PH IL O S O PHY OF R I GHT

WITH S PECIAL REFERENCE T O T HE

PRINCIPLES AND DEVELOPMENT OF LAW.

DI O DAT O L I O Y ,

P RO FESSO R IN TH E U NIVERS IT Y O F NAPLES.

T R AN SL A T E D F R O M T H E I T AL I AN B Y

W. HAS T IE,M.A.

,B.D .

,

T RANS LATO R O F KANT ’

S“P H I L O S O PHY O F LAW ;

“ov

'exs O F JURIS PRUDENCE BY ma ; AND

BR UNNER'

S“ SO UR CES O F TH E LAW O F ENG LAND.

I N T WO VO L UMES.

VO L . I .

L O ND O N

KEGAN PAUL , T RENCH ,T RUBNER

,co .

,L T D

1 89 1 .

Ebis C tanslation

R EVER ENT LY AND G RAT EFU L L Y DEDICAT ED

G bememorg of

? AME S L O R IME R , L L .D

DR . JU R . BO LOG NA ; H ON. H EM. O F U NIVER SIT IES O F MO S COW AND S T . PET ERSBU RG

MEMBER O F T HE ACADEMY O F JUBI S PR UDENCE O F MADRID ; ASSO CI ATEO F TH E ROYAL ACADEMY O F BELG IUM ;

L AT E P ROFES SOR O F P UBLIC LAW AND O F T H E L AW O F NAT UR E

AND NATIO NS IN T H E U NIVER S ITY O F EDINBU R G H .

Cuj Pudor,et Justifizesoror,Incom pta F ides, nudaqueVeritasQuando ul lum inveniet parem

2033551

Nostris septentrionalibus eruditis acumen atqueeruditionem non

minus apud I talos invanit i, quam apud ipsos imo vero doct ioraet acut iordici ah Italis, quam quaea frigidiorum orarum incolisexpectari queant .”Lnomzno in Letter to Vice.

-But what of I taly ? I taly is theland on which , sinceGermanywent on thewar-path,

’

themantleof scientific jurisprudenceseems to

havefallen.

"—Pnon ssonLO RIMER .

TRANSLAT OR’

S PREFACE .

ITALY has again become the living and fruitful home ofthe Science of Law. The ancient spirit of the “ Peopleo f Right ” was never dead

,however it may have seemed

to slumber ; and it is now breathing again with all th efreshness and fulnes s of the new time . The Nineteen thCentury has not had anything to show more fair than theachievement of I talian independence and the organisationin the new national unity of Italian liberty. For this hasbeen wholly the work of the Spiri t of Righ t in i ts struggleWi th political and ecclesiastical despotism, and it has beenrealised by the strength of essential jus tice, even in theface of external defeat and disaster. That spirit

,thus

quickened and deepened in i tsel f, is now flowing in a

freer and richer stream through the new national channels,

and is beginning to mingle once more with the progressive .

des t inie s of the emancipated peoples. Modern Italy hasthus entered anew upon her special birthright

,and is

vindicating her claim to be not only the inheritor,but the

con tinuator,of the jural spirit of Ancient Rome .

The true glory of Ancient Rome undoubtedly lay inthe power of her Legislation . As Rudolph Von Iheringhas well observ ed

,Rome has thrice dictated laws to the

world and given unity to the peeples. This was seen thefirst time in the Ancient Roman Empire ; the second t imein the Mediaeval Roman Church ; and the third time inthe reception by the new European Na tions of the oldRoman Law . These three outstanding historical fac ts

v iii T RANS L AT O R’S PREPA CE .

H istory will not fail to find in the essentially jural Sp iritof the Roman people the inner force that determined thepoli tical and ecclesias tical forms of supremacy, the unifying factor of the whole movement, and the element in itof chief significancefor the modernworld . The legislativemission of Ancient Rome— or, as it has been aptly called,

her “ predestination to the cultivation of Right ”— has, in

fac t,become a commonplace with the philosophical his

torian and the scientific jurist. It constituted what wasmos t characteristic in the consciousness of the Romanpeople. It formed the habit of their great leaders inpeace and war

, and it stimulated the makers of theircolossal Empire. I t animated their historians and inspired their poets ; and it gave its character to all theproducts of Roman thought. Above all , it made theirlegislators and orators to be what they were

,and authent i

cated itself in the whole o f their civdising work. H enceit was that the System of Legislation which they createdand embodied in the world proved so exceptionally substantial and lasting, and tha t the Roman Jurists became ,in their own sphere , what the philosophers and artis tsof Greece had been in theirs

,sovereign and permanent

mas ters of the world in the department of Law.

1

The deeper students of the philosophy of history in theNineteenth Century have not estimated the greatness ofthe ancient Roman Law less justly than their predecessors, while they have given profounder explanationsof its essence and function. Following in the line ofVico and Niebuhr, H egel has grasped and elucidated w ithcharacteristic vigour and originality the essence of thepolitical and legal developmen t of the Roman People .

Hehas pointed out how the social condition of theV ico has summed up this point R omani nominis gloria. orta est .

o f v iew in oneexpressivephrase: Deuno universi Jwris principm,“ Ex hac autein Juris tutela omnis clxxiv.

T RANS L AT O R'

S P R E FACE . ix

beginnings of the City determined the dominant no teof the development. Characterising its founders in thesevere terms already formulated bv Gibbon as “ a bando f robbers

,

”H egel sees in the force and deliberativeness of

their association the germ of the Roman System of Government and Righ t. Hehas briefly but incisively outlinedthe prosaic

,reflective, and formal character o f the Roman

world,and he finds its distinctive principle in the universal

abstract idea of personality as the basis o f right. Gans ,Ahrens

,and others have followed H egel’s view in its essen

tial points ; while I hering, wi th all his insight into thespirit of the Roman Law

,has only formulated it in a more

one-sided and popular way by defining the motive of theRoman universality to be “

selfishness,and designating

the Roman character generally as the System of disciplined Egoism .

” Professor Carle of Turin has rightlyobjected to this formula that it applies too general ly tothe peoples to be special to any one of them

,and finds

the dis tin ctive character of the Roman People to lie ratherin their “ disciplined Will . Again , Professor Bovio ofNaples w ill h ave it that what the Roman world speciallyexemplifies i s the distinctive rise of Naturalism in history

,and that it thus formed the transition in the gradual

evolution of society from the H ellenic civism to the Germanic individualism.

1

These and kindred views cannot be followed in theinterest of their detail here

,nor can they even be dis

cussed generally, but they help us to understand andappreciate both the significanceand the limitations ofthe Roman Law and Jurisprudence . The civic life o fAncient Rome was c onsciously founded upon a com

munity o f will,which was established

,maintained

,and

extended by force,as the source of all individual and

social right ; and from the outset the idea of liberty was

1 Hegel , Werke, ix . p. 289 ; G ib Vita del dimtto, p. 1 70 ; Bov io ,bon, ch . xlix. ; I hering, Geist des maria della S turia dd diritto in

romischm Rechts, Bd. i. 20 ; Carlo, I talia, Cap. Settimo.

TRANSLAT O R’S PREPA CE .

identified with privileged participation in this sovereignpower

.While the common supreme will was thus accen

tuated in the Roman State as the source of right in di stinction from the theocratic legislations of the O rientalpeoples

,or the arbitrary wills of their individual despots ,

i t also obtained more coherence, purity, and substantiali tythan it had ever acquired among the mobile and versatilepopulations of Greece from its being continually determined in detail by deliberative discussion and enactmentthrough carefully devised legislative organs kept in livingrelation with all the social movement and developmentof the people . These social and political conditions ofAncien t Rome not only emphasised the supremacy of thehuman will over nature, but made manifest its creativefunction in the formation and maintenance of humansociety as a living world capable of being sustainedand perpetuated by its own strength and laws. Thenecessities of the Roman Citizen and the practicalbent impressed by them upon him thus gave specialreality to the civil forms of will

,and in their real isa

tion he found that satisfaction which the O riental peopleshad found in the symbolical forms of religion and theGreeks in the beautiful forms of art. But these formswere entirely conventional

,empirical

,and conditional in

their origin at Rome ; and the will to which they gave expression had its subsistence only in the civil community

,

so that every relation and form of right was groundedupon it. H ence the abstract and external positivismof the Roman system of right

,which was never truly

universal in its essence or applications,and the relativity

and contingency of all its particular rights.The indi

vidual had a jural capacity and personality only in so faras he happened to have his life lifted up into the sphereof the civil will, and the highest purpose of that life wasthe aggrandisement of the State and enjoyment of theu tilities it brought with it. The public utilitarianismwas only the general form of theparticular self-interest

T RANS LAT O R’S PR EPA CE . xi

oi the individual citizens . The extension of the original

jus civileby the jus gentium did not change its character,and the jus naturalewas only an alien philosophicalinfusion introduced by Cicero and the Jurists into theirexpression of the system from the s chools of Greece

,and

especially from the Stoics .1 Thus slavery was acceptedand justified as an ins titution of the jug gentium ; andthe ex tension of the citizenship was only granted on theground of expediency and not of right. The Cons titutionof Caracalla

,whi ch ultimately extended the right of

citizenship to all the freemen of the Empire,was motived

by a selfish consideration ; and it only loaded the recipients of it with a heavier taxation without giving themany effective participa tion in the central government.The ancient system of Roman L aw

,founded as it was

upon a convention of fo i ce and maintained by a disciplined sel f-interest, never essentially realis ed throughoutits indefiniterange the inherent rights of humanity orthe spiritual essence of l iberty. Wi th all its acu te andminu te determinations of the external condi tions of ownership and the manifold forms of contract and obligation

,it

never recognised the rational will as the essential basis ofpersonality nor unfolded the free relationships of the familylife. Although i t presen ts the highest development ofthe Aryan conception of Right in the ancient world

,it

stil l retains the naturalistic basis of the ancient life evenin its constant and perpe tual will.” The more it becameseparated from the vital cus toms and usages of the earlyt imes

,and was unfolded as a logical system through its

unrivalled technical development,

2 the more formal and

1 T helateProfessorMuirheadhas 2 Leibniz compares thework o f

excel led all his predecessors in t hetheR oman Jurisconsul ts with thatclearness andaccuracy W ith wh ich heof theMathematicians D ix ihas traced thedevelopment of t hesaepius, post scripta geometrarumR oman L aw through its stages of nihil ex tare, quod v i ao sub t ilitatet heJus civ ile, Jus gentiwm, and Jus cum R omanorum Jureconsul torumnaturalein his H istorical Introduc script is comparat i possit .

”

t ion to theP 1 ivateLaw of R ome, 1886.

x ii T RANS L AT O R’S PREPA CE .

mechanical did it become,and the more clearly did the

necessity of an equitable tempering of its inherent limitations appear. The more widely, too, it was spread withthe extension of the Empire, the more it obliterated thedistinctive nationalities under the sway of its own uniformity

,and the more rigidly it was administered by

the trained officials, the more did it lose its relationto the moral elements of the social life and to thehigher ends of the individual. It thus formed no realbarrier to the social corruption o f the Empire, which

it could neither humanise nor organise nor save, notwithstanding all the external adap tation of the politicalmechanism. When the original strength of the com

mom will from which it had sprung was dissolved bythe very luxury and indulgence which it had protected and fostered

,the Roman Law lost its spring

and spontaneity . The evolving power of the mere civilwill was exhausted

,and the Jurists could only do the

formal work of analysing,classifying, and summaris

ing the masses of inherited details in the RomanoByzantine Codes

,without opening up deeper fountains

of Right. The succession and form of the governmentbecame always more subject to chance and caprice .The provincial municipalities

,fainter reflexes of Rome

i tself, became ever more isolated and enfeebled ; and thehungry demoralised mob at Rome became always morecallous and degenerate . Without representative government and with a senil e Senate

,the mili tary despots

naturally reverted to mere brute force , which wore itselfout in selfish and lawless conflicts ; and the Empire atlast lay divided and paralysed in itself

,with i ts essential

life worn out, an easy prey to the barbarians who werepointed from all its frontiers along its highways to Rome .Rome had thus to bear the penalty of an immoral dominion which had trampled down liberty in the name o fliberty, subordinated every interest of socie ty to itsel f

,

T RANS LAT O R’S PREPA CE .

and trusted to the unsubstantiality of an external civilisation supported only by formal law.

1

The Roman Law could not save the Empire , but ratherprecipitated its fate by the aggressive and outward ambit ion which it stimulated ; yet it remained as a perpetualpossession to the world

,and in the Middle Ages, whatever

power and vital ity it had, entered into the see thing andformless chaos out of which the new peoples were to arise .In those ages not merely of historical but of essentialmediation

,when

,amid confusion and violence

,the modern

world was Spiritually begotten by Christianity upon thevirgin li fe o f the G ermanic race

,the Roman Law became

the schoolmaster of the young peoples,and trained and

disciplined their wild spirits into the forms of a new socialorder. The Germanists ” have lamented the subj ectionof the young Germanic world to the old Roman Law

,and

the English Constitutional Jurists have congratulated theircountrymen upon its limited and indirect influenceuponEngland, but it cannot be doubted that its O peration wasbeneficent , progressive, and liberating on the whole. Thenew Religion which had come to renovate and moralisethe inner life soon took on the externality and ambitionof the old Empire, and fell into fatal conflict with the newEmpire which had arisen in the name of Rome beyondthe confines of Italy. When the supreme P ontifi

‘

s ofChris t iani ty saw the ideal of its crucified Founder in thegreat Emperors holding thestirrup s of the greater Popes

,

the old Roman Law became the educator and protector o fhumani ty amid this outrage of Religion

,which was worse

than the old Paganism . And no less did it help to withs tand Feudal oppression and the violence of undisciplined

1 Much has been written during connection with thepro ject of a

t hepast threecenturies on thechar German C ivil Codeand thepub licaacterand valueof theanc ient R oman t ion in 1 88 7 , after fourteen years’L aw which cannot bereferred to labour

,of theresults o f t heImperial

here. I t is interesting, however, t o Commission on thesubject. Anexno tethat t hekeen strifebetween thetensivejurist ic l iteratureis gatheringGermanists” and the“R omanists ”

around thesubject.has again broken out in Germany in

x iv T RANS LAT O R’S PREFA CE .

individuality.The cul tivation of the Roman Law revived

and shed new intellectual glory on Italy, and the.

S’

piri t b f

Biabt lived again in the free and flourishingMuni cipali ti es

an

c

ci Communes.1 Italy, the battle-ground of the forcescontending for the mastery of the world , the goal and preyof every conqueror, the mingling poin t of all the great

currents of human life, although oppressed, dismembered ,alienated, still remained true to herself in her intellectuallove and reverence for the beneficenceand maj esty of Law.

Amid the interminable and chaotic strife of Guelfs and

Ghibellines,the two greatest thinkers of their time arose

again in Italy to advocate the ideals of human right.

Thomas Aquinas , the greatest of the Chris tian Philoso

phers, and Dante, the greatest of the Christian Poets ,unfolded the ideals of the Church and the Empire respect ively as the conditions of the salvation of society. Thethought of both of themwas shaped and moulded, althoughto counter issues

,by the ancient Spiri t of Right in a

deepened Christian form,and they laid the foundations of

all modern political science. But neither of them solvedthe problem of the organisation of liberty

,al though the

great poet,haun ted by the phan tom of the Empire

,gave

prophetic an ticipations of its coming. The Italian geniusfound its highest political

,as well as its highest poetical

,

expression inDante .2

The Middle Ages s truggling through the dualism of the1 S avigny is still thegreat autho opeemendati per 0.

WitteH al is,

rity on theH istory of theR oman S ax,1 863 T heS umma and

Law in theM iddleAges. T het heDav ina Commedia also adumbest work on theCommunes is by bratethepol itical do ctrines o f theirKarl Hegel, son of thephiloso authors. Professor F rohschammersopher. of Munich has published anexcel

T hev iews of S t . T homas Aquinas areexpounded in t heDeregimineprmc zpum, of which L . i. — 1i .c . 4 aregenerally recognised as his

,

t heremainder being attributed t o

his di sciple, T o lomei di L ucca.

