(Lectt. 12-27). The long (124 pages) and important Lecture 6, which contains the subject-matter of the apparently omitted Lectures 7-11, enters largely into the question of the historical origin of law. And this question is so closely bound up, not only in Austin's reasoning but in the nature of things, with the definition of law, that I have been obliged, after originally adopting another arrangement, to take them together. The subject recurs, to a certain extent, in Austin's "Law in relation to its sources and the modes in which it begins and ends" (Lectt. 28-39). But my endeavour has been to treat this last-named portion of Austin as mainly bearing on the latter part of the second topic mentioned above, i.e. the modes in which law is made and the form in which it comes down to us. The third topic-the subdivisions of law-coincides with Austin's "Law considered with reference to its Purposes and the Subjects with which it is conversant" (Lectt. 40-57), and the first half of the "Analysis of Pervading Notions" so far as not already considered. Lectures 18-27 in the last-mentioned portion of Austin's work deal mainly with psychological questions of consciousness entering into the subject of legal responsibility, which I have endeavoured to treat in a separate book". Into the more detailed consideration of particular rights and duties which occupies several of the lectures and fragments at the end of the "Jurisprudence" I do not propose to enter. After what has been said above, I need not disclaim any wish or expectation to supersede Austin. Indeed my object throughout has been rather to systematise and preserve what seemed best in former authors, than to add fresh views of my own. But some service may certainly be done, in the present one-sided study of English jurisprudence to which I have alluded, by setting forth, in full, the passages, from 7 An Analysis of Criminal Liability. Cambridge University Press, 1880. other authorities, on which Austin comments, which are not always very easy to find, and which are accordingly, if my experience as an examiner goes for anything, very seldom found. I have, finally, to express my thanks to Cambridge friends for many valuable suggestions and correctionsnotably to Professors Cowell and Skeat. Unfortunately for me, the latter gentleman's admirable Etymological Dictionary had not appeared before the greater part of this book was in type. I have had a similar loss with regard to the new issue of Bosworth's Anglo-Saxon Dictionary. In the case of certain books of more than one edition, it may be useful to note that the following are those to which reference is made: Austin, Jurisprudence. 3rd ed. 1869. Bentham, Traités de législation. 2nd ed. 1820. Blackstone, Chitty's, with the original paging printed in the margin. ton. Corssen, Aussprache, &c. 2nd ed. 1868. Curtius, Grundzüge. 5th ed. 1879. Hale, History of the Common Law, and Analysis. Running 1779. Hobbes, Leviathan. Holland, Elements of Jurisprudence. 2nd ed. 1882. 1651. des Instituts. 8th ed. 1870. Savigny, System des heutigen Römischen Rechts. 1840. Spence, Equitable Jurisdiction of the Court of Chancery. 1846. Teuffel, History of Roman literature. Wagner's translation. 1873. PART I. THE DEFINITION AND ORIGIN OF LAW. CHAPTER I. UNCONSCIOUS DEFINITION IN EARLY NAMES OF LAW. Unconscious definition, as shewn in early names of law. In opening one of the most brilliant and dramatic of all written dialogues, Plato puts into his master's mouth words, whose affected homeliness perhaps indicates some genuine speech of that strange original. "If there ever was a fellow," says Socrates, "who, in his talks with other fellows, wanted particularly to know exactly what he was talking about, I, you must know, am, or at least I believe I am, one of those fellows." In this artless, innocent way we come to definitions and counter-definitions, to the discomfiture of the successive definers, and ultimately to the rejection of popular views upon the particular subject, the substitution of a moral rule, and one of the most splendid theories of a future life ever conceived by man. For the object of the Gorgias is clearly didactic; it is a sermon rather than an 1 Plato, Gorgias 453. B. ¿yw yȧp...eva. Some such rigmarole as the above always seemed to me the only true rendering of this queer disjointed sentence --which I do not for a moment believe to be corrupt. investigation; for all its affected homeliness, it deals far more with exalted theory than with the actual facts of our every day world. In all definitions of practical matters there is some danger of doing unintentionally what Plato, of course, did intentionally—of straying from the ideas and meanings of ordinary men, in pursuit of what the definer conceives to be the more logical idea or the more correct meaning. Most prejudicial would such an error be in an account of law; which, as a matter of history, is of course confined within what is and has been, not what, either morally or logically, ought to be; which, as a matter of present existence, comprises, among its main factors and ingredients, those very popular feelings, those very unscientific opinions, which are theoretically demolished by the dialectic of Plato, and practically shaken by the analysis of Austin. The clearing of popular ideas-the discarding of any isolated notion obviously incongruous with those which it traditionally accompanies, is certainly desirable: still, in subjects not of speculation but of practice, to draw the tempting circle of a narrow logical definition will often be to exclude matter of indisputable reality and admitted utility. I wish, then, in defining, or leaving half-undefined, what we understand by the English word law, and certain corresponding terms in other languages, expressly to enquire what is and has been so understood by people in general: not merely by lawyers, and, still less, by philosophers and moralists. Upon that popular understanding rest in great measure the possibilities for the origination of law and the motives for obedience to it: so far as definitions express that popular understanding they appear to be valuable: beyond, there seems, I must confess, to me, little but idle hair-splitting or mischievous dogmatism. I use the expression, what is and has been understood, advisedly, because an attempt to arrive at the popular understanding, which is my object, by data exclusively modern, would certainly fail, for two reasons. First-the popular conception, the bundle of ideas connected by ordinary people with an old word, is not the work of any single generation but the growth of long time. In spite of the changes which such a conception generally undergoes, it is still a heritage of the past, and, without a reference to the past, some latent point is sure to escape us. Nor, in the second place, can we overlook a certain disturbing effect due to the modern attempts at strict or philosophical definition. The influence of these with the literary class, and with the more highly educated class of practical men, is very great; and, though I doubt whether they possess the same permanence as the popular conception, they can certainly cast it into the shade, and appear, for their term of existence, to supersede it. We must, then, go back to a period preceding that of definitions, philosophical or juridical, if we wish to grasp the popular conception of law. We must avail ourselves of the unconscious definition involved in the use of the oldest and simplest names by which that conception has been expressed. These names, if we can get at their original meaning, will obviously preserve to us that property, which the men, who used the word, considered most important or most striking in the thing. An enquiry of this kind might be carried, with interest and profit, into the whole number of lawabiding peoples, past and present; and, in proportion to its extent, would probably be the truth of the generalisation obtained. But so wide a treatment of the subject would be totally inconsistent with the space that can be devoted to it in the present work. I can only, therefore, take certain leading instances, drawn from languages within our own |