate the mass of the poor white population, are wanting.

There remain, as a source from which the regeneration of slave society is to be looked for, the slave-owners themselves; the chance, whatever it may be, that these may be induced, without external compulsion, to free their slaves, or take some measure, great or small, to prepare the slaves for freedom. An individual here and there may be virtuous enough to do this, if the general sentiment of those by whom he is surrounded will allow him; but no one, we suppose, is simple enough to expect this sacrifice from the entire ruling class of a nation, least of all from the ruling class in the Slave States, with whom the maintenance of slavery has become a matter of social pride and political ambition as much as of pecuniary interest.

Accordingly the South has advanced, from the modest apologies for slavery of a generation ago, to loudly vaunting it as a moral, civilizing, and every way wholesome institution; the fit condition not only for negroes but for the labouring classes of all countries; nay, as an ordinance of God, and a sacred deposit providentially entrusted to the keeping of the Southern Americans, for preservation and extension.^[*]

The energies of the Southern rulers have long been devoted to protecting themselves against the economical inconveniences of slavery in a manner directly the reverse of either its extinction or its mitigation. To obtain for it an ever wider field is the sole aim of their policy, and, as they are firmly persuaded, the condition of their social existence. “ ‘There is not a slaveholder,’ says Judge Warner, of Georgia,” and in saying this he only expressed the general sentiment,

And this is the doctrine of the advocates of slavery! What, to any mind but that of a slaveholder, would seem at once the reductio ad absurdum and the bitterest moral satire on slavery, is by them brought forward—such is the state of their minds—as an unanswerable argument for bringing fresh territory under it as fast as its exhausts the old, until, we suppose, all the remaining soil of our planet is used up and depopulated.

Even were they not prompted to this aggressive ambition by pecuniary interest, they would have a sufficient inducement to it in the passions which are the natural growth of slave society. “That which the necessity for fresh soils is to the political economy of such communities, a lust of power is to their morality. The slaveholder lives from infancy in an atmosphere of ^fdespotism; he^f sees around him none but abject creatures, who, under fearful penalties to be inflicted by himself, are bound to do his slightest, his most unreasonable bidding.” [P. 155.] The commerce between master and slave, in the words of Jefferson, himself born and bred a slave-owner, “ ‘is a perpetual exercise of the most boisterous passions—the most unremitting despotism on the one hand, and degrading submission on the other. Our children see this, and learn to imitate it. The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to the worst passions, and thus nursed, educated, and daily exercised in tyranny, cannot but be stamped with its odious peculiarities.’ ”^[†] The Edition: current; Page: [156] arrogance, self-will, and impatience of restraint, which are the natural fruits of the situation, and with which the Southern-American character in all its manifestations is deeply stamped, suffice of themselves to make the slaveholding class throw all their pride and self-importance into the maintenance, extension, and exaltation of their “peculiar institution;”^[*] the more, because the institution and its upholders are generally reprobated by mankind, and because they have to defy the opinion of free nations, and may have to resist the exertion of their physical power.

Hence it is that the politicians of the Slave States have devoted themselves, with the ardour of fanaticism, to acquiring, by fair means or foul, ascendancy in the politics of the Union, in order that they might employ that ascendancy in gaining territory for the formation of new Slave States; and again to create more and more Slave States, in order to maintain their ascendancy in the Union. Mr. Cairnes has traced with a vigorous hand the history of these efforts:^[†] the struggle between freedom and slavery for the possession of Missouri; the compromise by which that new State was given up to slavery, on condition that no future Slave State should be created north of the parallel 36°30′ of north latitude; the filibustering occupation of Texas in order to detach it from Mexico, its annexation to the Union by means of slavery ascendancy, and the war with Mexico for the acquisition of more slave territory; the Missouri compromise, as soon as all its fruits had been reaped, discovered to be unconstitutional, and repudiated, the principle next set up being “squatter sovereignty”^[‡] (the doctrine that Congress could not legislate for the territories, and that the first inhabitants had the right to decide whether they would allow slavery or not); the Northern territories consequently opened to slavery, and the race which followed between Northern and Southern occupants for the possession of Kansas; a slavery constitution for Kansas voted at the rifle’s point by bands of “border ruffians”^[§] from the South, who did not even intend to settle in the territory; when this nefarious proceeding was frustrated by the crowds of free settlers who flocked in from the North and refused to be bound by the fictitious constitution, the principle of squatter sovereignty also repudiated, since it had failed to effect Southern objects, and the doctrine set up that slavery exists ipso jure in all the territories, and that not even the settlers themselves could make it illegal; and finally a decision obtained from the highest tribunal of the United States (which Southern influence had succeeded in filling with Southern lawyers) by which not only this monstrous principle was affirmed, but the right of a slavemaster was recognised to carry his slaves with him to any part of the Free States, and hold them there, any local law to the contrary notwithstanding. This Edition: current; Page: [157] was the one step too much in the otherwise well planned progress of the Southern conspiracy. At this point the Northern allies, by whose help alone they could command a majority in the councils of the Federation, fell off from them. The defeat of the Southern candidate for the Presidency^[*] followed as a consequence, and this first check to the aggressive and advancing movement of slavery, was the signal for secession and civil war. Well may Mr. Cairnes say that this series of events “is one of the most striking and alarming episodes in modern history, and furnishes a remarkable example of what a small body of men may effect against the most vital interests of human society, when, thoroughly understanding their position and its requirements, they devote themselves, deliberately, resolutely, and unscrupulously, to the accomplishment of their ends.” [P. 221.]

Should these conspirators succeed in making good their independence, and possessing themselves of a part of the territories, being those which are in immediate contact with Mexico, nothing is to be expected but the spread of the institution by conquest (unless prevented by some European Power) over that vast country, and ultimately over all Spanish America, and if circumstances permit, the conquest and annexation of the West Indies; while so vast an extension of the field for the employment of slaves would raise up a demand for more, which would in all probability lead to that reopening of the African slave-trade, the legitimacy and necessity of which have long been publicly asserted by many organs of the South. Such are the issues to humanity which are at stake in the present contest between free and slaveholding America; and such is the cause to which a majority of English writers, and of Englishmen who have the ear of the public, have given the support of their sympathies.

What is the meaning of this? Why does the English nation, which has made itself memorable to all time as the destroyer of negro slavery, which has shrunk from no sacrifices to free its own character from that odious stain, and to close all the countries of the world against the slave merchant; why is it that the nation which is at the head of Abolitionism, not only feels no sympathy with those who are fighting against the slaveholding conspiracy, but actually desires its success? Why is the general voice of our press, the general sentiment of our people, bitterly reproachful to the North, while for the South, the aggressors in the war, we have either mild apologies or direct and downright encouragement? and this not only from the Tory and anti-democratic camp, but from Liberals, or soi-disant such?

This strange perversion of feeling prevails nowhere else. The public of France, and of the Continent generally, at all events the Liberal part of it, saw at once on which side were justice and moral principle, and gave its sympathies consistently and steadily ^gto^g the North. Why is England an exception? Several causes may be Edition: current; Page: [158] assigned, none of them honourable to this country, though some, more than others, may seem to make the aberration excusable.

In the first place, it must, we fear, be admitted, that the anti-slavery feeling in England, though quite real, is no longer, in point of intensity, what it was. We do not ascribe this to any degeneracy in the public mind. It is because the work, so far as it specially concerns England, is done. Strong feeling on any practical subject is only kept up by constant exercise. A new generation has grown up since the great victory of slavery abolition; composed of persons whose ardour in the cause has never been wrought upon and strung up by contest. The public of the present day think as their fathers did concerning slavery, but their feelings have not been in the same degree roused against its enormities. Their minds have been employed, and their feelings excited, on other topics, on which there still remained, as it might seem, more to be done. Slavery has receded into the background of their mental prospect; it stands, to most of them, as a mere name, the name of one social evil among many others; not as, what in truth it is, the summing-up and concentration of them all; the stronghold in which the principle of tyrannical power, elsewhere only militant, reigns triumphant.

It must be remembered, too, that though the English public are averse to slavery, several of the political and literary organs which have most influence over the public are decidedly not so. For many years the Times has taken every opportunity of throwing cold water, as far as decency permitted, on the cause of the negro; had its attempts succeeded, the African squadron would have been withdrawn, and the effort so long and honourably persisted in by England to close the negro coast against the man-stealer would have been ignominiously abandoned. Another of the misleaders of opinion on this subject, more intellectual in its aims, and addressing itself to a more intellectual audience, has been from its first origin, however Liberal on the surface, imbued with a deeply-seated Tory feeling, which makes it prefer even slavery to democratic equality; and it never loses an opportunity of saying a word for slavery, and palliating its evils.^[*]

The most operative cause, however, of the wrong direction taken on the American question by English feeling, is the general belief that Americans are hostile to England, and long to insult and humble her if they had but an opportunity; and the accumulated resentment left by a number of small diplomatic collisions, in which America has carried herself with a high hand, has bullied and blustered, or her press has bullied and blustered for her, and in which, through the reluctance of England to push matters to extremities, which do not vitally concern the national honour, bullying and blustering have been allowed to prevail. The facts are too true; but it has not been sufficiently considered, that the most foul-mouthed enemies of England in the American press and in Congress were Southern men, and men in the Southern interest; and that the offensive tone and Edition: current; Page: [159] encroaching policy of the Federal Government were the tone and policy of a succession of Governments created by the South, and entirely under Southern influence. If some bitterness towards England has shown itself rather widely among the Northern people since the commencement of the war, and has been ministered to in their usual style by the hacks of the newspaper press, it must be said in excuse, that they were smarting under disappointed hopes; that they had found only rebuke where they felt that they deserved, and had counted upon finding, sympathy, and when sympathy would have been of the utmost importance to their cause. “If England had but sympathized with us now,” said recently to us one of the first of American writers, “it would have united the two nations almost to the end of time.”^[*]

But none of these causes would have accounted for the sad aberration of English feeling at this momentous crisis, had they not been combined with an almost total ignorance respecting the antecedents of the struggle. England pays a heavy price for its neglect of general cotemporary history, and inattention to what takes place in foreign countries. The English people did not know the past career or the present policy and purposes of the Slave Power. They did not, nor do they yet, know that the object, the avowed object, of secession was the indefinite extension of slavery; that the sole grievance alleged by the South consisted in being thwarted in this; that the resistance of the North was resistance to the spread of slavery—the aim of the North its confinement within its present bounds, which, in the opinion of the slave-owners themselves, ensures its gradual extinction, and which is the only means whereby the extinction can be gradual. The ignorance of the public was shared by the Foreign Minister, whose official attitude in reference to the contest has been everything which it ought to be, but who did unspeakable mischief by the extra-official opinion so often quoted, that the Southern States are in arms for independence, the Northern for dominion.^[†]

When this was the view taken of the contest in the quarter supposed to be best informed, what could be expected from the public? Could they fail to bestow their sympathies on the side which, they were told from authority, was fighting for the common right of mankind to a government of their choice, while the other had armed itself for the wicked purpose of exercising power over others against their will? The moral relations of the two parties are misplaced, are almost reversed, in Earl Russell’s dictum. Could we consent to overlook the fact that the South are fighting for, and the North against, the most odious form of unjust dominion ^hwhich^h ever existed; could we forget the slaves, and view the question as one between two white populations; even then, who, we ask, are fighting for Edition: current; Page: [160] dominion, if not those who having always before succeeded in domineering, break off from the Union at the first moment when they find that they can domineer no longer? Did ever any other section of a nation break through the solemn contract which united them with the rest, for no reason but that they were defeated in an election? It is true, indeed, and they are welcome to the admission, that a very serious interest of the slave-owning oligarchy depended on retaining the power to domineer. They had at stake, not dominion only, but the profits of dominion; and those profits were, that the propagation of slavery might be without limit, instead of being circumscribed within the vast unoccupied space already included in the limits of the Slave States, being about half of their entire extent.

But if the South are fighting for slavery, the North, we are told, are, at all events, not fighting against it: their sole object in the struggle is the preservation of the Union.

And if it were so: is there anything so very unjustifiable in resisting, even by arms, the dismemberment of their country? Does public morality require that the United States should abdicate the character of a nation, and be ready at the first summons to allow any discontented section to dissever itself from the rest by a single vote of a local majority, fictitious or real, taken without any established form, or public guarantee for its genuineness and deliberateness? This would be to authorize any State, or part of a State, in a mere fit of ill-temper, or under the temporary influence of intriguing politicians, to detach itself from the Union, and perhaps unite itself to some hostile power; and the end would probably be to break down the Union, from one of the great nations of the world, into as many petty republics as there are States, with lines of custom-houses all round their frontiers, and standing armies always kept up in strength to protect them against their nearest neighbours.

It is so new a thing to consider questions of national morality from the point of view of nations, instead of exclusively from that of rulers, that the conditions have not yet been defined under which it is the duty of an established Government to succumb to a manifestation of hostile feeling by a portion, greater or smaller, of its citizens. Until some rule or maxim shall have grown up to govern this subject, no Government is expected or bound to yield to a rebellion until after a fair trial of strength in the field. Were it not for the certainty of opposition, and the heavy penalties of failure, revolt would be as frequent a fact as it is now an unfrequent, rebellions would be attempted, not as they now are, in cases of almost unanimous discontent, but as often as any object was sought, or offence taken, by the smallest section of the community.

Would the Government or people of the United Kingdom accept for themselves this rule of duty? Would they look on quietly and see the kingdom dismembered? They might renounce transmarine possessions which they hold only as dependencies, which they care little for, and with which they are neither connected by interest nor by neighbourhood; but would England acquiesce, without fighting, in Edition: current; Page: [161] the separation of Ireland or Scotland? and would she be required to do so by any recognised obligation of public morality?

Putting at the very lowest the inducements which can be supposed to have instigated the people of the Northern States to rush into the field with nearly all their available population, and pledge the collective wealth of the country to an unparalleled extent, in order to maintain its integrity; it might still be thought, that a people who ⁱwereⁱ supposed to care for nothing in comparison with the “almighty dollar,”^[*] ought to have some credit given them for showing, by such decisive proofs, that they are capable of sacrificing that and everything else to a patriotic impulse. It might have been supposed, too, that even had their motives been wholly selfish, all good men would have wished them success when they were fighting for the right, and, considering what it was that they were fighting against, might have been glad that even selfish motives had induced one great nation to shed its blood and expend its substance in doing battle against a monster evil which the other nations, from the height of their disinterested morality, would have allowed to grow up unchecked, until the consequences came home to themselves.

But such a view of the motives of the Northern Americans would be a flagrant injustice to them. True, the feeling which made the heroic impulse pervade the whole country, and descend to the least enlightened classes, was the desire to uphold the Union. But not the Union, simply. Had they consented to give up the Northern interpretation of the pact; had they yielded to the Supreme Court’s Southern exposition of it, they would have won back the South to the Federation by an unanimous voice.^[†] It was because they valued something else even more highly than the Union, that the Union was ever in a position in which it had to be fought for. The North fights for the Union, but the Union under conditions which deprive the Slave Power of its pernicious ascendancy. People talk as if to support the existing constitution were synonymous with altogether abandoning emancipation, and “giving guarantees to slavery.” Nothing of the sort. The Constitution guarantees slavery against nothing but the interference of Congress to legislate for the legally constituted Slave States.^[‡] Such legislation, in the opinion equally of North and South, is neither the only, nor the best, nor the most effectual mode of getting rid of slavery. The North may indeed be driven to it; and, in the opinion of near observers, is moving rapidly towards that issue. Mr. Russell, in his letters to Edition: current; Page: [162] the Times, was constantly reiterating that the war would before long become an abolition war;^[*] and Mr. Dicey, the latest traveller in America who has published his impressions, and whose book should be in every one’s hand, says, that this predicted consummation is now rapidly drawing near, through the conviction, becoming general in the North, that slavery and the Union are incompatible.^[†] But the Federal Government was bound to keep within the Federal Constitution: and what, that could be done against slavery consistently with the Constitution, has it left undone? The district of Columbia was constitutionally under the authority of Congress; Congress have abolished slavery in that district, granting compensation.^[‡] They have offered liberal pecuniary assistance to any Slave State which will take measures for either immediately or gradually emancipating its slaves.^[§] They have admitted Western Virginia into the Union as a State, under a provision that all children born after a certain day of 1863 shall be born free.^[¶] They have concluded a treaty with England for the better suppression of the slave trade, conceding, what all former American Governments have so obstinately resisted, the right of search.^[∥] And, what is more important than all, they have, by a legislative act, prohibited slavery in the territories.^[**] No human being can henceforth be held in bondage in any possession of the United States which has not yet been erected into a State. A barrier is thus set to all further extension of the legal area of slavery within the dominion of the United States. These things have the United States done, in opposition to the opinion of the Border States which are still true to their allegiance; at the risk of irretrievably offending those States, and deciding them to go over to the enemy. What could the party now dominant in the United States have done more, to prove the sincerity of its aversion to slavery, and its purpose to get rid of it by all lawful means?

And these means would, in all probability, suffice for the object. To prevent the extension of slavery, is, in the general opinion of slaveholders, to ensure its extinction. It is, at any rate, the only means by which that object can be effected through the interest of the slaveholders themselves. If peaceful and gradual is preferable to sudden and violent emancipation (which we grant may in the present case be doubtful), this is the mode in which alone it can be effected. Further Edition: current; Page: [163] colonization by slaves and slave-masters being rendered impossible, the process of exhausting the lands fitted for slave cultivation would either continue, or would be arrested. If it continue, the prosperity of the country will progressively decline, until the value of slave property ^jwas^j reduced so low, and the need of more efficient labour so keenly felt, that there ^kwould^k be no motive remaining to hold the negroes in bondage. If, on the other hand, the exhaustive process should be arrested, it must be by means implying an entire renovation, economical and social, of Southern society. There would be needed new modes of cultivation, processes more refined and intellectual, and, as an indispensable condition, labourers more intelligent, who must be had either by the introduction of free labour, or by the mental improvement of the slaves. The masters must resign themselves to become efficient men of business, personal and vigilant overseers of their own labourers; and would find that in their new circumstances successful industry was impossible without calling in other motives than the fear of the lash. The immediate mitigation of slavery, and the education of the slaves, would thus be certain consequences, and its gradual destruction by the consent of all concerned, a probable one, of the mere restriction of its area: whether brought about by the subjugation of the Southern States, and their return to the Union under the Constitution according to its Northern interpretation, or by what Mr. Cairnes regards as both more practical and more desirable, the recognition of their independence, with the Mississippi for their western boundary.^[*]

Either of these results would be a splendid, and probably a decisive and final, victory over slavery. But the only point on which we hesitate to agree with Mr. Cairnes is in preferring the latter, to the former and more complete issue of the contest. Mr. Cairnes is alarmed by what he thinks the impossibility of governing this group of States after reunion, unless in a manner incompatible with free institutions—as conquered countries, and by military law. We are unable to see the impossibility. If reduced by force, the Slave States must submit at discretion. They could no longer claim to be dealt with according to the Constitution which they had rebelled against. The door which has been left open till now for their voluntary return, would be closed, it is to be presumed, after they had been brought back by force. In that case the whole slave population might, and probably would, be at once emancipated, with compensation to those masters only who had remained loyal to the Federal Government, or who may have voluntarily returned to their allegiance before a time fixed. This having been done, there would be no real danger in restoring the Southern States to their old position in the Union. It would be a diminished position, because the masters would no longer be allowed representatives in Congress in right of three-fifths of their slaves. The slaves once Edition: current; Page: [164] freed, and enabled to hold property, and the country thrown open to free colonization, in a few years there would be a free population in sympathy with the rest of the Union. The most actively disloyal part of the population, already diminished by the war, would probably in great part emigrate if the North were successful. Even if the negroes were not admitted to the suffrage, or if their former masters were able to control their votes, there is no probability, humbled and prostrated as the Slave Power would be, that in the next few years it would rally sufficiently to render any use which it could make of constitutional freedom again dangerous to the Union. When it is remembered that the thinly-peopled Missouri, Arkansas, Texas, and some parts even of the South-Eastern States, have even now so few slaves that they may be made entirely free at a very trifling expense in the way of redemption; and when the probable great influx of Northern settlers into those provinces is considered; the chance of any dangerous power in the councils of the United States to be exercised by the six or seven Cotton States, if allowed to retain their constitutional freedom, must appear so small, that there could be little temptation to deny them that common right.

It may, however, prove impossible to reduce the seceded States to unconditional submission, without a greater lapse of time, and greater sacrifices, than the North may be willing to endure. If so, the terms of compromise suggested by Mr. Cairnes, which would secure all west of the Mississippi for free labour, would be a great immediate gain to the cause of freedom, and would probably in no long period secure its complete triumph. We agree with Mr. Cairnes^[*] that this is the only kind of compromise which should be entertained for a moment. That peace should be made by giving up the cause of quarrel, the exclusion of slavery from the territories, would be one of the greatest calamities which could happen to civilization and to mankind. Close the territories, prevent the spread of the disease to countries not now afflicted with it, and much will already have been done to hasten its doom. But that doom would still be distant if the vast uncolonized region of Arkansas, and Texas, which alone is thought sufficient to form five States, were left to be filled up by a population of slaves and their masters; and no treaty of separation can be regarded with any satisfaction but one which should convert the whole country west of the Mississippi into free soil.

Austin on Jurisprudence

these lectures and fragments, with the volume on The Province of Jurisprudence,^[*] of which they are the continuation, and a very few though very elaborate essays on miscellaneous subjects, published at long intervals, mostly in Reviews, are all that remains of the intellectual life of a most remarkable mind. Mr. Austin’s name and writings are little known, except to students of the science which, though only ^aone^a of those on which his writings prove him to have reflected, was the subject on which he principally wrote. But in that science, even the limited portion of his labours which was before the world had placed him, in the estimation of all competent judges, in the very highest rank; and if such judges are now greatly more numerous than when he began to write, the fact is in no small degree owing to his intellectual influence. He has been in nothing more useful than in forming the minds by which he is, and will hereafter be, judged. No writer whom we know had more of the qualities needed for initiating and disciplining other minds in the difficult art of precise thought. Though the merit and worth of his writings as a contribution to the philosophy of jurisprudence are conspicuous, their educational value, as a training school for the higher class of intellects, will be found, we think, to be still greater. Considered in that aspect, there is not extant any other book which can do for the thinker exactly what this does. Independently of the demands which its subject makes upon the attention, not merely of a particular profession, but of all liberal and cultivated minds, we do not hesitate to say that as a mere organon for certain faculties of the intellect, a practical logic for some of the higher departments of thought, these volumes have a claim to a place in the education of statesmen, publicists, and students of the human mind.

It is not, of course, intended to claim for Mr. Austin a position in the philosophy of law either equal or similar to that which posterity will assign to his great predecessor, Bentham. That illustrious thinker has done, for this important department of human affairs, what can only be done once. But though the work which Mr. Austin did, neither would nor could have been done if Bentham had not given the impulse and pointed out the way, it was of a different character from Edition: current; Page: [168] Bentham’s work, and not less indispensable. In the confidence of private friendship, Mr. Austin once said of himself, that if he had any special intellectual vocation, it was that of “untying knots.” In this judgment he estimated his own qualifications very correctly. The untying of intellectual knots; the clearing up of the puzzles arising from complex combinations of ideas confusedly apprehended, and not analysed into their elements; the building up of definite conceptions where only indefinite ones existed, and where the current phrases disguised and perpetuated the indefiniteness; the disentangling of the classifications and distinctions grounded on differences in things themselves, from those arising out of the mere accidents of their history, and, when disentangled, applying the distinctions (often for the first time) clearly, consistently, and uniformly—these were, of the many admirable characteristics of Mr. Austin’s work as a jurist, those which most especially distinguished him. This untying of knots was not particularly characteristic of Bentham. He cut them rather. He preferred to draw his pen through the whole of the past, and begin anew at the beginning. Neither his tastes nor his mental habits were adapted to the other kind of work: but, though his neglect of it led him not unfrequently into errors, yet, all things considered, success has justified his choice. His effect on the world has been greater, and therefore more beneficial, by means of it. The battering ram was of more importance, in Bentham’s time, than the builder’s trowel. He had to conquer an inveterate superstition. He found an incondite mass of barbarian conceits, obsolete technicalities, and contrivances which had lost their meaning, bound together by sophistical ingenuity into a semblance of legal science, and held up triumphantly to the admiration and applause of mankind. The urgent thing for Bentham was to assault and demolish this castle of unreason, and to try if a foundation could not be laid for a rational science of law by direct consideration of the facts of human life. To rescue from among the ruins such valuable materials as had been built in among rubbish, and give them the new and workmanlike shape which fitted them for a better edifice; to hunt among the irrationalities of law for helps to its rationale, was work for which, even if it had been opportune in his day, Bentham had not time. For Bentham’s subject had a wider range than Mr. Austin’s. It was the whole, of which the latter is but a part. The one inquiry was ultimate, the other instrumental. Mr. Austin’s subject was Jurisprudence, Bentham’s was Legislation.

The purpose of Bentham was to investigate principles from which to decide what laws ought to exist—what legal rights, and legal duties or obligations, are fit to be established among mankind. This was also the ultimate end of Mr. Austin’s speculations; but the subject of his special labours was theoretically distinct, though subsidiary, and practically indispensable, to the former. It was what may be called the logic of law, as distinguished from its morality or expediency. Its purpose was that of clearing up and defining the notions which the human mind is compelled to form, and the distinctions which it is necessitated to make, by the mere existence of a body of law of any kind, or of a body of law taking cognisance Edition: current; Page: [169] of the concerns of a civilized and complicated state of society. A clear and firm possession of these notions and distinctions is as important to practice as it is to science. For only by means of it can the legislator know how to give effect to his own ideas and his own purposes. Without it, however capable the legislator might be of conceiving good laws in the abstract, he could not possibly so word them, and so combine and arrange them, that they should really do the work intended and expected.

These notions and distinctions form the science of jurisprudence as Mr. Austin conceived it. The readers of what we must now call his first volume, The Province of Jurisprudence Determined, have probably often regretted, that though it discussed in a most elaborate and searching manner the “province” (in other words the subject-matter and limits) of jurisprudence, the nature and uses of the study itself were rather taken for granted than expressly set forth. This, which was a real defect in the former volume considered as a separate work, is now supplied by a dissertation on the study of jurisprudence, formed out of the introductory lectures to the two courses which Mr. Austin delivered, at University College and at the Inner Temple. This instructive paper, besides being included in the larger work, has, in order to recommend the study to a more numerous body of readers, been judiciously published separately as a pamphlet.

We have already, in reviewing the second edition of Mr. Austin’s Province of Jurisprudence,^* republished by his widow in 1861, compared and contrasted the method of Mr. Austin with that of another eminent philosophical lawyer, Mr. Maine. The subject-matter of both writers is positive law—the legal institutions which exist, or have existed, among mankind, considered as actual facts. The aim of both is to let in the light of philosophy on these facts, and both do this with great success. Neither writer treats ex professo of laws as they ought to be; though, in treating of them as they are and as they have been, it is the declared aim of both to facilitate their improvement. But they pursue this end, for the most part, through different intellectual media. Mr. Maine’s operation is essentially historical, not only in the mode of prosecuting his inquiry, but in the nature of the inquiry itself. He investigates, not properly the philosophy of law, but the philosophy of the history of law. In the various legal institutions which obtain, or have formerly obtained, he studies principally the causes that produced them. His book may be called a treatise on the action and reaction between the ideas prevalent among mankind, and their positive institutions. Under each of the principal classes of facts with which law is conversant—family, property, contract, and delict or Edition: current; Page: [170] offence—he historically investigates the primitive ideas of mankind, traces the customs and institutions, which have prevailed ever since, to their origin in those primitive ideas, and shows how institutions which were modelled on the rude notions of an early state of society, have influenced the thoughts of subsequent generations down to the present time. Speculations like these, when directed, as Mr. Maine’s are, by a true historical genius, possess in a pre-eminent degree all the uses which can belong to history. The laws and institutions of primitive mankind are the richest indications available for reading their thoughts, entering into their feelings, and understanding their general mode of existence. But the historical value of these studies is the smallest part of their utility. They teach us the highly practical lesson, that institutions which, with more or less of modification, still exist, originated in ideas now universally exploded; and conversely, that ideas and modes of thought which have not lost their hold even on our own time, are often the artificial, and in some sort accidental product of laws and institutions which exist no longer, and of which no one would now approve the revival.

It is not in this manner, except incidentally and occasionally, that Mr. Austin’s treatise contributes to the improvement of law; though there is a place allotted to such speculations in his comprehensive conception of the study of jurisprudence. He does not specially contemplate legal systems in reference to their origin, and to the psychological causes of their existence. He considers them in respect of what may be called their organic structure. Every body of law has certain points of agreement with every other; and between those which have prevailed in cultivated and civilized societies, there is a still greater number of features in common. Independently of the resemblances which naturally exist in their substantive provisions (designed as these are for the same world, and for the same human nature), there is also a certain common groundwork of general conceptions or notions, each in itself very wide, and some of them very complex, which can be traced through every body of law, and are the same in all. These conceptions are not pre-existent; they are a result of abstraction, and emerge as soon as the attempt is made to look at any body of laws as a whole, or to compare one part of it with another, or to regard persons, and the facts of life, from a legal point of view. There are certain combinations of facts and of ideas which every system of law must recognise, and certain modes of regarding facts which every such system requires. The proof is, that all legal systems require a variety of names, which are not in use for any other purpose. Whoever has apprehended the full meaning of these names—that is, whoever perfectly understands the facts and the combinations of thoughts which ^cthe names^c denote—is a master of juristical knowledge; and a well-made lexicon of the legal terms of all systems would be a complete science of jurisprudence: for the objects, whether natural or artificial, with which law has to do, must be the same objects which it also has occasion to name.

