lower animals; as, for instance, when we talk of laws of motion; of laws observed by the lower animals; of laws regulating the growth and decay of vegetables, and the like: a metaphor which, flagrant as it is, has done more to confuse the science of jurisprudence than will readily be believed by those who are not conversant with the writings of the most celebrated jurists both ancient and modern.*

The whole field of law, therefore, as well that properly as that improperly so styled (but excluding that which is so called by mere metaphor), is divided by our author into three departments. 1. The first comprises the laws set by God to men. These, which are sometimes styled the natural law, or the law of nature, and so are not unfrequently confounded with the so-called law, in the mere metaphorical sense which we have adverted to, our author styles the Divine law, or the law of God.

2. The second comprises that division or class of human laws which consists of laws set by political superiors or persons delegated by them; and

3. The third comprises that division or class of human laws, properly so called, which consists of laws set by men, not being political superiors; and also those improperly styled laws which are closely analogous to laws properly so called, but are, in fact, merely opinions or sentiments of men in regard to human conduct.+

The second of these departments, as we have said, is the peculiar province of jurisprudence; and to this our author gives the name of positive law. He thus defines it:-" Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person

The following passage, which is the first sentence in Montesquieu's celebrated treatise "De l'Esprit des Lois," may serve to give some notion how objects the most widely different are sometimes blended and confounded: and when the author proceeds, as he does, to argue from the one to the other, the reader may guess whether elucidation of the subject in hand, or obscurity, is more likely to be the result. "Les lois dans la signification la plus étendue, sont les rapports nécessaires qui dérivent de la nature des choses: et dans ce sens tous les êtres ont leur lois : la Divinité a ses lois; le monde matériel a ses lois ; les intelligences supérieurs à l'homme ont leurs lois; les bêtes ont leurs lois; l'homme a ses lois." The same confusion of laws imperative and proper, with laws which are merely such by perversion of the term, is observable in Blackstone's disquisition on the nature of laws in general.

Our author's division is, in the main, the same as that given incidentally by Locke, in that part of his Essay on the Human Understanding in which he is inquiring into the nature of relation. B. ii. c. 18. The whole passage is cited in the fifth lecture in a somewhat condensed form; and it presents a striking instance of the vigour of thought and rectitude of judgment which characterise the investigations of that incomparable man, into whatever region they are directed, and causes infinite regret that he did not make the present the subject of separate and exact inquiry.

or body is sovereign or supreme. Or (changing the expression) it is set by a monarch or sovereign number to a person or persons in a state of subjection to its author." The term positive, that is, existing by position, he has adopted, as serving more commodiously than any other to distinguish this department of law at once from the divine law and from that division of human law, properly so called, which, as not being set by political superiors, our author refers to the head of morality.

In like manner, to the third department our author gives the name of positive morality, in order to distinguish morality as actually obtaining in any given society, from that portion of the Divine law, or morality as it ought to be, with which it is frequently confounded. By the common epithet, positive" (he says, in a note to page 130), "I denote that both classes flow from human sources. By the distinctive names law and morality

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I denote the difference between the human sources from which the two classes respectively emanate."

The immediate and proper business of the professor of jurisprudence is with the science of positive law as thus defined; but in order to be able to deal satisfactorily with his subject, it was necessary to clear the way by accurately distinguishing positive laws from those other kinds of law, properly and improperly so called, to which they are closely analagous, and with which they are frequently confounded. And this is the purpose of the six lectures on the province of jurisprudence which we are examining.

Our author accordingly proceeds, in the first lecture, to examine and determine the essentials of a law or rule, taken with the largest signification which can, properly, be given to the term.

In the second, third, and fourth, he examines the marks or characters by which the laws of God are distinguished from other laws; and he also discusses the different hypotheses which have obtained with regard to the nature of the index to the unrevealed portion of the Divine laws.

In the fifth lecture he examines the distinguishing marks of those positive moral rules which are laws properly so called, and of those which are styled laws or rules by an analogical extension of the term; and he notices shortly the nature of those which, in a metaphorical sense merely, are sometimes styled laws.

And he concludes by examining and defining in the sixth lecture the marks which distinguish positive laws, or laws strictly so called.

The first lecture is employed in determining what is meant by a law. It certainly is of importance to know, at the outset, precisely what a law is, though the task of defining it is by no means an easy one. "The elements of a science," as our author observes, "are precisely the parts of it which are explained least easily.

Terms that are the largest, and therefore the simplest, of a series, are without equivalent expressions into which we can resolve them concisely. And when we endeavour to define them, or to translate them into terms which we suppose are better understood, we are forced upon awkward and tedious circumlocutions." He thus explains the meaning of the term command.

"If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding, to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me, in case I comply not with your wish, the expression of your wish is not a command, although you utter your wish in imperative phrase. If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request. • Preces erant, sed quibus contradici non posset.' Such is the language of Tacitus, when speaking of a petition by the soldiery to a son and lieutenant of Vespasian. pp. 6, 7.

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Having adverted to the terms duty and sanction, which he shows are inseparably connected with the term command, each of the three embracing the same ideas as the others, though each denotes those ideas in a peculiar order or series, he proceeds to distinguish laws (which are a species of commands), from those other kinds of commands which, being occasional or particular, are not, properly speaking, laws; and this part of his subject he illustrates with a number of striking and familiar instances. He then defines a law as follows:

"A law is a command which obliges a person or persons.