Dante’s DeMonarchw was written,according to Boccaccio

, in 1310

(best edition Bantis All igheriideMonarchia, L ibri tres MS S orum

lent work on thePhilosophy ofT homas Aquinas a good summaryof his ethical doctrineis given byDr. L uthardt in h is “ H istory o fChristian E thics, v ol . i. (T . T .

C lark ) . T hereis a. thoughtfularticleon t heT heology and E thicsof Dante, by Professor EdwardCaird, in theContemporary Rev iew,

June1 890 .

T RANS LAT O R ’S PR EFACE .

Church and the Empire,Feudalism and Municipalism

,

Caesarism and Nat ionality, authority and independence ,faith and reason

,the ideal and the real , passed through

all the pain of the collision,differentiation and com

mingling of the elements of liberty. While the fre eimpetuosity of the German race emancipated it as wi th abound

,the practical ineffectiveness of the Renaissance

and the suppression of the sp irit of the Reformation prolonged the struggle for three centuries in Italy. Thehec tic flush of I talian Art only bloomed over politicaldecay. The seventeenth cen tury saw the deepest degradation of I talian life and character ; and even the greatoutburst of popular liberty in the French Revolutionfound but a feeble echo in the land of the Tribunes .1

This slow and uncertain bassing from mediwval twiligh tto the clear modern day was the period of the Poli ticalWriters who followed in the foots teps of Dante andPetrarca in the search for a principle of social organisation

,and whose most characteristic expression was given

through the gifted but ill- fated Florentine Secretary .

2

Macchiavelli,with what Macaulay not inap tly calls his

“ cool,j udicious

,scient ific atroci ty,” marks at once the

despair and the futility of this abstract political speculat ion. Subordinating all thought and ac tion to the hungerof an unsat isfied patrio t ism,

and scorning equally thebas tard theocracy and the broken spirit of the people

,the

student of Livy and observer of the Italian Courts sough tto substitute for Dan te’s dream of a restored emp ire anartificial and intellectual policy of intrigue and dissimulation as the only available means left for reaching a real

1 M. deS ismondi’

s great H i stoireg iven anexcellent sketch of I taliandes R épubliques I taliennes da MoyenAgc (1n 1 6 v o ls.

,1 809— 19 ) is Sti ll t he

most completeand readablework onits sub ject. I t is moreinterestingthanever t o compareit s almost despairing conclusion W i th t herapidprogress now being made. Mr.

S ymmonds has wri tten admirably0D theI talian Renaissance, and has

VO L . 1.

H istory in theEncyclopcedta Bri tan

mm .

2 Ferrari has given a v igorous andeloquent account of thesewri tei sin h is Corso sugl i scmttori pol cticiI tal iani, 1 863. In an Appendix liegives a chronological list of 1 200

Po litical VVi iters, mostly I tal ian,

who wrotefrom 1 222 to 1 789.

b

x vi T RANS LAT O R’S PREPA CE .

nationality.Macchiavelli in en tire sincerity exhibits the

complete divorce of politics from morality and the cul

mination of the old Roman severance of political adminis

trat ion from the essential ends of individual life . Thefu tility of this externalism in the political speculation ofthe time is equally seen in the fantastic communism ofCampanella and the Utopian school. The Italian Polit icalWriters have the merit of having created modern politicalscience, but Government being regarded by them onesidedly and negatively by itself , Jurisprudencewas almostlost sight of in this pursuit of the ignis fatuus of amere political form. The spirit of the time thus cameto lose its hold on any concrete principle of right, andthe inevitable consequence was the moral corruption anddegradation of the peOple.1The new spirit which has renovated Italy in the Nine

teenth Century owes i ts vitality and s trength to the appropriat ion of a truer conception of human personality and ofthe ends of human life in the organism of civil society. Itwas scientifically kindled in the beginning of the EighteenthCenturybyVico

,the greatest of the modern Italian thinkers

,

the founder of the Phil osophy of H istory, and with it of

the true Philosophy of Law. Professor Flint has suggest ively characterised Vico’s S cienza, Nuova

,oneof the

profoundest, greatest of books , as the philosophical complement to Dante’s Divina Commedia.

” 2 We might evengo further, and find in Vico the philosophical complement to the spiri t of Ancient Rome

,as well as to that of

1 T hemerits and serv ices of theF lint’s Vico in Blackwood’

s Ph iloI tal ian,Alber1co Gent ile( 1551 sophical C lassics 1 88Professor o f C iv il L aw at O xford, v aluab leChapter

(on

41821

0

1

83 1

2: 2as the

O

chief precursor of G rotius in T heorist on L aw.

”T his admirable

founding theS c ienceo f I nterna monograph has been received witht ic h al L aw, havebeen well recog t hegreatest approbation in I talnised by Professor H olland in h i s and has heightened theexpectfa

r

.2

inaugural lecture, f

‘Albericus Gen tion and impatiencewith which t hetilis and in theedi tion of learned author’

s treatment of t heh is DeJurebel le, L z bm tres, 18 7 7 . Philo sophy of H istory in I tal is

2 [ hePhi losophy of H istory in awai ted. y

Bumpe, vol. 1. 287 . Professor

https://www.forgottenbooks.com/join

T RANS L AT O R’S P REFACE .

X‘l l l

for liberty and reform. The remarkable development of

philosophical thought in Italy during the NineteenthCentury has proceeded from Vico, as that of France didfromDescartes , that of England from Bacon , and that ofGermany from Kant.1 Even the more practical patriotic

workers for the emancipation of Italy have been domi

nated and guided by Vico’s ideas. The new spirit of

freedom has brought with it not only great activity in

the scient ific cultivation of Jurisprudence, but correspondingprogress in the emancipatory work of practical legis

lation.Right and Politics have thus been united in a

deeper e thical synthesis embracing and regulating theharmonious ends of the social life. In no country hasthis been more conspicuously the case of late than inItaly ; and in reviewing the contemporary relations Pro

fessor Lorimer did not exaggerate when he said : “ I talyis the land on which since Germany went on the ‘warpath ’ the mantle of scientific jurisprudence seems to hav efallen

. In no country in Europe is the relation of theorvto practice at this moment more intimate

,the character

of jurisprudence as a branch of the science of nature be tterunderstood

,or the haphazard leap-in-the-dark legislation

on which we pride ourselves more at a discount than inItaly.

” 2

And so , as we said at the outset, Italy has again becomethe living and fruitful home of the Science of Law. Thehistorical antecedents and conditions referred to make thefact intelligible , and it is authenticated by the remarkable

1 A good sketch of theH istory ofhi odern I tal ian P h i losophy is givenby D r. V . Botta in t heEnglish Edition o fUeberwcg’

s H istory of Ph1losophy ( vo l . ii. 46 1 Mr. T homasDav idson has donegreat serv1cebyh i sexcellent t ranslat lon andexposition o f “ T heP hilo sophical S ystemo f Antonio R osmini -Serbati

, L ondon

,1882 . R osmini

’

s NewEssay ontheOrigin of I deas (3 v ols. , L on

don,

and his Rul ing P rin

cipleof Method (Boston, 1 887 ) have

also been translated. N owherehavetheprinciples o f theS cottish S cho o lof P h i losophy been better appreciated than in I taly ; and t helongneglect of thesy stems o f R osmini

,

G aluppi, G ioberti, and lVIarniani bytherepresentatives o f that schO o lhas been as discreditab let o themas it has been unfortunatefor it sh istory.

'

2 S tudies National and Internat ional, p. 1 03, 1 890.

T RANS L AT O R’S PREPA CE. xix

juristic literature which the industry of the recent ItalianJurists has produced in all the departments of positive law

,

civil,commercial and penal .1 But it is in the highes t

department of all,the one which crowns and unifies and

completes al l the o thers,that we meet with the mos t

charac teris t ic and original products o f the juridical geniusof the modern Italians. The Philosophy of Law hasbeen nowhere cul tivated wi th more earnestness

,assiduity

,

and success,during thepresent century, than in Italy.

True to their t radit ions,every oneof the leading Italian

thinkers has given his best thought and endeavour tothe elucidation of the fundamen tal problems o f Right.Emancipated by their legislation from the mechanicalformalism of the old Roman Law

,and by the new patriotic

spirit from the false dominion of a hybrid ecclesiasticism,

they have s triven to find a deeper and truer foundation forthe reform and reorganisa tion of the national life . Thisjurist ic movement, while presen ting a rich variety and ihdependence in detail, has been conspicuously characterisedby a faithful regard to the developmen t o f history

,a keen

scrutiny of human reason, and a sober acceptance of es tablished limitations. It has thus been at once historical,speculative

,and positive in its method ; and progressive ,

elevating,and regulative in its results. While every school

o f contemporary European thought has had its representat ives

,and while the most prominent o f them have not

T hat abundantandever-growingl iteraturecannot beeven indicatedhere. I t is no t confined to theI talian Codes and their specialsubjects, but ranges o ver al l thedepartments and problems o f L aw.

T heinterest o f Engl ish S tudents o f

Law is now being (h rected t o the1mportant work o f t heI talians inC rimmo logy, in which they haveled thethought o f EuropesinceBeccaria. Among themost valuab lerecent works on this subject arethoseo f L ombroso ( Il

’

uomo delinqumtein rapporto all

'

anthropoloy ia,

etc ., 4th cd. G aro fal o (Crimino

l ugia, z ud cd. Marro (Cara tcridet delinquent i, and L uchini

(Cm'

t aca, del ta pend.esvolgzmento diaZcum prmczpii intorno al dimeo dipuni ie, G reat attention is

given by theI tal ian Jurists to t heH istorical and ComparativeS tudyo f L aw. T heI tal ian JuridicalReviews arenumerous, and giveevidenceo f great scient 1fic ac tivity.

T heR iv ista I talianaper leS cienzeG iuridiche,”published at R ome,maybementioned ; it gives t hetitlesand contents o f theother Reviews.

T RANS L AT O R’S PREPA CE .

escaped the penalty of their one-sided devotion , the ItalianJurists have been remarkable on the whole for their catho

licity, breadth , and comprehensiveness. In this respect itis no exaggeration to say that they have largely combinedthe speculative ideality of the Germans wi th the practicalreali ty of the English in a special activity that has beenequally faithful to the demands of science and the requirements of life.1 This ideal realism, this dialecticalsynthesis

,this plastic integration, based upon quick

perception and comparison of relations , seems to be thecharacteristic note of the modern I talian genius, and ithas fruitfully au thenticated i tself in the Phil osophy ofLaw. TheItalian Juris ts have worked ou t with conspicuous fideli ty and success the scientific conception ofJurisprudenceembodied by Vico in his admirable definition : Jurisprudent ia universa tribus ex partibus coalescit

,philosophia, historia,et quadam propria arte juris ad

facta accomodandi. In doing so they have not onlygiven remarkable proof of the tenacity and versatility ofthe Ital ian genius

,but have largely enriched the juridical

thought and capability of Europe .

2

It is more than time that the English Students of Lawwere giving attention to this realised and advancingwork of the Italian S chooL The reasons for its longneglect have been too many, and are too obvious t o

be dwelt on. The immediate interest of positive lawand the dominant utilitarianism have checked

,and even

suppressed, the higher capabilities of English thoughtin investigating the fundamental problems of jurisprudence 3 But the need of a true Science of Right is1 T hecharacteristics o f themod 2 T heBibliography appended toem I talian ingenium in relation t o this work gives a clear

, concise, andjuridical and so cial studies haveuseful survey of thel i teraturetebeen delineated with admirablein ferred t o . Seealso t hehistoricalsight and discrim1nat 10n by P ro sketch in t heProlegomena.

fessor Carle, op. c1t . L ib. v . c. iv . § 2 .

3 T heT ranslator has already dealtSeealso D r. Werner's D ieI (al i With this subjec t in t hePrefaces t oemschePh i losophiedes neunzehnteu his T ranslat ionso fKant’sPhil osophyJahrhunderts, d v . p. 346 ; and of Law, and t heOutl ine: of JurisG 1obert 1

, Introduzwne, I . 0. iii. prudenceby P uchta and o thers.

T RANS L AT O R ’S PREPA CE . xx i

always becoming more apparent in England amid theincreasing political confusion

,social unrest , and indefi

nite thinking of the time. The best-qual ified juristsacknowledge it ; and our two chief mas ters— Sir H enrySumner Maine and Professor L orimcr— have been takenfrom the field of labour. It is a time when earnests tudents may well look abroad for ligh t and leading.

The supremacy of Germany in the sphere of juridical,as

o f general philosophical,speculation has been deservedly

won,but its ideal products

,supremely valuable in

potentiali ty as they are , have never sat isfied the practicaltendency of the English mind. Nor have the FrenchJurists o f this cen tury wi th all their clear and logicalfaculty

,been able to originate anything like an inde

penden t or fruitful philosophical jurisprudence.1 In

these circumstances,it may be allowed to point the

English S tudent of Law to the living development o fjurisprudence in I taly

,in the belief that he will find

himself readily at home in i ts me thod of dealing withjuristic problems

,and that he cannot but be enriched and

s trengthened by any appropriation of its results .2

I t is from this point of view tha t the present work hasbeen translated into English . The fac t of its having beenalready translated into German , Fr

'

ench,and Spanish

,and

that it has reached the third edition in I talian,is a guarantee

o f its interest and value .3 I t is well fitted to be no t onlvO i this t oo abundant ev idence

has been furnished by t hePrefacet o t heF rench T ranslation o f thepresent work. I t contains a great dealo f interesting information regardmgt hepresent stateo f juridical studyin F ranceand o ther countries.

1 I t does no t appear that anything has been donein theway o f

translating any o f t heworks o f t heI talian jumateinto Engl ish formorethan a century , or indeed sincet het ranslation o f Beccaria’

s tractate,Def, del it t i c dellepens a newedition o f which was publ ished at

G lasgow in 1 7 70 ,entitled, An Essay

on Caimes and Punishments, by theMarquis Beccaria o f Milan. Witha commentary by M. deV oltaire.I t is imperfect, andmadeapparentlyfrom theF rench version.

3 T heGerman and F rench T ranslat ions areexcellent, and havebeenreferred to in order t o secureaccuracy m theEnglish rendering. T heS panish translation has no t yet comet o hand. Important additions and

mod1ficat ions havebeenmadeon thelast edi tion of theoriginal work bytheAuthor for theEnglish T rans lation, which has been madewith h lssanction and kind cc -operation.

xxu T RANS LAT O R’S PREF ACE.

an attractive and comprehensive Introduction to the

Science of Jurisprudencegenerally, but also a SpecialIntroduction to the Juridical Philosophy of contemporaryI taly . Among a large and ever-increasing number of works

on the subjec t, it bears conspicuously the characteristics tamn and form of the new I talian School. Foundingupon

‘

V ico and Gioberti, the most distinc tively Italianthinkers of the Eighteenth and Nine teenth Centuries, itexhibits their principles and spirit in their larges t scope

and widest applications .1 Free from all religious narrow

ness or national prejudice , while yet earnes tly religious

and intensely nat ional , i t bears aloft the highest S piritualinterests of humani ty, and steers a firm course— wi th atouch of scorn— through all the eccentric and downwardtendencies of the time. Showing much of the spontaneous

and easy power of the Italian artist, it exhibits also thepracticality of the old Roman understanding and the

cosmopolitan adaptiveness of the new Italian character.

The metaphysical foundation o f the system is only laid

1 G ioberti ( 1800 “thepat

rio t-philosopher o f I taly,” may well

beregarded as themost distmc tivelyChristian thinker of theN ineteenthCentury. H is ph ilosophical standpoint is indicated by theAuthor of

t his work in t heProlegomena, withtheearnestness and enthusiasm o f

a disciple. G iobert i has no t thewonderful metaphysical subtletyandelaboratwn of R osmini ( 1 797

but heis moreimmediate,moreimpassioned, moreI tal ic. R os

mini has unfo lded a P h1losophy o f

R ight in theutmost detail o f div ision and definit i on

,whileG ioberti

has only laid t hemetaphysica l andethical ba31s of pnnc 1ples which hegaveh 1s wholesoul t o bringingdirectly to bear upon therehgnousand po li tical reno vation of I taly.

T hepublication of h1seloquent andpatriotic work. I t primatemoraleccimZedegli I tal iam'

,in 1 843, gavea

great impetus to theNeo -G uelficparty,andhad

“an immensesuccess.