But to conceive distinctly a great mass of objects, partly resembling and partly differing from one another, they must be classed; and to make any set of practical provisions, which cover a large field, definite and intelligible, they must be presented to the mind on some principle of arrangement, grounded on the degree of their connexion and alliance with one another. The details of different legal systems are different, but there is no reason why the main classifications and heads of arrangement should not be in a great measure the same. The facts of which law takes cognisance, though far from being identical in all civilised societies, are sufficiently analogous to enable them to be arranged in the same cadres. The more general of the terms employed for legal purposes might stand for the same ideas, and be expounded by the same definitions, in systems otherwise different. The same terminology, nomenclature, and principle of arrangement, which would render one system of law definite, clear, and (in Bentham’s language) cognoscible,^[*] would serve, with additions and variations in minor details, to render the same office for another.

Such a result, however, has not been attained by the mode in which existing bodies of law have been formed. Laws having in general been made singly, and their mass having grown by mere aggregation, there has usually been no authoritative arrangement but the chronological one, and no uniform or predetermined phraseology, even in the case of statute law; while in many countries, and pre-eminently in England, the greater portion of the law, the part which serves as the basis for all the rest, does not exist at all in the form of general language, but lies imbedded in judicial decisions; of which even the general principle has to be evolved by abstraction, and made the subject of forensic disputation, when the time comes for applying it. Whatever definiteness in detail, and whatever order or consistency as a whole, has been attained by any established system, has in almost all countries been given by private writers on law. All the generalizations of legal ideas, and all explicit statements of the meaning of the principal legal terms, have, speaking generally, been the work of these unauthorized persons—have passed from their writings into professional usage, and have ended by being, either expressly, or oftener by implication, adopted by governments and legislatures. So far as any great body of law has been systematized, this is the mode in which the work has been done; and being done piecemeal, by persons often ill-prepared for the task, and who had seldom any other object in view than the convenience of professional practice, it has been, as a general rule, done very ill. Instead of classing objects together which agree in their main features, or in the points which are of chief importance to the ends of law, the classes formed consist of things which have either no common qualities, or none but such as are common to them with other things. When the bond of connexion is real, it seldom lies in the things Edition: current; Page: [172] themselves, but usually in the historical accidents of the particular body of laws. In actual systems of law “most of the leading terms” (it is truly said by Mr. Austin) “are not names of a definite class of objects, but of a heap of heterogeneous objects.”^*

The only mode of correcting this evil, is to free from confusion and set in a clear light those necessary resemblances and differences, which, if not brought into distinct apprehension by all systems of law, are latent in all, and do not depend on the accidental history of any. These resemblances and differences, while they are the key to all others, are evidently those which, in a scientific point of view, are alone worth understanding in themselves. They are also those which are alone fit to be made use of as the groundwork of a scientific arrangement. The fact that they exist in all legal systems, proves that they go deeper down into the roots of law than any of those which are peculiar to some one system. That the main divisions of the subject should be grounded on these, follows from the first principle of classification, that the general should take precedence of the special: and as they are common to all systems, or to all which are of any scientific importance, the parts of any given system which are peculiar to it will still find, in this arrangement, a proper place in which to lodge themselves; which would not happen if the main arrangement were itself grounded on distinctions purely historical, and belonging only to a particular system.

To clear up these general notions is, therefore, the direct object of the science of jurisprudence, as conceived by Mr. Austin. And the practical result of the science, if carried to the greatest perfection of which it is susceptible, would be to provide, first, such a legal terminology (with a strict and precise meaning attached to every word and phrase) that any system whatever of law might be expressed in it; and next, such a general scheme of arrangement, that any system whatever of law might be distributed according to it; and that when so expressed and distributed, every part of it would be distinctly intelligible, and each part would assist the comprehension of all the rest. Jurisprudence, thus understood, is not so much a science of law, as of the application of logic to law. But by affording a clear and connected view of the whole field of law—illuminating it by large, comprehensive, and exactly discriminated conceptions—and enabling every legal ^dfact^d to be classed at once with those with which it has the nearest alliance, it bestows on the student either of the philosophy of law, or of any existing legal system, a command over the subject such as no other course of study would have made attainable.

In the attempt to investigate, and bring out into scientific clearness, the conceptions and distinctions of general jurisprudence, Mr. Austin has built chiefly on the foundation of the Roman law. This has been a cause of disappointment to some earnest students, who expected, and would have preferred, something more Edition: current; Page: [173] decidedly original. The course, however, which Mr. Austin deliberately adopted, admits, we conceive, of full justification. If the conceptions and distinctions which he sought belong to law in general, they must exist in all bodies of law, either explicitly or latently, and might, in strictness, be evolved from any. By stripping off what belongs to the accidental or historical peculiarities of the given system, the elements which are universal will be more surely and completely arrived at, than by any process of construction à priori; and with the additional advantage of a knowledge not confined to generals, but including under each generalization a large acquaintance with the concrete particulars contained in it. If this be so, the legal system which has been moulded into the shape it possesses by the greatest number of exact and logical minds, will necessarily be the best adapted for the purpose; for, though the elements sought exist in all systems, this is the one in which the greatest number of them are likely to have been brought out into distinct expression, and the fewest to remain latent. And this superiority is possessed, beyond question, by the Roman law. The eminent systematizing genius of the Roman jurists, and not any over-estimate of the Roman law considered in itself, determined Mr. Austin to make it the basis of his own investigations, as is evident from many passages, and from the following especially:

Mr. Austin, therefore, was justified in seeking for the constituent elements of universal jurisprudence where they were certain to be found, and where (from the superior quality of the minds which had been employed on the system) more of Edition: current; Page: [174] those elements had been explicitly recognised, and adopted into the scientific arrangement of the law itself, than in any other legal system. There remains, it is true, a question belonging to a later stage of the inquiry: did the Roman jurists select as the foundation of their technology and arrangement those among the conceptions and distinctions of law universal which were best fitted for the purpose? Mr. Austin seems to think that they did; since his own arrangement is merely theirs in an improved form. We shall presently give our reasons for thinking that, with great merits, the arrangement of the Roman jurists has great faults; that, in taking as the ground of their entire system the classification of rights, they adopted a principle suited only to what Bentham called the substantive law,^[*] and only to the civil branch of that, and, in so doing, reversed the order of filiation of juristical conceptions, and missed the true aim of scientific classification. But this, though a very important, is still a secondary consideration. To find the absolutely best systematic order for a body of law, would be the ultimate result of a complete science of jurisprudence; but its main problem is to give clearness, precision, and consistency to the juristical conceptions themselves. What Mr. Austin has done towards this object, constitutes the great permanent worth of his speculations, considered as substantive results of thought. No one thoroughly versed in these volumes need ever again miss his way amidst the obscurity and confusion of legal language. He will not only have been made sensible of the absence of meaning in many of the phrases and dogmas of writers on law, but will have been put in the way to detect the true meaning, for which those phrases are the empty substitute. He will have seen this done for him in the Lectures, with rare completeness, in regard to a great number of the leading ideas of jurisprudence, and will have served an apprenticeship, enabling him with comparative ease to practise the same operation upon the remainder.

The Course of Lectures, which occupies the greatest part of these volumes, was never completed. The first eleven lectures, condensed (or rather enlarged) into six, form the original volume, lately republished. The remainder have never before appeared in print, but left an indelible impression on the minds of those who heard them delivered, among whom were an unusual number of persons since distinguished as among the foremost minds of the time. Though the Lectures do not conclude the subject, yet, with the loose and unfinished but rich and suggestive memoranda which have been very properly subjoined to them, they fill up the greatest part of the outline given in the first volume; so that, when taken in conjunction with that outline, and with the important and elaborate notes appended to the tables which Mr. Austin prepared of the various known arrangements of the field of law, they give something like an adequate idea of the mode in which he would have treated the entire subject. We may add that, notwithstanding the fragmentary nature of the latter part of these volumes, they will be found, on the whole, easier reading (if that epithet can be applied to anything worth reading on such a subject) than the work already so highly prized by those for whom it was intended.^[*] This is an effect of that peculiarity of Mr. Austin’s mind, which made his first drafts always more fitted for popularity than his finished performances. For, in deliberate scientific exposition, he was so rigid in his demands on himself, so intolerant of anything short of absolute completeness, so impatient while the slightest shadow rested upon any part of the field he surveyed, that he was apt to overlay his work with excess of matter, and, by the elaboration which he bestowed on minor points, weakened the general effect of his elucidation of those which were greater. But this, while it necessarily diminished the popularity of his writings, added to their intrinsic value. Where most men would have permitted themselves to pass lightly over some detail or difficulty, he developed it at full length; but it was because he well knew that unless the point were cleared up, the matter in hand could not be understood thoroughly. Those who pass on their way leaving dark corners unexplored, and concern themselves only with as much of the subject as lies straight before them, often through that neglect miss the very key of the position. Absence of light and shade, and uniformity of distance, bringing all objects alike into the foreground, are fatal defects in describing things for merely artistic purposes; but Mr. Austin’s delineations are like geometrical line-drawing, not intended to exhibit objects in their most impressive aspect, but to show exactly what they are. Whether it would have been possible, by greater artifice of composition, to have somewhat relieved the tension of mind required by the length and intricacy of the fifth and sixth chapters of The Province of Jurisprudence:^[†] whether somewhat more of rhetoric, in the elevated sense in which the word was understood by Aristotle,^[‡] might have conciliated an easier reception for their Edition: current; Page: [176] severe logic—those who have best learnt from experience the extreme difficulty of such a task will be the most backward to decide. But we feel certain that any competent student of the subject who reads those chapters once, will read them repeatedly, and that each reading will raise higher his estimate of their substance, and reconcile him more, if he ever needed reconciliation, with their manner.

In the very summary view which can alone be taken of the contents of the work, a few words must be premised on the introductory portion, although ^epublished many years earlier^e; the rather, as it affords an apt exemplification of what we have said concerning the object and character of the entire treatise. The inquiry into the Province of Jurisprudence may be correctly characterized as being from one end to the other an analysis and explanation of a word. It is an examination of what is meant by a law, in the political or juristical sense of the term. And yet it is as far from being a merely verbal discussion, as the inquiry into the meaning of justice, which is the foundation of the greatest and most renowned of the writings of Plato.^[*] For the meaning of a name must always be sought in the distinctive qualities of the thing named; and these are only to be detected by an accurate study of the thing itself, and of every other thing from which it requires to be distinguished.

A law is a command. A command is an expression of desire, issuing from a superior, and enforced by a sanction, that is, by something of the nature of a punishment. Law, however, does not mean every command, but only commands which oblige generally—which oblige to acts or forbearances of a class, not to an act or forbearance individually determined. These several notions having been duly analysed and illustrated, various objects are brought to view, which do not possess all the attributes of a law, but which, bearing a certain analogy to laws, require to be distinguished from them. And even within the limits of the strict meaning of the term, the laws which are the subject of jurisprudence require to be distinguished from laws in the same logical sense but of a different species—namely, divine laws, or the laws of God. The region which these different inquiries travel over is large and important, including the following as its principal parts:

First, the laws of God. Of the six lectures, or chapters, composing the volume, three^[†] are occupied in the inquiry, by what means the will of God, concerning the rules of conduct to be observed by his rational creatures, is to be ascertained—ascertained, that is, so far as it has not been revealed, or, if revealed, requires ulterior inquiry respecting the sense intended by the revelation. The Edition: current; Page: [177] author discusses at considerable length the two rival theories on this subject, that of utility, and that of the moral sense; of the former of which he is an earnest supporter, and has given a most able and instructive defence.^[*] His treatment is sometimes such as might suggest the idea that he regarded the binding force of the morals of utility as depending altogether upon the express or implied commands of God. This, however, is a mere appearance, arising from the particular point of view to which he was limited by the nature of his subject. What is called the moral law, was only related to the Law of which Mr. Austin was treating, in so far as it might be considered to possess the distinctive character of laws proper, that of being the command of a superior. If he could have been suspected of encouraging a mere worship of power, by representing the distinction of right and wrong as constituted by the Divine will, instead of merely recognised and sanctioned by it, the supposition would have been conclusively rebutted by a passage at page 116n: “If the laws set by the Deity were not generally useful, or if they did not promote the general happiness of his creatures, or if their great Author were not wise and benevolent, they would not be good, or worthy of praise, but were devilish and worthy of execration.”

The laws with which jurisprudence is conversant, having been distinguished from divine laws, have next to be discriminated from what are called laws only by way of analogy—rules prescribed and sanctioned only by opinion: to which Mr. Austin, by a happy extension of the term Positive as applied to law, gives the name of Positive Morality,^[†] meaning the moral opinions and sentiments actually prevailing in any given society, as distinguished from Deontology, or morality as it ought to be. Of this character is much that is commonly (to the great confusion of the minds of students) called by the name of Law. What is termed Constitutional Law is, in part, only maxims of morality, considered proper to be observed towards one another by the component members of the sovereign body. But the strongest case is that of International Law, which, as independent nations are not subject to any common political superior, ought not to be termed Law, but Positive International Morality. It is law only in as far as effect is given to its maxims by the tribunals of any particular country; and in that capacity it is not international law, but a part of the particular law of that country.

Lastly, laws properly so called have to be distinguished from laws which are such only in a metaphorical sense—the laws of nature as the expression is understood by physical inquirers, meaning the uniformities of co-existence or succession in the phenomena of the universe. That an ambiguity like this should ever have misled any one—that what are laws only by a metaphor, should be supposed to be laws in the same sense as those which are really the commands of a superior—would hardly à priori have appeared probable, yet this confusion is Edition: current; Page: [178] total in the majority of modern writers; among whom Mr. Austin mentions Hooker, Blackstone, and Montesquieu in his celebrated first chapter, which is even now regarded by most French thinkers as profound philosophy.^[*] In our own country we are frequently warned by a certain class of writers against disobeying or violating the physical laws of organic life; as if it were not the very meaning of a physical law, that it may be unknown or disregarded, but cannot possibly be violated.

These distinctions, with the many important considerations into which they branch out, bring us to the end of the fifth chapter. The sixth is employed in giving precision to the remainder of the conceptions involved in a law in the positive sense (a law emanating from a sovereign or political superior), by clearing up the meaning of sovereignty, and independent political society; involving incidentally the whole subject of constitutional organization, and the division of the sovereignty among several members; also that of subordinate governments, of federations, and all the various relations in which one political society can stand to another.

In the Lectures newly published, the first subject treated is the most general of all those which come within the scope of jurisprudence—the nature and meaning of Rights (understanding thereby legal rights), and of legal Duties or Obligations. In order to treat of this subject, it was necessary to define certain notions, which are involved in all cases of rights and duties—the notions of person, thing, act, and forbearance. These, accordingly, are the first matters with which the author deals; and he criticizes various cases of confusion of thought or misuse of language on these subjects, in the writings of jurists.

All rights, as he observes, are rights to acts or forbearances, either on the part of persons generally, or of particular persons. When we talk of our right to a thing, we mean, if the thing is in our possession, a right to the forbearance of all persons from taking it, or disturbing us in its enjoyment. If it is in the possession of some other person, we mean a right to an act or forbearance of that person—the act of delivering it to us, or forbearance on his part from detaining it. It is by commanding these acts and forbearances that the law confers the right; and the right, therefore, is essentially and directly a right to them, and only indirectly to the thing itself.

Right is correlative with legal duty or obligation. But though every right supposes a correlative obligation—though the obligation properly constitutes the right—every obligation does not create a right correlative to it. There are duties or Edition: current; Page: [179] obligations which are not relative, but (as the phrase is) absolute. The act commanded is not to be done, or the forbearance observed, towards or in respect to a determinate person; or, if any, not a person distinct from the agent himself. Such absolute duties comprise, first, what are called duties towards oneself. The law may forbid suicide or drunkenness; but it would not be said, by so doing, to give me a right to my life or health as against myself. Secondly, duties towards persons indefinitely, or towards the sovereign or state; such as the political duties of a citizen, which do not correspond to any right vested in determinate individuals. Lastly, duties which do not regard persons—the duty, for instance, of abstaining from cruelty to the lower animals; and religious duties as such, if the law, most improperly, thinks fit to enforce them.

From a comparison between duties which correspond to rights, and duties which have no corresponding rights, and also from a brief review of the different kinds of rights, Mr. Austin endeavours to collect a general definition of a legal right. He rejects the definitions usually given, as not applicable to all cases. He is of opinion that rights have very few properties in common, and that “all that can be affirmed of rights, considered universally, amounts to a brief and barren generality.”^* The only definition of a right which he finds himself able to give, is, that whenever a legal duty is to be performed towards or in respect of some determinate person, that person is invested with a right.^[*] The idea of a legal right involves, in his opinion, nothing more.

This is one of the points (extremely few, considering the extent and intricacy of the subject) on which we cannot help thinking that Mr. Austin’s analysis falls short of perfect exhaustiveness.

Mr. Austin always recognises, as entitled to great consideration, the custom of language—the associations which mankind already have with terms, insomuch that, when a name already stands for a particular notion (provided that, when brought out into distinct consciousness, the notion is not found to be self-contradictory), the definition should rather aim at fixing that notion, and rendering it determinate, than attempt to substitute another notion for it. A definition of right, so wide and general as that of Mr. Austin, does not, as it appears to us, stand this test. It does not satisfy the conception which is in everyone’s mind, of the meaning of the word right. Almost every one will feel that there is, somehow, an element left out; an element which is approximately, though perhaps imperfectly, expressed by saying, that the person who has the right, is the person who is meant to be benefited by the imposition of the duty.

In the Lectures as delivered (which included much extemporaneous matter, not preserved in the publication) Mr. Austin anticipated this obvious objection, and combated it. The notion of a right as having necessarily for its purpose the benefit Edition: current; Page: [180] of the person invested with it, is contradicted, he said, by the case of fiduciary rights. To these he might have added (and probably did add) the rights of public functionaries—the judge, for instance, or the policeman; which are not created for the benefit of the judge or policeman themselves. These examples are conclusive against the terms of the particular definition contended against; but it will appear, from two considerations, that they do not fully dispose of the subject.

In the first place, Mr. Austin’s own definition is amenable to a similar, though contrary, criticism. If the definition which he rejected does not comprise all rights, his own comprises more than rights. It includes cases of obligation to which he himself must have admitted that there were no rights corresponding. For example, the legal duties of jailers. It is a jailer’s duty to feed the prisoners in his custody, and to this duty corresponds a correlative right in the prisoners. But it is also his legal duty to keep them in confinement, perhaps in bodily fetters. This case is strictly of the kind contemplated in Mr. Austin’s definition of a right; there is a duty to be performed, towards, or in respect to, a determinate person or persons; but would it be said that a corresponding right resided in those persons, or, in other words, that they had a right to be imprisoned, and that their right would be violated by setting them at liberty? Again, it is the duty of the hangman to inflict capital punishment upon all persons lawfully delivered to him for that purpose; but would the culprit himself be spoken of as having a right to be hanged? Certainly not. And the reason is one which Mr. Austin fully recognises. He says, in one place, that “a right in a condition which is purely burthensome is hardly conceivable;”^* and, in another, that “a right to a burthen, or to vindicate the enjoyment of a burthen,” is “an absurdity.”^† He also, with writers in general, speaks of many obligations as existing for the sake of the correlative rights.^‡ If this is a correct expression, there is more in the idea of a right, than an obligation towards or in respect to a given person; since an obligation cannot exist merely in order that there may be a person towards or in respect to whom it exists.

The truth is, that it is not customary to speak of a person as having a right to anything which is not, in the contemplation of the legislator, a desirable thing; and it is always assumed that the person possessing the right is the person specially interested in enforcing the duty which corresponds to it. Mr. Austin, no less than others, makes this supposition, when, in the common language of jurists, he says, that when a duty is violated, the person who has the right is wronged or injured by the violation.^[*] This desirableness of the right, and this especial vocation on the part of the possessor to defend it, do not necessarily suppose that the right is established for his particular advantage. But it must either be given to him for that reason, or because it is needful for the performance of his own legal duties. It is Edition: current; Page: [181] consistent with the meaning of words to call that desirable to us, which is required for the fulfilment of our duties. The alternative covers the case of fiduciary rights, the rights of magistrates, and we think every case in which a person can, consistently with custom and with the ends of language, be said to have a right. And, including all such cases, and no others, it seems to supply what is wanting to Mr. Austin’s definition. We submit it therefore to the consideration of his readers.

The analysis of right and duty is not complete without an analysis of wrong or injury—the violation of a duty or of a right. And in order to clear up all that is included in the notion of wrong or injury, it is necessary “to settle the meaning of the following perplexing terms—viz. will, motive, intention, and negligence; including in the term negligence those modes of the corresponding complex notion which are styled temerity or rashness, imprudence or heedlessness.”^* These topics comprise the whole theory of the grounds of imputation, in other words, the generalia of criminal or penal law. How much bad law, and bad philosophy of law, have arisen from imperfect comprehension of them, may be seen in the nonsense of English law writers concerning malice. The full elucidation of them by our author occupies a considerable space,^[*] and our limits are inconsistent with even the briefest abstract of it. Mr. Austin’s special vocation for “untying knots,” which would have fitted him as well for the problems of inductive psychology as for those of jurisprudence, is nowhere called into more successful exercise. Without a single metaphysical subtlety, there cannot be a more happy example than he here affords of metaphysical analysis.

With the idea of wrong, that of sanction is inseparably bound up, and after settling the meaning of sanction in its largest sense, Mr. Austin examines the two kinds into which sanctions are divided—namely, civil and criminal,^[†] or, as they are sometimes called, private and public. Whoever has even the most superficial acquaintance with the writings of criminalists, knows what a mass of vague and confusing speculation this distinction has given birth to, though, as pointed out by Mr. Austin,^[‡] the real difference between civil injuries and crimes consists only in this, that in wrongs of the former class the sanction is enforced at the instance and discretion of the injured party, who has the power of remitting the liability incurred by the wrongdoer; while, when the offence is called a crime (which only means that the procedure is of the kind called criminal), the sanction is enforced at the discretion of the sovereign or state, by whom alone the liability of the wrongdoer can be remitted. This case is an instance of the mode in which a confused apprehension of juristical ideas, in themselves not at all difficult of Edition: current; Page: [182] comprehension, reacts mischievously on practical legislation. The unhappy idea of classifying wrongs according to a difference which exists only in the modes appointed for redressing them, has raised up a notion in English lawyers that there is a distinction between civil injuries and crimes considered per se, which makes damages the proper remedy for the one, and punishment for the other. And hence that serious defect in English law, by which punishment eo nomine, and damages to the injured party, cannot both be awarded in the same cause; while in France, on the contrary, the sufferers by the crime can always be admitted as parties civiles, and compensation to them is habitually a part of the sentence. In England, whenever the wrong is of so grave a character as to require punishment over and above the obligation of making amends, the injured party loses the indemnity which he would have been able to exact for a less heinous injury; and the penalty on the criminal is deprived of one of its uses, that of being instrumental to the redress of the particular evil which the crime has inflicted upon an individual.

With the twenty-eighth Lecture^[*] Mr. Austin commences a new subject—Law considered with reference to its sources, and to the modes in which it begins and ends; involving the distinction between written and what is called unwritten law; the theory of customary law; the meaning of what is called equity; and the false metaphysical distinction drawn by the Roman lawyers and by nearly all modern jurists, between law natural and positive. These theoretical considerations involve, among other important consequences, the highly practical question of codification, or the reduction of the laws of any country into a compact body, expressed in fixed words, and conforming to a systematic arrangement. Whether we regard the importance of these subjects, or the mass of illogical, unphilosophical, and practically misleading speculation in which they have been enveloped, there is no part of the field of jurisprudence on which the value of precise and logical thought is more conspicuous. Mr. Austin was eminently fitted to supply it, both by the general quality of his intellect, and by that accurate special knowledge of the history of institutions and of juristical ideas, which he had in common with Mr. Maine; of whose masterly treatise also a great part of the value has reference to this cluster of subjects.

Even such apparently simple phrases as “written” and “unwritten” law, have their full share of the ambiguity which infects nearly the whole vocabulary of legal science. They are employed to express no less than three different distinctions. “Written law” is used, first, in its literal sense, to denote law which is put into writing at the time of its origin, as distinguished from “law originating in custom, or floating traditionally amongst lawyers.”^[†] But this last so-called law is not Edition: current; Page: [183] really law until re-enacted by the legislature, or enforced judicially by the tribunals.

Secondly, written law, in what is called its juridical sense, means law made directly by the sovereign legislature, as distinguished from that which is made by subordinate legislatures, or by judicial tribunals. In this sense of the term, laws made by provincial or colonial legislatures are unwritten laws, as were also the edicts of the Roman praetors. But the laws made by the Roman emperors, not as legislators by their imperial constitutions, but as supreme judges by their rescripts, would be styled written law, because made directly by the sovereign.

Thirdly (and this is the most important distinction), written law is synonymous with statute law, or law made (whether by supreme or subordinate authorities) in the way of direct legislation. Unwritten law is judiciary law, or law made indirectly, in the way of judicial decision, either by the sovereign in a judicial capacity, or by a subordinate judge. The terms statutory law and judiciary law, being unambiguous, should be exclusively employed where this really fundamental distinction is to be expressed.

Mr. Austin next deals with the strange notion which has prevailed among the Roman and the majority of modern jurists, that customary law exists as law merely by being custom; that it is law not by the will of the legislature, but by the spontaneous act of those who practise it.^[*] He exposes the absurdities involved in this notion, and shows that custom in itself belongs not to law, but at most to positive morality, binding only by moral sanctions—by the penalties of opinion. What was originally custom may become law, when either the legislature (supreme or subordinate) enacts a statute in conformity to the custom, or the tribunals recognise it, and enforce it by legal sanctions. In both these ways, custom, in all countries, is continually passing into law. But it has force as law solely by the authority of the sovereign legislator, who either shapes his direct commands in accordance with the custom, or lends his sanctions to the tribunals, which, in the discretion allowed them, annex those sanctions to the particular practice, and render obligatory what before was only voluntary.

The notion of writers on law, “that there are positive laws which exist as positive laws independently of a sovereign authority,”^[†] is not limited to customary laws. It extends to the laws which, in the Roman system avowedly, and in all others really, are modelled on the opinions and practices of private lawyers. The Responsa Prudentum, and the treatises of institutional writers, gave birth to the whole body of law contained in the Pandects;^[‡] and in England “much of the law Edition: current; Page: [184] of real property is notoriously taken from opinions and practices which have grown up, and are daily growing up, amongst conveyancers.”^[*] The English tribunals (by what, when first employed, was an entirely indispensable artifice) keep up what Mr. Austin, with reference to present circumstances, justly calls the “puerile fiction,”^[†] that these opinions and practices are mere evidence of law already established by custom. But they well know, and every lawyer knows, that the law thus introduced is really new, and, in the case which creates the first precedent, is even ex post facto; though not generally liable to the condemnation implied in that term, being commonly shaped for the purpose of fulfilling, not frustrating, the expectations presumed to have been entertained by the parties concerned.

The fact that there is law which the legislature has never expressly announced, but which is, with its tacit consent, made by tribunals which are not regularly authorized to enact law, but only to declare it, has thrown a vagueness over the whole idea of law, which has contributed greatly to obscure the distinction between it and positive morality. The error, that law exists as such independently of legal sanctions, appears in an aggravated shape in the notion that there exists a natural law—a law known by the light of nature, which does not emanate from legislators, but is nevertheless binding on tribunals, and may and ought to be by them enforced by reason of its natural obligation only. This Jus Naturale has, as Mr. Austin observes, “thoroughly perplexed and obscured the sciences of jurisprudence and ethics.”^* As the notion admits only of an historical explanation, Mr. Austin deals with it substantially in the same manner as Mr. Maine.