"But, as contradistinguished or opposed to an occasional or particular command, a law is a command which obliges a person or persons, and obliges generally to acts or forbearances of a class.

"In language more popular, but less distinct and precise, a law is a command which obliges a person or persons to a course of conduct." p. 18.

The rest of this lecture is taken up in discussing a number of subordinate topics which, from their not being clearly understood, have tended to embarrass and perplex the study of the science of law. Amongst others, he notices the laws of imperfect obligation of the Roman jurists, which he shows to be no laws at all; and the laws styled customary, which he shows to belong strictly to the class of positive laws established by the state.

The Divine law is the subject of the next three lectures. With regard to that portion of the Divine laws which God has been

pleased to reveal, there is, as our author observes, no difficulty"They are express commands: portions of the Word of God: commands signified to men through the medium of human language, and uttered by God directly, or by servants whom he sends to announce them."

The unrevealed portion of his laws, the Deity has left to be discovered by the light of nature, or reason, and the question arises, by what marks or signs has God made known to his rational creatures this portion of his law?

There are two theories by which it is attempted to solve this question. The first is that which is commonly called the hypothesis or theory of a moral sense; or of innate practical principles; or of a practical reason; or of common sense, &c. According to this theory, "there are human actions which all mankind approve, human actions which all men disapprove; and these universal sentiments arise at the thought of those actions, spontaneously, instantly, and inevitably. Being common to all mankind, and inseparable from the thoughts of those actions, these sentiments are marks or signs of the Divine pleasure. They are proofs that the actions which excite them are enjoined or forbidden by the Deity.

The other is what is commonly called the theory of utility. It is thus summarily stated by our author :

According to the other of the adverse theories or hypotheses, the laws of God, which are not revealed or promulged, must be gathered by man from the goodness of God, and from the tendencies of human actions. In other words, the benevolence of God, with the principle of general utility, is our only index or guide to his unrevealed law.

Some

"God designs the happiness of all his sentient creatures. human actions forward that benevolent purpose, or their tendencies are beneficent or useful. Other human actions are adverse to that purpose, or their tendencies are mischievous or pernicious. The former, as promoting his purpose, God has enjoined. The latter, as opposed to his purpose, God has forbidden. He has given us the faculty of observing; of remembering; of reasoning: and, by duly applying those faculties, we may collect the tendencies of our actions. Knowing the tendencies of our actions, and knowing his benevolent purpose, we know his tacit commands." pp. 35, 36.

There is also an intermediate theory, compounded of the two, and according to which the moral sense is our index to some of the commands of the Deity; but the principle of general utility is our index to others. It is this intermediate hypothesis which has given rise to the division, by the classical Roman jurists, of jus civile (or positive law), into jus gentium and jus civile, and the consequent division of crimes into crimes jure gentium and crimes jure civili; and to the corresponding division, by modern writers on jurisprudence, of positive law into law natural and law positive, and the

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consequent division of crimes into crimes which are mala in se and crimes which are mala quia prohibita.

The two principal theories are examined and discussed at some length, and with considerable novelty of illustration; and the question is disposed of (we need hardly say, in favour of the theory of utility) in a manner that leaves little to be desired. We shall not attempt to follow our author through his elaborate argument; the question being one which, though quite necessary to be determined in a complete inquiry into the rationale of jurisprudence, yet belongs more immediately to the science of ethics than to that which is the appropriate matter of this publication; and we shall content ourselves, therefore, with extracting a few passages, which have particularly struck us in our perusal of this part of the work. Having adverted to a very prevalent objection to the theory of utility, founded on the erroneous assumption that, according to this theory, every act of our lives must be preceded by a calculation of consequences; or, in other words, that our conduct must on all occasions be determined by an immediate or direct resort to the principle; and having shown, with great clearness, that if our conduct were truly adjusted to the principle of general utility, it would, for the most part, be guided by rules or maxims, and by moral sentiments founded on those rules (the rules themselves emanating from the Deity, and to which the useful or pernicious tendencies of human actions are the guide or index), he thus explains one of the very few anomalous cases in which it is necessary to make a direct resort to the principle:

"There certainly are cases (of comparatively rare occurrence) wherein the specific considerations balance or outweigh the general: cases which (in the language of Bacon) are immersed in matter:' cases perplexed with peculiarities from which it were dangerous to abstract them; and to which our attention would be directed, if we were true to our presiding principle. It were mischievous to depart from a rule which regarded any of these cases; since every departure from a rule tends to weaken its authority. But so important were the specific consequences which would follow our resolves, that the evil of observing the rule might surpass the evil of breaking it. Looking at the reasons from which we had inferred the rule, it were absurd to think it inflexible. We should, therefore, dismiss the rule; resort directly to the principle upon which our rules were fashioned; and calculate specific consequences to the best of our knowledge and ability.

"For example, If we take the principle of utility as our index to the Divine commands, we must infer that obedience to established government is enjoined generally by the Deity. For, without obedience to the powers which be,' there were little security and little enjoyment. The ground, however, of the inference, is the utility of government: and if the protection which it yields be too costly, or if it vex us with needless restraints and load us with needless exactions, the principle which points at submission as our general duty may counsel and justify resistance. Disobedience to an established government, let it be never so bad, is an