"

H isR innovamento,publ ishedin 1 851 ,continued thework on clearer and

morepractical po l i tical lines. Prof.A . Barto li has said of G iobert i’sGesm'

ta moderno (5 v ols. ,

that it will liveas themost t remendous indictment ever wri ttenagainst theJesuits. G iobert i’sEssay on theBeaut iful , or Elementsof E sthet zc P hdosophy, has beentranslated into Engl ish by Ed.

T homas ( z ud cd. , L ondon, 1 860— ah indifferent translation, theF rench translation being muchbetter) . In theU nited S tates o fAmerica

,G ioberti found a devoted

interpreter in D r. 0 . A . Brownson,

whoseableexposition of thedoctrinecontained in t heideal formulawas published in 1864, in theRev iew bearing his name(seeUeberwag , v ol . ii. 497 G ioberti’sTeorca del Sopranaturale( 1 838 ) andhis P rotologia. ( 1 856 ) entitlehim to

comparison as a metaphysical theologian with S cotus and Hegel.

T RANSL AT O R’S PR EPA CE . xx iii

bare that it may be proved to be safe to build upon,as the

basis of the whole s tructure . It will be found animatedthroughou t by themagnificent though t so grandly expressedby H ooker

,that of Law there can be no less acknow

ledged than that her sea t i s the bosom of God,her voice

the harmony o f the world . The industry of the historicals tudent appears everywhere in the work

,sideby side wi th

the keen watchfulness of the practical politician. TheAuthor has himsel f hinted that the mat ter of the Firs tVolume might have been condensed

,bu t the enlarging

ideal of the t ime,no less than the conception of the great

j urists,pleads his just ificat ion. In England especially

there is no more necessaij7 teaching required at presentthan that which would awaken the sense o f the largenessof the domain of Right

,and guide to a jus t appreciation

of its several spheres. The exposi tion of political doctrineand of existing forms of the State in the Second Volumeshould be found interesting both to the politician and thejurist

,disclosing as it does the harmony and unity of their

tasks. T heItalian standpoint of the work makes it,so

far as it goes,a con tribution to Comparative Polit ics and

Law, and an easy and reliable guide to the politicalorganisation of the new Italian Kingdom. I t may beadmitted that greater dep th might have been exhibitedin the treatmen t of fundamental principles

,that the his

t orical expositions might have been carried into furtherdetail

,tha t the analysis and filiat ion of the jural concep

t ions might have been sharper and more dis tinct,but the

me thod,proportion

,and presentment of the work is all

the more adapted for the want in view,and hardly more

could have been accomplished within its limit s . N0

better introductory synopsis o f the sys tem could be giventhan that o f the highly competent German translator, Dr.

Matteo di Martino,who summarises it as follows

T heAuthor of thefollowing work has exhibited thecharacterof the I talian Ph ilosophy in the cri t icism of theSystems con

xxiv T RANS L AT O R’S PREPA CE .

tained in his Prolegomena ; andupon that Phil osophy hebuildsh is system of E thics and Jurisprudence. Morals and Law

pursue oneand thesame End, therealisation o f theG ood, butwith different means. Everything is to beregarded as good

which is in harmony with thenatureo f theuniverse, and con

sequently also with human nature. T heG ood differentiatesitself into singular Ends, for theattainment of which certain

conditions arerequisitewhich guarantee R igh t . Just ice isthenorm for human actions, in so far as these areregarded asexternal. L aw is theideality of Righ t which contains thecriterion for theJust in its application t o human relationships.

What then arethecardinal relationships for wh ich L aw is

called t o prov ide themost favourable conditions possible ?

Ahrens had accentuated R eligion, S cience, Education, Art,in

its two main branches as beautiful and useful Art , Commerce,Moral ity, and Jmstice. O ur Author includes Education underJastice

,and in theF irst Part o f thework hesurv eys the

O bjects of R igh t , which haveever been, and always must be,theconditions for theharmonious development of these ca-rdinal relationships.

I n order to at tain thisend, Man may be activ e as a separateindiv idual or in fellowshipwith o thers. I n theS econd Partof thework treating of theSubjects of Righ t , t heAuthorexamines thedivers s tages of this fellowship or association,

and works out positions different from those of bo th Ahrensand Mohl . T heformer had presented theIndiv idual , theFamily, theCommune, theS tate, theConfederation of S tates,and H umanity ; and thelatter added theR ace and v ariouspermanent Associations

,such as theChurch . O ur Author

adds theProv ince, but leaves out theRace and theo therAssociations.

O n thebasis of thedoctrineof V ico,according t o wh ich

Man is an intuitiveand free being, theAuthor begins WithCertainty andends with T ruth . Helays ch ief import ance onh istory. TheUnderstanding produces truth , theWill fac t .I deas and facts proceed from oneand thesame point andcon

sequently a necessary harmony must reign between them in

their great outlines. H encetheAuthor first careful ly inv estigates theorigin of theJural Institutions

,and then proceeds t o

expound thetheory of them. T hech ief value of thework

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AU T H O R’

S P R E F ACE

T O THE TH IRD EDITI ON.

THI S book had a university origin ; but the successive

enlargements of it have adapted it for the useo f all cultiy ated readers . And

,indeed

,is it possible under a free

government for any oneto ignore with impunity thehistorical and rational origin of the principal juridical

institutions ? The ruling classes are no longer capable

of guiding the community when they cease to have

arguments with which to meet every new paradox . The

poet H eine was wont to say that the troubledend of theEighte enth Century would yet seem an idyl in comparison

w ith that of the Nineteenth Century. We should there

fore have the courage to keep in view certain problems

which,if badly solved, may yet lead to the abyss .

What are we Whence do we come Whither are

wegoing ? All possible social and political organisation

depends on the answers given to these three questions . I f

we are not only sensitive, but reasonable and free , beings,and come from a Creator with whom we are destined to be

reunited without being confounded with H im, and hav e

t o render H im an account o f our actions,then our life

ought to be regulated in a certain way. But if weareonly sentient beings , if we have sprung by natural selec

xx1 iii AUTH O R ’S PREPA CE .

t ion from the monkey,then we must be subject in every

thing and by everything to the struggle for existence ,and nothing will remain of us but an empty name . In

order to answer adequately the questions thus indicated,

we have examined human nature under the guidance of

tradition,existing systems

,and direct observation ; and

everywhere and always we have recognised in it a divine

germ. Everywhere and in all times,we have perceived

humanity in search o f the good, with a more or lessenlightened conscience andwe have found juridical institutions directed towards the attainment of it .

The philosophers, reconstructing mentally the work of

the people, have put man into relation with the universal

order, distinguishing him when he conformed himself to

it from a disinterested internal motive,andwhen he acted

with ‘ the view of obtaining a certain utility.They have

thus separated morality from right,and specified the good

in reference to essential ends,and they have determined

the mode of obtaining it obj ectively and subj ectively.

It has seemed to us most useful to arrange the j uridical material in this order

,because the whole human

development can thus be taken in at a single glance,

without ever losing sight of the point of departure and

the goal. In the First Part of our work,dealing with

the O bjects of Right, we have been followed by the celebrated jurist I hering, although with a different meaning.

In I hering’

s view ends dominate in the sphere of right;

they are, however, not regarded as adapting themselvesaccording to an inherent gradation to the needs of the time

,

but they have to be kept in check by a complex of forceswhich he calls the social mechanism. In the SecondPart of the work, in which we deal with the Subj ects ofRight

,we are still without companions .

A U T H O R’S PR EP A CE xxix

Meanwhile certain fundamental obj ections have been

t aken to the point of view here advocated . These have

been elegantly summed up in a lecture by Professor Prins

of theUniversity of Brussels,

1and in the inaugural dis

course o f Professor Nani of the University o f Turin.

2

The former puts his obj ections thus. For nearly two

centuries Natural Right has been considered as a science ;and the theorie s of a state of nature , of the social contract,and of pure reason

,have been both discussed and rej ected

as sources of right . I f Pufendorf, the first occupant of

a chair devoted to this subject,were to return t o life

,

he would not find many disciples, but he would find not

a few opponents who dispute the basis of his system.

Professor Prins then concludes in favour of the H istorical

School . As he puts it,at first right is an instinct ; j us

tice,religion

,and power are found mixed up there are

no legal rule s nor j urisconsults ; right is born from thebosom of the people like theheroic songs . It is sacredas their faith

,and is transmitted as tradition. In the

same assembly the gods are worshipped, rhapsodies are

l istened to,and judgment i s pronounced . But sud

denly the p icture becomes enlarged ; justice , power, andfaith areseparated ; there is not yet a written law but

there are precedents,and there are judges to make use

o f them,and now it is n o longer instinct but reason

which guide s them. Customary right appears ; a body of

positive rules is formed ; magistrates arise to apply these

rules,and they createjurisprudence Lastly

,after a

rich vegetation , the dry branches of the j uridical growth

arecut off in order to render the trunk more vigorous,

and legal right becomes a written science,while juris

1 L a philosophic da droit ct l'ecolehistorique. Bruxelles, 1882.

Vecchi c nuoviproblemi del dirit to. T orino, 1886 .

x xxA U TH O R ’

S PREPA CE .

consults develop its technical element . T heduty of

the jurist is simple ; he has to cul tivate the living legal

right,to search for truth in the juridical sources or in the

national organisms , without the interest s of humanity

becoming in any way compromised, because the national

organic right thus takes the place of universal right, and

the majestic laws of advancing humanity that of the rules

o f pure reason.

Nani,on the other hand, attacks not only Natural

Right,but also the H istorical School theformer because

it proclaims the omnipotence of the individual , and relegates jurisprudence to the field of abstract speculation ;

and the latter because if it has been able to indicate the

source from which right arises, it has erred in believing

it simply to be a product of the consciousness of thepeopl e,like language , customs, and the political constitution.

Accordingly he seems to associate himself with the learned

Professor Dahn, holding the view that thePhilosophy of

Right is founded on the comparative science of the peoples,

on their psychology, or on ethnology and anthropology in

the widest sense of the term.

The want felt by the two illustrious professors is to

reconnect the fact with the idea,or to reconcile philology

with philosophy. Prins accepts the fundamental problem

as formulated by Rousseau , namely, how to find a formo f associat ion which shall defend and protect with the

whole of the common power the person and goods of

every associate,-while respecting the liberty of each.

But he finds the solution of it in assigning the function in

question to thecollective whole of society when it makesuse of its natural organisms

,and not in entrusting that

power to oneor more persons who are called representatives of the general will.

AUT H O R ’S PREPA CE . xxx i

Nani,after having indicated his adhesion to Dahn

,

confines himself to considering how philosophy penetrates

into juridical science under the sociological form ; and he

exclaims : The end of the century will perhaps see it

seated anew in the position which not many years ago

it believed that it had abandoned for ever .”

What the two illustrious profe ssors de siderate , has beenin existence for a long time

,even from the year 1 7 20 ,

when Giambattista Vico published his golden treatise Deuno universi juris principio ctfineuno . In it he says

Quae vis veri,sen ratio humana virtueest quantum cum

cupiditatepugnat , eadem est Justitia quantum util itatesdirigitet exaequat , quae est unum universi Juris Principium unusqueFinis . U t ilitates autem quae cupiditatemcient

,c orpore constant communis corporummensura seu

regula est commensus vulgo dicta proportio, quamMathesispro nostro argumento demonstrat duplicem,

arithmeticamseu simplicem,

et geometricam seu comparatam. A t

quad est aeguum dum mctiris,idem est justum quum

eligis : quod in rebus cognitionis st in rebus actionis,

modo utraequesint pro natura sua demonstratae, unumsit genus assensionis. Igitur uti aequum cognit ionis

demonstratum,ubi id recta matheseos methodo confectum

sit ; ita justum actionis,ubi animus sit perturbationibus

defoecatus, nec ullo pravo gentis more corruptus,

justum,inquam,

ei est planissimedemonstratum. In

another place Vico says more concisely : H onestas i s thecause o f right ; utilitas is its occasion ; and metaphysicais the mother of jurisprudence

,the societas veri being an

essential element of the societas aegui, and reciprocally.

”

S o in the world of the nations the useful is found already

connected with the aeguum. From the examination which

every onemakes of what he believes useful,arises what is

VO L . I . c

xxxh AUTH O R ’S PREF A CE.

j ustly due to each ; that is, there arise s the idea of human

justice . But this idea already exists virtually and in

tuitively , and it is only certain necessities which lead to

its being explicated and taking a reflectiveand scientificform.

In this way the Neapolitan thinker foreshadowed

the synthesis of H istory and the Philosophy of Right .

We need not here follow the distinguished author in hisdescription of primitive right and the transition from the

jusprivataeviolentiaeto the jus 011721116 . Monte squieu, the

worthy continuator of Vico, before plunging into historical

researches, declares : Particular intelligent beings mayhave laws of their own making , but they have some like

wise which they never made . Before there were intel

ligent beings, they were possible ; they had thereforepossible relations

,and consequently possible laws . Before

laws were made, there were relations of possible justice

(Esprit ales lots, Liv. I . oh .

According to the hypothesis of Kant and Laplace,let

us assume, on the contrary, that a nebulous mass becameseparated from the sun and was consolidated while turn

ing around itself. Gradually this incandescent globe cooled

down and brought forth the vegetables which nourished

the animals that sprang forth spontaneously. Man was

distinguished among his congeners by a more developed

instinct,and formed a species of society at first mute

,then

gesticulating and finally he found articulate speech from

which the primitive civilisation took its origin . Long

ages flowed past during the transitions from the horde tothe tribe, from the tribe to the city, and from the city to

the S tate . But at last the great O riental empires arose ;then Greece, Rome, Christianity, and the modern nations

all by natural selection and by the law of heredity. The

physical world is represented accordin g to this theory

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xxxiv A U T H O R ’S PREPA CE .

not realised spontaneously as a whole, there arises the

necessity of coercion in that part o f it which it is incum~

bent on society to see as far as possible actualised. The

animals cannot be subjects of right because they have not

anend to attain. The animals adumbrate man. In the

plants and animals,and even in inorganic nature, there

arefound dispersed the properties, including the perfections and the imperfections, of our being. Wherefore the

ancients,and especially the Stoics

,sought in the irrational

beings,and particularly in the brutes and in infants

,the

impress of the law of nature,calling them mirrors of

nature . Plutarch wrote on the nature of the animals,

and defended their cause,which had been alreadypatronised

by Democritus . That ancient philosopher said : We

have already been disciples of theanimals in great things,of the spider in weaving and sewing

,of the swallow in

building, and of the sweet swan and nightingale in singing . Speech is congenital to man

,and civilisation is his

work, being found by spontaneous reason, and perfected

by reflectivereason. As the immortal author of the NewS ciencewrote, the profound wisdom of the philosophers

succeeds the vulgar wisdom, the true process of the humanmind consisting in verify ing by analysis the primitive

synthesis, and in thinking by means of reflection what islearned by intuition.

In this Third Edition of our work,we have taken full

account of the observations of the Italian,German

,and

French press when the two previous Italian editions andthe German and French translations appeared , but withoutintroducing any variation into the order or distributionof the contents. Al though to some the First Part hasappeared a little long, we have deemed it right to preserve it as it is in conformity with the traditions of our

A U TH O R’S PREPA CE . xxxv

greatest jurists,who have defined the subj ect in the well

known words Jurisprudentiaest divinammatquehumanarum rerum notitia

, justi atqueinjusti scientia. We have

carefully followed all the improvements which have been

effected in the sphere of legislation at home and abroad ,and have kept in view the circumstances of time and place

affecting them in criticising the j uridical institutions .

Thereby our science,without ceasin g to be the link of

connection between Philosophy and Right , will be seen to

acquire a practical value in enlightening public opinion

and paving the way for the work of the Legislator.

T HE AUTH O R .

C O N T EN T S .

P AG E

P R O L EG OMENA.

T heProblem of Knowledge: Plato ; Aristotle; Christ ianity

G rowth of theMoral S ciences : Augustine; BossuetVico

Progress of Political S cience; RepresentativeG overnment

PrivateR ight Public R igh t ; Penal R ightProgress in theS tudy of L aw

CH AP .

I . METAP H Y S ICAL S P ECU LATIO N.