He expounds the origin of the Jus Gentium of the early Roman lawyers,^[‡] a different thing not only from international law, to which the term has been perversely transferred by modern jurists, but also from the Natural Law of modern writers on jurisprudence, though of this last it is the real progenitor. The jus gentium took its rise from the necessity in which the Romans found themselves, through the growth of their dominion, of administering justice to persons who were not Romans—to whom the laws provided for Roman citizens were not applicable, and who, belonging to different nations and communities, had originally different laws. Provincials of the same province retained, as between themselves, their old laws; but between a provincial and a Roman citizen, or between provincials of one province and those of another, it was neither convenient, nor would in most cases have been just, to decide disputes by a law which was not the law of both parties. The praetors, whose decision in such cases was probably at first arbitrary, were able to find many legal principles and provisions which were not peculiar to either people (as so much of the early Roman law was peculiar to the Romans) but were common to the laws of all or of many Edition: current; Page: [185] different communities. These principles and provisions there seemed no hardship in applying to cases between persons of what would now be called different nationalities. And where these did not furnish a rule exactly applicable to the case, the praetors were led to supply the deficiency by rules either derived from them by analogy, or suggested by a sense of substantial justice or expediency. In this manner arose the idea of a body of law not peculiar to one, but common to all nations, on which the praetors were supposed, and supposed themselves, to have fashioned the body of positive law which grew up under their hands. This law, being abstracted from the peculiarities both of the Jus Quiritium and of all other local and special bodies of law or custom, was, as might naturally be expected, of a more liberal character. It was less charged with technical and circuitous modes of proceeding, invented to evade conflict with local or accidental prejudice. It was less infected by the freaks of fancy which, as Mr. Austin observes, are “omnipotent with barbarians,”^[*] but in which one barbarous people is not likely to agree with another. It might be said, by comparison, to represent that portion of all systems, which arose from the wants and feelings of human nature generally. Being, for this reason, as well as from its originating in a more civilized period, far preferable to the old Roman law, it became the model on which the praetors, by their edicts, gradually modified the old law itself, and finally (though not till after many centuries), almost entirely substituted itself for the original Roman law. The provisions of the more liberal jus gentium, applied by the praetors as modifying principles to the old law, obtained the name of Aequitas, or equity: an appellation which became extended to the somewhat similar process by which the Court of Chancery for ages employed itself in supplying the omissions and mitigating the barbarities of the feudal laws of England. The explanation and elucidation of this one word Equity, in the many senses in which it is used by jurists, forms the subject of several of Mr. Austin’s lectures.^[†] Both historically and philosophically, they are among the most interesting parts of the Course, though much of the matter they contain, when once stated, appears so obvious, that one is apt to forget how often and by what esteemed authorities it has been misunderstood.^*

Now it was this Roman idea of a jus gentium, or portion of law common to all nations, which grew insensibly into the modern idea of Natural Law. “The jus Naturale, or law of nature,” as Mr. Maine observes, “is simply the jus gentium Edition: current; Page: [186] seen in the light of a peculiar theory.”^* That theory, as both he and Mr. Austin remark, was derived from the precept “Live according to Nature” of the Greek philosophical schools.^[*]

Being observed or recognised universally, these principles were supposed to have a higher origin than human design, and to be (we quote Mr. Austin) “not so properly rules of human position or establishment, as rules proceeding immediately from the Deity himself, or the intelligent and rational Nature which animates and directs the universe.”^‡ This notion, once formed, was, by an obvious process, so enlarged as to include merely moral or merely customary rules which had obtained general acceptance; “every rule, in short, which is common to all societies, though the rule may not obtain as positive law in all political communities, or in any political community.”^§ In this manner the Natural Law of modern writers was extended to those international usages, and those rules of international morality, which obtained generally among nations. And by a similar process each writer was led to include in his scheme of Natural Law, whatever maxims of justice or utility approved themselves to him as an individual moralist, provided they appeared to be at once self-evident and universal. The writings which profess to treat of the Law of Nature and Nations are a chaos of all these materials. “In studying these writers,” says Mr. Maine, “the great difficulty is always to discover whether they are discussing law or morality—whether the state of international relations they describe is actual or ideal—whether they lay down that which is, or that which in their opinion ought to be.”^¶ This arose from the confused apprehension of the very meaning of law, engendered by their notion of a Law of Nature according to which what in their opinion ought to be law, was conceived as being, in some strange manner, law already. By this confusion they have spread a thick fog over the distinctions and demarcations which separate the three different notions, positive law, positive morality, and deontology, or morality as it ought to be.

The influence of the imaginary Law of Nature over modern thought has been Edition: current; Page: [187] all-pervading; on the whole, however, still greater on the Continent than in England. Mr. Maine very truly affirms, that “the theory of natural law is the source of almost all the special ideas as to law, politics, and society, which France during the last hundred years has been the instrument of diffusing over the western world. The part” (he continues) “played by jurists in French history, and the sphere of jural conceptions in French thought, have always been remarkably large;”^* and in the latter half of the last century, when other old modes of thought were breaking up, the calamitous influence of Rousseau (calamitous at least in this respect) became powerfully operative in strengthening this particular delusion. Coleridge, in the Friend, has maintained, with much force of argument, that the thrusting of immutable principles of morality into the province of law, and assuming them as the only legitimate basis of politics, is the essence of Jacobinism.^[*] It is the essence not specially of that, but of a general mode of thought which prevails among French thinkers of all political opinions. As a general rule, French speculation knows no distinction or barrier between the province of morals and that of politics or legislation. While, on the one hand, it tends to impose on morals (for this, however, Catholic thought and the influence of the Canonists are partly responsible) all the formality and literalness of juridical rules; on the other, it invests the creations of pure legal institution—the law of property for example—with the sacredness and indefeasibility of the fundamental doctrines of morals; and cannot bear to discuss such a question, for instance, as copyright, on grounds of general expediency, but insists on clenching it by affirming or denying an assumed absolute right in authors to hold the produce of their brain, by themselves or their representatives, as permanent property to the end of time.

The influence, for good and for evil, of the theory of a Law of Nature, is delineated by Mr. Maine more fully than was compatible with Mr. Austin’s more extensive design. There is no doubt that for a long period the good side of the influence predominated. It assisted mankind in disencumbering themselves from a superstititous reverence for the institutions which had historically grown up in their several countries. It accustomed them to test particular laws by general principles of some sort, and gave them a type of excellence of which simplicity and symmetry were among the supposed characteristics. Finally, it disregarded all distinctions between man and man, between citizen and foreigner, noble and burgess, burgess and peasant; and Mr. Maine is of opinion “that to the assumption of a Law Natural we owe the doctrine of the fundamental equality of human beings.”^[†] When almost everything which was artificial was oppressive, the reaction in favour of what was supposed to be natural had a healthy tendency, though we now know that the real natural state (if natural means primitive), instead Edition: current; Page: [188] of being the reign of justice and freedom, is a condition of more universal tyranny than any form whatever of civilized life. But whatever power of liberalizing men’s minds may once have belonged to the doctrine of Natural Law, that power is now exhausted; the doctrine has done all it can do in that direction, and its remaining influence serves only to make men greater bigots, not indeed to the peculiar vices of any given system, but to whatever vices have existed from the beginning in them all. Meanwhile, the theory of law must be a mass of contradiction as long as the imaginary Natural Law retains any authority in it; for as every actual system of law has been shaped out by conflicting instincts, a theory generalized from what they have in common is necessarily full of conflicting principles, and affords, on both sides of every controverted point, arguments which, if the theory be granted, are all equally unanswerable.

In the thirty-seventh Lecture^[*] Mr. Austin commences discussing the differences which distinguish statute from judiciary law; the advantages and disadvantages of judicial legislation, and the possibility and desirableness of excluding it for the future, and converting all judiciary law into statute—in other words, codification. From this excellent discussion we shall permit ourselves, in consideration of its great practical moment, to give a longer quotation than we have ventured to make from any other portion of the Course. It is taken from the place in which, after remarking on some disadvantages erroneously attributed to judiciary law, Mr. Austin points out the evils which are really inherent in it.

The expediency of codification at a particular time and place depends on the question, “Are there men, then and there, competent to the task of successful codification?”^[‡] The difficulty of the work no one feels more strongly, or has stated more emphatically, than Mr. Austin. He considers “the technical part of legislation incomparably more difficult than what may be styled the ethical,” holding it “far easier to conceive justly what would be useful law, than so to Edition: current; Page: [192] construct that same law that it may accomplish the design of the law-giver:”^* an opinion which, in its full breadth of statement, we should hesitate to endorse. But it will readily be admitted that the two qualifications are different, that the one is no guarantee for the other, and that the talent which is merely instrumental is, in any high degree of perfection, nearly if not quite as rare as that to which it is subordinate.

The expediency, therefore, of codification in England and at the present time, Mr. Austin does not discuss; but he shows “the futility of the leading or principal arguments which are advanced against codification, considered generally or in abstract.”^[*] Unhappily a great part of the matter which he delivered on this subject is missing from the manuscript. But its place is partly supplied by the abundant notes and memoranda relating to the subject, which have been found among his papers, and of which the “Notes on Codification,” appended to the third volume, are but a part.^[†] We shall quote only one passage, which belongs to the Lectures, and is reproduced in the pamphlet on the Study of Jurisprudence. It is a reply to the common objection that statute law cannot include all cases. Mr. Austin shows that it can at least include all those which are covered by judiciary law.

The “Notes on Codification” contain, in substance, all that is required to meet any of the objections against codification generally, or in the abstract,^* but their form is too completely that of a mere syllabus, to be acceptable to the general reader. We shall quote, however, as a specimen, and for its practical importance, one excellent passage, containing the author’s view of the real difficulties of codification, and the conditions necessary for rendering it advisable.

Having concluded the subject of Law in general, regarded under its different aspects, Mr. Austin proceeds to consider the parts of which a corpus juris is necessarily composed, and the mutual relations of those parts.^[*] As already observed, he adheres in the main, though with some not unimportant improvements, to the classification and arrangement of the Roman law, or rather of its modern expositors, who have carried out the ideas of the classical jurists with a precision still greater than theirs.

Mr. Austin gives excellent reasons for rejecting their primary division, followed by most modern writers, into public and private law, and shows how the various parts which compose the former of these should be disposed of.^* This being set aside, the leading division is into what are termed by the Roman lawyers, Law of Persons and Law of Things—jus personarum and jus rerum, strangely mistranslated by Hale and Blackstone into rights of persons and rights of things.^[†] The original expressions are extremely ill-chosen, and have been an ignis fatuus to law writers, both in ancient and modern times. The Law of Persons (agreeably to one of the meanings of the word persona) is the law of Status or conditions—of the rights and obligations peculiar to certain classes of persons, on whom a peculiar legal stamp has been set. And, in contradistinction, the Law of Things is the law common to all persons, together with the peculiar laws relating to other classes of persons not so specially marked out from the rest. But this has seldom been properly understood by law writers. They have imagined that persons (personae), in this acceptation, meant persons in the ordinary sense—human beings; and forgetting that in this sense all law, and all rights and obligations, relate to persons, they supposed that the Law of Persons, as distinguished from that of Things, ought Edition: current; Page: [195] to contain all law which deals with those interests of persons which have no (or but slight) reference to things. Hence Blackstone places in the Law of Persons what he calls Absolute Rights, being those which belong to all persons without exception, such as the right to life, to personal security, to reputation—rights which, looked at from the point of view of the Roman lawyers, belong even more pre-eminently than any others to the Law of Things.^[*]

Those jurists who have understood the meaning of the Roman lawyers more correctly than Blackstone, have exhausted their ingenuity in search of metaphysical reasons why some peculiarities of legal position have been accounted Status, and included in jus personarum, while others, equally marked and equally important, have been retained in the Law of Things. Mr. Austin minutely examines and criticizes these subtleties, and, after a full review of them, decides that the division has no logical or metaphysical basis at all.^[†] It rests solely on convenience. Executors, heirs, trustees, proprietors, contractors, &c., are as much classes of persons as parents, guardians, infants, magistrates, and the like; yet they are never accounted status, and the laws which concern them are always included in the Law of Things. No reason can be given why the one group should, and the other should not, be detached from the general body of the law and placed apart, except that the laws relating to the one “have no necessary coherency with the bulk of the legal system,” and need not, generally speaking, be taken into consideration in order to understand the law as a whole; while the others “have such a coherency with the bulk of the legal system, that if they were detached from it the requisite continuity in the statement or exposition of it would be lost.”^*

As much of the law, then, as relates to certain peculiar legal positions, is remanded to a separate branch, which naturally should be placed after the general law, or jus rerum. The Roman institutional writers, by placing the Law of Persons first, gave one among several proofs that even they had not a perfectly clear conception of the distinction which they had themselves drawn.

In proceeding to subdivide the Law of Things, Mr. Austin adopts from the Roman lawyers their principle of grounding the general division of the corpus juris upon a classification of rights. But he selects as his primary division of rights (and of the corresponding duties) a distinction not specially recognised by those writers.

The Roman lawyers primarily divided rights into jura in rem, or rights availing against all the world, and jura in personam, or rights availing against determinate persons only.^‡ Of the former, the right of dominion or property is the most Edition: current; Page: [196] familiar instance. My right of ownership in a thing, is constituted by a duty or obligation imposed on all persons not to deprive me of the thing, or molest me in its enjoyment. Of rights in personam, the most prominent example is a right by virtue of a contract. If B has contracted with A to deliver certain goods, A has a right, answering to the legal obligation on B, but the right is against B alone. Until they are delivered, A has acquired no right to the goods as against other persons. If the goods came into the possession of a third party, through (for example) a wrongful resale by B, A would still have his original right as against B, and might have a right to damages besides, but he could not by process of law recover the goods themselves from the new possessor. A’s right, therefore, is not in rem, but in personam, meaning in personam determinatam. The distinction between these two classes of rights belongs to universal jurisprudence, for every system of law must establish rights of both kinds; and the difference between them is connected with practical differences in the legal remedies. Among rights in rem must be reckoned the right to life, to reputation, to the free disposal of one’s person and faculties, to exemption from bodily harm or indignity, and to any external thing of which one is the legal owner. To these must be added the limited right in a thing owned by some one else, which is called servitus or easement, such as a right of way over another person’s land.

Rights in personam, or availing against a determinate person or persons, are divided by Roman jurists into rights (in their unhappy phraseology obligationes) ex contractu, and rights (or obligationes) ex delicto, with two miscellaneous appendages, rights quasi ex contractu and quasi ex delicto. By quasi-contracts are not to be understood implied contracts, differing from express ones only in that the engagement is signified by conduct instead of words. Such tacit engagements are real contracts, and are placed in the law of contract. The term quasi-contract applies to cases in which there has not been, and is known not to have been, any engagement, either express or tacit, but in which the ends of legislation require that the same legal obligations shall be imposed as if the party had entered into an engagement. The case commonly used as an illustration is solutio indebiti—the obligation of a person to whom a payment has been made under a mistake, to refund the amount. Obligations quasi ex contractu are, therefore, simply miscellaneous obligations which cannot be reduced to any of the other classes. The third class, obligations (or rights) arising from offences, is, we venture to say, a stumbling-block to all clear-headed persons when they begin the study of the Roman law. Mr. Austin retains it, but suppresses the fourth class, quasi ex delicto, it being quite needless to have two repositories for merely miscellaneous obligations without any positive feature in common. The term quasi-contracts, rightly understood, includes them all. As Mr. Austin expresses it, “one fiction suffices.” “The terms are merely a sink into which such obligatory incidents as are not contracts, or not delicts, but beget an obligation as if, &c., are thrown without Edition: current; Page: [197] discrimination. And this is the rational view which Gaius has taken of the subject.”^*

Though Mr. Austin retains the class of rights ex delicto, it is here that his classification most materially deviates from that of the Roman jurists. Instead of making rights ex delicto a secondary, he makes them a primary class. Instead of co-ordinating them with rights from contract and from quasi-contract, as species of jura in personam, he opposes them to all other rights, in rem and in personam taken together. His division of rights in general, is into Primary, and what he terms Sanctioning, Rights.^[*] The characteristic of these is, that they exist only for the sake of the primary. Primary rights and duties have a legal existence only by virtue of their sanctions. But in order that the sanctions may be applied, legal provisions are necessary, by which other rights are created and duties imposed. These secondary rights and duties are the subject-matter of Penal Law and of the Law of Procedure. They correspond partly (though, as we shall see, not entirely) with the obligationes ex delicto of the Romans, and admit of being classed as rights and duties arising out of offences. As such, they are again divided by Mr. Austin into “Rights and Duties arising from Civil Injuries,” and “Duties and other Consequences arising from Crimes.”^[†] The basis which the Roman jurists assumed for their division of rights in general—the distinction between rights in rem and in personam—is retained by Mr. Austin only for primary rights. The following table,^[‡] abridged from one annexed to the author’s Outline, will serve as a rough ground-plan of his distribution of the field of law:

The remaining Lectures are devoted to the examination and elucidation of the particulars included under these heads. And, with all their incompleteness (which, as with the broken arches in Addison’s “Vision,” becomes greater as we approach the point where they cease altogether),^[*] their value to the student will be found to be very great. We would particularly direct attention to the treatment of Dominium or Property, in its various senses, with the contrasted conception of servitus or easement.^[†] The nature and boundaries of these two kinds of rights are made so transparently clear, that it requires some acquaintance with the speculations of jurists to be able to believe that any one could ever have misunderstood the subject.

But is the division and arrangement of law in general, expressed in the table, wholly unimpeachable? We do not mean in point of mere correctness. It satisfies the fundamental rules of logical division. It covers the whole subject, and no one part overlaps another. It affords an arrangement in which it is at least possible to lay out perspicuously the whole of the matter; and if the proper mode of ordering and setting out a body of law is to ground it upon a classification of rights, no better one for the purpose could probably be made.

But the purely logical requisites are not the only qualities desirable in a scientific classification. There is a further requisite—that the division should turn upon the most important features of the things classified; in order that these, and not points of minor importance, may be the points on which attention is concentrated. A classification which does this, is what men of science mean when they speak of a Natural Classification. To fulfil this condition may require, according to circumstances, different principles of division; since the most important properties may either be those which are most important practically, by their bearing on human interests, or those which are most important scientifically, as rendering it easiest to understand the subject—which will generally be the most elementary properties.

In the case now under consideration, both these indications coincide. They both point to the same principle of division. Law is a system of means for the attainment of ends. The different ends for which different portions of the law are designed, are consequently the best foundation for the division of it. They are at once what is most practically important in the laws, and the fundamental element in the conception of them—the one which must be clearly understood to make anything else intelligible. Is, then, this requirement, of distinguishing the parts of the corpus juris from one another according to the ends which they subserve, fulfilled by a division which turns entirely upon a classification of rights?

It would be so, if the ends of different portions of the law differed only in respect of the different kinds of Rights which they create. But this is not the fact. The rights Edition: current; Page: [199] created by a law are sometimes the end or purpose of the law, but are not always so.

In the case of what Mr. Austin terms Primary Rights,^[*] the rights created are the very reason and purpose of the law which creates them. That these rights may be enjoyed is the end for which the law is enacted, the duties imposed, and the sanctions established.

In that part of the law, however, which presupposes and grows out of wrongs—the law of civil injuries, of crimes, and of civil and criminal procedure—the case is quite otherwise. There are, it is true, rights (called, by Mr. Austin, Sanctioning Rights)^[†] created by this portion of the law, and necessary to its existence. But the laws do not exist for the sake of these rights; the rights, on the contrary, exist for the sake of the laws. They are a portion of the means by which those laws effect their end. The purpose of this part of the law is not the creation of rights, but the application of sanctions, to give effect to the rights created by the law in its other departments. The sanctioning rights are merely instrumental to the sanctions; but the sanctions are themselves instrumental to the primary rights. The filiation of the ideas, proceeding from the simple to the more complex, is as follows:

1. Primary Rights, with the correlative Duties.

2. Sanctions.

3. Laws determining the mode of applying the Sanctions.

4. Rights and Duties established by those laws, for the sake of, and as being necessary to, the application of the Sanctions.

It appears from these considerations, that however suitable a groundwork the classification of rights may be for the arrangement of that portion of the law which treats of Primary Rights (commonly called the Civil Code)—in the Penal Code and Code of Procedure the rights thereby created are but a secondary consideration, on which it is not well to bestow the prominence which is given to them by carrying out into those branches the same principle of classification. We do not mean that rights ex delicto can be left out of the classification of rights for the purposes of the Civil Code. They are rights, and being so, cannot be omitted in the catalogue. But they should, we apprehend, be merely mentioned there, and their enumeration and definition reserved for a separate department, of which the subject should be, not Rights, but Sanctions. If this view be correct, the primary division of the body of law should be into two parts. First, the Civil Law, containing the definition and classification of rights and duties. Secondly, the law of Wrongs and Remedies. This last would be subdivided into Penal Law, which treats of offences and punishments, and the law of Procedure. If this were a mere opinion of our own, we should hesitate to assert it against a judge in all respects so much more competent Edition: current; Page: [200] as Mr. Austin; but if his great authority is against us, we have with us that of Bentham, James Mill, and the authors of, we believe, all modern codes.^[*]

Not only does this more commonplace distribution and arrangement of the corpus juris appear to us more scientific than Mr. Austin’s; we apprehend that it is also more convenient. Mr. Austin, in fact, has been driven, by the plan he adopted, to the introduction of a logical anomaly, which he himself acknowledges. There are, as he rightly holds, legal duties which are absolute, that is, which have not only for their ultimate but for their immediate and direct object the general good, and not the good of any determinate person or persons, and to which, therefore, there are no correlative rights. Now, in a classification grounded wholly on rights, there is no place for duties which do not correspond to any rights. It being impossible to class these duties with jura in rem or in personam, Mr. Austin treats of them under the head of Sanctioning Rights. The difficulty, however, is not in knowing under what kind of rights to place them, but in placing them under rights at all. Duties which answer to no rights, have no more natural affinity with Sanctioning than they have with Primary rights. Why then is this, as it undoubtedly is, their proper place in the classification? Because, though the duties have no affinity with rights, the wrongs which are violations of those duties have an affinity with the wrongs which are violations of rights. Violations of absolute duties are Crimes; many violations of rights are also Crimes; and between crimes of these two sorts there is no generic difference which it is necessary that either penal law or criminal procedure should recognise. Now, if the second great division of the law is regarded (which we think it ought to be) as conversant not directly with Rights, but with Wrongs, the wrongs in question, which are violations of absolute duties, take their place among other wrongs as a matter of course. But in a classification grounded on Rights, they are altogether an anomaly and a blot. There is no place marked out for them by the principle of the classification; and to include them in it, recourse must be had to a second principle, which, except for that purpose, the classification does not recognise. It has been seen in the table, that, in the second division of Mr. Austin’s Sanctioning Rights, he drops rights altogether, and speaks of “duties and other consequences.”

But this is not the only, nor the greatest objection which may be made, both on the ground of scientific symmetry and of practical convenience, against the place assigned by Mr. Austin to the law of Wrongs and Remedies. A still stronger objection is manifest from a mere inspection of the table. It interpolates the entire subjects of Penal Law and Procedure between the general Civil Law of Things and the Law of Status; that is, between two subjects so closely allied, that after a strenuous application of his powerful intellect to the subject, Mr. Austin was unable to draw a definite line, or find any essential or scientific difference between Edition: current; Page: [201] them; and was induced to separate them at all, only by the convenience of treating the genus first, and a few of its more complex species afterwards. As he himself says, the law of any and of all Status is “indissolubly connected with that more general matter which is contained in the Law of Things.”^* These two portions of law are conversant with the same general ideas—namely, rights and their definitions (to a great degree even with the same kinds of rights), and one of them is but a kind of appendix or extension of the other, so that there is often a doubt in which compartment a particular chapter or title of the law may best be placed; yet the one is put at the beginning of the corpus juris, the other at the end, and between them lies all that great portion of the law which has to do with the subsequent considerations of Offences, Punishments, Judicature, and Judicial Procedure. We cannot think that this is a mode of arrangement which would have approved itself to Mr. Austin’s, on such subjects, almost infallible judgment, had he ever completed his Course.

It may be remarked that, though the arrangement which we have criticized was founded on that of the classical Roman jurists, the criticism is not fairly applicable to those jurists themselves. According to the plan of their treatises, they had no alternative. They could not treat of delicts under any other form than that of “obligationes quae ex delicto nascuntur.”^[*] For, as Mr. Austin himself observes, their institutional writings were solely on private law.^[†] Public law was, it is uncertain for what reason, excluded. But crimes, and criminal procedure, belonged to their conception of Public law. Of these, therefore, they had not to treat.^† Civil procedure they did treat of; but they placed it in a branch apart, which was neither jus rerum nor personarum, but a third division co-ordinate with them, called Jus Actionum. There remained only the law of civil injuries. Now, the specific character which distinguishes civil injuries from crimes is that, though the sanction is in both cases the leading idea, the mode in which, in the case of civil injuries, the sanction is applied, is by giving to the injured party a right to compensation or redress, which, like his other rights, he may exercise or forego at his pleasure. It is evident that there is not in this case the same impropriety as in the case of crimes or of procedure, in considering the right created as the real purpose of the law. It is true that, even in this case, another purpose of the law is punishment, but the law is willing to forego that object, provided the injured person consents to waive it. The right, therefore, of the injured person, in this Edition: current; Page: [202] particular class of injuries, might without absurdity be treated as the principal object. Being a right availing only against determinate persons—namely, the offender or his representatives—it is a right in personam, or, in the language of the classical jurists, an obligatio; and its particular nature afforded no reason why it should not, in an arrangement in all other respects dictated by the exigencies of the civil code, take its place where alone, in such an arrangement, a place could be assigned to it—namely, under the general head of Jura in Personam, as a sub-species. But this, though it accounts for the place assigned in the Roman law to “obligationes quae ex delicto nascuntur,” forms no reason for applying the same arrangement to the whole law of wrongs and remedies, and making it the basis of a division including the entire field of the corpus juris—crimes, punishments, civil and criminal procedure, among the rest.

After treating of dominium in the narrower sense in which it is opposed to servitus—a right to use or deal with a thing in a manner which, though not unlimited, is indefinite, as distinguished from a right to use or deal with a thing in a manner not only limited but definite—Mr. Austin proceeds to treat of rights limited or unlimited as to duration; of rights vested and contingent; and of dominium or property in the more emphatic sense in which it denotes the largest right which the law recognises over a thing—a right not only indefinite in extent and unlimited in duration, but including the power of aliening the thing from the person who would otherwise take it by succession.^[*] The Lectures finally break off, where they were interrupted by ill health, in the middle of the important subject of Title. There is no finer specimen of analytical criticism in these volumes than the comment (in the Notes to the Tables) on the erroneous and confused notions which the Roman jurists connected with their distinction between Titulus and Modus Acquirendi.^[†]

It cannot be too deeply regretted that, through the combined effect of frequently-recurring attacks of depressing illness, and feelings of discouragement which are vividly reproduced in the touching preface of the editor,^[‡] Mr. Austin did not complete his Lectures in the form of a systematic treatise. We are fully persuaded that, had he done so, the result would have proved those feelings of discouragement to be ill grounded. The success of the first volume, by no means the most attractive part of the Course, is a proof that even then there was in the more enlightened part of the legal profession a public prepared for such speculations; a public not numerous, but intellectually competent—the only one which Mr. Austin desired. Had he produced a complete work on jurisprudence, such as he, and perhaps only he in his generation, was capable of accomplishing, Edition: current; Page: [203] he would have attracted to the study every young student of law who had a soul above that of a mere trader in legal learning; and many non-professional students of social and political philosophy (a class now numerous, and eager for an instruction which unhappily, for the most part, does not yet exist) would have been delighted to acquire that insight into the rationale of all legal systems, without which the scientific study of politics can scarcely be pursued with profit, since juristical ideas meet, and, if ill understood, confuse the student at every turning and winding in that intricate subject. Before the end of the period to which Mr. Austin’s life was prolonged, he might have stood at the head of a school of scientific jurists, such as England has now little chance of soon possessing. But the remains which he has left, fragmentary though much of them be, are a mine of material for the future. He has shown the way, solved many of the leading problems, and made the path comparatively smooth for those who follow. Among the younger lawyers of the present time, there must surely be several (independently of the brilliant example of Mr. Maine) who possess the capacity, and can acquire the knowledge, required for following up a work so well begun; and whoever does so will find, in the notes and miscellaneous papers which compose the latter part of the third volume, a perfect storehouse of helps and suggestions.

It remains to say a few words on the question of execution. A work left unfinished, and never really composed as a book, however mature and well-digested its thoughts, is not a proper subject for literary criticism. It is from the first volume only that we are able to judge what, in point of composition, Mr. Austin would have made it. But all the merits of expression which were found in that volume reappear in quite an equal degree in the remainder, and even, as far as the case admitted, in the looser memoranda. The language is pure and classical English, though here and there with something of an archaic tinge. In expression as in thought, precision is always his first object. It would probably have been so, whatever had been the subject treated; but on one in which the great and fatal hindrance to rational thought is vague and indefinite phrases, this was especially imperative. Next after precision, clearness is his paramount aim; clearness alike in his phraseology and in the structure of his sentences. His pre-eminent regard to this requisite gives to his style a peculiarity the reverse of agreeable to many readers, since he prefers, on system, the repetition of a noun substantive, or even of an entire clause, in order to dispense with the employment of the little words it and them, which he is quite right in regarding as one of the most frequent sources of ambiguity and obscurity in composition. If there be some excess here, it is the excess of a good quality, and is a scarcely appreciable evil, while a fault in the contrary direction would have been a serious one. In other respects Mr. Austin’s style deserves to be placed very high. His command of apt and vigorous expression is remarkable, and when the subject permits, there is an epigrammatic force in the turn of his sentences which makes them highly effective.

Some readers may be offended at the harsh words which he now and then uses, not towards persons, to whom he is always, at the lowest, respectful, but towards phrases and modes of thought which he considers to have a mischievous tendency. He frequently calls them “absurd,” and applies to them such epithets as “jargon,” “fustian,” and the like.^[*] But it would be a great injustice to attribute these vehement expressions to dogmatism, in any bad sense of the word—to undue confidence in himself, or disdain of opponents. They flowed from the very finest part of his character. He was emphatically one who hated the darkness and loved the light. He regarded unmeaning phrases and confused habits of thinking as the greatest hindrance to human intellect, and through it to human virtue and happiness. And, thinking this, he expressed the thought with corresponding warmth: for it was one of his noble qualities that while, whatever he thought, he thought strongly, his feelings always went along with his thoughts. The same perfervidum ingenium made him apply the same strong expressions to any mistake which he detected in himself. In a passage of the Lectures, he says, referring to a former lecture, “I said so and so. But that remark was absurd; for it would prove,” &c.^* And in an extemporaneous passage, which some of his hearers may remember, he rated himself soundly for an erroneous opinion which he had expressed, and conjectured, as he might have done respecting a complete stranger to him, what might have been the causes that led him into so gross a misapprehension. That the occasional strength of his denunciations had its source in a naturally enthusiastic character, combined in him with an habitually calm and deliberate judgment, is shown by the corresponding warmth which marks his expressions of eulogium. He was one in whom the feelings of admiration and veneration towards persons and things that deserve it, existed in a strength far too rarely met with among mankind. It is from such feelings that he speaks of “the godlike Turgot;”^[†] that, in mentioning Locke, he commemorates “that matchless power of precise and just thinking, with that religious regard for general utility and truth, which marked the incomparable man who emancipated human reason from the yoke of mystery and jargon;”^† that he does homage, in many passages of the Lectures, to the great intellectual powers of Thibaut and Von Savigny,^[‡] and that, in a note at page 248 of his first volume, he devotes to Hobbes perhaps the noblest vindication which that great but unpopular thinker has ever received. That Mr. Austin was capable of similar admiration for the great qualities of those from whose main scheme of thought he dissents, and whose authority he is oftener obliged to thrust aside than enabled to follow, is shown in many passages, and in Edition: current; Page: [205] none more than in some remarks on Kant’s Metaphysical Principles of the Science of Law.^* We may add that his praises are not only warm, but (probably without exception) just, that such severity as is shown, is shown towards doctrines, very rarely indeed towards persons, and is never, as with vulgar controversialists, a substitute for refutation, but always and everywhere a consequence of it.