T heSystems of Phil osophyI . Development of Philosophy in China and India2. Development of Philosophy in G reece3. Early Ch 1 istian Philosophy4. T heS cholastic Philosophy5. Philosophy of theRenaissance§ 6. Modern Philosophy7. Philosophy of theXVI I I . Century8 . German Philosophy in theX IX. Century9. I talian Philosophy in theXIX . Century10 . F rench Philosophy in theX IX . Century1 1 . English Philosophy in theXIX. Century12. Summary of theProgress of Philosophy Con

clusions

I I . Ernrcs.

T heG reek Ethics : Plato ; Aristotle; Epicurus ; S to ics 89

Christianity andMorality Augustine 9 1

Bacon ; Descartes : V ico 93

( xv iii CO NTEN T S .

CR AP .

PAG E

Sensualism ; L ocke; T heS cottish S choolKant and theGerman S choolF rench S chool ofMainedeB iran and Joutfi oyG iobertiT hePositivist S chool ; H obbes ; Bentham ; Spencer ;Mill

S ummary Review

T HE PH IL O S O P HY O F R IG H T.

T heT rueas Justicein theSphereof R igh tT heG reek Philosophers Christianity ~DanteG rotiusPufendorf Leibniz ; WolfKant ; S chel ling ; HegelKrause; Ahrens ; T rendelenburgAncient andMediaeval U tilitarianismH obbes Spino z a ; L ockeR ousseauEnglish S chool ; Bentham ; Bain ; Spencer ; DarwinR omagnosi, theI talian BenthamVico

Division of thePhilosophy of R ight

PART F IRS T .

T H E O BffECT S O F R I G H T .

I . R EL IG IO N.

Natureof Religion : V éra ; G iobert i ; Max MullerMul tiplicity oi theReligions howexplainedT heReligions ofChina, India, Egypt, and PersiaT heG reco-R oman PolytheismMonotheistic Rel igions ; Semitic and Hebrew Mono

theismChris tianity Protestantism R omanism English

Church

Relation of theseRel igions to S ocietyRelations of theChurch with theS tate

C R AP .

CO N TEN T S .

Ancient Church Medizeval ChurchDante’s DeMonarchia Council of T rentF rench Rev olution Concordats of 180 1 and 1851

Eastern Chui ch in its Relations with theS tateT heProtestant ChurchesT heEnglish ChurchChurches of Sweden and Denma1k and GermanyT heRefo xmed Church in F ranceand H olland

T heChurch in AmericaSummary ; Cavour and his Successms

S CI ENCE .

Separation of S ciencefrom ReligionS ciencein ChinaS ciencein Ancient EgyptT heS cienceof theG reeks and R omansChristianity ; Julian ,

Barbarians ; CharlemagneT heA1abs S chool o f SalernoBologna and R oman L aw ; U niversity 0} NaplesT heEnglish U niversitiesR oger Bacon ; theRenaissance; G alileoBacon ; Descartes ; Newton ; Physical S cienceM111 Spencer Renan ComteHegel G iobert i ; CenniRelation of theS tateto S cienceF rench Institutions ; German U niversities ; I talySecondary and Primary Education ; Luther's LetterReligion and S cience

AR T .

Natureof theBeautiful and of Art

R iseof theBeautiful Art s

Art in Ch ina, India, Assyria, PersiaG reco-R oman Art ; Church Architecture

xxxix

G reek andR omanPainting ; I talian, F lemish, andDutchS chool

Art s of Speech P oet iyMusic S culpture; theDrama

T heArt Institutions of G reece, &a

CO NT ENT S .

P AG E

INDU STRY .

T heBodily Necessities ; L abour ;Property

Development of theF orms of Property

V iews of S irH . S . Maineand Laveleyeong theR omans ; Mommsen

I talian CodesL aw Mussulmans

Property amR omanEmpiieF rench andNon-Aryan Peoples Mosaic

China, Peru,andMexico

V iews of P lato andAristotle; ChristianCommunism

O pponents of P roperty ; More; Campanel la Morelly

F rench Revolution ; Babeui ; L ouis Blane;P roudhon

Advocates of Individual P roperty ; AquinasL ocke

Montesquieu ; Quesnay ; Bast iat ; Baudrillart

Kant ; F ichteAhrens ; J S . Mil l

National isation oi theLandL aveleye’s V iewsL aws guaranteeing Industrial PropertyT heS tateand Industry

V . COMMER CE.

Industry andExchangeContracts in theR oman LawDomat and Pothier and F rench Civil CodeClassification of Contracts byKant, Hegel , and T iende

lenburgContracts o i Exchangc ; Commercial AssociationsBills of Exchange; Bot tomi y MarineInsuranceDevelopment of Commerce

Modem S ociety and Contracts

MO RAL IT Y .

Ethics and JurisprudencedistinguishedRelation of S tateto Moral ityBeneficenceand theS tateBeneficenceinAncient T imesChristianity and BeneficenceNaples ; England and Legal Charity

V I I . JU S'

I‘

I CE .

H ow theS tateprovides for Real isation of R igh tCivil and Penal Procedure

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P H I L O S O P H Y O F R I G H T .

PR O LEG OMENA.

WHEN wecast our eyes upon the universe we see ourselves surrounded by phenomena which we naturallydesire to know. H ow is this knowledge attained ? Platosays that Science is not learned

,as some believe

,by intro

ducing it into the mind as sight is given to one bornblind ; but every one has in himself the facul ty of understanding, a sort of organ destined for the attainmen t ofknowledge

,when it is applied to the contemplation of

what exists . H ence it is necessary to seek for the absolute behind the relative

,and to search under facts for the

divine or human ideas which produce them.

The ancients regarded things under a double aspect,

as we see from thetheories of Plato and Aristotle : theformer directing all his attention to the ideal, and thelatter to the real . Christianity adopted the point o f viewthat had been taken by Plato ; but, as it understoodhuman nature better, i t subordinated the real to the idealwithout annihilating it. Nevertheles s such were the ohstacles thrown in its way by the barbarism whi ch supervened

,that Christianity could then only Scatter the germs

which it remained for future ages to develop.

The modern period began wi th a certain disgust at themoral sciences. The hatred of scholasticism led to theabandonment of the rational method, and Galileo, con

siderably before Bacon, asserted that the meanings of theVO L . 1 . A

PH IL O S O PH Y O F R I G H T .

things of nature are to be sought in the works of nature,

that the life of nature is always operating,and that it

stands before our eyes real andunchangeable in all its

facts.” Attention, however, did not

remain long absorbed

in external nature, and the moral sciencesdid not want

illustrious cultivators such as Machiavelliand Grotius .

But these sciences continued to advancewithout connec

tion with each other and in opposite ways , from their

being made to consist wholly of the results ofobservation ,

or wholly of reasoning.

Bossuet took up the theme of

S t. Augustine’s DecivitateBet and produced his magni

ficent Discourseon Universal H istory.Antonius Serra

had already explored the laws of the formation of wealth ,

oneof the principal outgoings“

oi human activity. Vico,

taking up again the work of Bossuet,finds the laws of

history by analysing man in his individual and social

relations ; and the moral sciences may be said to have been

then really established.Singular destiny that Italy, when

involved in such misfortunes , should thus have producedthe two great investigators of the moral world !

Thus far practice and specul ation independently pursued each its own way ; but as the relations among thepeoples extended

,the influences which ideas had exercised

upon facts by means of external revolutions , came to bebetter appreciated

.The human mind was stirred at the

close of the Middle Ages, and after the reformation of

religion it turned itself to political reform. Among theancients liberty was synonymous with sovereignty ; and

as the sov ereign was the State; the value of the individual

disappeared.Neither the Republic and L aws of Plato ,

nor the P olitics of Aristotle, nor the Republic of Cicero ,offer us any other ideal . The Germans preserved the

Spirit of individual liberty ; they felt the need and thepassion of individual ity. After the invasion of thebarbanans,

.thesovereignty became incarnated in property

from wh1ch were derived independence and power. Thispower assumed the form of feudalism ; but after the

PROLEGOMENA .w

struggles of centuries,it fell on the Continent

,over

thrown by the Commons and by Monarchy. In England,

on the contrary, the Barons united with the Commons inorder t o resist the royal power ; and then was foundedthat mixed government which has become an object ofimitation to all Europe . But how were these Commonsto take part in the parliaments or the great nationalcouncils ? As all the citizens , or even all the muncipalmagistrates

,could not attend these national councils

,it

was necessary to depute some of them to represent theentire community

,as was the practice in the case of the

knights of the shires and of the clergy. If this idea,which seems so simple

,had arisen before the irruption of

the barbarians,the means would have been found for

combining the unity of the Roman Empire with the libertyof the several parts which composed it.The representative form of government which had

spmng up in the Thirteenth Century, and which had beendeveloped by the two revolutions of 1 640 and 1 688, madeEngland free and happy in the Eighteenth Century. Voltaire and Montesquieu, having visited Great Britain , andhaving read Locke’s treatise on Civil G overnment, understood all the importance of this form of government anddescribed its advantages . Soon thereafter, the English ofthe New World

,the Americans of the north , turned the

institutions of the mother country into a republic. Ac

cordingly when the French entered upon the great Revolution of 1 7 89, they had two models before their eyes, theonea monarchy and theother a representative republic.The constitution of 1 79 1 neither founded a monarchy nora republic, but a government which was without a substantial basis or a probability of duration. This noblenation fell under the influenceof those writers who, drawing their inspiration from Rousseau , turned back to theancient idea which made liberty consist in sovereignty,and right in the will of the nation. H ence they foundedequality, and not liberty. Therevolutionary anarchy

PH I L O S O PH Y O F R I GH T .

was succeeded by the Napoleonic despotism , and it wasonly after realising the evils of conquest that France

returned to sounder ideas.Private Right separated itself slowly from Publicn ht .

We may take for illustration the example o f the Roman

Law,which has passed through its whole development and

i s best known. At theoutset we see all rights absorbedby the paterfamilias

,who was at the same time the priest

and judge. Heunited around himself his wife , his sons

and their descendants,with his clients and slaves, all of

whom (included under the name of gens) were representedby him as their head. To him belonged the right of thespear (jus guim

'

tz'

um) and the sacrifices (saom privata)and whoever had the spear and the sacrifices also possessedthe land

,and the right of taking occupation of the goods

of an enemy. The gentes, assembled as curiae(from curis,

a spear) , formed the supreme council of the ris ing State.Contracts were rare , and were surrounded with numerousformalities. The land passed with the spear from fatherto son

,a necessary and fated succession ; and if the father

wished to dispose otherwise,he could not do it without

the consent of the curiae(calatis comitiis) .The clients, however, increased in importance and,united with other free men who had come from the conquered cities, they formed the plebs. Legal right thenbegan to divest itself of many formalities. Al ong withthe dominium quiritarium there was admitted the domim

’

um bonitam‘

wm; and to contracts stricti juris wereadded contracts bonacfidei . The increase of the strangers

omnes gentes utuntur. Philosophy made its beneficentinfluencefelt, and Cicero went so far as to declare : Noncrit alia lex Romae, alia Athenis, sed omnes gentes una lexcontinebit .To Ncm is ascribed the institution of a magistratewho

PROLEGOMENA .

had to receive the compl aints of the slaves against theexcesses of their masters. Alexander Severus reduced thepower o f fathers over their sons to that of simple correction . The latter had already begun to possess goods o ftheir own

,with the recognition of the peculium castrense

ct quasi castrense.As to succession

,the praetor had sought by various

expedients to substitute the natural family for the civilfamily, or to put cognatio in the place of agnatio and hewas followed in this line by Marcus Aurelius, Commodus ,Constantine

,Valentinian

,and lastly by Justinian, who

crowned this effort by his celebrated Novella 1 1 8 .

Penal right or criminal law appeared at Rome,as in

the case o f all other peoples,as a means of giving repara

tion for injury received.

l The idea of penalty was notslow to spring up with the special laws which punishedoffences against the community as crimes. These offenceswere judged in the judicia. populi, presided over bythe king

,then in the comitia, which elected a quaestio

or commission to examine whether the accusation wasfounded in fact

,and to punish the criminal. Such

commissions were not afterwards appointed for everysingle crime

,but for a given period and for the delicts

which might be committed, until they became permanenttribunals

,with certain rules for judgment and for the

punishments which were to be inflicted. The imperialdespotism abol ished the quaestiones, as they called to mindthe commissions by whom they had been elected ; and itassigned an ample jurisdiction to the senate

,in which the

emperors voted like ordinary senators . By degrees thefunction of punishing crimes passed over to magistratesdirectly named by the emperors, and the prerogatives o fthe senate were usurped by the private imperial council,which had become a sort of supreme court of appeal. Incriminal matters

,the Digest does not yield to any code as

1 Wealludehereto criminal law becauseit is generally treated as

belonging t o public law.

6 PHILOSOPHY O F R I GH T .

regards thevariety of the crimes it indicates and theseverity of its punishments .The Roman Law did not perish with the fall of theEmpire. It remained as the law of the conquered popu

lation,and a part of it also passed into the barbarian

compilations of the Franks,the Burgundians, and the

The Glossators introduced the Roman Law into the uni

versities, and increased its authority in the courts . Mostof the statutes of the Italian municipalities merely formulated its contents . Al ciatus

,who was called to teach in

France,awoke in that country a love for the Roman Law.

Cujacius commented upon it , no longer seeking merely forthe meaning of single phrases, but exploring its Spirit andexpounding its relations with antiquity. The DutchSchool continued to study it philologically. Dumoulinand Argentre, on the other hand, applied the Romanmethod to the national law ; and Domat and Pothier, whowere powerful generalisers

,immediately exercised an influ

ence upon all minds . In Germany, Thomasius, a philoso

phical jurist, sought to apply to jurisprudence the reformwhich Descartes had tried to carry out in the otherbranches of knowledge . Breaking away from all the ideasin vogue, Thomasius wished to make a clean sweep o fthese by withdrawing jurisprudence from the influences ofhistory and of theology. Vico soon thereafter turned backfrom this tendency by restoring to history its legitimateinfluencebut illuminating it with the torch of metaphysics. Nevertheless, about the middl e of the last century, legislation was made up of elements taken from theRoman Law, the Canon Law,

feudal books,and an endless

number of particular edicts and customs. The criminallaw was distinguished by the application of torture

,the

imputability of crime .These various efforts could not remain without effect on

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8 PH IL O S O PH Y O F R I GH T .

and thi s investigation will form the object of these Prolegomena or preliminary surveys. They will be divided intothree parts

,namely

, 1 . Metaphysical Speculation, 2 . Ethicsor Moral Philosophy

,and 3. Jurisprudenceas the Philo

sophy of Right. In this way weshall thus far see Rightarising, as Cicero has expressed i t

,ex intima philosophia,

and we shall follow it in its historical development.

ME TAPH YS ICAL SPECUL A T I ON .

THE object of Philosophy is to pre sent a regular systemwith regard to the essential conditions of knowledge andthe existence of things . The principal difiiculty whichit encounters, lies in its point of departure, and in itsmethod.A modern French philosopher, Cousin, has reduced the

philosophical systems to Idealism,Sensualism

,Scepticism

,

andMysticism. And in fact, when weexamine the variousschools, wefind that they have started from one of thepoints thus indicated in order to give a rational explanation of the real and the knowable. By a system is meanta series of ideas which areconnected together and subordinated under a single principle .

“

The history of theearliest times shows us man under the control of religion ,making everything depend immediately upon God . Buthe had no sooner fixed his gaze on the external world andon himself than sensation and ideas captivated his attention. A moment of disconcertment produced Scepticism,

and the need of faith gave rise to Mysticism. In thehistory of philosophy wefind the names of other systems,such as Materialism, which is a stage of Sensualism ; andPantheism

,which admits the unity of substance but which

may be readily reduced to Idealism,if the one substance

is conceived as ideal,or to Material ism ,

i f it i s conceivedas matter. T hesame may besaid of the Positivism nowin vogue

,which is only a disguised Materialism .