Inaugural Address Delivered to the University of St. Andrews

in complying with the custom which prescribes that the person whom you have called by your suffrages to the honorary presidency of your University should embody in an Address a few thoughts on the subjects which most nearly concern a seat of liberal education; let me begin by saying, that this usage appears to me highly commendable. Education, in its larger sense, is one of the most inexhaustible of all topics. Though there is hardly any subject on which so much has been written, by so many of the wisest men, it is as fresh to those who come to it with a fresh mind, a mind not hopelessly filled full with other people’s conclusions, as it was to the first explorers of it and notwithstanding the great mass of excellent things which have been said respecting it, no thoughtful person finds any lack of things both great and small still waiting to be said, or waiting to be developed and followed out to their consequences. Education, moreover, is one of the subjects which most essentially require to be considered by various minds, and from a variety of points of view. For, of all many-sided subjects, it is the one which has the greatest number of sides. Not only does it include whatever we do for ourselves, and whatever is done for us by others, for the express purpose of bringing us somewhat nearer to the perfection of our nature; it does more, in its largest acceptation, it comprehends even the indirect effects produced on character and on the human faculties, by things of which the direct purposes are quite different, by laws, by forms of government, by the industrial arts, by modes of social life; nay even by physical facts not dependent on human will; by climate, soil, and local position. Whatever helps to shape the human being, to make the individual what he is, or hinder him from being what he is not—is part of his education. And a very bad education it often is; requiring all that can be done by cultivated intelligence and will, to counteract its tendencies. To take an obvious instance; the niggardliness of Nature in some places, by engrossing the whole energies of the human being in the mere preservation of life, and her over-bounty in others, affording a sort of brutish subsistence on too easy terms, with hardly any exertion of the human faculties, are both hostile to the spontaneous growth and development of the mind; and it is at those two extremes of the scale that we find human societies in the state of most unmitigated savagery. I shall confine myself, Edition: current; Page: [218] however, to education in the narrower sense; the culture which each generation purposely gives to those who are to be its successors, in order to qualify them for at least keeping up, and if possible for raising, the level of improvement which has been attained. Nearly all here present are daily occupied either in receiving or in giving this sort of education: and the part of it which most concerns you at present is that in which you are yourselves engaged—the stage of education which is the appointed business of a national University.

The proper function of an University in national education is tolerably well understood. At least there is a tolerably general agreement about what an University is not. It is not a place of professional education. Universities are not intended to teach the knowledge required to fit men for some special mode of gaining their livelihood. Their object is not to make skilful lawyers, or physicians, or engineers, but capable and cultivated human beings. It is very right that there should be public facilities for the study of professions. It is well that there should be Schools of Law, and of Medicine, and it would be well if there were schools of engineering, and the industrial arts. The countries which have such institutions are greatly the better for them; and there is something to be said for having them in the same localities, and under the same general superintendence, as the establishments devoted to education properly so called. But these things are no part of what every generation owes to the next, as that on which its civilization and worth will principally depend. They are needed only by a comparatively few, who are under the strongest private inducements to acquire them by their own efforts, and even those few do not require them until after their education, in the ordinary sense, has been completed. Whether those whose speciality they are, will learn them as a branch of intelligence or as a mere trade, and whether, having learnt them, they will make a wise and conscientious use of them or the reverse, depends less on the manner in which they are taught their profession, than upon what sort of minds they bring to it—what kind of intelligence, and of conscience, the general system of education has developed in them. Men are men before they are lawyers, or physicians, or merchants, or manufacturers; and if you make them capable and sensible men, they will make themselves capable and sensible lawyers or physicians. What professional men should carry away with them from an University, is not professional knowledge, but that which should direct the use of their professional knowledge, and bring the light of general culture to illuminate the technicalities of a special pursuit. Men may be competent lawyers without general education, but it depends on general education to make them philosophic lawyers—who demand, and are capable of apprehending, principles, instead of merely cramming their memory with details. And so of all other useful pursuits, mechanical included. Education makes a man a more intelligent shoemaker, if that be his occupation, but not by teaching him how to make shoes; it does so by the mental exercise it gives, and the habits it impresses.

This, then, is what a mathematician would call the higher limit of University Edition: current; Page: [219] education: its province ends where education, ceasing to be general, branches off into departments adapted to the individual’s destination in life. The lower limit is more difficult to define. An University is not concerned with elementary instruction: the pupil is supposed to have acquired that before coming here. But where does elementary instruction end, and the higher studies begin? Some have given a very wide extension to the idea of elementary instruction. According to them, it is not the office of an University to give instruction in single branches of knowledge from the commencement. What the pupil should be taught here (they think), is to methodize his knowledge, to look at every separate part of it in its relation to the other parts, and to the whole, combining the partial glimpses which he has obtained of the field of human knowledge at different points, into a general map, if I may so speak, of the entire region; observing how all knowledge is connected, how we ascend to one branch by means of another, how the higher modifies the lower, and the lower helps us to understand the higher; how every existing reality is a compound of many properties, of which each science or distinct mode of study reveals but a small part, but the whole of which must be included to enable us to know it truly as a fact in Nature, and not as a mere abstraction.

This last stage of general education, destined to give the pupil a comprehensive and connected view of the things which he has already learnt separately, includes a philosophic study of the Methods of the sciences; the modes in which the human intellect proceeds from the known to the unknown. We must be taught to generalize our conception of the resources which the human mind possesses for the exploration of nature; to understand how man discovers the real facts of the world, and by what tests he can judge whether he has really found them. And doubtless this is the crown and consummation of a liberal education: but before we restrict an University to this highest department of instruction—before we confine it to teaching, not knowledge, but the philosophy of knowledge—we must be assured that the knowledge itself has been acquired elsewhere. Those who take this view of the function of an University are not wrong in thinking that the schools, as distinguished from the universities, ought to be adequate to teaching every branch of general instruction required by youth, so far as it can be studied apart from the rest. But where are such schools to be found? Since science assumed its modern character, nowhere: and in these islands less even than elsewhere. This ancient kingdom, thanks to its great religious reformers, had the inestimable advantage, denied to its southern sister, of excellent parish schools, which gave, really and not in pretence, a considerable amount of valuable literary instruction to the bulk of the population, two centuries earlier than in any other country. But schools of a still higher description have been, even in Scotland, so few and inadequate, that the Universities have had to perform largely the functions which ought to be performed by schools; receiving students at an early age, and undertaking not only the work for which the schools should have prepared them, but much of the Edition: current; Page: [220] preparation itself. Every Scottish University is not an University only, but a High School, to supply the deficiency of other schools. And if the English Universities do not do the same, it is not because the same need does not exist, but because it is disregarded. Youths come to the Scottish Universities ignorant, and are there taught. The majority of those who come to the English Universities come still more ignorant, and ignorant they go away.

In point of fact, therefore, the office of a Scottish University comprises the whole of a liberal education, from the foundations upwards. And the scheme of your Universities has, almost from the beginning, really aimed at including the whole, both in depth and in breadth. You have not, as the English Universities so long did, confined all the stress of your teaching, all your real effort to teach, within the limits of two subjects, the classical languages and mathematics. You did not wait till the last few years to establish a Natural Science and a Moral Science Tripos. Instruction in both those departments was organized long ago: and your teachers of those subjects have not been nominal professors, who did not lecture: some of the greatest names in physical and in moral science have taught in your Universities, and by their teaching contributed to form some of the most distinguished intellects of the last and present centuries. To comment upon the course of education at the Scottish Universities is to pass in review every essential department of general culture. The best use, then, which I am able to make of the present occasion, is to offer a few remarks on each of those departments, considered in its relation to human cultivation at large: adverting to the nature of the claims which each has to a place in liberal education; in what special manner they each conduce to the improvement of the individual mind and the benefit of the race; and how they all conspire to the common end, the strengthening, exalting, purifying, and beautifying of our common nature, and the fitting out of mankind with the necessary mental implements for the work they have to perform through life.

Let me first say a few words on the great controversy of the present day with regard to the higher education, the difference which most broadly divides educational reformers and conservatives; the vexed question between the ancient languages and the modern sciences and arts; whether general education should be classical—let me use a wider expression, and say literary—or scientific. A dispute as endlessly, and often as fruitlessly agitated as that old controversy which it resembles, made memorable by the names of Swift and Sir William Temple in England and Fontenelle in France—the contest for superiority between the ancients and the moderns.^[*] This question, whether we should be taught the Edition: current; Page: [221] classics or the sciences, seems to me, I confess, very like a dispute whether painters should cultivate drawing or colouring, or, to use a more homely illustration, whether a tailor should make coats or trousers. I can only reply by the question, why not both? Can anything deserve the name of a good education which does not include literature and science too? If there were no more to be said than that scientific education teaches us to think, and literary education to express our thoughts, do we not require both? and is not any one a poor, maimed, lopsided fragment of humanity who is deficient in either? We are not obliged to ask ourselves whether it is more important to know the languages or the sciences. Short as life is, and shorter still as we make it by the time we waste on things which are neither business, nor meditation, nor pleasure, we are not so badly off that our scholars need be ignorant of the laws and properties of the world they live in, or our scientific men destitute of poetic feeling and artistic cultivation. I am amazed at the limited conception which many educational reformers have formed to themselves of a human being’s power of acquisition. The study of science, they truly say, is indispensable: our present education neglects it, there is truth in this too, though it is not all truth, and they think it impossible to find room for the studies which they desire to encourage, but by turning out, at least from general education, those which are now chiefly cultivated. How absurd, they say, that the whole of boyhood should be taken up in acquiring an imperfect knowledge of two dead languages. Absurd indeed: but is the human mind’s capacity to learn, measured by that of Eton and Westminster to teach? I should prefer to see these reformers pointing their attacks against the shameful inefficiency of the schools, public and private, which pretend to teach these two languages and do not. I should like to hear them denounce the wretched methods of teaching, and the criminal idleness and supineness, which waste the entire boyhood of the pupils without really giving to most of them more than a smattering, if even that, of the only kind of knowledge which is even pretended to be cared for. Let us try what conscientious and intelligent teaching can do, before we presume to decide what cannot be done.

Scotland has on the whole, in this respect, been considerably more fortunate than England. Scotch youths have never found it impossible to leave school or the university having learnt somewhat of other things besides Greek and Latin, and why? Because Greek and Latin have been better taught. A beginning of classical instruction has all along been made in the common schools: and the common schools of Scotland, like her Universities, have never been the mere shams that the English Universities were during the last century, and the greater part of the English classical schools still are. The only tolerable Latin grammars for school purposes that I know of, which had been produced in these islands until very lately, Edition: current; Page: [222] were written by Scotchmen.^[*] Reason, indeed, is beginning to find its way by gradual infiltration even into English schools, and to maintain a contest, though as yet a very unequal one, against routine. A few practical reformers of school tuition, of whom Arnold was the most eminent, have made a beginning of amendment in many things: but reforms, worthy of the name, are always slow, and reform even of governments and churches is not so slow as that of schools, for there is the great preliminary difficulty of fashioning the instruments: of teaching the teachers. If all the improvements in the mode of teaching languages which are already sanctioned by experience, were adopted into our classical schools, we should soon cease to hear of Latin and Greek as studies which must engross the school years, and render impossible any other acquirements. If a boy learnt Greek and Latin on the same principle on which a mere child learns with such ease and rapidity any modern language, namely, by acquiring some familiarity with the vocabulary by practice and repetition, before being troubled with grammatical rules—those rules being ^aacquired with tenfold greater facility when the cases to which they apply are already familiar to the mind; an average schoolboy, long before the age at which schooling terminates, would be able to read fluently and with intelligent interest any ordinary. Latin or Greek author in prose or verse, would have a competent knowledge of the grammatical structure of both languages, and have had time besides for an ample amount of scientific instruction. I might go much further; but I am as unwilling to speak out all that I think practicable in this matter, as George Stephenson was about railways, when he calculated the average speed of a train at ten miles an hour, because if he had estimated it higher, the practical men would have turned a deaf ear to him, as that most unsafe character in their estimation, an enthusiast and a visionary. The results have shewn, in that case, who was the real practical man. What the results would shew in the other case, I will not attempt to anticipate. But I will say confidently, that if the two classical languages were properly taught, there would be no need whatever for ejecting them from the school course, in order to have sufficient time for everything else that need be included therein.

Let me say a few words more on this strangely limited estimate of what it is possible for human beings to learn, resting on a tacit assumption that they are already as efficiently taught as they ever can be. So narrow a conception not only Edition: current; Page: [223] vitiates our idea of education, but actually, if we receive it, darkens our anticipations as to the future progress of mankind. For if the inexorable conditions of human life make it useless for one man to attempt to know more than one thing, what is to become of the human intellect as facts accumulate? In every generation, and now more rapidly than ever, the things which it is necessary that somebody should know are more and more multiplied. Every department of knowledge becomes so loaded with details, that one who endeavours to know it with minute accuracy, must confine himself to a smaller and smaller portion of the whole extent: every science and art must be cut up into subdivisions, until each man’s portion, the district which he thoroughly knows, bears about the same ratio to the whole range of useful knowledge that the art of putting on a pin’s head does to the field of human industry. Now, if in order to know that little completely, it is necessary to remain wholly ignorant of all the rest, what will soon be the worth of a man, for any human purpose except his own infinitesimal fraction of human wants and requirements? His state will be even worse than that of simple ignorance. Experience proves that there is no one study or pursuit, which, practised to the exclusion of all others, does not narrow and pervert the mind; breeding in it a class of prejudices special to that pursuit, besides a general prejudice, common to all narrow specialities, against large views, from an incapacity to take in and appreciate the grounds of them. We should have to expect that human nature would be more and more dwarfed, and unfitted for great things, by its very proficiency in small ones. But matters are not so bad with us, there is no ground for so dreary an anticipation. It is not the utmost limit of human acquirement to know only one thing, but to combine a minute knowledge of one or a few things with a general knowledge of many things. By a general knowledge I do not mean a few vague impressions. An eminent man, one of whose writings is part of the course of this University, Archbishop Whately, has well discriminated between a general knowledge and a superficial knowledge.^[*] To have a general knowledge of a subject is to know only its leading truths, but to know these not superficially but thoroughly, so as to have a true conception of the subject in its great features, leaving the minor details to those who require them for the purposes of their special pursuit. There is no incompatibility between knowing a wide range of subjects up to this point, and some one subject with the completeness required by those who make it their principal occupation. It is this combination which gives an enlightened public: a body of cultivated intellects, each taught by its attainments in its own province what real knowledge is, and knowing enough of other subjects to be able to discern who are those that know them better. The amount of knowledge is not to be lightly estimated, which qualifies us for judging to whom we may have recourse for more. The elements of the more important studies being widely diffused, those who have reached the higher summits find a public capable of Edition: current; Page: [224] appreciating their superiority, and prepared to follow their lead. It is thus too that minds are formed capable of guiding and improving public opinion on the greater concerns of practical life. Government and civil society are the most complicated of all subjects accessible to the human mind, and he who would deal competently with them as a thinker, and not as a blind follower of a party, requires not only a general knowledge of the leading facts of life, both moral and material, but an understanding exercised and disciplined in the principles and rules of sound thinking, up to a point which neither the experience of life, nor any one science or branch of knowledge, affords. Let us understand, then, that it should be our aim in learning, not merely to know the one thing which is to be our principal occupation, as well as it can be known, but to do this and also to know something of all the great subjects of human interest: taking care to know that something accurately; marking well the dividing line between what we know accurately and what we do not: and remembering that our object should be to obtain a true view of nature and life in their broad outline, and that it is idle to throw away time upon the details of anything which is to form no part of the occupation of our practical energies.

It by no means follows, however, that every useful branch of general, as distinct from professional, knowledge, should be included in the curriculum of school or university studies. There are things which are better learnt out of school, or when the school years, and even those usually passed in a Scottish university, are over. I do not agree with those reformers who would give a regular and prominent place in the school or university course to modern languages. This is not because I attach small importance to the knowledge of them. No one can in our age be esteemed a well-instructed person who is not familiar with at least the French language, so as to read French books with ease; and there is great use in cultivating a familiarity with German. But living languages are so much more easily acquired by intercourse with those who use them in daily life; a few months in the country itself, if properly employed, go so much farther than as many years of school lessons; that it is really waste of time for those to whom that easier mode is attainable, to labour at them with no help but that of books and masters: and it will in time be made attainable, through international schools and colleges, to many more than at present. Universities do enough to facilitate the study of modern languages, if they give a mastery over that ancient language which is the foundation of most of them, and the possession of which makes it easier to learn four or five of the continental languages than it is to learn one of them without it. Again, it has always seemed to me a great absurdity that history and geography should be taught in schools, except in elementary schools for the children of the labouring classes, whose subsequent access to books is limited. Who ever really learnt history and geography except by private reading? and what an utter failure a system of education must be, if it has not given the pupil a sufficient taste for reading to seek for himself those most attractive and easily intelligible of all kinds of knowledge? Besides, such history and geography as can be taught in schools Edition: current; Page: [225] exercise none of the faculties of the intelligence except the memory. An University is indeed the place where the student should be introduced to the Philosophy of History; where Professors who not merely know the facts but have exercised their minds on them, should initiate him into the causes and explanation, so far as within our reach, of the past life of mankind in its principal features. Historical criticism also—the tests of historical truth—are a subject to which his attention may well be drawn in this stage of his education. But of the mere facts of history, as commonly accepted, what educated youth of any mental activity does not learn as much as is necessary, if he is simply turned loose into an historical library? What he needs on this, and on most other matters of common information, is not that he should be taught it in boyhood, but that abundance of books should be accessible to him.

The only languages, then, and the only literature, to which I would allow a place in the ordinary curriculum, are those of the Greeks and Romans, and to these I would preserve the position in it which they at present occupy. That position is justified, by the great value, in education, of knowing well some other cultivated language and literature than one’s own, and by the peculiar value of those particular languages and literatures.

There is one purely intellectual benefit from a knowledge of languages, which I am specially desirous to dwell on. Those who have seriously reflected on the causes of human error, have been deeply impressed with the tendency of mankind to mistake^a words for things. Without entering into the metaphysics of the subject, we know how common it is to use words glibly and with apparent propriety, and to accept them confidently when used by others, without ever having had any distinct conception of the things denoted by them. To quote again from Archbishop Whately, it is the habit of mankind to mistake familiarity for accurate knowledge.^[*] As we seldom think of asking the meaning of what we see every day, so when our ears are used to the sound of a word or a phrase, we do not suspect that it conveys no clear idea to our minds, and that we should have the utmost difficulty in defining it, or expressing, in any other words, what we think we understand by it. Now it is obvious in what manner this bad habit tends to be corrected by the practice of translating with accuracy from one language to another, and hunting out the meanings expressed in a vocabulary with which we have not grown familiar by early and constant use. I hardly know any greater proof of the extraordinary genius of the Greeks, than that they were able to make such brilliant achievements in abstract thought, knowing, as they generally did, no language but their own. But the Greeks did not escape the effects of this deficiency. Their greatest intellects, those who laid the foundation of philosophy and of all our intellectual culture, Plato and Aristotle, are continually led away by words; mistaking the accidents of language for real relations in nature, and supposing that things which have the Edition: current; Page: [226] same name in the Greek tongue must be the same in their own essence. There is a well-known saying of Hobbes, the far-reaching significance of which you will more and more appreciate in proportion to the growth of your own intellect: “Words are the counters of wise men, but the money of fools.”^[*] With the wise man a word stands for the fact which it represents; to the fool it is itself the fact. To carry on Hobbes’ metaphor, the counter is far more likely to be taken for merely what it is, by those who are in the habit of using many different kinds of counters. But besides the advantage of possessing another cultivated language, there is a further consideration equally important. Without knowing the language of a people, we never really know their thoughts, their feelings, and their type of character: and unless we do possess this knowledge, of some other people than ourselves, we remain, to the hour of our death, with our intellects only half expanded. Look at a youth who has never been out of his family circle: he never dreams of any other opinions or ways of thinking than those he has been bred up in; or, if he has heard of any such, attributes them to some moral defect, or inferiority of nature or education. If his family are Tory, he cannot conceive the possibility of being a Liberal; if Liberal, of being a Tory. What the notions and habits of a single family are to a boy who has had no intercourse beyond it, the notions and habits of his own country are to him who is ignorant of every other. Those notions and habits are to him human nature itself; whatever varies from them is an unaccountable aberration which he cannot mentally realize: the idea that any other ways can be right, or as near an approach to right as some of his own, is inconceivable to him. This does not merely close his eyes to the many things which every country still has to learn from others: it hinders every country from reaching the improvement which it could otherwise attain by itself. We are not likely to correct any of our opinions or mend any of our ways, unless we begin by conceiving that they are capable of amendment: but merely to know that foreigners think differently from ourselves, without understanding why they do so, or what they really do think, does but confirm us in our self-conceit, and connect our national vanity with the preservation of our own peculiarities. Improvement consists in bringing our opinions into nearer agreement with facts; and we shall not be likely to do this while we look at facts only through glasses coloured by those very opinions. But since we cannot divest ourselves of preconceived notions, there is no known means of eliminating their influence but by frequently using the differently coloured glasses of other people: and those of other nations, as the most different, are the best.

But if it is so useful, on this account, to know the language and literature of any other cultivated and civilized people, the most valuable of all to us in this respect are the languages and literature of the ancients. No nations of modern and civilized Edition: current; Page: [227] Europe are so unlike one another, as the Greeks and Romans are unlike all of us; yet without being, as some remote Orientals are, so totally dissimilar, that the labour of a life is required to enable us to understand them. Were this the only gain to be derived from a knowledge of the ancients, it would already place the study of them in a high rank among enlightening and liberalizing pursuits. It is of no use saying that we may know them through modern writings. We may know something of them in that way; which is much better than knowing nothing. But modern books do not teach us ancient thought; they teach us some modern writer’s notion of ancient thought. Modern books do not shew us the Greeks and Romans: they tell us some modern writer’s opinions about the Greeks and Romans. Translations are scarcely better. When we want really to know what a person thinks or says, we seek it at first hand from himself. We do not trust to another person’s impression of his meaning, given in another person’s words; we refer to his own. Much more is it necessary to do so when his words are in one language, and those of his reporter in another. Modern phraseology never conveys the exact meaning of a Greek writer; it cannot do so, except by a diffuse explanatory circumlocution which no translator dares use. We must be able, in a certain degree, to think in Greek, if we would represent to ourselves how a Greek thought, and this not only in the abstruse region of metaphysics, but about the political, religious, and even domestic concerns of life. I will mention a further aspect of this question, which, though I have not the merit of originating it, I do not remember to have seen noticed in any book. There is no part of our knowledge which it is more useful to obtain at first hand—to go to the fountain head for—than our knowledge of history. Yet this, in most cases, we hardly ever do. Our conception of the past is not drawn from its own records, but from books written about it, containing not the facts, but a view of the facts which has shaped itself in the mind of somebody of our own or a very recent time. Such books are very instructive and valuable, they help us to understand history, to interpret history, to draw just conclusions from it; at the worst, they set us the example of trying to do all this, but they are not themselves history. The knowledge they give is upon trust, and even when they have done their best, it is not only incomplete but partial, because confined to what a few modern writers have seen in the materials, and have thought worth picking out from among them. How little we learn of our own ancestors from Hume, or Hallam, or Macaulay,^[*] compared with what we know if we add to what these tell us, even a little reading of cotemporary authors and documents! The most recent historians are so well aware of this, that they fill their pages with extracts from the original materials, feeling that these extracts are the real history, and their comments and thread of narrative are only helps towards understanding it. Now it is Edition: current; Page: [228] part of the great worth to us of our Greek and Latin studies, that in them we do read history in the original sources. We are in actual contact with cotemporary minds; we are not dependent on hearsay; we have something by which we can test and check the representations and theories of modern historians. It may be asked, why then not study the original materials of modern history? I answer, it is highly desirable to do so; and let me remark by the way, that even this requires a dead language; nearly all the documents prior to the Reformation, and many subsequent to it, being written in Latin. But the exploration of these documents, though a most useful pursuit, cannot be a branch of education. Not to speak of their vast extent, and the fragmentary nature of each, the strongest reason is, that in learning the spirit of our own past ages, until a comparatively recent period, from cotemporary writers, we learn hardly anything else. Those authors, with a few exceptions, are little worth reading on their own account. While, in studying the great writers of antiquity, we are not only learning to understand the ancient mind, but laying in a stock of wise thought and observation, still valuable to ourselves; and at the same time making ourselves familiar with a number of the most perfect and finished literary compositions which the human mind has produced—compositions which, from the altered conditions of human life, are likely to be seldom paralleled, in their sustained excellence, by the times to come.

Even as mere languages, no modern European language is so valuable a discipline to the intellect as those of Greece and Rome, on account of their regular and complicated structure. Consider for a moment what grammar is. It is the most elementary part of logic. It is the beginning of the analysis of the thinking process. The principles and rules of grammar are the means by which the forms of language are made to correspond with the universal forms of thought. The distinctions between the various parts of speech, between the cases of nouns, the moods and tenses of verbs, the functions of particles, are distinctions in thought, not merely in words. Single nouns and verbs express objects and events, many of which can be cognized by the senses: but the modes of putting nouns and verbs together, express the relations of objects and events, which can be cognized only by the intellect; and each different mode corresponds to a different relation. The structure of every sentence is a lesson in logic. The various rules of syntax oblige us to distinguish between the subject and predicate of a proposition, between the agent, the action, and the thing acted upon; to mark when an idea is intended to modify or qualify, or merely to unite with, some other idea; what assertions are categorical, what only conditional; whether the intention is to express similarity or contrast, to make a plurality of assertions conjunctively or disjunctively; what portions of a sentence, though grammatically complete within themselves, are mere members or subordinate parts of the assertion made by the entire sentence. Such things form the subject-matter of universal grammar; and the languages which teach it best are those which have the most definite rules, and which provide distinct forms for the greatest number of distinctions in thought, so that if we fail to attend precisely and Edition: current; Page: [229] accurately to any of these, we cannot avoid committing a solecism in language. In these qualities the classical languages have an incomparable superiority over every modern language, and over all languages, dead or living, which have a literature worth being generally studied.

But the superiority of the literature itself, for purposes of education, is still more marked and decisive. Even in the substantial value of the matter of which it is the vehicle, it is very far from having been superseded. The discoveries of the ancients in science have been greatly surpassed, and as much of them as is still valuable loses nothing by being incorporated in modern treatises: but what does not so well admit of being transferred bodily, and has been very imperfectly carried off even piecemeal, is the treasure which they accumulated of what may be called the wisdom of life: the rich store of experience of human nature and conduct, which the acute and observing minds of those ages, aided in their observations by the greater simplicity of manners and life, consigned to their writings, and most of which retains all its value. The speeches in Thucydides; the Rhetoric, Ethics, and Politics of Aristotle, the Dialogues of Plato; the Orations of Demosthenes; the Satires, and especially the Epistles of Horace, all the writings of Tacitus; the great work of Quintilian, a repertory of the best thoughts of the ancient world on all subjects connected with education;^[*] and, in a less formal manner, all that is left to us of the ancient historians, orators, philosophers, and even dramatists, are replete with remarks and maxims of singular good sense and penetration, applicable both to political and to private life, and the actual truths we find in them are even surpassed in value by the encouragement and help they give us in the pursuit of truth. Human invention has never produced anything so valuable, in the way both of stimulation and of discipline to the inquiring intellect, as the dialectics of the ancients, of which many of the works of Aristotle illustrate the theory, and those of Plato exhibit the practice. No modern writings come near to these, in teaching, both by precept and example, the way to investigate truth, on those subjects, so vastly important to us, which remain matters of controversy, from the difficulty or impossibility of bringing them to a directly experimental test. To question all things; never to turn away from any difficulty, to accept no doctrine either from Edition: current; Page: [230] ourselves or from other people without a rigid scrutiny by negative criticism, letting no fallacy, or incoherence, or confusion of thought, slip by unperceived; above all, to insist upon having the meaning of a word clearly understood before using it, and the meaning of a proposition before assenting to it; these are the lessons we learn from the ancient dialecticians. With all this vigorous management of the negative element, they inspire no scepticism about the reality of truth, or indifference to its pursuit. The noblest enthusiasm, both for the search after truth and for applying it to its highest uses, pervades these writers, Aristotle no less than Plato, though Plato has incomparably the greater power of imparting those feelings to others. In cultivating, therefore, the ancient languages as our best literary education, we are all the while laying an admirable foundation for ethical and philosophical culture. In purely literary excellence—in perfection of form—the pre-eminence of the ancients is not disputed. In every department which they attempted, and they attempted almost all, their composition, like their sculpture, has been to the greatest modern artists an example, to be looked up to with hopeless admiration, but of inappreciable value as a light on high, guiding their own endeavours. In prose and in poetry, in epic, lyric, or dramatic, as in historical, philosophical, and oratorical art, the pinnacle on which they stand is equally eminent. I am now speaking of the form, the artistic perfection of treatment: for, as regards substance, I consider modern poetry to be superior to ancient, in the same manner, though in a less degree, as modern science: it enters deeper into nature. The feelings of the modern mind are more various, more complex and manifold, than those of the ancients ever were. The modern mind is, what the ancient mind was not, brooding and self-conscious; and its meditative self-consciousness has discovered depths in the human soul which the Greeks and Romans did not dream of, and would not have understood. But what they had got to express, they expressed in a manner which few even of the greatest moderns have seriously attempted to rival. It must be remembered that they had more time, and that they wrote chiefly for a select class, possessed of leisure. To us who write in a hurry for people who read in a hurry, the attempt to give an equal degree of finish would be loss of time. But to be familiar with perfect models is not the less important to us because the element in which we work precludes even the effort to equal them. They shew us at least what excellence is, and make us desire it, and strive to get as near to it as is within our reach. And this is the value to us of the ancient writers, all the more emphatically, because their excellence does not admit of being copied, or directly imitated. It does not consist in a trick which can be learnt, but in the perfect adaptation of means to ends. The secret of the style of the great Greek and Roman authors, is that it is the perfection of good sense. In the first place, they never use a word without a meaning, or a word which adds nothing to the meaning. They always (to begin with) had a meaning; they knew what they wanted to say; and their whole purpose was to say it with the highest degree of exactness and completeness, and bring it home to the mind with the greatest possible clearness Edition: current; Page: [231] and vividness. It never entered into their thoughts to conceive of a piece of writing as beautiful in itself, abstractedly from what it had to express: its beauty must all be subservient to the most perfect expression of the sense. The curiosa felicitas which their critics ascribed in a pre-eminent degree to Horace, expresses the standard at which they all aimed.^[*] Their style is exactly described by Swift’s definition, “the right words in the right places.”^[†] Look at an oration of Demosthenes, there is nothing in it which calls attention to itself as style at all, it is only after a close examination we perceive that every word is what it should be, and where it should be, to lead the hearer smoothly and imperceptibly into the state of mind which the orator wishes to produce. The perfection of the workmanship is only visible in the total absence of any blemish or fault, and of anything which checks the flow of thought and feeling, anything which even momentarily distracts the mind from the main purpose. But then (as has been well said) it was not the object of Demosthenes to make the Athenians cry out “What a splendid speaker!” but to make them say “Let us march against Philip!” It was only in the decline of ancient literature that ornament began to be cultivated merely as ornament. In the time of its maturity, not the merest epithet was put in because it was thought beautiful in itself; nor even for a merely descriptive purpose, for epithets purely descriptive were one of the corruptions of style which abound in Lucan, for example the word had no business there unless it brought out some feature which was wanted, and helped to place the object in the light which the purpose of the composition required. These conditions being complied with, then indeed the intrinsic beauty of the means used was a source of additional effect, of which it behoved them to avail themselves, like rhythm and melody of versification. But these great writers knew that ornament for the sake of ornament, ornament which attracts attention to itself, and shines by its own beauties, only does so by calling off the mind from the main object, and thus not only interferes with the higher purpose of human discourse, which ought, and generally professes, to have some matter to communicate, apart from the mere excitement of the moment, but also spoils the perfection of the composition as a piece of fine art, by destroying the unity of effect. This, then, is the first great lesson in composition to be learnt from the classical authors. The second is, not to be prolix. In a single paragraph, Thucydides can give a clear and vivid representation of a battle, such as a reader who has once taken it into his mind can seldom forget. The most powerful and affecting piece of narrative perhaps in all historical literature, is the account of the Sicilian catastrophe in his seventh book, yet how few pages does it fill!^[‡] The ancients were concise, because of the extreme pains they took with their Edition: current; Page: [232] compositions; almost all moderns are prolix, because they do not. The great ancients could express a thought so perfectly in a few words or sentences, that they did not need to add any more: the moderns, because they cannot bring it out clearly and completely at once, return again and again, heaping sentence upon sentence, each adding a little more elucidation, in hopes that though no single sentence expresses the full meaning, the whole together may give a sufficient notion of it. In this respect I am afraid we are growing worse instead of better, for want of time and patience, and from the necessity we are in of addressing almost all writings to a busy and imperfectly prepared public. The demands of modern life are such—the work to be done, the mass to be worked upon, are so vast, that those who have anything particular to say—who have, as the phrase goes, any message to deliver—cannot afford to devote their time to the production of masterpieces. But they would do far worse than they do, if there had never been masterpieces, or if they had never known them. Early familiarity with the perfect, makes our most imperfect production far less bad than it otherwise would be. To have a high standard of excellence often makes the whole difference of rendering our work good when it would otherwise be mediocre.

For all these reasons I think it important to retain these two languages and literatures in the place they occupy, as a part of liberal education, that is, of the education of all who are not obliged by their circumstances to discontinue their scholastic studies at a very early age. But the same reasons which vindicate the place of classical studies in general education, shew also the proper limitation of them. They should be carried as far as is sufficient to enable the pupil, in after life, to read the great works of ancient literature with ease. Those who have leisure and inclination to make scholarship, or ancient history, or general philology, their pursuit, of course require much more, but there is no room for more in general education. The laborious idleness in which the school-time is wasted away in the English classical schools deserves the severest reprehension. To what purpose should the most precious years of early life be irreparably squandered in learning to write bad Latin and Greek verses? I do not see that we are much the better even for those who end by writing good ones. I am often tempted to ask the favourites of nature and fortune, whether all the serious and important work of the world is done, that their time and energy can be spared for these nugae difficiles? I am not blind to the utility of composing in a language, as a means of learning it accurately. I hardly know any other means equally effectual. But why should not prose composition suffice? What need is there of original composition at all? if that can be called original which unfortunate schoolboys, without any thoughts to express, hammer out on compulsion from mere memory, acquiring the pernicious habit which a teacher should consider it one of his first duties to repress, that of merely stringing together borrowed phrases? The exercise in composition, most suitable to the requirements of learners, is that most valuable one, of retranslating from translated passages of a good author: and to this might be added, what still exists in Edition: current; Page: [233] many Continental places of education, occasional practice in talking Latin. There would be something to be said for the time spent in the manufacture of verses, if such practice were necessary for the enjoyment of ancient poetry: though it would be better to lose that enjoyment than to purchase it at so extravagant a price. But the beauties of a great poet would be a far poorer thing than they are, if they only impressed us through a knowledge of the technicalities of his art. The poet needed those technicalities: they are not necessary to us. They are essential for criticizing a poem, but not for enjoying it. All that is wanted is sufficient familiarity with the language, for its meaning to reach us without any sense of effort, and clothed with the associations on which the poet counted for producing his effect. Whoever has this familiarity, and a practised ear, can have as keen a relish of the music of Virgil and Horace, as of Gray, or Burns, or Shelley, though he know not the metrical rules of a common Sapphic or Alcaic. I do not say that these rules ought not to be taught, but I would have a class apart for them, and would make the appropriate exercises an optional, not a compulsory part of the school teaching.

Much more might be said respecting classical instruction, and literary cultivation in general, as a part of liberal education. But it is time to speak of the uses of scientific instruction: or rather its indispensable necessity, for it is recommended by every consideration which pleads for any high order of intellectual education at all.

The most obvious part of the value of scientific instruction, the mere information that it gives, speaks for itself. We are born into a world which we have not made; a world whose phenomena take place according to fixed laws, of which we do not bring any knowledge into the world with us. In such a world we are appointed to live, and in it all our work is to be done. Our whole working power depends on knowing the laws of the world—in other words, the properties of the things which we have to work with, and to work among, and to work upon. We may and do rely, for the greater part of this knowledge, on the few who in each department make its acquisition their main business in life. But unless an elementary knowledge of scientific truths is diffused among the public, they never know what is certain and what is not, or who are entitled to speak with authority and who are not: and they either have no faith at all in the testimony of science, or are the ready dupes of charlatans and impostors. They alternate between ignorant distrust, and blind, often misplaced, confidence. Besides, who is there who would not wish to understand the meaning of the common physical facts that take place under his eye? Who would not wish to know why a pump raises water, why a lever moves heavy weights, why it is hot at the tropics and cold at the poles, why the moon is sometimes dark and sometimes bright, what is the cause of the tides? Do we not feel that he who is totally ignorant of these things, let him be ever so skilled in a special profession, is not an educated man but an ignoramus? It is surely no small part of education to put us in intelligent possession of the most important and most universally interesting facts of the universe, so that the world which Edition: current; Page: [234] surrounds us may not be a sealed book to us, uninteresting because unintelligible. This, however, is but the simplest and most obvious part of the utility of science, and the part which, if neglected in youth, may be the most easily made up for afterwards. It is more important to understand the value of scientific instruction as a training and disciplining process, to fit the intellect for the proper work of a human being. Facts are the materials of our knowledge, but the mind itself is the instrument: and it is easier to acquire facts, than to judge what they prove, and how, through the facts which we know, to get to those which we want to know.

The most incessant occupation of the human intellect throughout life is the ascertainment of truth. We are always needing to know what is actually true about something or other. It is not given to us all to discover great general truths that are a light to all men and to future generations; though with a better general education the number of those who could do so would be far greater than it is. But we all require the ability to judge between the conflicting opinions which are offered to us as vital truths; to choose what doctrines we will receive in the matter of religion, for example; to judge whether we ought to be Tories, Whigs, or Radicals, or to what length it is our duty to go with each, to form a rational conviction on great questions of legislation and internal policy, and on the manner in which our country should behave to dependencies and to foreign nations. And the need we have of knowing how to discriminate truth, is not confined to the larger truths. All through life it is our most pressing interest to find out the truth about all the matters we are concerned with. If we are farmers we want to find what will truly improve our soil; if merchants, what will truly influence the markets of our commodities; if judges, or jurymen, or advocates, who it was that truly did an unlawful act, or to whom a disputed right truly belongs. Every time we have to make a new resolution or alter an old one, in any situation in life, we shall go wrong unless we know the truth about the facts on which our resolution depends. Now, however different these searches for truth may look, and however unlike they really are in their subject-matter, the methods of getting at truth, and the tests of truth, are in all cases much the same. There are but two roads by which truth can be discovered; observation, and reasoning: observation, of course, including experiment. We all observe, and we all reason, and therefore, more or less successfully, we all ascertain truths: but most of us do it very ill, and could not get on at all were we not able to fall back on others who do it better. If we could not do it in any degree, we should be mere instruments in the hands of those who could, they would be able to reduce us to slavery. Then how shall we best learn to do this? By being shewn the way in which it has already been successfully done. The processes by which truth is attained, reasoning and observation, have been carried to their greatest known perfection in the physical sciences. As classical literature furnishes the most perfect types of the art of expression, so do the physical sciences those of the art of thinking. Mathematics, and its application to astronomy and natural philosophy, are the most complete example of the discovery of truths by reasoning; Edition: current; Page: [235] experimental science, of their discovery by direct observation. In all these cases we know that we can trust the operation, because the conclusions to which it has led have been found true by subsequent trial. It is by the study of these, then, that we may hope to qualify ourselves for distinguishing truth, in cases where there do not exist the same ready means of verification.

In what consists the principal and most characteristic difference between one human intellect and another? In their ability to judge correctly of evidence. Our direct perceptions of truth are so limited; we know so few things by immediate intuition, or, as it used to be called, by simple apprehension—that we depend for almost all our valuable knowledge, on evidence external to itself; and most of us are very unsafe hands at estimating evidence, where an appeal cannot be made to actual eyesight. The intellectual part of our education has nothing more important to do, than to correct or mitigate this almost universal infirmity—this summary and substance of nearly all purely intellectual weakness. To do this with effect needs all the resources which the most perfect system of intellectual training can command. Those resources, as every teacher knows, are but of three kinds, first, models, secondly rules, thirdly, appropriate practice. The models of the art of estimating evidence are furnished by science; the rules are suggested by science, and the study of science is the most fundamental portion of the practice.

Take in the first instance mathematics. It is chiefly from mathematics we realize the fact that there actually is a road to truth by means of reasoning, that anything real, and which will be found true when tried, can be arrived at by a mere operation of the mind. The flagrant abuse of mere reasoning in the days of the schoolmen, when men argued confidently to supposed facts of outward nature without properly establishing their premises, or checking the conclusions by observation, created a prejudice in the modern, and especially in the English mind, against deductive reasoning altogether, as a mode of investigation. The prejudice lasted long, and was upheld by the misunderstood authority of Lord Bacon,^[*] until the prodigious applications of mathematics to physical science—to the discovery of the laws of external nature—slowly and tardily restored the reasoning process to the place which belongs to it as a source of real knowledge. Mathematics, pure and applied, are still the great conclusive example of what can be done by reasoning. Mathematics also habituates us to several of the principal precautions for the safety of the process. Our first studies in geometry teach us two invaluable lessons. One is, to lay down at the beginning, in express and clear terms, all the premises from which we intend to reason. The other is, to keep every step in the reasoning distinct and separate from all the other steps, and to make each step safe before proceeding to another; expressly stating to ourselves, at every joint in the reasoning, what new premise we there introduce. It is not necessary that we should do this at all times, in Edition: current; Page: [236] all our reasonings. But we must be always able and ready to do it. If the validity of our argument is denied, or if we doubt it ourselves, that is the way to check it. In this way we are often enabled to detect at once the exact place where paralogism or confusion get in: and after sufficient practice we may be able to keep them out from the beginning. It is to mathematics, again, that we owe our first notion of a connected body of truth; truths which grow out of one another, and hang together so that each implies all the rest; that no one of them can be questioned without contradicting another or others, until in the end it appears that no part of the system can be false unless the whole is so. Pure mathematics first gave us this conception; applied mathematics extends it to the realm of physical nature. Applied mathematics shews us that not only the truths of abstract number and extension, but the external facts of the universe, which we apprehend by our senses, form, at least in a large part of all nature, a web similarly held together. We are able, by reasoning from a few fundamental truths, to explain and predict the phenomena of material objects: and what is still more remarkable, the fundamental truths were themselves found out by reasoning; for they are not such as are obvious to the senses, but had to be inferred by a mathematical process from a mass of minute details, which alone came within the direct reach of human observation. When Newton, in this manner, discovered the laws of the solar system, he created, for all posterity, the true idea of science. He gave the most perfect example we are ever likely to have, of that union of reasoning and observation, which by means of facts that can be directly observed, ascends to laws which govern multitudes of other facts—laws which not only explain and account for what we see, but give us assurance beforehand of much that we do not see, much that we never could have found out by observation, though, having been found out, it is always verified by the result.

While mathematics, and the mathematical sciences, supply us with a typical example of the ascertainment of truth by reasoning; those physical sciences which are not mathematical, such as chemistry, and purely experimental physics, shew us in equal perfection the other mode of arriving at certain truth, by observation, in its most accurate form, that of experiment. The value of mathematics in a logical point of view is an old topic with mathematicians, and has even been insisted on so exclusively as to provoke a counter-exaggeration, of which a well-known essay by Sir William Hamilton is an example:^[*] but the logical value of experimental science is comparatively a new subject, yet there is no intellectual discipline more important than that which the experimental sciences afford. Their whole occupation consists in doing well, what all of us, during the whole of life, are engaged in doing, for the most part badly. All men do not affect to be reasoners, but all profess, and really attempt, to draw inferences from experience: yet hardly Edition: current; Page: [237] any one, who has not been a student of the physical sciences, sets out with any just idea of what the process of interpreting experience really is. If a fact has occurred once or oftener, and another fact has followed it, people think they have got an experiment, and are well on the road towards shewing that the one fact is the cause of the other. If they did but know the immense amount of precaution necessary to a scientific experiment; with what sedulous care the accompanying circumstances are contrived and varied, so as to exclude every agency but that which is the subject of the experiment—or, when disturbing agencies cannot be excluded, the minute accuracy with which their influence is calculated and allowed for, in order that the residue may contain nothing but what is due to the one agency under examination: if these things were attended to, people would be much less easily satisfied that their opinions have the evidence of experience, many popular notions and generalizations which are in all mouths, would be thought a great deal less certain than they are supposed to be; but we should begin to lay the foundation of really experimental knowledge, on things which are now the subjects of mere vague discussion, where one side finds as much to say and says it as confidently as another, and each person’s opinion is less determined by evidence than by his accidental interest or prepossession. In politics, for instance, it is evident to whoever comes to the study from that of the experimental sciences, that no political conclusions of any value for practice can be arrived at by direct experience. Such specific experience as we can have, serves only to verify, and even that insufficiently, the conclusions of reasoning. Take any active force you please in politics, take the liberties of England, or free trade how should we know that either of these things conduced to prosperity, if we could discern no tendency in the things themselves to produce it? If we had only the evidence of what is called our experience, such prosperity as we enjoy might be owing to a hundred other causes, and might have been obstructed, not promoted, by these. All true political science is, in one sense of the phrase, à priori, being deduced from the tendencies of things, tendencies known either through our general experience of human nature, or as the result of an analysis of the course of history, considered as a progressive evolution. It requires, therefore, the union of induction and deduction, and the mind that is equal to it must have been well disciplined in both. But familiarity with scientific experiment at least does the useful service of inspiring a wholesome scepticism about the conclusions which the mere surface of experience suggests.

The study, on the one hand, of mathematics and its applications, on the other, of experimental science, prepares us for the principal business of the intellect, by the practice of it in the most characteristic cases, and by familiarity with the most perfect and successful models of it. But in great things as in small, examples and models are not sufficient: we want rules as well. Familiarity with the correct use of a language in conversation and writing does not make rules of grammar unnecessary; nor does the amplest knowledge of sciences of reasoning and experiment Edition: current; Page: [238] dispense with rules of logic. We may have heard correct reasonings and seen skilful experiments all our lives—we shall not learn by mere imitation to do the like, unless we pay careful attention to how it is done. It is much easier in these abstract matters, than in purely mechanical ones, to mistake bad work for good. To mark out the difference between them is the province of logic. Logic lays down the general principles and laws of the search after truth; the conditions which, whether recognised or not, must actually have been observed if the mind has done its work rightly. Logic is the intellectual complement of mathematics and physics. Those sciences give the practice, of which Logic is the theory. It declares the principles, rules, and precepts, of which they exemplify the observance.

The science of Logic has two parts; ratiocinative and inductive logic. The one helps to keep us right in reasoning from premises, the other in concluding from observation. Ratiocinative logic is much older than inductive, because reasoning in the narrower sense of the word is an easier process than induction, and the science which works by mere reasoning, pure mathematics, had been carried to a considerable height while the sciences of observation were still in the purely empirical period. The principles of ratiocination, therefore, were the earliest understood and systematized, and the logic of ratiocination is even now suitable to an earlier stage in education than that of induction. The principles of induction cannot be properly understood without some previous study of the inductive sciences; but the logic of reasoning, which was already carried to a high degree of perfection by Aristotle, does not absolutely require even a knowledge of mathematics, but can be sufficiently exemplified and illustrated from the practice of daily life.

Of Logic I venture to say, even if limited to that of mere ratiocination, the theory of names, propositions, and the syllogism, that there is no part of intellectual education which is of greater value, or whose place can so ill be supplied by anything else. Its uses, it is true, are chiefly negative; its function is, not so much to teach us to go right, as to keep us from going wrong. But in the operations of the intellect it is so much easier to go wrong than right, it is so utterly impossible for even the most vigorous mind to keep itself in the path but by maintaining a vigilant watch against all deviations, and noting all the byways by which it is possible to go astray—that the chief difference between one reasoner and another consists in their less or greater liability to be misled. Logic points out all the possible ways in which, starting from true premises, we may draw false conclusions. By its analysis of the reasoning process, and the forms it supplies for stating and setting forth our reasonings, it enables us to guard the points at which a fallacy is in danger of slipping in, or to lay our fingers upon the place where it has slipped in. When I consider how very simple the theory of reasoning is, and how short a time is sufficient for acquiring a thorough knowledge of its principles and rules, and even considerable expertness in applying them, I can find no excuse for omission to study it on the part of any one who aspires to succeed in any intellectual pursuit. Edition: current; Page: [239] Logic is the great disperser of hazy and confused thinking: it clears up the fogs which hide from us our own ignorance, and make us believe that we understand a subject when we do not. We must not be led away by talk about inarticulate giants who do great deeds without knowing how, and see into the most recondite truths without any of the ordinary helps, and without being able to explain to other people how they reach their conclusions, nor consequently to convince any other people of the truth of them. There may be such men, as there are deaf and dumb persons who do clever things, but for all that, speech and hearing are faculties by no means to be dispensed with. If you want to know whether you are thinking rightly, put your thoughts into words. In the very attempt to do this you will find yourselves, consciously or unconsciously, using logical forms. Logic compels us to throw our meaning into distinct propositions, and our reasonings into distinct steps. It makes us conscious of all the implied assumptions on which we are proceeding, and which, if not true, vitiate the entire process. It makes us aware what extent of doctrine we commit ourselves to by any course of reasoning, and obliges us to look the implied premises in the face, and make up our minds whether we can stand to them. It makes our opinions consistent with themselves and with one another, and forces us to think clearly, even when it cannot make us think correctly. It is true that error may be consistent and systematic as well as truth, but this is not the common case. It is no small advantage to see clearly the principles and consequences involved in our opinions, and which we must either accept, or else abandon those opinions. We are much nearer to finding truth when we search for it in broad daylight. Error, pursued rigorously to all that is implied in it, seldom fails to get detected by coming into collision with some known and admitted fact.

You will find abundance of people to tell you that logic is no help to thought, and that people cannot be taught to think by rules. Undoubtedly rules by themselves, without practice, go but a little way in teaching anything. But if the practice of thinking is not improved by rules, I venture to say it is the only difficult thing done by human beings that is not so. A man learns to saw wood principally by practice, but there are rules for doing it, grounded on the nature of the operation, and if he is not taught the rules, he will not saw well until he has discovered them for himself. Wherever there is a right way and a wrong, there must be a difference between them, and it must be possible to find out what the difference is, and when found out and expressed in words, it is a rule for the operation. If any one is inclined to disparage rules, I say to him, try to learn anything which there are rules for, without knowing the rules, and see how you succeed. To those who think lightly of the school logic, I say, take the trouble to learn it. You will easily do so in a few weeks, and you will see whether it is of no use to you in making your mind clear, and keeping you from stumbling in the dark over the most outrageous fallacies. Nobody, I believe, who has really learnt it, and who goes on using his mind, is insensible to its benefits, unless he started with a prejudice, or, like some eminent English and Scottish thinkers of the past century, is under the influence of a Edition: current; Page: [240] reaction against the exaggerated pretensions made by the schoolmen, not so much in behalf of logic as of the reasoning process itself. Still more highly must the use of logic be estimated, if we include in it, as we ought to do, the principles and rules of Induction as well as of Ratiocination. As the one logic guards us against bad deduction, so does the other against bad generalization, which is a still more universal error. If men easily err in arguing from one general proposition to another, still more easily do they go wrong in interpreting the observations made by themselves and others. There is nothing in which an untrained mind shows itself more hopelessly incapable, than in drawing the proper general conclusions from its own experience. And even trained minds, when all their training is on a special subject, and does not extend to the general principles of induction, are only kept right when there are ready opportunities of verifying their inferences by facts. Able scientific men, when they venture upon subjects in which they have no facts to check them, are often found drawing conclusions or making generalizations from their experimental knowledge, such as any sound theory of induction would shew to be utterly unwarranted. So true is it that practice alone, even of a good kind, is not sufficient without principles and rules. Lord Bacon had the great merit of seeing that rules were necessary, and conceiving, to a very considerable extent, their true character.^[*] The defects of his conception were such as were inevitable while the inductive sciences were only in the earliest stage of their progress, and the highest efforts of the human mind in that direction had not yet been made. Inadequate as the Baconian view of induction was, and rapidly as the practice outgrew it, it is only within a generation or two that any considerable improvement has been made in the theory; very much through the impulse given by two of the many distinguished men who have adorned the Scottish universities, Dugald Stewart and Brown.

I have given a very incomplete and summary view of the educational benefits derived from instruction in the more perfect sciences, and in the rules for the proper use of the intellectual faculties which the practice of those sciences has suggested. There are other sciences, which are in a more backward state, and tax the whole powers of the mind in its mature years, yet a beginning of which may be beneficially made in university studies, while a tincture of them is valuable even to those who are never likely to proceed further. The first is physiology; the science of the laws of organic and animal life, and especially of the structure and functions of the human body. It would be absurd to pretend that a profound knowledge of this difficult subject can be acquired in youth, or as a part of general education. Yet an acquaintance with its leading truths is one of those acquirements which ought not to be the exclusive property of a particular profession. The value of such knowledge for daily uses has been made familiar to us all by the sanitary discussions Edition: current; Page: [241] of late years. There is hardly one among us who may not, in some position of authority, be required to form an opinion and take part in public action on sanitary subjects. And the importance of understanding the true conditions of health and disease—of knowing how to acquire and preserve that healthy habit of body which the most tedious and costly medical treatment so often fails to restore when once lost, should secure a place in general education for the principal maxims of hygiene, and some of those even of practical medicine. For those who aim at high intellectual cultivation, the study of physiology has still greater recommendations, and is, in the present state of advancement of the higher studies, a real necessity. The practice which it gives in the study of nature is such as no other physical science affords in the same kind, and is the best introduction to the difficult questions of politics and social life. Scientific education, apart from professional objects, is but a preparation for judging rightly of Man, and of his requirements and interests. But to this final pursuit, which has been called par excellence the proper study of mankind,^[*] physiology is the most serviceable of the sciences, because it is the nearest. Its subject is already Man: the same complex and manifold being, whose properties are not independent of circumstance, and immovable from age to age, like those of the ellipse and hyperbola, or of sulphur and phosphorus, but are infinitely various, indefinitely modifiable by art or accident, graduating by the nicest shades into one another, and reacting upon one another in a thousand ways, so that they are seldom capable of being isolated and observed separately. With the difficulties of the study of a being so constituted, the physiologist, and he alone among scientific enquirers, is already familiar. Take what view we will of man as a spiritual being, one part of his nature is far more like another than either of them is like anything else. In the organic world we study nature under disadvantages very similar to those which affect the study of moral and political phenomena: our means of making experiments are almost as limited, while the extreme complexity of the facts makes the conclusions of general reasoning unusually precarious, on account of the vast number of circumstances that conspire to determine every result. Yet in spite of these obstacles, it is found possible in physiology to arrive at a considerable number of well-ascertained and important truths. This therefore is an excellent school in which to study the means of overcoming similar difficulties elsewhere. It is in physiology too that we are first introduced to some of the conceptions which play the greatest part in the moral and social sciences, but which do not occur at all in those of inorganic nature. As, for instance, the idea of predisposition, and of predisposing causes, as distinguished from exciting causes. The operation of all moral forces is immensely influenced by predisposition; without that element, it is impossible to explain the commonest facts of history and social life. Physiology is also the first science in Edition: current; Page: [242] which we recognise the influence of habit—the tendency of something to happen again merely because it has happened before. From physiology, too, we get our clearest notion of what is meant by development or evolution. The growth of a plant or animal from the first germ is the typical specimen of a phenomenon which rules through the whole course of the history of man and society—increase of function, through expansion and differentiation of structure by internal forces. I cannot enter into the subject at greater length; it is enough if I throw out hints which may be germs of further thought in yourselves. Those who aim at high intellectual achievements may be assured that no part of their time will be less wasted, than that which they employ in becoming familiar with the methods and with the main conceptions of the science of organization and life.

Physiology, at its upper extremity, touches on Psychology, or the Philosophy of Mind: and without raising any disputed questions about the limits between Matter and Spirit, the nerves and brain are admitted to have so intimate a connexion with the mental operations, that the student of the last cannot dispense with a considerable knowledge of the first. The value of psychology itself need hardly be expatiated upon in a Scottish university; for it has always been there studied with brilliant success. Almost everything which has been contributed from these islands towards its advancement since Locke and Berkeley, has until very lately, and much of it even in the present generation, proceeded from Scottish authors and Scottish professors. Psychology, in truth, is simply the knowledge of the laws of human nature. If there is anything that deserves to be studied by man, it is his own nature and that of his fellow-men, and if it is worth studying at all, it is worth studying scientifically, so as to reach the fundamental laws which underlie and govern all the rest. With regard to the suitableness of this subject for general education, a distinction must be made. There are certain observed laws of our thoughts and of our feelings which rest upon experimental evidence, and, once seized, are a clue to the interpretation of much that we are conscious of in ourselves, and observe in one another. Such, for example, are the laws of association. Psychology, so far as it consists of such laws—I speak of the laws themselves, not of their disputed applications—is as positive and certain a science as chemistry, and fit to be taught as such. When, however, we pass beyond the bounds of these admitted truths, to questions which are still in controversy among the different philosophical schools—how far the higher operations of the mind can be explained by association, how far we must admit other primary principles—what faculties of the mind are simple, what complex, and what is the composition of the latter—above all, when we embark upon the sea of metaphysics properly so called, and enquire, for instance, whether time and space are real existences, as is our spontaneous impression, or forms of our sensitive faculty, as is maintained by Kant,^[*] or complex ideas generated by association, whether Edition: current; Page: [243] matter and spirit are conceptions merely relative to our faculties, or facts existing per se, and in the latter case, what is the nature and limit of our knowledge of them; whether the will of man is free or determined by causes, and what is the real difference between the two doctrines, matters on which the most thinking men, and those who have given most study to the subjects, are still divided, it is neither to be expected nor desired that those who do not specially devote themselves to the higher departments of speculation should employ much of their time in attempting to get to the bottom of these questions. But it is a part of liberal education to know that such controversies exist, and, in a general way, what has been said on both sides of them. It is instructive to know the failures of the human intellect as well as its successes, its imperfect as well as its perfect attainments; to be aware of the open questions, as well as of those which have been definitively resolved. A very summary view of these disputed matters may suffice for the many; but a system of education is not intended solely for the many, it has to kindle the aspirations and aid the efforts of those who are destined to stand forth as thinkers above the multitude: and for these there is hardly to be found any discipline comparable to that which these metaphysical controversies afford. For they are essentially questions about the estimation of evidence; about the ultimate grounds of belief, the conditions required to justify our most familiar and intimate convictions, and the real meaning and import of words and phrases which we have used from infancy as if we understood all about them, which are even at the foundation of human language, yet of which no one except a metaphysician has rendered to himself a complete account. Whatever philosophical opinions the study of these questions may lead us to adopt, no one ever came out of the discussion of them without increased vigour of understanding, an increased demand for precision of thought and language, and a more careful and exact appreciation of the nature of proof. There never was any sharpener of the intellectual faculties superior to the Berkeleian controversy. There is even now no reading more profitable to students—confining myself to writers in our own language, and notwithstanding that so many of their speculations are already obsolete—than Hobbes and Locke, Reid and Stewart, Hume, Hartley, and Brown, on condition that these great thinkers are not read passively, as masters to be followed, but actively, as supplying materials and incentives to thought. To come to our own contemporaries, he who has mastered Sir William Hamilton and your own lamented Ferrier as distinguished representatives of one of the two great schools of philosophy, and an eminent Professor in a neighbouring University, Professor Bain, probably the greatest living authority in the other, has gained a practice in the most searching methods of philosophic investigation applied to the most arduous subjects, which is no inadequate preparation for any intellectual difficulties that he is ever likely to be called on to resolve.