Gioberti,an Italian philosopher

, has sought to reduce9

PH IL O S O PH Y O F R I G H T .

all the philosophical systems to two great categories,namely

,Psychologism and O ntologism. Under the name

of Psychologism,he embraces the systems which start

from experience or from the Ego, in order to arrive at theAbsolute ; and he says that those systems belong toO ntologism which proceed from the intuition o f theabsolute idea in order to explain the contingent. This israther a question of method than of system ; but it is ofgreat importance, since method is essential to every system.

If the investigation starts from facts, or from what issensible

,it is better to adopt the analytical method if it

begins from ideas or from what is intelligible,the syn

thetical method is more appropriate . But when the subjectis at once a fact and an idea

,or both sensible and intelli

gible, then the two methods are both involved . As thefundamental problem of philosophy is to find the first

principle of what is knowable and of what is real,and

since this principle,as we shall afterwards see

,cannot be

a material fact,the synthetical method is therefore to be

preferred.

§ 1 .

The East is recognised by all as the cradle o f civilisat ion , but a considerable part of it, such as Egypt andPersia, did not advance out of symbolism

,or a form of

theology. Philosophy began to manifest itself in Chinaand in India.

tical philosophy from the old sacred books called King.

Mencius, his disciple, formulated a species of mysticalpantheism which savours of the influenceof the H indoophilosophy. Lao-tseu , the rival of Confucius

,starts from

a v o1d uni ty, the tao, from which all beings take origin7

and he seems to have numerous points of affinity with the

PROLEGOMENA . 1 1

Pythagorean and Platonic ideas as they were understoodin the School of Alexandria. Hecombats Confucius

,who

recommended action,and makes perfection consis t in ia

action . Fortunately for China the ideas of Confuciusprevailed ; and its society, which was entirely foundedon the family

,continued to seek for material well-being

by means of activity and labour.In India philosophy began with the simple interpreta

t ion of the Vedas . This gave origin to the MimansaSchool, which has left its monument in the Sutras orAphorisms . Its next stage was the Vedanta, which roseto the interpretation of some of the metaphysical maximscontained in the Vedas

,and which had for its founder

Vyasa. The Vedanta philosophy, according to Colebrooke,was a refined psychology and metaphysic which advancedeven to the denial of the existence of matter. Then arosethe Nyaya system of philosophy

,whose author was

Gautama, and the Vaiseshika system,which was founded

by Kanada. Nyaya means reasoning, and Vaiseshik ameans distinction of parts, that is, of the elements of theworld ; and accordingly the former is a system of dialectics ,and the latter a system of physics . We have two Sankhyasystems of philosophy : that of Kapila, which was irrel igious in its results ; and that called S ankhya Yoga, th ehead of which was P alandiadi

,and which issued in Mysti

cism. Sankhya means logos, ratio and the first of the twosystems was called from its conclusion N irdovara “

sineDeo while the second was called Tesovara cumD60.

”

All this philosophical development took place underBrahmanism

,that is, the religion of Brahma. The San

skrit scholar Weber distinguishes three periods in thehistory of this religion. During the first period the sacredhymns called the Vedas were written ; the forces o fn ature were then worshipped

,and the first principle was

matter. The second period is called by Weber the phaseof dualism and in it

,along with matter, which was con

sidered as a sort of chaos,therewas distinguished an

1 2 PH IL O S O PH Y O F R I GH T .

ordering cause which had fixedmatter (in Sanskrit stelita) ,that is

,which had created it . In the third period, the

world came to be considered as a simple emanation o fGod

, and even as a species of il lusion (Maya) ; and sciencetaught men to liberate themselves from this illusion bymeans of the contemplative li fe.This Brahmanic tendency to repose was pushed evento annihilation (Nirvana) by Buddhism,

a religion whicharose in the VI. Century B.C. It inculcated the duty oi '

divesting oneself of existence by meditation and mortificat ion. The common basis of Brahmanism and of Buddhismwas the belief in the metempsychosis

,but with the

difference that the former promised a better existence,

and the latter aspired after total annihilation. The mostaccurate investigations of Buddhism have discovered thecomplete atheism which is contained in this religioussystem .

1

There is no doubt that Greece received its religiousdoctrines from the East

,but that its philosophical develop

ment was indigenous .Sensualism and Idealism show themselves clearly in theIonic School, and in the Italic School o f Pythagoras .Thal es had constructed nature wholly and entirely out ofthe principle of water. Anaximenes

,and

‘later Diogenes

of Apollonia, believed that this first element was found inair, a more refined principle . H eraclitus found it in theFire which animates and destroys everything

,and which

Bourneuf carefully notes that founds his contention that Buddhathis doctrineappears in t hethird attached no other meaning t o thepart of t heCanon (theAtidarma) , word nirvana. than reposeor placeand not in thefirst ( theautras or of immortality. Buddha says : allaphorisms) nor in thesecond (vinaia that is createdmust disappear, mustor eth1cs ), which together boret hebedecomposed ; but it is not sonameof Dharma or laws. Healso W i th thenot made, t henot created,observes that thewholeof this part t henirvana . T hesuccessors ofof theCanon is designated by theBuddha gavet o this word thesigancient authors as not revealed by nificanceof awnihilai z’on.

Buddha.

”O h this Max Muller

PROLEGOMENA . 13

generates the movement and variety through which everything passes

,and into which everything is transformed .

Anaximander,Anaxagoras, and Archelaus of Miletus,

started from an original material principle, d'

vretpov, fromwhich

,by means of chemical and mechanical combinations

,

everything arises, and to which everything returns. Anaxagoras recognised a superior principle, voile, which moves theworld without lbeing separated from it . This mechanicalexplanation was completed by the Atomistic S chool ofLeucippus and Democritus, which suppressed the movingint elligence. According to this School , the principle s o fthing s are the plenum and the vacuum. The plenumconsists in atoms which are infinitein number and endowed with perpetual motion, and which by their aggregations compose beings. The soul is composed of sub tl eatoms, and sensation is the only source of our cognitions ,bodies giving off atomistic emanations which penetrateinto the brain and produce images of things.The Pythagorean or Italic School

,instead of keeping to

phenomena, took to examining their relations . I t is essent ially mathematical, astronomical , and at the same timeidealistic. Uni ty is the principle of all things : é

’

u cipxfiwav-réiv . Contraries are the elements of every existence,but everything returns to harmony . Things are composedof perfection and of imperfect ion. The perfect number i sthe decad

,which is God. The soul is the harmony of the

body ; it is not the result of the organism,but an emana

tion of the universal soul . It survives the organism andpasses from body into body by metempsychosis.The Eleatic School stands in the same relation to thePythagorean School as the At omistic School stands to theSchool of Iona ; it was an exaggeration and a supplement ofit. Pythag oras had signalised the harmony which reigns inthe world as the manifestation of his principle. Xenophanesshowed a predilection for unity ; and Parmenides, perhapswithout denying variety, ignores it entirely. Finally, Zeno

,denies variety

,and consequently movement and the very

14PH IL O S O PH Y O F R I GH T .

existence of the world. To him is attributed the inventionof Dialectic

,which he applied negatively by striving

.

toreduce the opinions of his adversaries to absurd1ty.

Empedocles takes a step back, finds in nature the centri

petal and centrifugal forces, discord and harmony, andcelebrates the triumph of love, that is, of God .

The dialectic of Zeno had yet to bring forth its fruits .

Protagoras, a sophist, drew from theIonic sensualism its

extreme consequences, and maintained that human con

sciousness only consists o f the perception o f the phenomenal

,and thatman is the measure of all things . Gorgias

did thesame by reference to the Italic idealism. Zenohad shown the nul lity of sensible appearances by foundingupon rational truths ; Gorgias endeavoured to reduce the

rational truths to simple appearances .The Sophists had abused reasoning because they hadstrayed away from reality. Socrates cal led philosophy backto internal observation

,saying that every one can be his own

master if he is only led thereto by certain external circumstances, and especially by O pportune interrogations . Heapplied himself to the perfecting of method in order tha tevery one may depend upon himself

,and may be able to

give an account of the power and forms of reason . Thismethod of Socrates brought forth the Dialectic of Platoand the Analytic of Aris totle. Plato seeks not only forthe logical principles of science but for the real principlesof things ; and he uses Dialectic not only to combat theopinions of his adversaries, but in order to discover thehighest principles . Plato discerns in the idea the essenceof mundane things, as ideas constitute the intrinsic possibility and reason of these things and act as archetypalcauses in the formation of all beings. Ideas have a separate existence and form a part of God. There are twointerpretations of this doctrine of Plato . Some hold thatideas are concepts and attributes of God

,a v iew which

was held by Plutarch , Alcinous, and some of the Fathersof theChurch . O thers think that Plato gave to ideas an

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16 PH IL O S O PH Y O F R I GH T .

realises itself by becoming individual . We have still to

note what Aristotle means by matter and by foam. By

matter he does not mean being that is ext ended , visible,tangible

,and divisible

,but the simple possibili ty of becom

ing something, that is, indeterminate being whi ch become sreal by means of form. But the notions of matter and ofform do not sufficeto explain the universe ; and there foreAristotle accompanies them with the notions o f efficientcaus e and of final cause. Every object is thus composedof matter and of form,

united together by anefficient causein v iew of a determinate end. The notion o f efficientcause leads Aristotle to the demonstration of the existenceof God

,the first Cause that moves the world ; and the

notion of final cause reveals to h im the wisdom whichhas ordered everything and which preserves everything.

For it is by a mere inconsequence that he has i solated theworld from God and has not recognised the divine providence.After Plato and Aristotle

,philosophy declined . Their

syst ems were succeeded by Epicureanism and Stoicism,

and these have this point in common , that they reducephilosophy to moral science. Epicurus reproduced theatomistic doctrine of Democritus, and founded privateand social morality on utility. In the Stoical system,

reason is the basis o f humanity,of nature

,and of God

H imself,who is not distinct from Nature. H ence the

practical rule parexcellence, i s to l ive according to reason,or, which comes to the same thing, according to nature,naturam seguere. This rule is summed up in two preceptssustz

’

neet abstine, and it leads by another way to the egoismof Epicurus. The human mind could not stop long at thisconclusion, and it fell into the Scepticism of the NewAcademy, which was developed principal ly by Arcesilaus ,Carneades, Philo of Larissa, who started from ideal ism, and

by Aenesidemus and Sextus Empirions,who proceeded

upon sensualism.

Reason, now wearv turned to the East and sought for

P ROLEGOMENA . 1 7

repose in mysticism. The philosophers of the School ofAlexandria, Plotinus , Porphyry, Jamblichus, and Proclus,sought union with God by means of ecstacy. But as G odwas conceived as absolute unity

,man could approach H im

only by becoming absolute unity. Plato had put forth theidea that man ought to resemble God the Alexandriansconsidered that he should be mingled with God

,thus

destroying all activity and all progress .To the School of Alexandria the relations o f man withGod are those of the emanated to the emanating. Plo~

t inus teaches that man has a consciousnes s of the infinite,

but it is through the medium of the contingent Ego,of

which he has to divest himsel f in order to rise t o theabsolute. God does not produce from need

,because He

is sufficient to H imself nor from desire,because Hehas

nothing to desire. Hedoes not generate by necessity,

because Heis H imsel f the necessity and the law for otherbeings . The God of Plotinus therefore generates by H isown nature , that is, by something which is superior tol iberty and to necessity. Hebegins to generate the mostperfect

,and gradually comes to the more imperfect. He

therefore generates Intellect,which is H is Son

,and differs

the least of all from H im then Hegenerates the Soul orSpirit

,which also differs little from intellect. These three

hypostases,or divine substances

,are unequal in the rela

tion of metaphysical anteriority,although they are all three

eternal. It is easy to recognise in the first person the Godof Plato; in the second the God of Aristotle, and in thethird the God of the Stoics. The third person, or the Soul,produces the world

,proceeding from things more perfect to

those that are more imperfect. These last,however

,tend

always to perfection , and convert themselves graduallyinto the more perfect

,until they are mingled with the

hypostase s themselves,which return again into the O ne.

Porphyry seeks to reconcile Plato with Aristotle, butalways in a pantheistic sense. Hemaintains that theincorporeal rules bodies

,and that the soul is found present

von. 1 . B

1 8 PH I L O S OPH Y O F R I GH T .

everywhere,and can act at any distance . Jamblichus

exaggerates this tendency into a theurgy, and falls intothe grossest superstitions . Proclus tries in vain to reanimate the expiring philosoPhic thought by decomposingthedivine order into so many intermediary beings, becauseeverything springs from emanation and all returns to it .What he calls providence can be only regarded as fate .1

§ 3.

But a new light had appeared for mankind in Christianity. It began by speaking to the heart and purifyingthe morals of men ; but it was not slow to make an all iance with philosophy. The cardinal elements of the newreligion are creation and the incarnation

,which bring the

creature near to God without confounding it with H im.

The divine Word is reason,and all the human race par

t icipates in it ,” exclaimed Justin Martyr . In v irtue ofthis germinal reason arising from the Word

,the ancient

sages were able to teach at times beautiful truths ; becauseall that the philosophers and legislators have said or foundof good, they owed to a partial intuition or knowledge o fthe Word. Socrates, for example, knew Christ in a certainway, because the Word penetrates into everything withits influence. This is why the doctrines of Plato are notcontrary to those of Christ

,although they are not by any

means the same.” Instead of rejecting the philosophicaldoctrines, Justin Martyr endeavours to bring them intoagreement, and he manifestly inclines to Pythagoras andPlato. Clement of Alexandria and O rigen continued thisspecies of eclecticism , but the Church found somethingexaggerated in Justin

’

s views and something false inO rigen. Lactantius proclaimed that there was no religionwithout phil osophy, as there could be no sound philosophywithout religion.

1 938?besides theoriginal works H istoiredel’E’coled’Alexandrie, R it

Cousin s H wtoeregénéraledelaphi ter’

s H istory of Ancient Phil osophy,losophw, Itavaisson

’

s Essai sur la. Zeller’

s H istory of G reek Philosophy,métaphyszqued’

Arzstote, Vacherot’s and other H ist ories.

PROLEGOMENA . 19

The Christian Trinity differs from the Alexandrian , forit considers the three divine hypostases as equal and cc

eternal . The S on,the Word or Intelligence

,cannot be

inferior to the Father from whom Heproceeds, any morethan theSp irit or Love ; because otherwise the perfectcould generate only the imperfect. The Christian Trinityresembles a circle eternally closed ; and the creation o f theworld takes place in virtue of the divine Love

,which is

entirely free from any need or desire. This differenceproduces important moral consequences, because it laysdown

,as the dominant principle, love to God and love to

men from regard to God .

The Christian writers in general are divided into Monks,or solitary ascetics who aimed at the purification of morals ,Apologists who combated the doctrines contrary to thenew faith

,Fathers who accepted the aid of philosophy,

and Doctors who made it their principal stay. O verthem all towers S t . Augustine , who combines in himsel fthe mysticism of the solitaries

,the argumentative vigour

of the apologists,the authority of the fathers

,and the

metaphysics of the doctors . S t. Augustine perfected thePlatonic doctrine with regard to ideas by removing alldoubt as to the place o f the ideas

,since from the uncer

tainty of the Platonic language it seemed that the M57 09was not consubstantial with God

,and that ideas exis ted in

themselves and by themselves . Moreover he destroyedthe hypothesis o f a pre-mundane life by establishing theview that the human mind perceives the ideas in God bydirect

,immediate , actual , and continuous intuition. H ere

are his words : P robabilius est proPterea vere responderede quibusdam disciplinis etiam imperitos earum,

quandobene interrogantur quia praesens est eis quantum id

capere possunt , lumen rationis aeternae, ubi haec immutabilia vera conspiciunt

”

(Petr. L ib. I . c. Elsewhere hesays : Sunt ideaeprincipale s formae quaedam vel rationesrerum stabiles atque incommutabiles

,quae ipsaeformatee

sunt ao per hoc aeternae,ao semper eodem modo sees

20 PH I L O S O PH Y O F R I GH T .

habentes quae in divina intelligentia continentur. Descending to psychology

,Augustine shows that the existence

of the Ego is inseparable fromthought, and that the sensesand sensation are a necessary condition of the exercise ofintelligence

,and not the matter of all cognitions .