In this brief outline of a complete scientific education, I have said nothing about direct instruction in that which it is the chief of all the ends of intellectual education to qualify us for—the exercise of thought on the great interests of mankind as Edition: current; Page: [244] moral and social beings—ethics and politics, in the largest sense. These things are not, in the existing state of human knowledge, the subject of a science, generally admitted and accepted. Politics cannot be learnt once for all, from a text-book, or the instructions of a master. What we require to be taught on that subject, is to be our own teachers. It is a subject on which we have no masters to follow; each must explore for himself, and exercise an independent judgment. Scientific politics do not consist in having a set of conclusions ready made, to be applied everywhere indiscriminately, but in setting the mind to work in a scientific spirit to discover in each instance the truths applicable to the given case. And this, at present, scarcely any two persons do in the same way. Education is not entitled, on this subject, to recommend any set of opinions as resting on the authority of established science. But it can supply the student with materials for his own mind, and helps to use them. It can make him acquainted with the best speculations on the subject, taken from different points of view: none of which will be found complete, while each embodies some considerations really relevant, really requiring to be taken into the account. Education may also introduce us to the principal facts which have a direct bearing on the subject, namely the different modes or stages of civilization that have been found among mankind, and the characteristic properties of each. This is the true purpose of historical studies, as prosecuted in an University. The leading facts of ancient and modern history should be known by the student from his private reading: if that knowledge be wanting, it cannot possibly be supplied here. What a Professor of History has to teach, is the meaning of those facts. His office is to help the student in collecting from history what are the main differences between human beings, and between the institutions of society, at one time or place and at another: in picturing to himself human life and the human conception of life, as they were at the different stages of human development: in distinguishing between what is the same in all ages and what is progressive, and forming some incipient conception of the causes and laws of progress. All these things are as yet very imperfectly understood even by the most philosophic enquirers, and are quite unfit to be taught dogmatically. The object is to lead the student to attend to them; to make him take interest in history not as a mere narrative, but as a chain of causes and effects still unwinding itself before his eyes, and full of momentous consequences to himself and his descendants; the unfolding of a great epic or dramatic action, to terminate in the happiness or misery, the elevation or degradation, of the human race; an unremitting conflict between good and evil powers, of which every act done by any of us, insignificant as we are, forms one of the incidents; a conflict in which even the smallest of us cannot escape from taking part, in which whoever does not help the right side is helping the wrong, and for our share in which, whether it be greater or smaller, and let its actual consequences be visible or in the main invisible, no one of us can escape the responsibility. Though education cannot arm and equip its pupils for this fight with any complete philosophy either of politics or of history, there is much positive instruction that it can give them, Edition: current; Page: [245] having a direct bearing on the duties of citizenship. They should be taught the outlines of the civil and political institutions of their own country, and in a more general way, of the more advanced of the other civilized nations. Those branches of politics, or of the laws of social life, in which there exists a collection of facts or thoughts sufficiently sifted and methodized to form the beginning of a science, should be taught ex professo. Among the chief of these is Political Economy; the sources and conditions of wealth and material prosperity for aggregate bodies of human beings. This study approaches nearer to the rank of a science, in the sense in which we apply that name to the physical sciences, than anything else connected with politics yet does. I need not enlarge on the important lessons which it affords for the guidance of life, and for the estimation of laws and institutions, or on the necessity of knowing all that it can teach in order to have true views of the course of human affairs, or form plans for their improvement which will stand actual trial. The same persons who cry down Logic will generally warn you against Political Economy. It is unfeeling, they will tell you. It recognises unpleasant facts. For my part, the most unfeeling thing I know of is the law of gravitation: it breaks the neck of the best and most amiable person without scruple, if he forgets for a single moment to give heed to it. The winds and waves too are very unfeeling. Would you advise those who go to sea to deny the winds and waves—or to make use of them, and find the means of guarding against their dangers? My advice to you is to study the great writers on Political Economy, and hold firmly by whatever in them you find true; and depend upon it that if you are not selfish or hard-hearted already, Political Economy will not make you so. Of no less importance than Political Economy is the study of what is called Jurisprudence; the general principles of law; the social necessities which laws are required to meet; the features common to all systems of law, and the differences between them; the requisites of good legislation, the proper mode of constructing a legal system, and the best constitution of courts of justice and modes of legal procedure. These things are not only the chief part of the business of government, but the vital concern of every citizen; and their improvement affords a wide scope for the energies of any duly prepared mind, ambitious of contributing towards the better condition of the human race. For this, too, admirable helps have been provided by writers of our own or of a very recent time. At the head of them stands Bentham, undoubtedly the greatest master who ever devoted the labour of a life to let in light on the subject of law; and who is the more intelligible to non-professional persons, because, as his way is, he builds up the subject from its foundation in the facts of human life, and shows by careful consideration of ends and means, what law might and ought to be, in deplorable contrast with what it is. Other enlightened jurists have followed with contributions of two kinds, as the type of which I may take two works, equally admirable in their respective ^blines^b. Mr. Austin, in his Lectures on Jurisprudence,^[*] Edition: current; Page: [246] takes for his basis the Roman law, the most elaborately consistent legal system which history has shewn us in actual operation, and that which the greatest number of accomplished minds have employed themselves in harmonizing. From this he singles out the principles and distinctions which are of general applicability, and employs the powers and resources of a most precise and analytic mind to give to those principles and distinctions a philosophic basis, grounded in the universal reason of mankind, and not in mere technical convenience. Mr. Maine, in his treatise on Ancient Law in its relations to Modern Thought,^[†] shews from the history of law, and from what is known of the primitive institutions of mankind, the origin of much that has lasted till now, and has a firm footing both in the laws and in the ideas of modern times; shewing that many of these things never originated in reason, but are relics of the institutions of barbarous society, modified more or less by civilization, but kept standing by the persistency of ideas which were the offspring of those barbarous institutions, and have survived their parent. The path opened by Mr. Maine has been followed up by others, with additional illustrations of the influence of obsolete ideas on modern institutions, and of obsolete institutions on modern ideas, an action and reaction which perpetuate, in many of the greatest concerns, a mitigated barbarism, things being continually accepted as dictates of nature and necessities of life, which, if we knew all, we should see to have originated in artificial arrangements of society, long since abandoned and condemned.

To these studies I would add International Law; which I decidedly think should be taught in all universities, and should form part of all liberal education. The need of it is far from being limited to diplomatists and lawyers; it extends to every citizen. What is called the Law of Nations is not properly law, but a part of ethics: a set of moral rules, accepted as authoritative by civilized states. It is true that these rules neither are nor ought to be of eternal obligation, but do and must vary more or less from age to age, as the consciences of nations become more enlightened and the exigencies of political society undergo change. But the rules mostly were at their origin, and still are, an application of the maxims of honesty and humanity to the intercourse of states. They were introduced by the moral sentiments of mankind, or by their sense of the general interest, to mitigate the crimes and sufferings of a state of war, and to restrain governments and nations from unjust or dishonest conduct towards one another in time of peace. Since every country stands in numerous and various relations with the other countries of the world, and many, our own among the number, exercise actual authority over some of these, a knowledge of the established rules of international morality is essential to the duty of every nation, and therefore of every person in it who helps to make up the Edition: current; Page: [247] nation, and whose voice and feeling form a part of what is called public opinion. Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject. It depends on the habit of attending to and looking into public transactions, and on the degree of information and solid judgment respecting them that exists in the community, whether the conduct of the nation as a nation, both within itself and towards others, shall be selfish, corrupt, and tyrannical, or rational and enlightened, just and noble.

Of these more advanced studies, only a small commencement can be made at schools and universities; but even this is of the highest value, by awakening an interest in the subjects, by conquering the first difficulties, and inuring the mind to the kind of exertion which the studies require, by implanting a desire to make further progress, and directing the student to the best tracks and the best helps. So far as these branches of knowledge have been acquired, we have learnt, or been put into the way of learning, our duty, and our work in life. Knowing it, however, is but half the work of education; it still remains, that what we know, we shall be willing and determined to put in practice. Nevertheless, to know the truth is already a great way towards disposing us to act upon it. What we see clearly and apprehend keenly, we have a natural desire to act out. “To see the best, and yet the worst pursue,”^[*] is a possible but not a common state of mind, those who follow the wrong have generally first taken care to be voluntarily ignorant of the right. They have silenced their conscience, but they are not knowingly disobeying it. If you take an average human mind while still young, before the objects it has chosen in life have given it a turn in any bad direction, you will generally find it desiring what is good, right, and for the benefit of all; and if that season is properly used to implant the knowledge and give the training which shall render rectitude of judgment more habitual than sophistry, a serious barrier will have been erected against the inroads of selfishness and falsehood. Still, it is a very imperfect education which trains the intelligence only, but not the will. No one can dispense with an education directed expressly to the moral as well as the intellectual part of his being. Such education, so far as it is direct, is either moral or religious, and these may either be treated as distinct, or as different aspects of the same thing. The subject we are now considering is not education as a whole, but scholastic education, and we must keep in view the inevitable limitations of what schools and universities can do. It is beyond their power to educate morally or religiously. Moral and religious education consist in training the feelings and the daily habits, Edition: current; Page: [248] and these are, in the main, beyond the sphere and inaccessible to the control of public education. It is the home, the family, which gives us the moral or religious education we really receive: and this is completed, and modified, sometimes for the better, often for the worse, by society, and the opinions and feelings with which we are there surrounded. The moral or religious influence which an university can exercise, consists less in any express teaching, than in the pervading tone of the place. Whatever it teaches, it should teach as penetrated by a sense of duty; it should present all knowledge as chiefly a means to worthiness of life, given for the double purpose of making each of us practically useful to his fellow-creatures, and of elevating the character of the species itself, exalting and dignifying our nature. There is nothing which spreads more contagiously from teacher to pupil than elevation of sentiment: often and often have students caught from the living influence of a professor, a contempt for mean and selfish objects, and a noble ambition to leave the world better than they found it, which they have carried with them throughout life. In these respects, teachers of every kind have natural and peculiar means of doing with effect, what every one who mixes with his fellow-beings, or addresses himself to them in any character, should feel bound to do to the extent of his capacity and opportunities. What is special to an university on these subjects belongs chiefly, like the rest of its work, to the intellectual department. An university exists for the purpose of laying open to each succeeding generation, as far as the conditions of the case admit, the accumulated treasure of the thoughts of mankind. As an indispensable part of this, it has to make known to them what mankind at large, their own country, and the best and wisest individual men, have thought on the great subjects of morals and religion. There should be, and there is in most universities, professorial instruction in moral philosophy; but I could wish that this instruction were of a somewhat different type from what is ordinarily met with. I could wish that it were more expository, less polemical, and above all less dogmatic. The learner should be made acquainted with the principal systems of moral philosophy which have existed and been practically operative among mankind, and should hear what there is to be said for each: the Aristotelian, the Epicurean, the Stoic, the Judaic, the Christian in the various modes of its interpretation, which differ almost as much from one another as the teachings of those earlier schools. He should be made familiar with the different standards of right and wrong which have been taken as the basis of ethics, general utility, natural justice, natural rights, a moral sense, principles of practical reason, and the rest. Among all these, it is not so much the teacher’s business to take a side, and fight stoutly for some one against the rest, as it is to direct them all towards the establishment and preservation of the rules of conduct most advantageous to mankind. There is not one of these systems which has not its good side; not one from which there is not something to be learnt by the votaries of the others; not one which is not suggested by a keen, though it may not always be a clear, perception of some important truths, which are the prop of the system, and Edition: current; Page: [249] the neglect or undervaluing of which in other systems is their characteristic infirmity. A system which may be as a whole erroneous, is still valuable, until it has forced upon mankind a sufficient attention to the portion of truth which suggested it. The ethical teacher does his part best, when he points out how each system may be strengthened even on its own basis, by taking into more complete account the truths which other systems have realized more fully and made more prominent. I do not mean that he should encourage an essentially sceptical eclecticism. While placing every system in the best aspect it admits of, and endeavouring to draw from all of them the most salutary consequences compatible with their nature, I would by no means debar him from enforcing by his best arguments his own preference for some one of the number. They cannot be all true, though those which are false as theories may contain particular truths, indispensable to the completeness of the true theory. But on this subject, even more than on any of those I have previously mentioned, it is not the teacher’s business to impose his own judgment, but to inform and discipline that of his pupil.

And this same clue, if we keep hold of it, will guide us through the labyrinth of conflicting thought into which we enter when we touch the great question of the relation of education to religion. As I have already said, the only really effective religious education is the parental—that of home and childhood. All that social and public education has in its power to do, further than by a general pervading tone of reverence and duty, amounts to little more than the information which it can give; but this is extremely valuable. I shall not enter into the question which has been debated with so much vehemence in the last and present generation, whether religion ought to be taught at all in universities and public schools, seeing that religion is the subject of all others on which men’s opinions are most widely at variance. On neither side of this controversy do the disputants seem to me to have sufficiently freed their minds from the old notion of education, that it consists in the dogmatic inculcation from authority, of what the teacher deems true. Why should it be impossible, that information of the greatest value, on subjects connected with religion, should be brought before the student’s mind, that he should be made acquainted with so important a part of the national thought, and of the intellectual labours of past generations, as those relating to religion, without being taught dogmatically the doctrines of any church or sect? Christianity being a historical religion, the sort of religious instruction which seems to me most appropriate to an University is the study of ecclesiastical history. If teaching, even on matters of scientific certainty, should aim quite as much at showing how the results are arrived at, as at teaching the results themselves, far more, then, should this be the case on subjects where there is the widest diversity of opinion among men of equal ability, and who have taken equal pains to arrive at the truth. This diversity should of itself be a warning to a conscientious teacher that he has no right to impose his opinion authoritatively upon a youthful mind. His teaching should not be in the spirit of dogmatism, but in that of enquiry. The pupil should not be Edition: current; Page: [250] addressed as if his religion had been chosen for him, but as one who will have to choose it for himself. The various Churches, established and unestablished, are quite competent to the task which is peculiarly theirs, that of teaching each its own doctrines, as far as necessary, to its own rising generation. The proper business of an University is different, not to tell us from authority what we ought to believe, and make us accept the belief as a duty, but to give us information and training, and help us to form our own belief in a manner worthy of intelligent beings, who seek for truth at all hazards, and demand to know all the difficulties, in order that they may be better qualified to find, or recognise, the most satisfactory mode of resolving them. The vast importance of these questions—the great results as regards the conduct of our lives, which depend upon our choosing one belief or another—are the strongest reasons why we should not trust our judgment when it has been formed in ignorance of the evidence, and why we should not consent to be restricted to a one-sided teaching, which informs us of what a particular teacher or association of teachers receive as true doctrine and sound argument, but of nothing more.

I do not affirm that an University, if it represses free thought and enquiry, must be altogether a failure, for the freest thinkers have often been trained in the most slavish seminaries of learning. The great Christian reformers were taught in Roman Catholic Universities; the sceptical philosophers of France were mostly educated by the Jesuits. The human mind is sometimes impelled all the more violently in one direction, by an over zealous and demonstrative attempt to drag it in the opposite. But this is not what Universities are appointed for—to drive men from them, even into good, by excess of evil. An University ought to be a place of free speculation. The more diligently it does its duty in all other respects, the more certain it is to be that. The old English Universities, in the present generation, are doing better work than they have done within human memory in teaching the ordinary studies of their curriculum; and one of the consequences has been, that whereas they formerly seemed to exist mainly for the repression of independent thought, and the chaining up of the individual intellect and conscience, they are now the great foci of free and manly enquiry, to the higher and professional classes, south of the Tweed. The ruling minds of those ancient seminaries have at last remembered that to place themselves in hostility to the free use of the understanding, is to abdicate their own best privilege, that of guiding it. A modest deference, at least provisional, to the united authority of the specially instructed, is becoming in a youthful and imperfectly formed mind; but when there is no united authority—when the specially instructed are so divided and scattered that almost any opinion can boast of some high authority, and no opinion whatever can claim all; when, therefore, it can never be deemed extremely improbable that one who uses his mind freely may see reason to change his first opinion; then, whatever you do, keep, at all risks, your minds open: do not barter away your freedom of thought. Those of you who are destined for the clerical profession are, no doubt, so Edition: current; Page: [251] far held to a certain number of doctrines, that if they ceased to believe them they would not be justified in remaining in a position in which they would be required to teach insincerely. But use your influence to make those doctrines as few as possible. It is not right that men should be bribed to hold out against conviction—to shut their ears against objections, or, if the objections penetrate, to continue professing full and unfaltering belief when their confidence is already shaken. Neither is it right that if men honestly profess to have changed some of their religious opinions, their honesty should as a matter of course exclude them from taking a part for which they may be admirably qualified, in the spiritual instruction of the nation. The tendency of the age, on both sides of the ancient Border, is towards the relaxation of formularies, and a less rigid construction of articles. This very circumstance, by making the limits of orthodoxy less definite, and obliging every one to draw the line for himself, is an embarrassment to consciences. But I hold entirely with those clergymen who elect to remain in the national church, so long as they are able to accept its articles and confessions in any sense or with any interpretation consistent with common honesty, whether it be the generally received interpretation or not. If all were to desert the church who put a large and liberal construction on its terms of communion, or who would wish to see those terms widened, the national provision for religious teaching and worship would be left utterly to those who take the narrowest, the most literal, and purely textual view of the formularies; who, though by no means necessarily bigots, are under the great disadvantage of having the bigots for their allies, and who, however great their merits may be, and they are often very great, yet if the church is improvable, are not the most likely persons to improve it. Therefore, if it were not an impertinence in me to tender advice in such a matter, I should say, let all who conscientiously can, remain in the church. A church is far more easily improved from within than from without. Almost all the illustrious reformers of religion began by being clergymen: but they did not think that their profession as clergymen was inconsistent with being reformers. They mostly indeed ended their days outside the churches in which they were born; but it was because the churches, in an evil hour for themselves, cast them out. They did not think it any business of theirs to withdraw. They thought they had a better right to remain in the fold, than those had who expelled them.

I have now said what I had to say on the two kinds of education which the system of schools and universities is intended to promote—intellectual education, and moral education: knowledge and the training of the knowing faculty, conscience and that of the moral faculty. These are the two main ingredients of human culture, but they do not exhaust the whole of it. There is a third division, which, it subordinate, and owing allegiance to the two others, is barely inferior to them, and not less needful to the completeness of the human being: I mean the aesthetic branch; the culture which comes through poetry and art, and may be described as the education of the feelings, and the cultivation of the beautiful. This department Edition: current; Page: [252] of things deserves to be regarded in a far more serious light than is the custom of these countries. It is only of late, and chiefly by a superficial imitation of foreigners, that we have begun to use the word Art by itself, and to speak of Art as we speak of Science, or Government, or Religion: we used to talk of the Arts, and more specifically of the Fine Arts: and even by them were vulgarly meant only two forms of art, Painting and Sculpture, the two which as a people we cared least about—which were regarded even by the more cultivated among us as little more than branches of domestic ornamentation, a kind of elegant upholstery. The very words “Fine Arts” called up a notion of frivolity, of great pains expended on a rather trifling object—on something which differed from the cheaper and commoner arts of producing pretty things, mainly by being more difficult, and by giving fops an opportunity of pluming themselves on caring for it and on being able to talk about it. This estimate extended in no small degree, though not altogether, even to poetry; the queen of arts, but, in Great Britain, hardly included under the name. It cannot exactly be said that poetry was little thought of; we were proud of our Shakespeare and Milton, and in one period at least of our history, that of Queen Anne, it was a high literary distinction to be a poet; but poetry was hardly looked upon in any serious light, or as having much value except as an amusement or excitement, the superiority of which over others principally consisted in being that of a more refined order of minds. Yet the celebrated saying of Fletcher of Saltoun, “Let who will make the laws of a people if I write their songs,”^[*] might have taught us how great an instrument for acting on the human mind we were undervaluing. It would be difficult for anybody to imagine that “Rule Britannia,” for example, or “Scots wha hae,”^[†] had no permanent influence on the higher region of human character, some of Moore’s songs have done more for Ireland than all Grattan’s speeches: and songs are far from being the highest or most impressive form of poetry. On these subjects, the mode of thinking and feeling of other countries was not only not intelligible, but not credible, to an average Englishman. To find Art ranking on a complete equality, in theory at least, with Philosophy, Learning, and Science—as holding an equally important place among the agents of civilization and among the elements of the worth of humanity; to find even painting and sculpture treated as great social powers, and the art of a country as a feature in its character and condition, little inferior in importance to either its religion or its government, all this only did not amaze and puzzle Englishmen, because it was too strange for them to be able to realize it, or, in truth, to believe it possible: and the radical difference of feeling on this matter between the British Edition: current; Page: [253] people and those of France, Germany, and the Continent generally, is one among the causes of that extraordinary inability to understand one another, which exists between England and the rest of Europe, while it does not exist to anything like the same degree between one nation of Continental Europe and another. It may be traced to the two influences which have chiefly shaped the British character since the days of the Stuarts, commercial money-getting business, and religious Puritanism. Business, demanding the whole of the faculties, and whether pursued from duty or the love of gain, regarding as a loss of time whatever does not conduce directly to the end: Puritanism, which looking upon every feeling of human nature, except fear and reverence for God, as a snare, if not as partaking of sin, looked coldly, if not disapprovingly, on the cultivation of the sentiments. Different causes have produced different effects in the Continental nations, among whom it is even now observable that virtue and goodness are generally for the most part an affair of the sentiments, while with us they are almost exclusively an affair of duty. Accordingly, the kind of advantage which we have had over many other countries in point of morals—I am not sure that we are not losing it—has consisted in greater tenderness of conscience. In this we have had on the whole a real superiority, though one principally negative; for conscience is with most men a power chiefly in the way of restraint—a power which acts rather in staying our hands from any great wickedness, than by the direction it gives to the general course of our desires and sentiments. One of the commonest types of character among us is that of a man all whose ambition is self-regarding, who has no higher purpose in life than to enrich or raise in the world himself and his family, who never dreams of making the good of his fellow-creatures or of his country an habitual object, further than giving away, annually or from time to time, certain sums in charity; but who has a conscience sincerely alive to whatever is generally considered wrong, and would scruple to use any very illegitimate means for attaining his self-interested objects. While it will often happen in other countries that men whose feelings and whose active energies point strongly in an unselfish direction, who have the love of their country, of human improvement, of human freedom, even of virtue, in great strength, and of whose thoughts and activity a large share is devoted to disinterested objects, will yet, in the pursuit of these or of any other objects that they strongly desire, permit themselves to do wrong things which the other man, though intrinsically, and taking the whole of his character, farther removed from what a human being ought to be, could not bring himself to commit. It is of no use to debate which of these two states of mind is the best, or rather the least bad. It is quite possible to cultivate the conscience and the sentiments too. Nothing hinders us from so training a man that he will not, even for a disinterested purpose, violate the moral law, and also feeding and encouraging those high feelings, on which we mainly rely for lifting men above low and sordid objects, and giving them a higher conception of what constitutes success in life. If we wish men to practise virtue, it is worth while trying to make them love virtue, Edition: current; Page: [254] and feel it an object in itself, and not a tax paid for leave to pursue other objects. It is worth training them to feel, not only actual wrong or actual meanness, but the absence of noble aims and endeavours, as not merely blameable but also degrading: to have a feeling of the miserable smallness of mere self in the face of this great universe, of the collective mass of our fellow creatures, in the face of past history and of the indefinite future—the poorness and insignificance of human life if it is to be all spent in making things comfortable for ourselves and our kin, and raising ourselves and them a step or two on the social ladder. Thus feeling, we learn to respect ourselves only so far as we feel capable of nobler objects: and if unfortunately those by whom we are surrounded do not share our aspirations, perhaps disapprove the conduct to which we are prompted by them—to sustain ourselves by the ideal sympathy of the great characters in history, or even in fiction, and by the contemplation of an idealized posterity: shall I add, of ideal perfection embodied in a Divine Being? Now, of this elevated tone of mind the great source of inspiration is poetry, and all literature so far as it is poetical and artistic. We may imbibe exalted feelings from Plato, or Demosthenes, or Tacitus, but it is in so far as those great men are not solely philosophers or orators or historians, but poets and artists. Nor is it only loftiness, only the heroic feelings, that are bred by poetic cultivation. Its power is as great in calming the soul as in elevating it—in fostering the milder emotions, as the more exalted. It brings home to us all those aspects of life which take hold of our nature on its unselfish side, and lead us to identify our joy and grief with the good or ill of the system of which we form a part; and all those solemn or pensive feelings, which, without having any direct application to conduct, incline us to take life seriously, and predispose us to the reception of anything which comes before us in the shape of duty. Who does not feel a better man after a course of Dante, or of Wordsworth, or, I will add, of Lucretius or the Georgics, or after brooding over Gray’s Elegy, or Shelley’s “Hymn to Intellectual Beauty”?^[*] I have spoken of poetry, but all the other modes of art produce similar effects in their degree. The races and nations whose senses are naturally finer and their sensuous perceptions more exercised than ours, receive the same kind of impressions from painting and sculpture: and many of the more delicately organized among ourselves do the same. All the arts of expression tend to keep alive and in activity the feelings they express. Do you think that the great Italian painters would have filled the place they did in the European mind, would Edition: current; Page: [255] have been universally ranked among the greatest men of their time, if their productions had done nothing for it but to serve as the decoration of a public hall or a private salon? Their Nativities and Crucifixions, their glorious Madonnas and Saints, were to their susceptible Southern countrymen the great school not only of devotional, but of all the elevated and all the imaginative feelings. We colder Northerns may approach to a conception of this function of art when we listen to an oratorio of Handel, or give ourselves up to the emotions excited by a Gothic cathedral. Even apart from any specific emotional expression, the mere contemplation of beauty of a high order produces in no small degree this elevating effect on the character. The power of natural scenery addresses itself to the same region of human nature which corresponds to Art. There are few capable of feeling the sublimer order of natural beauty, such as your own Highlands and other mountain regions afford, who are not, at least temporarily, raised by it above the littlenesses of humanity, and made to feel the puerility of the petty objects which set men’s interests at variance, contrasted with the nobler pleasures which all might share. To whatever avocations we may be called in life, let us never quash these susceptibilities within us, but carefully seek the opportunities of maintaining them in exercise. The more prosaic our ordinary duties, the more necessary it is to keep up the tone of our minds by frequent visits to that higher region of thought and feeling, in which every work seems dignified in proportion to the ends for which, and the spirit in which, it is done; where we learn, while eagerly seizing every opportunity of exercising higher faculties and performing higher duties, to regard all useful and honest work as a public function, which may be ennobled by the mode of performing it—which has not properly any other nobility than what that gives—and which, if ever so humble, is never mean but when it is meanly done, and when the motives from which it is done are mean motives. There is, besides, a natural affinity between goodness and the cultivation of the Beautiful, when it is real cultivation, and not a mere unguided instinct. He who has learnt what beauty is, if he be of a virtuous character, will desire to realize it in his own life—will keep before himself a type of perfect beauty in human character, to light his attempts at self-culture. There is a true meaning in the saying of Goethe, though liable to be misunderstood and perverted, that the Beautiful is greater than the Good,^[*] for it includes the Good, and adds something to it: it is the Good made perfect, and fitted with all the collateral perfections which make it a finished and completed thing. Now, this sense of perfection, which would make us demand from every creation of man the very utmost that it ought to give, and render us intolerant of the smallest fault in ourselves or in anything we do, is one of the results of Art cultivation. No other human productions come so near to perfection as works of pure Art. In all other things, we are, and may reasonably be, satisfied if the degree of excellence Edition: current; Page: [256] is as great as the object immediately in view seems to us to be worth: but in Art, the perfection is itself the object. If I were to define Art, I should be inclined to call it, the endeavour after perfection in execution. If we meet with even a piece of mechanical work which bears the marks of being done in this spirit—which is done as if the workman loved it, and tried to make it as good as possible, though something less good would have answered the purpose for which it was ostensibly made—we say that he has worked like an artist. Art, when really cultivated, and not merely practised empirically, maintains, what it first gave the conception of, an ideal Beauty, to be eternally aimed at, though surpassing what can be actually attained; and by this idea it trains us never to be completely satisfied with imperfection in what we ourselves do and are: to idealize, as much as possible, every work we do, and most of all, our own characters and lives.

And now, having travelled with you over the whole range of the materials and training which an University supplies as a preparation for the higher uses of life, it is almost needless to add any exhortation to you to profit by the gift. Now is your opportunity for gaining a degree of insight into subjects larger and far more ennobling than the minutiae of a business or a profession, and for acquiring a facility of using your minds on all that concerns the higher interests of man, which you will carry with you into the occupations of active life, and which will prevent even the short intervals of time which that may leave you, from being altogether lost for noble purposes. Having once conquered the first difficulties, the only ones of which the irksomeness surpasses the interest; having turned the point beyond which what was once a task becomes a pleasure; in even the busiest after-life, the higher powers of your mind will make progress imperceptibly, by the spontaneous exercise of your thoughts, and by the lessons you will know how to learn from daily experience. So, at least, it will be if in your early studies you have fixed your eyes upon the ultimate end from which those studies take their chief value—that of making you more effective combatants in the great fight which never ceases to rage between Good and Evil, and more equal to coping with the ever new problems which the changing course of human nature and human society present to be resolved. Aims like these commonly retain the footing which they have once established in the mind; and their presence in our thoughts keeps our higher faculties in exercise, and makes us consider the acquirements and powers which we store up at any time of our lives, as a mental capital, to be freely expended in helping forward any mode which presents itself of making mankind in any respect wiser or better, or placing any portion of human affairs on a more sensible and rational footing than its existing one. There is not one of us who may not qualify himself so to improve the average amount of opportunities, as to leave his fellow creatures some little the better for the use he has known how to make of his intellect. To make this little greater, let us strive to keep ourselves acquainted with the best thoughts that are brought forth by the original minds of the age; that we may know what movements stand most in need of our aid, and that, as far as Edition: current; Page: [257] depends on us, the good seed may not fall on a rock, and perish without reaching the soil in which it might have germinated and flourished.^[*] You are to be a part of the public who are to welcome, encourage, and help forward the future intellectual benefactors of humanity; and you are, if possible, to furnish your contingent to the number of those benefactors. Nor let any one be discouraged by what may seem, in moments of despondency, the lack of time and of opportunity. Those who know how to employ opportunities will often find that they can create them: and what we achieve depends less on the amount of time we possess, than on the use we make of our time. You and your like are the hope and resource of your country in the coming generation. All great things which that generation is destined to do, have to be done by some like you; several will assuredly be done by persons for whom society has done much less, to whom it has given far less preparation, than those whom I am now addressing. I do not attempt to instigate you by the prospect of direct rewards, either earthly or heavenly; the less we think about being rewarded in either way, the better for us. But there is one reward which will not fail you, and which may be called disinterested, because it is not a consequence, but is inherent in the very fact of deserving it, the deeper and more varied interest you will feel in life, which will give it tenfold its value, and a value which will last to the end. All merely personal objects grow less valuable as we advance in life: this not only endures but increases.

Treaty Obligations

while it is undoubtedly true that, in the practical application even of the best established and most universally received rules of morality, in ninety-nine cases out of a hundred an honest man seldom doubts by which he is to guide his conduct, yet no one, I presume, will deny that there will be found a hundredth case in which different moral obligations conflict. But, though this is not likely to be denied, there exists very generally a cowardly reluctance to look the fact in the face, and make provision for it, as one of the unavoidable inconveniences of an imperfect condition. People are afraid lest the force of recognised duties should be weakened, by admitting the liability of one duty to be overruled by another; and, though well knowing that this does happen, and not prepared to deny that it sometimes ought to happen, they prefer to be excused from giving their approbation beforehand to so unpleasant-looking a fact. The consequence is, that those who, having the responsibility of action, are forced to make for themselves some path through these moral entanglements, finding no rules or principles laid down for them but such as ignore instead of meeting the difficulties of the case, decide according to the dictate either of their selfish interests, or of some prevailing sentiment, which, if more disinterested, is not necessarily a truer guide. And since national concerns, by reason of their superior complication, afford by far the greatest number of these disputable questions of obligation, this is one (and not the smallest) among the causes of that laxity of principle which has almost always prevailed in public matters, even when the moralities of private life have met with a tolerable amount of observance.

There is no case which more flagrantly exemplifies these general observations than the case of international treaties. Through the greater part of the present century, the conscience of Europe has been habituated to the demoralising spectacle of treaties made only to be broken. In 1814 and 1815, a set of treaties were made by a general Congress of the States of Europe, which affected to regulate the external, and some of the internal, concerns of the European nations, for a time altogether unlimited. These treaties, having been concluded at the termination of a long war, which had ended in the signal discomfiture of one side, were imposed by some of the contracting parties, and reluctantly submitted to by others. Their terms were regulated by the interests, and relative strength at the time, of the victors and vanquished; and were observed as long as those interests Edition: current; Page: [344] and that relative strength remained the same. But as fast as any alteration took place in these elements, the powers, one after another, without asking leave, threw off, and were allowed with impunity to throw off, such of the obligations of the treaties as were distasteful to them, and not sufficiently important to the others to be worth a fight. The general opinion sustained some of those violations as being perfectly right; and even those which were disapproved, were not regarded as justifying a resort to war. Europe did not interpose when Russia annihilated Poland; when Prussia, Austria, and Russia extinguished the Republic of Cracow; or when a second Bonaparte mounted the throne of France. England alone, among the great contracting powers, never actively violated this set of treaties; though England, too, was a party after the fact to one of the most justifiable of the violations—the separation of Belgium from Holland. Such is the spectacle which Europe has had before her for half a century; and it is well calculated, one would think, to moderate her surprise, when another treaty, made forty years later, in the same wild hope of fixing a certain condition of the affairs of Europe in perpetuity, has in a similar manner broken down.^[*] If we ask ourselves why this case has aroused more anger in this country than any of the others had done, the reply, if given with a full remembrance of the previous cases, can scarcely be, that it is more shocking to the conscience than any of them; for the annihilation of the Republic of Cracow was not merely the infringement of a treaty, it was also, had there existed no treaty to forbid it, in itself a gross violation of public rights and morality. But it did not touch so nearly what we had been taught to fancy our own interests, and was not so liable to be imagined a defiance to us in particular. Not to a greater tenderness of the public conscience, but to the different aspect affronts and injuries wear to the unreflecting when addressed to ourselves and when addressed to others, must, I fear, be attributed our special perception of the moral value of treaties on this occasion. We may fairly be complimented with being so far in advance of some of the other great States of Europe, that it is a disputable point whether we have of late years infringed any of our treaty obligations, although we must remember that the announcement, by one of our leading statesmen, that almost the last treaty we entered into was only to be considered binding by ourselves if adhered to by the others who entered into the same obligation, met with very general approval.^[†] Yet the public, if actuated purely by moral feeling, ought to have been more startled by the suggestion of a possible breach of morality Edition: current; Page: [345] on our own part, than by the certainty of an actual breach of it on the part of somebody else. The fact is, we have not yet advanced so far as to regard these questions purely from the moral point of view. Our indignation is hot or cold according to circumstances quite foreign to the morality of the case; and is likely to continue so until the morality of such cases has been placed on a firmer and more clearly defined basis than it has yet received.

I am ready to join with any one in averring that this is an evil state of things, most injurious to public morality. No honest man can see with indifference a condition in which treaties do not bind, in which it rests with the party who deems himself aggrieved by them, to say whether they shall be observed or not; in which nations cannot trust each other’s pledged word. It does not follow, however, that this evil is likely to be remedied by ignoring the fact, that there are treaties which never will, and even which never ought to be permanently observed by those who have been obliged to submit to them; far less, therefore, to be permanently enforced. It is not necessary to go far back for one of the most signal examples which the entire history of mankind affords. Did any impartial person blame Prussia or Austria, because, in 1813, they violated the treaties which bound them to the first Napoleon, and not only did not fight in his ranks, as their engagements required, but brought their whole military force into the field against him, and pursued him to his destruction? Ought they, instead of cancelling the treaties, to have opened a negotiation with Napoleon, and entreated him to grant them a voluntary release from their obligations; and if he did not comply with their request to be allowed to desert him, ought they to have faithfully fought in his defence? Yet it was as true of those treaties, as it is of the treaty of 1856, that disadvantageous and dishonourable as they might be, they had been submitted to as the purchase-money of peace, when the prolongation of war would have been most disastrous; for, had the terms been refused, Napoleon could with ease have conquered the whole of Prussia, and at least the German dominions of Austria, which is considerably more. I presume, than England and France could have done to Russia, after the fall of Sebastopol. I already seem to hear some uncandid reader crying out, “Do you pretend that Russia has as complete a justification, and even positive obligation, to break her treaties, as Prussia and Austria then had?” Certainly not. The case of Austria and Prussia was about as extreme a case as, in the nature of national affairs, could possibly occur: Russia herself could not pretend that her own approaches within a great distance of theirs. But the principle may be the same, and principles are best tested by extreme cases. If a principle will not stand good in every case which it covers, it is a proof that some other principle requires to be considered along with it.

What means, then, are there of reconciling, in the greatest practicable degree, the inviolability of treaties and the sanctity of national faith, with the undoubted fact that treaties are not always fit to be kept, while yet those who have imposed them upon others weaker than themselves are not likely, if they retain confidence in their own strength, to grant a release from them? To effect this reconcilement, so Edition: current; Page: [346] far as it is capable of being effected, nations should be willing to abide by two rules. They should abstain from imposing conditions which, on any just and reasonable view of human affairs, cannot be expected to be kept. And they should conclude their treaties, as commercial treaties are usually concluded, only for terms of years.

To the first of these rules it is essential that the obligations should be defined, which nations are not warranted in imposing on one another. I do not pretend to enter exhaustively into so large a subject. But one great principle one can clearly see, and it is the only one which need concern us at present. The community of nations is essentially a republic of equals. Its purposes require that it should know no distinction of grades, no rights or privileges enjoyed by some and refused to others. The basis of international law—without which the weak, for whose protection chiefly international law exists, would never be secure—is, that the smallest and least powerful nation, in its capacity of a nation, is the equal of the strongest. Whatever rights belong to one belong to all, and can only be temporarily forfeited, even by misconduct, unless the erring nation is to be treated as a savage, and thrust out of the communion of civilised nations altogether. Now, all treaties which bind a nation, within itself and in its own affairs, by restrictions not common to all the rest, violate this principle. Of this nature is a stipulation that a country shall maintain one form of government, or abjure another; that she shall abstain from fortifying places situated within her own territory; that she shall limit to a prescribed amount her army or her fleet, or the portion of each stationed in a particular part of her dominions, no equivalent limitation of armaments being consented to by the other parties to the treaty, or by nations in general. I do not say that some of these restrictions cannot ever be admissible as a temporary penalty for crimes committed against other states; though in general some penalty would be preferable which could be completed by a single act. The period, however, for which such exceptional disabilities can justly be imposed, ought not, I conceive, to exceed the length of a generation; or, more properly, the period at the end of which a majority of the adult population will have grown up from childhood subsequently to the offence, so that the people suffering the penalty are no longer, as a body, the same with those who shared in the fault.

But the end in view would be in a still greater degree attained, were nations to decline concluding any treaties except for limited periods. Nations cannot rightfully bind themselves or others beyond the period to which human foresight can be presumed to extend; thus aggravating the danger which, to some extent, always exists, that the fulfilment of the obligation may, by change of circumstances, become either wrong or unwise. I am not aware of any good reason why engagements reciprocally entered into by nations for their joint advantage, should not be subject to periodical renewal. There are few, if any, contracts between nations, the terms of which might not be so framed as to protect either party from sustaining undue loss or injury in case of the non-renewal of the contract. And with Edition: current; Page: [347] respect to the other kind of treaties, those which nations inflict upon one another, there is a very much greater chance of their being faithfully observed, if a legitimate and peaceful emancipation from them is looked forward to at the end of a moderate length of time. The treaty of 1856, vainly affecting to be perpetual, has been repudiated in fourteen years. Had it been concluded for twenty, or even for twenty-five years, it would probably have lasted out the term. It is, perhaps, necessary to say, that the expiration of a treaty does not imply that a money indemnity exacted by it should be repaid, or a ceded territory restored. Possession, once transferred, is an accomplished fact; and to disturb it, after an interval of peace, would imply a fresh aggression, which requires no stipulation of treaties to constitute it a casus belli. The lapse of the treaty would merely reinstate the nation that had been punished, in those common rights of all nations, the enjoyment of which is the normal condition of an independent State; rights which no nation ought to be, and no high-spirited nation will ever consent to be, permanently dispossessed of.

If these principles are sound, it remains to be considered how they are to be applied to past treaties, which, though containing stipulations which, to be legitimate, must be temporary, have been concluded without such limitation, and are afterwards violated, or, as by Russia at present, repudiated, on the assumption of a right superior to the faith of engagements.

It is the misfortune of such stipulations, even if as temporary arrangements they might have been justifiable, that if concluded for permanency, they are seldom to be got rid of without some lawless act on the part of the nation bound by them. If a lawless act, then, has been committed in the present instance, it does not entitle those who imposed the conditions to consider the lawlessness only, and to dismiss the more important consideration, whether, even if it was wrong to throw off the obligation, it would not be still more wrong to persist in enforcing it. If, though not fit to be perpetual, it has been imposed in perpetuity, the question when it becomes right to throw it off is but a question of time. No time having been fixed. Russia fixed her own time, and naturally chose the most convenient. She had no reason to believe that the release she sought would be voluntarily granted, on any conditions which she would accept, and she chose an opportunity which, if not seized, might have been long before it occurred again, when the other contracting parties were in a more than usually disadvantageous position for going to war.

Had this been all, there would have been little in the conduct of Russia but what most other powers in her position would have done, and what there are, at all events, but too many precedents for doing. Her special offence is, that in asserting what she might, without being entirely unreasonable or unscrupulous, believe to be her right, she showed no desire whatever that the wound inflicted upon the confidence, so necessary to mankind, in the faith of treaties, should be the smallest possible. She showed herself perfectly indifferent to any such consequence. She made her claim in the manner most calculated to startle mankind, and to destroy Edition: current; Page: [348] their faith in the observance of all treaties which any one of the contracting parties thinks it has an interest in shaking off. Not but that it is in itself a less immoral act, if a promise is to be broken, to give notice beforehand of the intention, than to keep it hidden, and break the engagement without notice, while the other party is relying on its being kept. This is too obvious not to be seen in private life, and it is as true of public treaties as of private promises. Had Russia, however, thought the trust of nations in each other’s engagements a thing of the highest importance, she would, even if determined to assert finally at all costs what she claims as her right, have first exhausted all endeavours, and consented to some sacrifices, to attain the freedom she claimed by the general consent of Europe. If Russia had acted in this honourable manner, she would have set, perhaps for the first time in history, an example which neither we ourselves who blame her, nor any other state, would find it easy to show in their own annals. She has chosen a less honourable course. But this misconduct of Russia (misconduct not so much before the bar of history and the past practice of nations, as before that of true morality, and of what we may hope will become the future customs) does not entitle us to bring upon millions of innocent persons the unspeakable evils of war, in order to enforce an obligation which it was wrong to impose, and which we ought therefore plainly to declare that we do not desire to reimpose. The notice which the high-handed proceeding of the Russian Government demanded at our hands, was to protest (as Lord Granville immediately did)^[*] against the claim of a contracting party to set aside a treaty by a mere announcement of its will; and, for the rest, to follow the precedent set by the French Government, when three of the powers who were parties to the treaties of Vienna, destroyed the Republic of Cracow and confiscated its territory. M. Guizot, then Foreign Minister of France, made a public declaration, that France took notice of this violation of treaties; that she did not intend to oppose herself, by arms or otherwise, to the proceeding, but that she reserved to herself the full exercise of whatever rights the infringement of a treaty, to which she was a contracting party, restored to her.^[†] If we are unable to arrange any joint peaceable action with the other powers concerned, an intimation somewhat like this would be the only dignified notice we could take of the mode of a demand, the substance of which the intrinsic merits of the case forbid us to resent. We may, however, hope that if our Government stands firm against the unreasonable clamour of the war party, some arrangement may be come to by which the obnoxious stipulations may be abrogated with the consent of all concerned.

The Contagious Diseases Acts

william nathaniel massey: Are you acquainted with the Acts of Parliament which are the subject of inquiry by this Commission? I have a general acquaintance with them.

Have you any practical knowledge of the working of them? No practical knowledge.

Then any opinion you express with regard to these Acts, refers to the principles on which they are founded? Yes; the general principles of legislation. I have not studied the details.

The principal Act now in force is entitled “An Act for the better prevention of contagious diseases at certain naval and military stations.”^[*] And are you aware that the policy which dictated this legislation in the first instance, was a desire to maintain the health of soldiers and sailors, whose physical efficiency was reported to be very seriously affected by the disease which they contracted at garrison and seaport towns, those towns and garrisons being the resort, in a peculiar manner, of common prostitutes? Yes; I am aware of that.

Do you consider that such legislation as that is justifiable on principle? I do not consider it justifiable on principle, because it appears to me to be opposed to one of the greatest principles of legislation, the security of personal liberty. It appears to me that legislation of this sort takes away that security, almost entirely from a particular class of women intentionally, but incidentally and unintentionally, one may say, from all women whatever, inasmuch as it enables a woman to be apprehended by the police on suspicion and taken before a magistrate, and then by that magistrate she is liable to be confined for a term of imprisonment which may amount, I believe, to six months, for refusing to sign a declaration consenting to be examined.

The Act of Parliament in express terms applies only to common prostitutes, plying their trade as prostitutes within the protected districts. The police have express instructions to confine their action to the women specified in the Act. We have it in evidence before us that those orders have been most carefully obeyed by a select body of police detached upon this particular duty.^a In point of fact,^a I do Edition: current; Page: [352] not know whether that would make any difference in your opinion. The Commission, I may say, are satisfied that no practical abuse of the Act has taken place by the police; that in fact, women who are not intended by the Legislature to be subjected to these provisions have not been molested by it. We so far qualify that by saying it is possible that in some particular instances the suspicion of the police may have rested upon women who are not within the description of common prostitutes, but practically the Act has been carried out with great care. Is your objection confined to the possibility of a modest woman being brought up under these Acts? That is a very great part of my objection. Although I am quite aware that the Act only authorises the apprehension of prostitutes, still a discretion must necessarily be left in the police to prevent the entire evasion of the Act: and I have understood that it is held by its supporters, medical men and others, that the powers must be very considerable if the Acts are not to be very seriously evaded. What number of cases there have been in which modest women, or women at any rate not prostitutes, have been apprehended by the police on suspicion, I do not know, but it appears to me that the police have that power, and that they must have the power, it is impossible to enforce the Acts unless they have the power, the Acts cannot be made really effectual unless those powers are strengthened. But in any case it seems to me that we ought not to assume, even supposing ^bthat^b no case of abuse has been found out as yet, that abuses will not occur. When power is given which may be easily abused, we ought always to presume that it will be abused, and although it is possible that great precautions will be taken at first, those precautions are likely to be relaxed in time. We ought not to give powers liable to very great abuse, and easily abused, and then presume that those powers will not be abused.

What power do you refer to? The power of apprehending women on suspicion, and then requiring them to enter into engagements subjecting themselves to examination.

Then setting aside the tendency to which these Acts are liable in their execution of invading the liberty of modest women, do you consider it objectionable in itself that the Legislature should make provision for the periodical examination of common prostitutes who let out their bodies for hire? I think that it is objectionable. If any penalty is to be imposed, and this must be considered a penalty, for being a common prostitute, she ought to have power to defend herself in the same manner as before any ordinary tribunal, and of being heard by counsel, in order to prove that she is not a prostitute if she can. There are great numbers of prostitutes, I believe in this country, certainly in foreign countries, who are not registered, and the effect of the examination which the Act requires, and similar examinations which are required in foreign countries, is said to be, and I believe with a great deal of truth, to lead to a great amount of clandestine prostitution, and the Acts therefore are not effectual unless clandestine prostitution is touched also

The provision of the Act is this, that a woman shall be permitted, if she ^cthinks^c fit, to acknowledge herself to be a common prostitute upon paper, that is called in the Act a voluntary submission, and she may deposit that in the hands of the police or the authorities of the hospital, and in pursuance of that submission she is examined and subjected to the same examination with regard to periodical attendance as if ordered to attend before the magistrate; the alternative being that if she declines to sign a voluntary submission, she may be taken before a magistrate, and the question whether she is a common prostitute, will be a question for the magistrate to try. She may be heard by counsel, and the only difference between that mode of trial and the ordinary mode of trial is the absence of a jury. She is tried, in fact, by a tribunal analogous to that which has been created by recent legislation in an Act called the “Criminal Justice Act,”^[*] which in fact merely extends summary jurisdiction which already obtained in this country. Do I understand you to say that you think the protection of a jury is necessary in such a case? I have not considered that subject, but I think all the protection, which is necessary in other cases of judicial investigation would be necessary in this. There can be hardly any more serious case to the person concerned than that of being charged with being a prostitute, if she is not really so. With regard to the first part of your question, supposing that her declaration of her being a prostitute is voluntary, and that her submission to examination is strictly spontaneous on her part, I have nothing to say against it then, but I do not think it is the business of Government to provide the means of such examinations.

To follow up that, supposing a woman had voluntarily submitted her person to examination, and her person was found to be diseased, would you consider it an unjustifiable violation of her ^dliberty^d if she was sent to hospital, and detained in the hospital against her will until she was cured? I should think the objection less strong than in the other case, but I still think it objectionable because I do not think it is part of the business of the Government to provide securities beforehand against the consequences of immoralities of any kind. That is a totally different thing from remedying the consequences after they occur. That I see no objection to at all. I see no objection to having hospitals for the cure of patients, but I see considerable objection to consigning them to hospitals against their will.

The condition which I took the liberty of putting to you was the voluntary submission of the women? Yes.

Upon that voluntary submission the woman is found diseased. Now the woman being found diseased and being a common prostitute, upon her voluntary submission the law assumes the right of sending her to a hospital, and detaining her in that hospital, until she is no longer in a condition to communicate contagion Edition: current; Page: [354] Do you think that a warrantable violation of the woman’s liberty, which is the first question? Do you consider that a proper course for legislation to take? I do not consider it a violation of the woman’s liberty in that case, because she would know beforehand to what she would subject herself. If she voluntarily underwent this examination, she might well be made to undertake that if she was examined and found diseased, she should consent beforehand to go to the hospital, and be there detained until cured; therefore, on the score of personal liberty, I have no objection to it. But I have a still remaining objection to the Government undertaking, even on the solicitation of the parties concerned, to provide beforehand the means of practising certain indulgences with safety. Of course the objection on the ground of personal liberty does not occur in that case, but the other objection does. It applies to this case as much as the other, I think if a woman comes and asks to be examined and asks it to be ascertained that she is in a healthy condition, and to be submitted to treatment until she is healthy in order that she may be fitter to follow a certain profession, the State is in fact going out of its way to provide facilities for the practice of that profession, which I do not think the State is called upon, or can without considerable disadvantage undertake, to do.

Would your objection be modified by this consideration. It is in evidence before this Commission, and we will assume for the purpose of your answer that it is proved to your satisfaction that the contagious disease extends far beyond the guilty persons, and may be communicated to innocent wives, and be transmitted to innocent children? That opens another point on which I should like to express an opinion. Of course I understand it is not the object of the Act of Parliament to afford facilities for indulgence. The object of the Act is not to protect those who voluntarily seek indulgence, but to protect the innocent from having these diseases communicated to them; that I understand to be the object. Now a woman cannot communicate the disease but to a person who seeks it, and who knowingly places himself in the way of it. A woman can only communicate it through a man; it must be the man who communicates it to innocent women and children afterwards. It seems to me, therefore, if the object is to protect those who are not unchaste, the way to do that is to bring motives to bear on the man and not on the woman, who cannot have anything to do directly with the communication of it to persons entirely innocent, whereas the man can and does. If you ask whether I think it possible to bring motives to bear on the man, I think there are various ways in which it may be done. In the first place, the same degree of espionage which is necessary to detect women would detect also the men who go with them, because very often they are detected only by the circumstance of being seen to go into certain houses with men. In that case, if the women can be laid hold of, the men can also, and be obliged to give an account why they are there. But without the exercise of espionage on either men or women, there are other means which can be had recourse to; very severe damages in case a man is proved to have communicated this disease to a modest woman, and in the case of his wife, divorce as a matter of Edition: current; Page: [355] right; I think that a stronger case in which to apply the remedy of divorce can hardly be conceived.

Supposing for a moment that the enactment in law making it penal to communicate the disease to another person was objectionable on the ground that it would lead to extortion, and that a wife so affected would not be able to overcome all those influences which her own affections have over her to induce her not to take the extreme step of seeking divorce, what remedy would you provide for the innocent children? The evil could only reach the children through the wife. The unborn children could only be infected by the mother being first infected. If it was proved that a man had been the means of communicating to his wife, she being a modest woman, or to his children, any of these diseases, the law should grant the woman a divorce, and compel the man in proportion to his means to pay very heavy damages to them for their support apart from himself. That, in my opinion, is what the law ought to do in the case. I quite see there would be often great difficulty in enforcing it; probably it would only be enforced in a certain proportion of cases, and very likely not in the majority of cases, but still the knowledge that it could be enforced would operate as a considerable check on the evil; and even the fact that the law declared this a very great crime, not only rendering the person who committed it subject to heavy penalties, but deemed so serious as to warrant the dissolving of the marriage tie, the mere effect of placing its mark on the conduct in this way would have very great influence, and would make this crime be considered, as in truth it is, one of the gravest a man could possibly commit.

rev. john hannah: Would you think it worth while to make an effort to stop it, viewed simply as a plague? That is, of course, a question to be considered, but I have heard and read that many medical men, and other strong supporters of the Act, think it cannot be made effectual enough to stamp out these diseases unless it is made much more strict than it is, consequently much more oppressive to women, and still more liable to abuse, besides which I have understood that several medical men who were warm supporters of the Acts nevertheless think it impossible for the Acts to be made to that degree effectual, or any degree approaching that, unless men are subject to it as well as women, and the reason they do not propose this is because they do not think that men would consent to it.

Confining you to the one point of detention, I think I gather your objections to it arise from collateral considerations which admit of removal. I mean the consideration that the detention is simply to facilitate an immoral purpose, an objection which you dwelt upon, did you not? It seems to me always liable to that objection, even if it is not liable to others.

Still, is not the policy of detention separable from what is clearly a bad reason, viz., to make sin safe? I do not see how it can be separated. I do not see how that which makes illicit indulgence of that sort safe, or is supposed to do so, can be prevented from giving some degree of encouragement to it, though far, I know, from the intention of the Act.

The point, I apprehend, is really this; in case it is really a plague, differing only from other plagues by the intermixture of the moral element, then is not the Legislature justified in the interests of the innocent in endeavouring, so far as it can, to stamp it out, even if there is no hope of complete success? I should say this question is very much affected by the degree of hope there is of complete success. It seems to me there ought to be a very good prospect of complete extirpation to justify anything of that kind, and I do not understand that such hope is entertained by those who are now most in favour of the Acts.

sir walter james: You mentioned that personal examination of men and women was a degrading thing, and in itself illegal? I did. I think it is exceedingly degrading to the women subjected to it, not in the same degree to men; therefore there is more reason that if it is applied at all it should be applied to men as well as^e women, or if not to both, rather to men than to women. Men are not lowered in their own eyes as much by exposure of their persons, besides which it is not a painful operation in the case of a man, which I believe in the case of a woman it often is, and they very much detest it.

With regard to the cost of these Acts, I understand on the continent these Acts are self-supporting, are you aware of that? are you aware that such is the case? I am not aware whether it is so.

Is it your opinion that it would be right and just that those persons for whose safety these Acts were passed should pay for them? It depends on who those are who are affected by the Acts.

Should you consider it more just that they should pay for it by licenses as on the continent, or that the British taxpayer, the poor man should pay for it? It seems to me that all the objections which exist against the Acts, exist in an extreme degree against licenses, because they have still more the character of toleration of that kind of vicious indulgence, than exists under the Acts at present, or can exist in any other way.

I think on this point you will agree with me that licenses should be paid for by^f prostitutes themselves, and the brothel-keepers, rather than as in the present case by the English people? If the thing was really justifiable on the ground on which it is defended, namely, as a great sanitary measure for the protection of all classes, I think it would be very fair that the English people should pay: but it is not professed, and could not be with truth asserted to be the object of these Acts, to protect persons in vicious indulgence or to protect the class of prostitutes. The strongest argument for the Acts has been the protection of those who are liable to take the disease without any voluntary exposure to it on their own part.

But supposing the opposite to be the case, would not the hardship of the case be greater, that is, that the innocent should pay the cost of these Acts rather than the guilty? I should think such considerations of such extremely small importance Edition: current; Page: [357] compared with the general bearing of the Acts, that I should think them hardly worth regarding. The very expense in any case would not be great.

But the expense would be very considerable if extended to other classes? If applied to the whole population the expense no doubt would be very much greater.

Would you consider, if applied to the whole population, it would be a justifiable subject to tax the people for? I think it would; I do not think it belongs to the class of measures which, if justifiable at all, it would be unjust to make a charge on the whole community. The health of the community is a subject now considered, I think with reason, to be within the province of Government. But I do not think this consideration material in comparison with the inconvenience that I see in the fact, that the expense could not be charged on the prostitutes themselves without in a manner licensing their profession. Moreover it is not the prostitutes themselves mainly who are protected, but their customers, and I do not see how you can get at them especially to make them pay. You can make prostitutes pay, but you cannot make those who frequent them pay.