The calamities of the times that followed turned awaythe thoughts of men from philosophy. Meanwhile thereign of Plato was being succeeded by that of Aristotle .The Alexandrians who had largely taken from Plato

,but

at the same time corrupting his original doctrine,turned

round to Aristotle. Porphyry had sought to reconcilethe two systems. Maximus, the teacher of the EmperorJulian

,Proclus

,and Damascius

,were almost Peripatetics .

The Commentators,Themistius

,Syrianus, David the

Armenian , Simplicius, John Philoponus— in a word,the

second generation of the School o f Alexandria— had goneover to the Stagirite

,and established him as an authority

which lasted more than ten centuries. Boethius, by histranslation of Porphyry’s I sagoge, or Introduction to theCategories of Aristotle

,formed the transition from ancient

to mediaeval times. A passage of this work,which puts

the question whether genera and species ex ist by themselves or only in the intellect

,and whether they exist

separate from sensible objects or make a. part of theseobj ects, served as a text for the Scholastic Philosophy.

1

§ 4

Scholasticism has three distinct epochs. The first epochextends from the XI. to the XIII. Century

,and in it

philosophy is the Ancilla theologiae; the second extendsfrom the XIII. to the X IV . Century

,and in it the two

sciences are rather regarded as all ies ; and the third extends from the XV. to the first years of the XV I .

Century, and in this period their complete separation began.

Scholasticism, in general, may be defined as the allianceSeeR itter’

s H istory of Christian Philosophy.

PROLEGOMENA . 2 1

of the Christian dogma with the philosophy of Aristotle.This does not mean that Plato was entirely forgotten, buthis influencewas then les s. Plato continued to reignthrough the medium of Augustine, and thus producedAnselm and Bonaventura. The demonstration at priom

'

ofthe existence of God

,which constitutes the most original

title of Anselm,was rejected by Scholasticism. Anselm

treated this subject twice : first in his Monologium,where

he expounds the demonstration of Plato, which consistsin rising from the more imperfect goods to the SupremeGood

,to perfect being

,by passing from the contingent to

the necessary. In his P roslogium he demonstrates th eexistence of God from the mere idea of God

,as has been

done again by Descartes ; and this forms the most conv incing proof of the Theodicy. Before Anselm

,the in

fluenceof Plato had produced Scotus Erigena,who

translated the spurious writings attributed to DionysiusAreopagita

,and represen ted God as the substance of all

things. From Scotus and the pseudo-Dionysius sprangthe Pantheists, Amaury de Chartres and David of Dinan t .The great problem of the Scholastic Philosophy was

based upon the passage of Porphyry we have indicated,

and it was brought forward about the end of the XI. Century by the Canon R oscellinus, who said that the genuswas a simple abstraction formed by the mind uniting inone common idea what the various individuals have allalik e ; and thus he created Nominalism. From this viewbeinferred that there is no reality except in the individual ; and thus the unity which forms the basis of themystery of the Trinity became nomi nal

,only the three

individual persons existing . Anselm hastened to combatthe new system, by writing a treatise on the mystery of theTrinity. William of Champaux ,

going to the other extreme,

maintained that genera were not mere empty words but,

on the contrary, that they were the only entities (res) , andthat they were found entire in the individuals (eademessentialiter tota simul) , and that the individuals, identical

22 PH IL O S O PH Y O F R I GH T .

in their essence,difi

°er only by their accidental elements(sola multitudinis accidentz

'

um aarietate) . This systemwascall ed Realism } Then came Abelard, who, although recog

nising the reality of genera, maintained that they existedonly in the mind, which makes an abstraction from whatthe individuals have in common ; and thus he created

Conceptualism. Hemade the boldest applications of thesetheories

,explaining the Trinity philosophically by reduc

ing the three persons to simple attributes of being, namely,power

,wisdom

,and goodness

,— which attributes united

together form perfect being. This was the heresy of theunity of the persons as opposed to that of R oscellinus, whoseemed to maintain three Gods ; and hence Abelard wascondemned'

by the Councils of Soissons and of Sens, andretired to end his l ife in a cloister.The Church sought to guide the philosophical movementwhich it was not able to suppress. The institution of thetwo orders of S t . Dominic and S t . Francis gave origin totwo schools

,the first of which reckoned among its members

Al bertus Magnus and Thomas Aquinas, while the secondclaimed Al exander of H ales

,Bonaventura

,Duns Scotus

,

Roger Bacon, and Raymond Lullus. The Middle Ageshad possessed the Organon or L ogic of Aristotle, and itwas enriched by the discovery of his other works

,namely

,

the DeAnima, the Metaphysics, and the Natural H istorywhich came to light in the time of the Crusades . Thesetreatises had been hitherto known in Europe only in theexpositions of Arabian commentators . The Arabians aocepted the Greek encyclopaedia of knowledge as it existedat that time, and they knew Aristotle only through themedium of the School oi. Alexandria. This knowledge wasnot direct, and it could not be exact. Thus Avicenna andAverroes interpreted Aristotle in a pantheistic sense

,while

Avicebron interpreted him in a materiali stic sense . Alber

1 What was calledRealism in thecipleof all knowledgeand of allMiddleAges is now called Idealism

, reat consist in t heidea.

as thesystemwhichmakes theprin

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24 PH IL O S O PH Y O F R I GH T .

much more simple if he had had recourse to the crea

t ive act.Al exander of H al es founded the Franciscan School . Hewas one of the first to take advantage of the translationsof Aristotle made by the Arabians, and he left oommentaries on the Sentences of Petrus Lombardas, which, afterthe approval of ten doct ors, were recommended by Innocent IV. to all the schools of Christendom. Bonaventurai s the most eminent thinker o f this school. Heunfoldsthe profoundest reasoning on the idea of God, making thisidea the foundation of certainty, on the ground that theWord o f God not onl y gives us the knowledge of primitivetruths, but also that of deduced truths, which are connected with the former.Duns Scotus represents individuals as arising from theunion of matter and form. But the determinate cause o fthis union is placed by him in a particular entity

,which

his disciples called c cefitas,which is the principle of

individualisation . The universal is contained not onlypotentially (posse) but really (actu) in objects ; it i s notcreated by intelligence

,but is reality itself. Hemain

t ains the principle of indifference,and considers moral

truths as well as the creation to be dependent only on thewill of God.The efforts o f Roger Bacon and of Raymond Lully

,may

be regarded as a reaction from the excessive realism ofDuns Scotus. Roger Bacon cul tivated by preference thenatural and mathematical sciences

,and had a presentiment

of the principal discoveries of modern times . Heproclaimed the principle that art should imitate nature

,and

he was the precursor of the discovery of the experimentalmethod . Raymond Lully wished to find formulae bywhich to attain to universal science in his Ars Magnet ,a sort of alphabet of abstract ideas

,and o f logical sub

jects, and attributes , which , divided into certain circles,united or divided by certain lines

,were to furnish middle

terms for all reasonings.

PROLEGOMENA . 25

The O pen struggle between religion and philosophybegins with William of O ccam,

who revived and advocatedNominalism. Heheld that genera could exist only inthings

,or in G od . In things they would be either the

whole or the part ; but in the first case, there would notbe individuals

,and in the second case

,the part would be

a genus . In God they could not exist as an independentessence

,but as a simple obj ect of knowledge. After

dealing with universals he attacked another celebratedtheory

,that of sensible or intelligible species, which the

philosophy of the time believed to be the intermediariesof ideas. O ccam recognised no other intermediary butspeech . As regards the mind

,he knows it only by its

attributes , and is not able to maintain that it is a materialor an immaterial being.Among the most celebrated Nominalists wemay men

tion Buridanus and Pierre d’

Ailly. After them theresprang up an indifference which may be regarded as akind of scepticism

,until the movement culminated in

thorough mysticism in Gerson and Thomas aKempis .Throwing a general glance over the Scholastic Philo

sophy,we find in it the characteristics both of progress

and of barbarism . It i s progressive in so far as it indirectly revives the ancient systems, seeking to reconcilethem with Christianity. It is barbarous in so far as itseeks certainty in the external forms of reasoning ; andso much so that it may be

,

correctly said that its formstifles its matter, and its reason is oppressed by thesyllogism. For example, the question of Universals hadpresented itself to the philosophers of antiquity

,and had

been resolved according to the difi'erent '

schools,but the

problem of individualisation had not entered into themind of any of them. The Middle Ages not only dist inguished the particul ar from the general, but, followingAristotle

,the leading minds of the time were long ocen

pied in di stinguishing the form from the matter in theparticular. Thus they wished to find out by virtue of

26 PH IL O S O PH Y O F R I G H T .

what principle theparticular separated itself from theuniversal, and if it drew its origin from form or from

matter. H ence they devised hypotheses, as wehaveseen in the case of Thomas Aquinas , ins tead of simplybay ino' recourse to the creative act. O ther schools denied

concepts of our mind,thus ignoring the immutableorder

which the particular beings manifest, and which is reflected in nature under the double form of classes andlaws

,and in our mind by those general ideas whose

eternal exemplar exists in the divine intellect . But theprinciples of reason

,through the medium of the philoso

phical ideas of antiquity, were to break through the hardshell which surrounded them ; and this work was reservedfor the Renaissance .1

M’The XV I . Century was a revolutionary century ; itd iffers from the XVIII. Century only in that it was notconscious of the fact . The Council of Florence, whichaimed at the reconciliation of the Greek Church with theLatin Church

,had given occasion in thepreceding century

for many Greeks coming to Italy,and they spoke of the

treasures of antiquity which they still possessed intact.The taking of Constantinopl e increased the number of theGreeks who settled in Italy

,and they brought precious

manuscripts with them. But such a circumstance,entirely

material as it was, does not sufficeto explain the greatmovement of ideas which was furthered

,but no t created

,

by the arrival of the Greeks.This movement was really occasioned by that restlessness of mind which was striving absolutely to break thefetters which held it enchained . War was declared onScholasticism, as well as on many of the traditions of the1 SeeIIaureau, H istoiredela saphic sco lastiqueJourdain, L a

pfidosophw scolast iqueR ousselot , philosophiedeS aint T homasd’

Aquin;E tudes sur la phdosophieda moyen and other works .

dye; Cousin, F ragments dc philo

PROLEGOMENA . 27

past and under the guise of antiquity the mostex travagant ideas were expounded . The principal s ources fromwhich thinkers drew were the two great schools of Greece

,

those of Aristotle and Plato. But these two great authorsnow showed themselves under a new aspect. We havealready said that the Middle Ages for a long time hadknown only the O rganon of Aristotle, and that his otherworks were only indirectly known through the medium ofth e Arabians who had principally drawn from the Schoolof Alexandria

,which had sought to attenuate the differ

encas that divided Aristotle from I’lato. But hardly hadthe power been acquired to read all the writings of Aristotlewhich survived in the original, as well as the O ommentaries o f Simplicius and Alexander Aphrodisiensis, thana more truthful idea was obtained of the philosophy of theStagirite . N0 system has given rise to s o many controversies as that of Aristotle

,which in the present day is still held

by some to be materialistic and by others to be idealistic.O n the oneside it is shown how he unites thought with thebody

,and that he believes digestion and thinking spring

from the same cause ; from which it follows that man,when he loses the organic li fe

,loses memory and con

sciousness, and is therefore incapable of immortality . Iti s added that he holds matter to be co-eternal with God ;and that he maintains that God did not create the world

,

but remains absolutely alien to it . O h the other side iti s alleged that Aristotle certainly recognises an invisibleprinciple

,simple and one ; that this principle is thought,

and that it governs the body ; and, moreover, that theprincipal idea of his philosophy and of his theodicy is thatof final cause, as he recognises in nature an ascendingscale of beings. Above man and nature he puts a Beingwho owes his movement to his own power, an absolute andimmaterial intell igence

,an immovable mover of the uni

verse. All this is con trary to materialism. The secondinterpretation had predominated in the Middle Ages

,and

the first prevailed during the Renaissance. Two great

28 PHIL OSOPHY O F R I GH T .

Peripatetic Schools arose in the University of Padua, thecentre of the movement. The one which followed the Com

mentatorAlexander the Aphrodisian included P omponatius,Cremonini, Z abarella, and Vanini, while the other whi chfollowedAverroe' s includedAchillini,Cesalpino, and Zimara,and they regarded Aristotle as an enemy of orthodoxy.

Plato,on the contrary

,had been well interpreted by the

first Fathers of the Church, and by Augustine and Anselm.

And now he was revived as transformed by the NeoPlatonic School of Alexandria

,and he was there fore re

presented as antagonistic to Christianity. It would beerroneous to confound the God of the Dialectic of Platowith the absolute Unity which is without determinations,and therefore without thought

,without action

,and with

out life. This is the Dialectic of the School of Elea, as itwas resuscitated by the Al exandrians in conjunction withthe method of Plato . The Platonic Dialectic is not asimple logical process

,but an experimental and rational

method which sets out from the living reality,and on the

wings of reminiscence rises to the Ideas,that i s to say

,

to the absolute types of existence and to theprinciple ofall the ideas, which is the Good. Certainly Plato has notwell defined the relations of man to G od

,because he did

not know the principle of creation which was brought intophilosophy by Christianity ; and on this point we see thePlatonic doctrine of ideas improved by Augustine

,and we

shall see that it is completed by Gioberti. H ence the

Renaissance resuscitated a false Plato ; and thus it wasthat Gemistus P letho confounded Plato with Zoroaster.Marsil ius F icinus

, the founder of the Platonic Academyof Florence, oscillated between Plato and Plotinus

,and

believed in good faith that he could reconcil e them.Pico

della Mirandola applied mystical theories to the cosmogonyof Moses . Patricias accumulated a thousand extravagances under the names of Plato and H ermes . Bessarionand the Cardinal of Cusa

,wishing to defend Plato

,con

fused his doctrines with those of Aristotle and Plotinus .

P ROLEGOMENA . 29

Nevertheles s in Cusanus there are found the germs of theinfinitesimal theory

,and there is much that is peculiar in

his doctrines.The most original author of this period was Giordano

Bruno. To the logic of Aristotle he opposed a new logicafter the outlines of Raymond Lully ; to the astronomyof Ptolemy he opposed that of Copernicus and o f Pythagoras ; to the physics of Aristotle, with its finiteworld andits incorruptible heaven

,he opposed the idea of an infinite

world,snbject to an eternal evolution ; to the Christian

religion,the religion of grace and of the spirit

,he O pposed

a religion of nature without a cultus,without an altar

,

and without a God. Bruno did not create a well-connected system,

but he transmitted to Descartes the notiono f methodic doubt and evidence as the criterion of truthto Sp inoza the idea of an immanent God ; to Leibniz thegerm of the theory of monads and of optimism to Schelling the famous expressions natura naturanteand naturanaturam and

,lastly, to H egel the conception that a

secret logic presides over the order o f the univers e,that

whoever attains to a comprehension of the first elementsof thought and the necessary laws of the various combinations o f ideas

,renders himself master of everything

,and

that God is the absolute coincidence, the supreme harmonyof contraries

,the indtfi rentia oppositorum. It may be

added that in the material and physical sciences he caugh tglimpses of the centre of gravity of the planets

,of the

orbits of the comets,and of the irregularity in the spheri

city of the earth ; and he perhaps also gave the first ideaof vortices. Thus it will be seen how well Bruno deservedthe title which he gave to himself of Excubitor.

Telesio and Campanell a,other two Italians, were also

precursors of the modern epoch . Bernardino Telesio published a work entitled .Denatura, juxta propriaprincipia,

in which he proclaimed that it is necessary to start fromreal

,not abstract beings, entia. realmnon abstracta, and

he combated the physics of Aristotle . Campanella trans

30PHILOSOPHY O F R I GH T .

ferred to psychology the axiom which Telesio had appliedto physics

,and formed a system which resembles the

sensualism of Condillac. Hesays that human knowledgenaturally begins from real things, and therefore that sensation is knowledge . Nothing, then, should be presupposedas certain and known and consequently we ought todoubt everything

,even our own existence . H ence Cousin

has well said that when we read the life and the worksof Telesio and o f Campanella, we feel that Bacon andDescartes are not far off.” 1

The Renaissance had its sceptics and its mystics, likeevery other period in the history of philosophy . O i theformer we may mention Sanchez, Montaigne, and Charron . Among the latter the first position is taken by theCardinal Nicolas of Cusa, who, although a Neo-Platonist

in the strongest sense of the term,is reckoned among the

mystics on account of his book DeDocta, Ignorantz’

a, the

chief argument of which is that finitebeing cannot embracethe infinite. Then come Reuchlin

,who mixes up Platonic

,

Pythagorean,and Cabalistic ideas ; Agrippa, who openly

teaches magic ; Paracelsus and Cardan, who busy themselves with alchemy and astronomy in order to discoveran occult philosophy Van H elmont

,who reproduces

Paracelsus and Fludd,who seeks to reconcile him with

the book of Genesis interpreted allegorically . Finally,Jacob Bbhmein 1 6 1 2 publ ished his Aurora, in which heseeks to demonstrate the impossibility of attaining to tr uthwithout a heavenly insp irat ion

,the identity of the human

soul with God, the difference between them being only inform and he gives a symbolical exposition of Christianity

.

Thus the philosophy of the Renaissance,under manifest

imitation of the systems of antiqui ty,already gives us a

feeling of the new life. 2

1 V ictor Cousin H istoiregénéralescphiemoderne3 Jusqu dKant. Paris ,dela 11,1110”t L ! §on onz zéme, 1 86 1 . Burckhardt, DieUnltur der1 2meedition. Paris

, 1 884. Renaissancei/n I talien. S tutt ar1 SeeBnhle

,H istoiredela philo 1 878.

g t,

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32 PHILOSOPHY O F R I GH T .

gence are corporeal,being produced by the impressions

o f bodies.Sensation presents us with objects man adds

or subtracts by means of reasoning, but he has no certaintywith regard to what the senses present to him. Liberty isonly the determination of appetite, and the state of natureis a s tate of war

,man being the enemy of man , while laws

and justice are the creation of the social contract.Gassendi was a scholar after the manner o f the preceding century, and his whole life was spent in renewingthe philosophy of Epicurus and in combating Descartes.Locke was led to devote himself to phil osophical inquiryby a question which was raised in a private conversation ,andwhich remained unsolved. Hethought that the difficulty involved arose from making use of ideas that werenot well defined ; and enlarging this observation, he saidthat as we make use of the mind in philosophy

,it is there

fore necessary to study it. Heassigns two sources tohuman knowledge : sensation and reflection. Reflectioni s applied to the operations of the mind

,and i t makes as

know what they are,that i s to say

,as sensation presents

them to as. Locke closes the XV II . Century, and

before taking up his successors we must take a step backwards in order to examine the doctrine of Descartes.The method of Descartes embraces four rules : I . Totrust only to evidence ; 2 . To divide objects as much aspossible (which Bacon called dissecting and anatomis ingnature) ; 3. To make many enumerations

,even as exten

sive and varied as may be possible ; 4. To reconstitute asystem with the parts already divided and examined.

Everything is reduced to employing analysis and synthesis in order to attain to evidence

.Applying this

method, he seeks to demonstrate exis tence by means ofthought with his famous Cogito ergo sum,

without considering that thought is a phenomenon, and that it doesnot advance from the sphere of simple perceptions

.What

is the character of thought ? It is to be invis ible,intan

gible, imponderable, unextended, simple. Now,as we may

PROLEGOMENA . 33

conclude from the attribute to the subj ect, and as thoughtis an attribute o f the Ego

,the simplicity of the one is the

simplicity of the other ; and in this manner he demonstrates the Spirituality of the mind . Headmits innateideas

,not in the sense attributed to them by H obbes and

by Locke : that is to say, not as present to our mind fromthe first day of its existence

,but as existing in germ in

all intelligences and awakened in certain circumstances.Descartes may be considered as the father o f that systemwhich has since been called subjectivism or psychologism .

Reflecting on his own thought,Descarte s rises to the

idea o f God for although thought i s imperfect and finite,he nevertheless d iscovers in it the idea of the perfectand infinite

,appropriating the celebrated demonstration

of Anselm. Hetherefore attributes to God a liberty ofindifference, holding that Heis not subject to any law, noteven to that of the good . No being in any moment possesses in himself the reason of its own existence

,nor are

mathematical and moral truths in any way independentof G od

,who can change them at any moment. The world

being imperfect has its origin from the perfect,that is to

say,it has been created by G od. Every truth and every

existence accordingly depends on the will o f God. Man

finds the nature of tru th and of goodness establi shed anddeterminated by God . The criterion of certainty whichis found , as we have already said, in evidence, can only besubjective. There exists another obj ective criterion oftruth which serves as the basis of all

,and Descartes finds

it in the divine veracity. According to Descartes, theonly reason which we have for believing that our thoughtis conformable to things

,and that the internal evidence

corresponds to the external reality,is the idea of an abso

lute principle which produces both the laws of thoughtand the laws o f being

,and which

,as eternally willing the

truth and eternally manifesting it with the creation,is

eternally truthful.H ence in his definition of “ substance

,which he repre

vor. 1. o

34 PHILOSOPHY O F R I GH T .

sents as a thing whi ch exists per se, he has in view onlythe divine substance, as neither the human soul nor matterexists of or through itself. The fundamental attributeso f substance are defined to be extension ”

and thought,”

and he denies matter every kind of force. Hedenies als othe possibility of a mutual action between the two subs tances

,the divine and the created, which he has separated

by an abyss . The soul cannot excite any movement inthe mechanism of things , but can only change a pre-existent motion . God has arranged the things that are out o fus in such a way that they present themselves to oursenses at a given moment

,and Heknows that our free

wil l will determine itself in a certain manner according tothe occasion. H ere wehave the germ of the O ccasionalCauses of Malebranche

,and of the Pre-established H ar

mony of Leibniz.Malebranche sought to establish more completely theharmony between thought and real ity by identify ing theintelligible with the real

,and by demonstrating that in

ternal truth is but a reflex of the absolute truth . Hesaysthat nothing

” is nei ther intelligible nor visible ; whenceit follows that all that is seen clearly

,directly

,and im

mediately, necessarily exists . Malebranche returns toPlato, maintaining that wedo not see things in themselves ,but in their ideas or eternal possibilities

.Passing from

idea to idea, from possibility to possibility, we reach aBeing which cannot be conceived as simply possible, sincei t does not arise from any superior being

.We cannot

conceive God, he says, as simply possible ; nothing cancontain H im or represent H im ; and if Heis thought, itis a sign that Heexists . In o ther words

,God is possible

and intelligible through H imself ; and other things areonly intell igible through God. We think of things onlyin their intelligibili ty, or in their idea ; and hence wethink them in God, while we think God in H imself,although we do not perceive H im in any higher idea

,as

Heis the Idea of ideas,the Being that is absolutely in

PROLEGOMENA . 35

tel ligibleand absolutely real . When wethink of God,Heis present without any medium to our thought ; andwhen wesee or perceive things, we see them in God as inan e ternal l ight . H ence this system has been called thato f ideal vision,

as maintaining the vision o f all things inGod.

”As all activity is attributed to the absolute being,

bodies cannot act on us,nor weupon bodies ; and they are

only the occasion or “ occasional causes ” of our impressions

,of which God alone i s theefficient cause . O ur own

will itsel f is only an occasion of the movement of ourorgans which God alone moves

,since we are only thinking

machines ; and God H imself is only an eternal geometricianand an artist . H ence it has been well said by a recentFrench writer that Malebranche is Spinoza arrested hal fway by faith, or an ill ogical and unconscious Spinoza.

” 1

Sp inoza was a Jew,and as such he knew the philosophy

of the Cabbala and the philosophy which his fellowcountrymen had derived from the Arabs. That philosophy denied the attributes of God in order to escape fromAnthropomorphism, while it makes of man an abstraction ,and considers theworld as eternal and infini te. It i seasy to recognise in i t the O riental pantheism that hadsprung from a false interpretation of Aristotle, and whichS pread over th e coasts of Asia and Africa and then intothe schools of Spain. It disturbed the University of Parisin the XII. Century through the writings o f Amaury deChartres and of David de Dinant, and it exercised theUniversity of Padua in the XVI . Century in connectionw ith the works of numerous Peripatetics . The mostillustrious representative o f this philosophy among theArabs was Averroes . It was represented among theH ebrews by Maimonides

,whereas Avicebron remained

unaffected by the Arabian influence,and rather represents

the orthodox national philosophy with a shade of NeoPlatonism.

The system of Spinoza may be s11mmed up as follows.

1 F ouillée, Etude: m l’

histoiredc la philosophic. Paris, 1 875.

36 PH IL O S O PH Y O F R I G H T .

Substance is what exists of itself and through itself, andwhich needs nothing in order to exist. This is the definition of Descartes

.It follows that it is 3111: causes, that is,

it cannot be produced by any cause ; and it is eternal and

infinite, and therefore unique, as two infinitesubstancescannot be admitted . This one sole substance i s G od.

God alone is free,because Heexists bnly by the necessity

of H is own nature, and determines H imsel f to act of andthrough H imsel f. The attributes of God are Spirit andmatter

,as Descartes had found thought and extension to

be the attribu tes of substance . God, considered as freeand determining cause , is called natura naturam, and allthat Springs from the divine essence is called natura, naturam

,terms already used by Bruno. Thought, will, desire

are modes which belong to the natura naturam, since

God has neither thought in act nor will properly so called.

There are no final causes, as God could not produce thingsdifferently from those which Hehas produced

,nor could

Heset before H imself any end. Man is a be ing who existsonly inactu the body is a mode of extension

,and the soul

i s the collection of affections which emanate from the bodyand produce ideas , from the most confused to the mostclear, which is that of God .

Leibniz found philosophy divided into two camps . Sensualism was represented by Locke ; and idealism,

inangarated by Descartes

,came to a melancholy issue in Spinoza

and in Malebranche . Leibniz aimed at a reconciliation ofthe systems. Hebegan by combating Locke

,and to the

axiom nihilest in intellectu quadprius nonfuen'

t in sensuhe added 711313intellectus fipse, t hereby saving intell igenceand necessary and universal ideas . Hethen attacked thetheory of Descartes, which assigned extension to matteras its essential attribute

, whereas according to him it i sforc e which constitutes the essence of every material substance. Hereduces the universe to a complex of forces

,

which he calls “monads.” These monads,hierarchically

arranged and created at a single time, are efiulgences of

PROLEGOMENA. 37

the Deity,placed between the creation which has taken

place by the goodness of God and annihilation which thegoodness of God prevents. They contain an infinitemult itudeof obscure perceptions which make them,

as it were,

a representative mirror of the universe ; and the development o f intelligence consists in rendering these perceptions clear and distinct. But how are these monadsmoved

,and in what relation do they stand to each other ?

God,the great Monad

,has arranged everything in accor

dance with a pre-establt’

shed harmony. This hypothesisruins the whole system,

for it reduces man to a spiritualautomaton almost in the same way and degree as Descarte s

,

Spinoza,and Malebranche had done. In this way God is

the author of reality and of the knowledge of the externalworld, but in a fashion that is entirely mechanical . Leibnizbeli eved that he had saved everything

,and that he had

harmonised the sensible world with the intelligible worldwhereas he remained in th e sensible world alone

,that is

,

in the sphere of internal fact or of the internal phenomenon of the representative power o f the monad .

In Italy, Vico combated the philosophy of Descartes ,and recalled thinkers to O ntology. Hesought to connecthis ideas with those o f the ancient phil osophers

,Pytha

goras and the I talic Zeno, whom he confounds with Zenothe Stoic. Pythagoras saw in numbers , which resolvethemselves into unity

,the principles of things and Zeno

admitted a substance incapable o f division which existsequally under all things. Vico called th is substance themetaphysical point ; because, just as the mathematicalpoint (which is a pure abs traction) gives origin to a worldof numbers and of figures, so the metaphysical point is ,

the radical virtue of bodies, and has the power of extensionand of motion

,although remaining undivided under all

magnitudes and extensions, and it explains to as thewhole of creation . It is therefore an indivisible powerof extension ; and although unextended, it i s capabl e o fextension, and it serves as a mean between beings and

3s PHILOSOPHY O F R I G H T .

God,by whom it is called forth . The metaphysical points

o f Vico are accordingly the created essences of things .They are their substance

,and to them properly belongs

the virtus extensiom'

set motus by means of which individual things are produced ; and they are created essenceswhich are dispositions o f God the Creator, in whom theyare purest activity (actus purissimus) .Passing to the theory of knowledge, Vico begins by dis

t inguishing intelligerefrom cogitare. I ntelligereis scireper causas, and is the proprium of God ; cogitareis collecting the elements of truth that are in things, and it is theproprium of human minds. Headds that truth ad intmis convertible with that which is generated, and truth adextra is convertible with fact

,which means that the divine

origin of ideas happens by means of generation , and theirhuman origin by means of creation. The elements of alldivine and human knowledge are three

,namely

,knowing

,

willing,and having power to act

,the sole prin ciple o f

which is the mind whose eye is reason illuminated byGod . God possesses infiniteknowledge

,will

,and power ;

man has finiteknowledge,will

,and power

,Which tends to

the infinite. Man has necessary knowledge,but free will

and power. Hebegins with the certain and ends withthe truethat is to say

,he first believes and works

,and

then he reflects and judges . The intellect produces theidea ; the will, the fact and as they thus set out fromacommon centre, there ought to be a necessary harmonybetween. them. These principles have been very happilyapplied by Vico to morals

,law

,and history

.

Scepticism was represented in the XV II. Century byH uet, Bishop of Avranches, H irnham,

Glanville,Pascal

,

and Bayle . The scepticism of the first two is comparat ively slight, but Glanville examines and confutes dogmatiem with reference to the idea of cause

,and opens the

way to H ume. Pascal is sceptical With regard to reason,

but he is tormented by a great need of faith.Bayle is

the ideal of the learned sceptics . Heattacked everything

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40 PH IL O S O PH Y O F R I G H T .

distinction between virtue and vice . H artley and ErasmusDarwin connected the intellectual man with the physicalman

,and identified matter and mind . Godwin and Ben

tham are the political writers of this school .In France

,Condillac was the father of sensualism . In

his Essay on the O rigin of H uman Cognitions (Esset'

sur

l’

originedeconnai’

ssances Immaines) , he follows in the footsteps of Locke

,distinguishing in man two series o f ideas

those that come from sensation, and those that takeorigin from the mind turning,r upon its own operations ;although he grants it a certain amount of activity, which

heafterwards denied it in his “Treatise on Sensations

(Traite' dc Sensations) . The soul i s at the outset a tabular,msa

,and all ideas come from experience . This is the

common principle of Locke and of Condillac. But in theformation of the ideas which come to impress themselveson this tabula msa

,one calls forth activity and another

suppresses it . Condillac supposes a statue to be organisedinternally as we are

,and not to have received any ideas ;

and he represents it as opening successively to the variousimpressions of which each of the senses of this statue issusceptible . Hebegins with smell

,which of all the senses

is the least extended,and has the smallest part in the

cognitions of our mind . Herepeats successively the samet est in the case of the other senses . After having examined the ideas furnished by each of them

,he analyses

those that result from the united action of several senses ;and thus setting out from a simple sensation of smell

,he

raises his statue by degrees to the state o f being rationaland intelligent, so that not only he describes the facultiesand the ideas which spring from them

,but he explains al so

their genesis by analysis of the sensations . Hedistinguishes two species of faculties : the intell ectual, which hereduces to the understanding

,and the affective

,which he

reduces to the will. Heconcludes to this efi'ect z - that,

while Locke distinguishes two sources of our ideas,the

senses and reflect ion, it would logically be more exact to

PROLEGOMENA. 41

assign them to one source only,since reflection is in its

principle only sensation itself,or the channel by which

ideas come to us from the sense s.After Condill ac

,sensualism became predominant in

France,through the advocacy of Diderot

, D’

Alembert,

and the other writers of the Encyclopedia. It fell intoa pure materialism with H elvetius

,D

’

H olbach , and LaMettrie. Cabanis did in France what H artley and Darwindid in England. We may mention as exceptions Voltaire,Rousseau

,and Saint Martin . Voltaire by reason , and

Rousseau by sentiment,rose to a first cause, while Saint

Martin reproduced the mystical theories of Bohme .In Italy Genovesi retained some of the doctrines of the

preceding century and of Leibniz,but the philosophy

of Locke,and then the system of Condillac

,ultimately

prevailed in the Italian peninsul a,notwithstanding the

honourable exceptions of Sigismondo Gerdil and Ermenegildo Pini in upper Italy

, T homasso Ross i at Naples, andVincenzo Micel i in Sicily.In Germany

,the Sensualistic School was represented

by Feder,Tittel

,Basedow

,and Tiedeman ; but, before the

century closed,there arose the grand philosophical system

of Kant..The reaction began in Scotland

,where H ume, starting

from Locke and Berkeley,landed in absolute scepticism.