Undoubtedly you can according to the principles of political economy, by making a prostitute recoup by charging a larger sum to customers, because we have heard in evidence that these registered women charge a higher price than the others. A gentleman said the officers gave a higher price to those licensed women than the others, so that you see in that case the cost would not fall upon the woman but upon her customers? In that case this particular objection fails, but the objection is still unanswered that it involves special licensing of persons to practise that profession.

Do you think that evil is at all avoided by the present Acts? By no means. I think one of the objections to the present Acts is that they do not avoid that evil, but still they are not attended with so much of it as the licensing system would be.

You are aware that a woman has an order to attend the next examination? I am.

And that it is their custom to show their tickets? Yes; that comes very near to the licensing.

Can you draw a distinction between it and licensing? There is hardly any distinction. It makes some difference that it is not called a license. That makes a considerable difference in the feeling about it, not by the public, but by the women themselves.

We have strong evidence that they are considered equivalent to it? That may very possibly be the case.

Do you see a substantial difference between medical ^gexaminations^g under these Acts, and the continental system? I do not see any substantial difference. It seems to me that the same objections apply to both.

Except that it is applied to a smaller population here, and that on the continent it is applied to all? More extensively.

rev. frederick denison maurice: Supposing the whole of these Acts were repealed so far as regards the military and naval population, so that the whole purpose to supply prostitutes for them was taken away, would you then think that there might be hospitals for this purpose established by Government; would you see any objection to such hospitals being under Government control? I do not see any reason. I by no means wish that there should not be hospital accommodation for those cases to the utmost extent for which it may be required. But I think the objection that applies to the Acts would apply in some degree to having hospitals for this express purpose. The great defect now is that these patients are not admitted into most hospitals. It would be desirable that the restrictive regulations which exclude them from all except a few hospitals should be removed in some way or other, and hospital accommodation provided for this disease in the same way as for others, but not by Government taking that charge on itself, which would be liable to the same objection as licensing prostitutes.

Do you not think the Government ought to exert itself for the purpose of putting down this disease? I think the Government ought, so far as it can, to exert itself in putting down all diseases—this among the rest, but I certainly do see some degree of objection to anything special being done by the Government distinguishing between this and other diseases in that respect.

Then if the Act really fulfilled its purpose, and was for all contagious diseases, by there being one department in each hospital, you would not think that objectionable? No. Supposing the opinion of Parliament was that contagious diseases generally, all sorts of infectious and contagious diseases, were proper subjects for the Government to take in hand administratively, and to provide proper means for curing, I should say there was no objection in including this among the others.

You would not think it bad legislation? No, because it would not single out diseases of this kind to meet with particular favour.

dr. john henry bridges: I understood one of your objections to the Act was that the State thereby gave security for the consequences of committing an immoral act? It facilitates the act beforehand; which is a totally different thing and always recognized in legislation as a different thing from correcting the evils which are the consequences of vices and faults. If we were never to interfere with the evil consequences which persons have brought upon themselves, or are likely to have brought upon themselves, we should help one another very little. Undoubtedly it is quite true that interfering to remedy evils which we have brought on ourselves has in some degree the same bad consequences, since it does in the same degree diminish the motive we have to guard against bringing evils on ourselves. Still a line must be drawn somewhere, and a marked line can be drawn there. You may draw a line between attacking evils when they occur, in order to remedy them as far as we are able, and making arrangements beforehand which will enable the objectionable practices to be carried on without incurring the danger of the evil. Edition: current; Page: [359] ^hThese^h two things I take to be distinct, and capable of being kept distinct in practice. As long as hospitals are not peculiarly for that class of diseases, and do not give that class of disease any favour as compared with others, they are not liable to objection, because their operation consists in remedying the effects of past evils: they do not hold out a special facility beforehand to practising illicit indulgence with a security which it would not otherwise enjoy. The interference is not preventive but remedial.

By attacking the evil after it has occurred, you would, I presume, prefer dealing with a woman after she is diseased? Yes; I mean having hospitals, and taking means of curing people of diseases either of this kind or other kinds, which they have brought upon themselves by their own fault.

You are probably aware speaking of the country generally that there are not a very large number of hospitals, for the treatment of these diseases? I believe there are not.

And that it is excluded to a very large extent from our provincial hospitals? Yes.

Now would not the effect of having wards for the admission of venereal disease in all our hospitals scattered about the country have the effect which you deprecate, that is, of making fornication more secure from the chance of disease than it is at present? No doubt it would. No doubt everything you do to relieve people from what may be the ⁱconsequenceⁱ of their own fault, does in some degree diminish the motives to refrain from that fault. Still if we are to help one another at all, we must not stretch this argument to its full extent. Relieving people who are in danger of starvation is liable to the same objection. All poor laws, all relief whatever to the indigences or distresses of our fellow creatures are liable to it, since the people themselves are often very much to blame for bringing themselves into a position in which they require relief, and no doubt the relief does in some not inconsiderable degree diminish the prudential motives for abstaining. But still all our experience, and the consideration given to the question by thinkers and legislators, have ended in the recognition of this, that we ought not to abstain from helping one another through the evils of life, provided we do it in such a way as that it shall not provide facilities beforehand, but only deal with the evil when it has been incurred.

Apart from the existence of venereal disease, will you be prepared to lay down as a principle that the State should not take cognizance of the existence of prostitution? Of course a good deal will depend on the sort of cognizance, but I do not think that prostitution should be classed and recognised as such by the State. It seems to me there are inconveniences of many kinds in that.

You do not see your way to any improved legislation, for instance, with reference to brothels? That is a different question and a very difficult one. The Edition: current; Page: [360] question of the regulation of brothels, whether they should be systematically put down, or let alone to a certain degree, enters into very wide reaching considerations as to the degree in which the law should interfere in questions of simple morality, and also how far it should attack one portion of the persons who conspire to do a particular act, while it tolerates the others. I have always felt it very difficult to lay down a general rule on the subject, and I am not prepared to do so now, but I do not think it material to the consideration of these Acts.

sir john somerset pakington: Am I right in inferring from the evidence you have been so good as to give us, that you would not consider the fact of a very large proportion of the crews of our men-of-war and the soldiers of our army, being incapacitated for rendering service to the State by this terrible disease, an adequate reason for legislation of this kind? Not for legislation of this kind; but it might be for legislation of other kinds. I cannot say that I have considered the subject much, but I do not see why the State should not subject its own soldiers and sailors to medical examination, and impose penalties on them in case they are found diseased. I would not undertake to say that it might not, by measures directly acting on soldiers and sailors, in a very considerable degree discourage that kind of indulgence. It is certain, at least I have understood so, that the impression on the minds of soldiers and sailors, is that it is not discouraged, that it is considered by Parliament a necessity which may be regulated, but which must be accepted, and that Parliament does not entertain any serious disapprobation of immoral conduct of that kind. Now the State might exercise an influence opposite to that, by making the being found diseased a ground for military penalties in the case of soldiers and sailors. I do not pretend to have made up my mind on the subject, or to have anything definite to propose. I only throw that out as a possibility.

Are you aware that in the case of soldiers, the very thing you recommend has been now in practice for many years, and is still in practice? I have understood that soldiers are examined.

Under those circumstances the remedy you suggest can hardly be regarded as a fresh security? Not an entirely fresh security, certainly. I have mentioned that I have not considered or studied that part of the subject.

I infer from your answer that the fact to which I have adverted of the known suffering in the way I have described must be regarded as a great public evil? No doubt it is a great public evil.

Do you think it is an evil which the State would not be justified in endeavouring to avert? If the State endeavours to avert it by any means which are not objectionable in a greater degree than the evil itself.

Do you think that the State had better rather continue to suffer from the evil than to pass such Acts as these for its prevention? I think the State had better continue to suffer as much of that evil as it cannot prevent in other ways, by the application of military discipline and the correction of these practices among the soldiers.

Can you suggest any way other than that already adverted to, and which I Edition: current; Page: [361] have told you is already in exercise? You mentioned that the soldiers are liable to examination, but you have not mentioned, and I am not aware, to what degree, if the result of that examination proves them to be diseased, they are liable to penalties.

I cannot describe the exact penalty, but the principle has been in action. I do not say with regard to the whole army, but can you suggest any other description? I have not considered that part of the subject, but certainly I am not prepared to suggest any other.

And I understand you to be of opinion that in no case should the State resort to such a remedy as is found in these Acts? Exactly. I do not think that the State should resort to any remedy which operates by taking means beforehand to make the indulgence safe.

I think you told us that you have only a general knowledge of ^jthese^j Acts, and no practical experience of their working? That is so.

You spoke of the violation of personal liberty, and I think you also, if I took down your words correctly, objected to the power of apprehending women on suspicion.^[*] Do you think, as far as you know the Act, that the expression “apprehend the woman on suspicion” is an expression taken in its ordinary sense, which is applicable to the powers which these Acts give? It seems to me that it is applicable as far as I understand the subject; inasmuch as when women have not voluntarily declared themselves to be prostitutes, they may be, as I understand, watched by policemen, and if the policeman thinks a woman is practising prostitution, although not registered, he has it in his power, on any grounds of suspicion which appear to him to be adequate, to require the woman to enter into an undertaking to submit herself to examination, or to take her before a magistrate, who will make her do so.

I am glad I asked you the question, because it is very clear you are under a misapprehension. There is no such power calling on a woman to make a declaration compelling her to be examined. The only power of the police in this case is where they have good reason to suppose a woman to be practising common prostitution, if she does not voluntarily sign a paper stating she is willing to be examined, to lay an information before a magistrate, and proceed in the ordinary course before that magistrate. You would hardly call that apprehension on suspicion, would you? Certainly, I should call that apprehending a woman on suspicion. It is apprehending a woman on grounds which, in the opinion of the policeman, place her under suspicion of practising prostitution without acknowledgment. I am aware that policemen have no power of using any compulsion for making a woman enter into an engagement subjecting herself to examination. I am aware that that can only be done before a magistrate, and after such inquiries as he Edition: current; Page: [362] might hold; but the policeman has it in his power, whether he uses the power or not, to use threats to induce the woman to enter into this engagement.

I have no wish to raise any question on the narrow meaning of the word “apprehend,” but as you have said it is a violation of personal liberty, I will ask you whether you are aware that the liberty of such women, as of all other persons, is protected by law, until interrupted under the authority of law? Yes, I did not make that distinction as I ought to have done. I admit its relevancy.

When you said that a prostitute ought to have the power of defending herself before the ordinary tribunals, I think you would admit that she has that power, because she is brought before the magistrate, and that magistrate is not only free but bound in duty to hear everything that a woman has got to say, and judge of the evidence before deciding her case as he would in any other? That depends on whether it is explained to her that she may be defended by counsel.

The attack on personal liberty is subject to those usual grounds of protection which the law gives to all parties? It may be so.

In the case, which is not only a possible case but I fear from the evidence we have had the not very uncommon one of disease being communicated to innocent wives and innocent children, would you really trust to the power of divorce as the only remedy in such a ^kcase? should^k you not endeavour at least to resort to prevention as being better than trusting to so uncertain a cure? I think that if prevention is to be applied at all, it should be applied to the man, who alone has the power of committing this offence in a direct way. When a woman infects anyone the man must always be a consenting party to running the risk: it is only a man who having been infected himself can communicate infection to an innocent person, and therefore if there is any argument for prevention, it should be for preventive measures applied to men who infect these women, and not to the women themselves.

Do you know or have you ever thought of any process by which prevention could be applied to men? I think that it could. No doubt it would fail very often; but inasmuch as it certainly does happen frequently that women are brought under the operation of these Acts through being watched by the police, and its being ascertained that they frequent certain houses along with men, the police can equally ascertain who the men are who go ^lwith them; and when they find that men have been seen to frequent along with prostitutes houses of this description, those men might be compelled to undergo examination for a certain period afterwards.

Am I to understand you seriously to propose that in this country we should adopt a system of espionage over every man seen going into a brothel, and that men seen to go into a brothel should be subject all alike to personal examination? I am not suggesting espionage; but if it is already in practice on women who go to brothels, Edition: current; Page: [363] with a view of ascertaining whether a woman is a prostitute by her being seen there, I think the woman should not be singled out to be subject to examination, but the men should be subjected to it also, or even if the women were not subjected the men might be, but if the one is, certainly I should say both.

Therefore you do, as I understand, recommend such a system of espionage as I have described? I do not recommend it, because I do not recommend the Acts at all; I do not recommend that there be any espionage practised upon women, and therefore not on men either.

Do ^myou not^m recommend it to this extent, if any remedy is attempted for the evils complained of, it should be done in that shape? If any preventive measures are to be taken I should say it should be in that shape. But penal measures, or remedial measures by means of hospitals, could be adopted independently of that, increasing the hospitals, and increasing the facilities for admission of those who are diseased, and laying severe penalties on the man who communicates this disease to an innocent woman.

If the Legislature did enact with a view to preventing such cases as this, that the woman affected should have the remedy of divorce, would your knowledge of human nature lead you to the conclusion that that remedy would be resorted to in one case in a hundred, or one case in a thousand? A good many more than that, though probably not the majority.

william nathaniel massey: Are you aware that for a man to give his wife a disease of that description would be adjudged cruelty by the Court of Divorce, and would be a ground for a divorce, at all events a mensa? Yes, but not complete dissolution of the matrimonial tie.

sir john pakington: Would you make it so? Yes.

william nathaniel massey: You would make it a vinculo? Yes, a vinculo, accompanied with heavy pecuniary damages for the benefit of the sufferers, the wife or children.

sir john pakington: We have received very strong evidence before this Commission, that at one, at least, I think more, but at one of the most populous places to which these Acts apply, one result has been that whereas there were previously hundreds of children—when I say children, girls under 13, 14, and 15 years of age—practising habitual prostitution, that since these Acts have passed that class has almost, if not quite, disappeared; now, assuming that evidence to be correct, would it reconcile your mind to the operation of the Acts producing so blessed an effect as that? It would not remove the objections by any means. I have not examined into the statistics of the question, which I have no doubt are very contradictory, because very opposite results are stated at different places, with the effect of creating very great distrust in statistics altogether on that subject. In the experience of those countries where Acts similar to these have been very much Edition: current; Page: [364] longer in operation, it is certainly found that a vast quantity of prostitutes escape the operation of them altogether; that the process to which women are subjected by it is so extremely offensive and odious, that there is a great quantity of clandestine prostitution; and therefore it may well happen—I do not pretend knowledge on the subject—that the introduction of these Acts in places where they have not prevailed before, may be attended with a considerable diminution of avowed prostitution, without any diminution of real prostitution. I may now say, as I did not say it before, that another reason which appears to me very strong against the system of these Acts is, that they have a decided tendency to increase the class of prostitutes. Even if it is only by the fact that a considerable number of them are withdrawn from their profession periodically, the vacancy or gap that is thus made, as the demand calls forth a supply, has a natural tendency to be filled up by additional prostitutes being brought into the profession. That is independent of another argument, which may also be urged, that in so far as the Acts are supposed to afford increased security to the men who frequent these women, it is liable to produce an increased demand for prostitutes, and therefore bring forth in that way an increased supply. But independently of that, which is an argument I have no doubt the Commission are perfectly familiar with—the mere taking away forcibly from the competition of a certain per-centage of the prostitutes for a certain time, naturally tends to have that vacancy filled up by healthy persons from other quarters.

I think I may ask you whether that is not rather a fear than any fact established by proof? As I have already mentioned, I have not studied the details, and cannot say that I know as a matter of fact that it is so, though accounts I have read, and which appear to me reliable, as to what takes place on the Continent, appear to me very strong evidence that that is actually the case there. Whether it is the case here may be matter of dispute. It may perhaps not be the case yet—it may be the case hereafter, though not the case already, or it may be the case without being detected. I know nothing practically about the matter, but it appears to me that there is the tendency, and that the law which produces it is as strong as any law in political economy.

Excuse me saying that I think your answer to my question about children did not quite meet the question. I asked you whether, assuming such to be the case, having first told you the strong evidence we had, whether that fact would reconcile you in any degree to the operation of the Acts, and your answer was that you distrusted such statistics. I did not ask you that, but assuming those to be accurate, whether such an important fact would reconcile you in any degree to the operation of the Acts? If we are to enter into one part of the question only, the degree of efficacy of the Acts for their professed purpose, of course any increased efficacy furnishes an additional argument for the Acts. But no argument that can be produced of that kind, or I believe ever has been produced, would seem to me to overbear the very strong arguments of other kinds against the operation of such Acts, therefore my Edition: current; Page: [365] opinion would not be favourable to the Acts, supposing the circumstances you mention to be finally confirmed.

If the existence of such a fact would not reconcile you to the ⁿprinciplesⁿ of the Acts, would it not at least make you thankful that such a result had ensued? Of course anybody must be thankful for such a result, from whatever cause.

In following up the same part of the subject, may I ask you whether you think it would be inconsistent with due regard to the liberty of the subject, if such young creatures as I have referred to, and you must be aware that such must be the case in all our crowded populations, if the law authorised the detention of such young creatures as I have described, when once convicted of prostitution, in homes or refuges for their subsequent reclamation? I am not prepared to say that might not be a good measure. I perhaps would go further for the protection of extremely young persons than most people would. I should not be adverse to strengthening and extending the laws which at present exist against intercourse of any kind with girls below a certain age. I should not be at all adverse to raising considerably the age below which it should be prohibited.

We have had strong evidence with regard to the moral effects of these Acts, and a number of cases in which through the agency of these Acts, by first being taken into a hospital, where moral effects are produced as well as physical, and then being sent to a refuge, numbers of young women have been reclaimed from vice and restored to a virtuous life, and in many instances married. Would such a fact as that reconcile you to the operation of these Acts? I think ^othese^o effects might just as well be produced by the mere existence of hospitals, by receiving them into hospitals, having proper hospital accommodation for them, and when there having them attended by those benevolent and excellent people who undertake their reclamation.

Are you now contemplating voluntary hospitals or hospitals supported by the State? Either. I have already stated I should object to hospitals supported by the State for this particular disease exclusively, but if contagious diseases generally were considered a proper subject for the State to take under its charge, I should not object to those being included.

Supposing these abandoned women did not go into them, what would you do then? Suppose they did not go in, I do not see how anything could be done.

Then your remedy would fail? Yes; but the women who would not go in would be those on whom the remedy would be the least likely to be effectual.

Supposing they did go in and would not stay when they were there, what would you do? I should not be prepared to give any compulsory power to detain them.

You would let them come out and spread disease right and left, rather than do good? I do not think it is the business of legislation of this kind to take special care Edition: current; Page: [366] either of the women who practise this profession, or of the men who frequent them. I apprehend that the real object for which these Acts are most defensible, if defensible at all, is the protection of the innocent, and as long as people are not liable to be infected without exposing themselves to it, I should say you do enough for them if you offer them the means of cure provided they accept it.

We have very strong evidence before us to this effect, that the Acts in certain localities have greatly diminished the number of common prostitutes, and have had the effect of raising the lowest and most demoralised portion of that class to a comparatively more decent and more respectable state of life—would not you acknowledge that to be a good effect? Stated as you have stated it, any such effect, however produced, is good pro tanto.

I am only putting to you that which we have before us in evidence. Precisely so, but I should consider, if any effect of that sort is produced, it is produced by a process, not applicable specially to prostitution, but to the criminal and vicious classes, the dangerous classes altogether, all of whom may have some amount of good done them if attention is paid to them by benevolent persons, or, it may be by persons employed by the Government. It would not be beyond the proper function of the State to take means of making these persons understand that they are not considered as totally unworthy of any kind of regard or consideration by the rest of their fellow-creatures, but that it is the object to reclaim them, and do them as much good as their condition makes them susceptible of. Such measures, at all events, might be applied to the dangerous classes generally, much more than ever has been done yet. I should not see the least objection to applying such measures to prostitutes also, but that would not require Acts of this description.

We have before us evidence of such a nature as I think hardly you or anybody else whose attention has not been called to it can imagine, with regard to the state not only of degradation but of physical disease, amounting to absolute rottenness, that the women have been found in in the neighbourhood of our camps, I think if I remember right such a state as almost to lead to the idea of falling to pieces; now looking at the fact of a human being in such a horrible state as this, would you leave those women to rot and die under the hedges, rather than pass such Acts as these to save them? I do not think it is quite fair to put the question exactly in that manner, because I am inclined to think that I should approve very much more decided measures of that sort with regard to the destitute classes generally than are now in practice. I should say, if you found a person in this last stage of consumption, or any other very wretched disease, it might be advisable and right to lay hold of that person and give him or her relief or proper medical treatment, and under proper medical regulation, and whatever relief of that sort I gave to others I would give to these women. What I object to is having special legislation for those women, which would have the effect of singling them out for a special cure, to which persons with other equally bad diseases are not subject.

I apprehend that I may take your answer as being in effect in the affirmative. You Edition: current; Page: [367] would rather leave these women to die and rot under hedges than pass these Acts and save them? I do not think that a fair way of putting the question, because I think they could be just as well saved without these Acts. I would do a great deal for the purpose of affording relief to persons who were found in an extremely bad state of disease, and in a state of destitution. I would not do more for those than others; and certainly the fact that there are such persons would not reconcile me to these Acts, because I think these Acts do a great deal of mischief in other ways, which is not at all necessary to be done for the sake of affording relief to those people, without giving it in common to all others who have an equal claim to it.

I apprehend that I can take that as an affirmative answer. My inference is that you would trust in such a case to the ordinary operation of the poor law?^[*] I have not such a very high opinion of the administration of the poor laws as not to think it admits of great improvement in that respect as in others, and such improvement I should be glad to see, though I am not prepared to say exactly what it should be.

But the poor law has long been in operation and has not had the effect of rescuing these poor creatures from suffering, therefore is it not a fair inference that they are insufficient to meet that case? That is a defect in the poor law, but some other means should be in practice for the relief of disease Disease is a proper subject for a special branch of administration.

You would suggest that some remedy should be afforded for so horrible an evil, but you would rather it should not be the remedy we are now trusting to? Precisely.

Though that remedy has been proved signally successful? Yes, but if it has been signally successful, I think it has been by means and in a manner which ought equally to be applied to other diseases, if applied at all, and it would be equally effectual without the Acts.

We have before us evidence to the effect that from the fear of coming under the cognizance of the police, these Acts have had the effect of deterring young women from practising that clandestine prostitution which they previously did. Now assuming this evidence to be consistent with the facts. I would ask you whether you do not consider, that whatever your objections to the ^pprinciples^p of these Acts are, they have produced good results? Undoubtedly that result taken by itself, must be considered a good result by every one. It is, however, to be weighed against the probability that in other cases an opposite result might be produced, for which also strong presumption can be shown.

You stated an opinion, and it is an opinion which other witnesses also strongly stated, that the examination of the persons which is authorised by the Acts is very degrading to those women, that is your opinion? I dare say there are some of them to whom nothing is degrading, they are so degraded already, but there is reason to Edition: current; Page: [368] believe that there are many of them who have a considerable quantity of modesty left, and to whom therefore it is degrading.

Your answer rather anticipates the next question I was going to put to you, which is whether taking the case of a woman who submits herself daily to prostitution in three or four instances, and lives that miserable life, which do you think is the real degradation to that woman; is it the life that she leads, or the fact that she subsequently undergoes examination in order to cure the evils which have arisen from that disgraceful life? I think both are degrading, but degradation for degradation, that which is compulsory seems to me always more degrading in its effects on the character than what is done voluntarily.

Am I to understand from that answer that you think the fact of such an examination is more degrading to such a woman than the debauched life she leads? I think it adds considerably to the degradation already caused by the debauched life.

sir walter james: It is an additional degradation? An additional degradation.

anthony john mundella: If we have evidence before us that many young people have been removed from prostitution in the streets by the operation of the Acts, are you not of opinion that we might also remove those young persons from the streets without subjecting them to this examination and making them healthy for prostitution? Certainly I think so. I think that what removes them from the streets is the moral effect which is produced in their minds, and the chance of producing this effect is likely to be lessened by subjecting them to an offensive and what must be considered a tyrannical operation by the force of law. I should think that must tend in some degree to counteract the good effect which no doubt was produced by the moral influences that were brought to bear on them during their detention, which are no doubt the real cause of reclaiming them so far as they are reclaimed, and therefore they might be applied more effectually without the machinery of the Acts.

You are familiar with the compulsory education which exists on the continent and elsewhere, and have written a good deal on the duties of the State towards young children. Should you think it any interference with personal liberty, if girls under a certain age found practising prostitution were taken up and put into some industrial home? I certainly do not think there would be any objection to that. I think the objection to the interference with personal liberty begins when the age of education, properly so called, ceases. Where a person is under age, and in a position which must counteract very much all the good influences of education, and substitute bad ones, it is always open to the consideration of the State whether they cannot withdraw young persons from those bad influences. I have already mentioned that I would go still further, and be inclined to extend very much the operation of the penal laws which now exist against intercourse with girls under age. I would raise the age below which that is an offence by law, very considerably, though I have not considered up to what point.

I was going to ask you up to what age you would think the State would be justified in interfering to prevent prostitution? I should think certainly up to 17 or 18, up to the age when what is commonly called education ordinarily finishes. Possibly it might be extended with propriety until the girl was legally of age, but on that I would not undertake to give an opinion.

Do you think it any interference with the liberty of the subject to prevent solicitation in the streets? No; I think that is the duty of the police, in order to preserve the order of the streets.

Sir John Pakington has referred to the wretched women who haunt the camps.^[*] Do you see any means of clearing the camps from those wretched women, without subjecting them to these examinations and healing them for the purpose of prostitution with soldiers? That is a matter of police and the military discipline of camps, which I am not conversant with. I should think much stronger things than that are justified by military discipline.

As I have understood your evidence, from what I heard in cross-examination, I gather that you would attack this evil of prostitution rather in its cause than deal with its consequences? I would deal with the consequences by means of hospitals, and combat the disease after it has been contracted, only taking care not to do this in such a way as would seem to take the persons who have that disease under the special protection of the State in a degree in which others persons equally diseased were not taken.

If we have evidence before us that brothel-keepers are constantly communicated with by the police, and that beer-houses and public-houses are used as brothels in large numbers, and are well known to the local authorities, do not you think the State would be justified in interfering with that class of persons? Clearly it ought to be a forfeiture of the license of a public-house or beer-house to use it as a brothel.

But suppose it is not a beer-house, would you prosecute brothel-keepers? That is an extremely difficult question, and I would rather not give a positive opinion about it, because so many pros and cons have occurred to me when I have thought about it that I have found it very difficult to make up my mind.

robert applegarth: You conceive it to be the duty of the State to deal with girls and boys up to the age of 16; may I ask you whether you consider it to be the duty of the State to insist that children should be sent to school up to that age? I cannot pretend to say exactly up to what age. I do think the State has a right, and is bound whenever circumstances admit, to insist on all children who are born into the community receiving education up to a certain point, and also to give facilities for educating them still higher.

And I suppose you consider that if the State did its duty in that respect, we should have in addition to better educated people, a higher standard of morality amongst the people? That is one of the greatest reasons for desiring it.

And therefore we should probably have less prostitution? I should think so.

Is it your opinion that sending children to work at a young age instead of to school leads to immoral practices, and ultimately prostitution? I should think it extremely probable from what I have heard and read. I have no knowledge on the subject.

In your opinion, if the laws in existence against seduction and bastardy and in other respects were strengthened and made of real practical use, would it have a tendency to diminish prostitution? I do not know whether it would have a tendency to reduce prostitution, but that is not the only thing to be considered, because it might have a tendency to increase other kinds of illicit intercourse. When the laws relating to bastardy made a greater attempt to enforce the obligation upon the seducer than is the case now, they did produce very demoralizing effects upon many women.^[*] I do not mean to give an express opinion as to how far the law might properly go on that subject. At present my feeling is against any attempt, however much it may be agreeable to one’s moral feelings, to restrain illicit intercourse in that way.

Whilst you are opposed to the Acts, I understand you are not opposed to an attempt being made by the State to diminish the amount of disease by providing hospitals? Yes, providing always it is not done with special favour to this class of diseases, but forms part of a general system, such a system as it may be thought advisable by the State to adopt, with a view of getting rid of serious and especially contagious diseases, as far as possible, throughout the community.

And would you advise that there should be provided special Lock Hospitals, or that people suffering from this disease should be treated in lock wards in general hospitals? I should prefer lock wards; because lock hospitals are a special provision for this particular class of disease, and that appears to me to be undesirable.

Do you think providing Lock Hospitals for the treatment of this disease would have a tendency to induce inquiries on the part of young children which parents would be ashamed to answer, and thus produce a bad moral effect? That might be one objection; but the grand objection I have to it is to any measure taken specially with reference to this class of disease. The general impression it would make, however contrary to the intention of those who support it, would be that the State patronises the class of practices by which these diseases are engendered, since it considers those who contract ^qthese^q diseases as worthy of more attention, and takes more pains to remedy the consequences, than those who have other diseases equally serious.

Is it your opinion that these Acts have done any physical good at all? I have really no means of judging. I am not acquainted with the details. No doubt the evidence taken before this Commission will be expected to throw light on this subject.

Is it your opinion that morally they have done harm? I cannot tell whether they have actually done harm, but it seems to me their natural effect is to do harm.

You think that the tendency of them is to do moral injury? I do think so, because I hardly think it possible for thoughtless people not to infer, when special precautions are taken to make a course which is generally considered worthy of disapprobation safer than it would naturally be, that it cannot be considered very bad by the law, and possibly may be considered as either not bad at all, or at any rate a necessary evil.