Locke had reduced the notions of cause and of substanceto simple individual relations of things to each other, orto simple associations o f ideas. Berkeley advocates theview that weperceive only ideas or images

,which succeed

each other without any relation to external obj ects . H umeinferred from this that causes and effects are in conjunction and not in connection with each other

,thus destroying

all legitimate belief bo th in the external world and theinternal world.

Reid revol ted against the hypothesis of representativeideas

,and vindicated the doctrine of immediate objective

perception . Heand Dugald Stewart wished to found

42 PH IL O S O PH Y O F R I GH T .

philosophy on observation, and admitted at 197 507 13 truthsas fundamental laws of the human intell ect. A great step

was taken by these philosophers of the Scottish Schoolagainst sensualism and scepticism. Reid held the doctrineof immediate perception, or an objective and affirmativeidea of body in the concrete ; but he did not equally recognise the perception oi the generic and absolutely concrete ,and the objectivity of the j udgment which accompaniesthe perception of these various elements and connectsthem together . Instead of e stablishing the position

,as

he ought to have done,that the judgment belongs to the

perceived obj ect,and that the true and first judger is the

same obj ect (the absolute idea) which presents itself withall its parts to the subj ect

,he wished to derive the judica

tive act from the latter,and by this hypothesis he took

away all value from the perception . And in fact,how

can the perception be immediate and the idea truly objective

,if the percipient does not receive the judgment from

that on which the reality and the organism of the idealobject depends, and if the judgment belongs to the subjectwhich perceives

,and not to the thing perceived ? Kant

,

with great acuteness,saw that

,on the onehand

,the con

tingent concrete thing cannot be thought without thegeneric idea ; and that, on the other hand , the subjectivityof the judgment cannot be harmonised with the objectivityof the idea and the immediate nature o f the perception .

But instead of conj oining the general idea and the concreteabsolute with perception

,and obj ectifying the judgment

,

he subjectified the idea, denied perception the power ofembracing the contingent concrete object

,and reduced all

cognition to the generic element alone,which

,when the

concrete object was withdrawn from it,could have no

other than a subject ive value .Kant was “ roused from his dogmatic slumber by the

scepticism of H ume, and in order to combat it, he was notsatisfiedwith merely maintaining dpriori truths like Reid.Hemade a profounder analysis of the human intellect,

PROLEGOMENA . 43

and found two species of cognitions : the first rational,

synthetical,d, 197 1507 1, general, and necessary ; the other

analytical, d, posteriom

’

,and contingent. The former cog

nitions constitute the fundamental laws of our intell ect,

and it possesses them anteriorly to all experience. Infact, synthetical judgments are those which enlarge ourcognitions by showing us something which is not containedin their subject

,whereas analytical judgments do nothing

more than show us better the agreement o f the predicatewith the subject . Kant distinguishes in knowledge itsmatter and its form. Hecalls the matter of cognitionphenomena

,and what unites the diversity of the phenomena

in certain relations,he calls their form. In other words,

matter is the divers ity,and form is the unity in cognition .

Hedistinguishes the forms of the sensibility (which aretime and space) , the categories of the understanding (whichare those of quantity

,quality

,relat ion

,and modality) , and

the ideas of the reason,that is

,the ideas of the Ego

,of

the world, and of God, which transcend or go beyondexperience .We see then how knowledge is formed according toKant. We have intuitions or representations of objectswhich are furnished to as by experience . To what arethese intuitions due ? To our capacity for receiving impressions

,or

,in a word

,to our receptivi ty. But it i s

necessary to cc-ordinate such intuitions, that is to say,to reduce them to unity. H ow

,then

,can this function be

fulfilled ? The activity as such must be an activity o fthought

,with the spontaneity which is proper to it, and

which constitutes the understanding. The intuitions, ac

cordingly, are the matter of cognition ; they are renderedhomogeneous by a common bond

,which is that of space and

time,without which they would not be possible. In order

that a synthesis may be valid,it is necessary that it should

have acquired the character of necessity,which the under

standing alone can give to it by means of the categories .Reason struggles to pass beyond the l imits of space and

44 PHILOSOPHY O F R I GH T .

time,because it is in accordance with its nature to seek

total ity or absolute unity by synthesis of the cognitions, inorder to attain to an absolute principle. Not finding thisin the sensible obj ects, reason throws herself into metaphysical speculations

,and forthwith abandons the field of

experience,gives way to illusions, and fall s into continual

contradictions.From this point of view Kant draws ou t

his antinomies,that is to say, he demonstrates the pros

and cons in the ideas which form the obj ect of reason .

Heinfers that reason is regulativenot constitutive, or ino ther words

,that it necessarily adopts metaphysical ideas

onl y in order to discover the systematic uni ty of the sensible world on account of its being impossible for us toknow things in themselves, or noumena ; and hence weought to stop at simple phenomena.Fichte held that since weknow nothing but what isproduced by our thought

,there exists nothing but the

Ego,which must be conceived as absolute, and which , in

virtue of its unlimited energy, begins to determine i tsel fand posits the non—Ego . Accordingly the external worldis to Fichte the same as what matter was to Plato

,that

is, it is a non-being ; and it becomes real only in the proportion in which it is converted into idea

,that is

,in s o

far as it is thought by the Ego. Kant confines himself toneither affirming nor denying the existence of externalthings Fichtemaintained that they are that part of the Egowhich it has not yet realised

,and that

,i f in this continuous

action it does not succeed in overcoming all resistance,this

arises from the fact that its virtuality is infinite,for its

ideal activity is as infiniteas its nature . God is to Fichtean Ideal of all intelligence and reality

,which the Ego

strives to realise without ever being able to attain to it .1

XVehave thus seen how the XVIII . Century beganwith the purest sensual ism and ended in an absolu tesubjectivism.

1 SeeWilm, H wtoiredela philosophic allemandedepuz's Kant jusq’a

Hegel. Paris, 1 849.

PROLEGOMENA .

§ s.

The first works of Schelling bear the date of the lasty ears o f the XVIII . Century, while the last works ofFichtesaw the light in the first years of the XIX. Centuryand thus the two schools j oined hands . As it i s of importance for as to know somewhat more fully the philosophic al doctrines of our century, weshall devote aparagraph to each of the nations which have been mostoccupied with philosophy. And we shall begin withGermany.

Schelling thought that the Ego was able to produce thesphere of the practical life, but that it could not generate phy sical nature. The non-Ego of Fichte appeared toSchelling

,not a negation or limitation , but an affirmation,

a positive thing really as much as the Ego. There arethen

,said Schell ing

,two positive realities : the one internal

and ideal,the other external and real ; the sphere of the

mind and that of nature. As to the forces which animateand rule this double world, may they not be relative t oeach other and correspondent ? May not the principles o fnature be found in thehuman mind as laws of consciousness and of reason, and may they not verify themselvesequally in the external world under the form of physicallaws ? Both spheres are lost in a common infinite

,and

this infinitein which the two are absorbed and from whichthey both descend is the Absolute, which serves as afoundation to spirit and to nature , whose primitive unityis unfolded in two distinct worlds : in that which is developed with consciousness, and in that which is producedwithout consciousness . The universe is therefore theidentical expression of the divine thought

,and human

reason is the identical expression of the divine intelligence,

and consequently of the universe. The ideal world isaccordingly the end and the cause of the sensible worldthe sensible world is the image and manifestation of it ;

46 PHILOSOPHY O F R I G H T .

and philosophy is the science of it, or its reproduction in

the mind .

H egel set out from the system of Schelling, which heapplied himself to determine better and to complete by arigorous method

,making a profound application of it to

all the sciences. The absolute idealism asp ires to omniscience

,to the science of God, which according to Schelling

we possess by means of the intell ectual intuition , andaccording to H egel by the immanent dialectic, or the

movement of though t . The universe is the product ofthe evolution of the conception , notion , or absolute Idea .This absolute Idea of H egel is the eternal notion or con

ception (DerewigeBegm'

j ) , the Idea o f ideas of Schelling,or the absolute ideali ty. The world , says H egel, is a

flower which proceeds eternally from a single germ ; thisflower is the divine absolute idea produced from themovement of thought . First it is the logical idea or thetotality of the categories of thought ; then by its own

activity,without receiving any impulse or the leas t matter

from the external, it becomes nature and spirit, universeand universal cognition, physical and moral world.Nature

,man

,history are only different periods or moments

in the development of this idea. In the first moment,it

i s solely in potentiality,in an absolute and indeterminate

unity ; and so we have Logic, that is, the laws of thought.In the second moment

,it goes out of itself and manifests

i tself in various particular existences ; and so we haveNature. And finally, the Idea returns into itself and isby itself, that is, acquires consciousness in man ; and wehave philosophy properly so called.

Jacobi takes an attitude of opposition to the system ofKant, maintaining that the principle of all knowledge andof all activity is faith

,or the revelation whi ch manifests

itself in the human mind under the form of feeling,and

which is thebasis of all certainty and of all science .Jacobi, however, does not confinehimself to recognisingthepart of spontaneity and intuition in knowledge

,but he

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48 PHILOSOPHY O F R I GH T .

his principle with much ingenuity , and his works aboundin many just observations . The successors of Kantsays H erbart, imagined an absoluteknowledgeby the aidof which the dogmas of the existence of God and of theimmortality of the soul were to be put beyond doubt, buton the contrary it has rendered them more uncertain thanever

.

” Schelling and H egel, in fact, pretended to uniterealism and idealism by proving the identity of being andthough t

,of ideas and things

,but they reached only an

absolute idealism. H erbart regards experience as the firstsource of knowledge

,and limits the extension of real

knowledge to what is furnished to as by observationrectified and completed by thought. Every generationtransmits to that which foll ows it its thoughts bettercertified, no less than its language its inventions, inst itutions

,and arts. H ence there result phenomena which the

individual psychical mechanism could not produce byitself. In each of as the whole of the past lives again.

Reason is thus reduced to a psychological fact ; and liberty,like reason, is acquired. A man becomes rational only bythe action of old ideas upon the new ; he is not free unlesshe has formed for himself a character by means of theunion of predominating ideas

,and this only comes about

by chance, or by a sort o f intellectual mechanism.

It remains for us to indicate the vicissitudes of theGerman philosophy since the death of H egel in 1 832 .

H is school soon came to be divided into a right,a centre

,

and a left Michelet was one of the disciples whomaintained the doctrin e of the master in its purity

,and

along with him we may mention Rosenkranz,Kotho

,

Gabler, and Marheineke. It was not long,however

,till

Michelet seemed to have been seized by a kind of vertigoin his book on the solution of the social problem

,and in

his conversations with Victor Cousin.Rosenkranz re

mained faithful ; and in his “ System of Science,

” and inhis “Reform of the H egelian Philosophy

,

” he sought toprove that atheism was not in the mind of the great

PROLEGOMENA . 49

philosopher,who believed in the personality of God

,-that

primitive being without consciousness and without will,

that infinite substance which requires to manifest itself inits contrary in order to attain to cognition of itsel f, thatgerm of God which will flower and bear its fruit only onthe completed theatre of the universe - these

,he says

,are

simple figures used in order to make the old truths of sp iritualism penetrate into the mind of the reader ! 1 ! W110could enumerate the eccentricities and the sophisms ofthe young H egelian School ? Strauss, combining togetherall the partial negations accumulated by the Germantheologians from Lessing

,undertook to demonstrate that

Christ was the work of the thought of all ; and BrunoBauer maintained that the Gospels were not the work of theevangelists

,and were therefore an imposture. Feuerbach

translated the H egelian ideas into popular language,show

ing that man worships his own shadow,homo homini deus ;

and Max Stirner reached the last consequence in proclaiming egoism

,homo sibi dens. In our days, the same

Strauss, in his last book, T heO ld F aith and theNew,

prostrates himself before the God-universe,while the pro

gress of the natural sciences has led MoleschotteandBuchner to a sort of physiological materialism foundedupon positive ideas .But al l the German philosophy did not culminate in

materialism. There was one philosopher unknown formany years

,Schopenhauer, who published in 1 8 19 a work

under the title Die Welt als Wille und Vorstellung (TheWorld as Will and I dea) , which made no noise at thetime

,because G ermany was then entirely taken up with

the system of H egel . On the fall of this system after1 848 , the work of Schopenhauer was reprinted, and hethen came into great repute . In this work he tries toexplain everything by the will taken in the generalsense of force. In itsel f the will is one and identical, theplurality of phenomena being only an appearance produced by the apparition of the intellect , a secondary andVO L. 1 . n

50 PH IL O S O PH Y O F R I G H T .

derivative faculty .Intelligence acts so that the will from

being unconscious becomes conscious, and passes fromexistence in seto existence per 36 . Heshows that thewill is at bottom nothing but desire, and therefore thatit is need and consequently pain ; and he finds no otherideal in life than the negation of life by delivering our !

selves from it, by means o f science and asceticism.

The leading disciple o f Schopenhauer 1s Von H artmann,

who explains and completes the doctrine of the master.

Hesays that the first principle, the Unconscious, is notmerely will, but at the same time is objective idea, which

heregards as inseparable from thewill and cc-ordinatedwith it as a metaphysical principl e of equal value. Tothe unconscious will corresponds the unconscious idea.The will can manifest itsel f even without the brain, theganglia or nerve centres sufficing for it, as in animalsof imperfect organisation. Instinct springs from a willwhich acts rationally

,without having a consciousness of

its acting.The filiation of the system of Schopenhauer is manifest.

After Descartes,Kant had believed the Ego to be the

originator of all cognition ; Fichte had raised it to anabsolute principle ; and finally, H egel recognised all realityin the Idea

,the immanent dialectic of which

,in the world

and in history, he described but he forgot that the Ideaalone remained absolutely unfruitful

,having need of a

will to realise itself. Schopenhauer raised the unconsciouswill to a supreme principle without noticing that thewill has need of an obj ect

,of an end

,of an Idea . Con

sciousness, then , does not result from the action of organised

matter upon the unconscious mind,but reveals itself in it

as its occasion.

Let us see now how this philosophy resolves the greatmetaphysical problems . Matter 1n relation to the intelligence is a non-being ; in relation to the will, it is a fact,that is to say, it is reduced to force according to Schopenhauer. H artmann c orrects him by sayinor: Matter is will

PROLEGOMENA . 51

and idea. For both of them the real individuality residesonly in the atomic forces

,and weare mere physical coin

cidences. God is the All-O ne; and as at the same timeh e i s will and idea

,a logical succession reigns in the

universe,and thus neither the disciple nor the master deny

final causes . For man , happiness consists in unconsci oussleep. The earth is in the afternoon or post-meridian hoursof its planetary course

,and is approaching the twilight of

its evening.Yet all Germany was not seized by this vertigo . AdolphTrendelenburg

,for example

,in his L ogical I nvestigations,

explains the order of the universe by the ideas of Platoand the actuali ty of Aristotle. Herecognises final causes

,

and expounds their realisation in right and morality.

§ 9.

Italy at first followed the sensualism of the XVIII.Century. According to Gian Domenico R omagnosi, reasoni s a sort of superior sense

,the logical sense and the ideal

of life does not transcend experience and happiness . Thephilosophy of Melchiorre Gioia differed little from thatof R omagnosi. But as the I talian speculative thoughtbegan to acquire its autonomy

,i t reacted against sen

sualism,Kantianism

,and pantheism. Pasquale Galuppi

,

following the Scottish School,admitted an immediate per

ception of the concrete . Analysing this perception, heclearly explains the spontaneous and natural synthesis o fthe Ego with the non-Ego (the meand theex trame) , so that,according to his view

,there is found in the commonest

fact of consciousness the double sentiment o f the subjectfeeling and of the thing felt. At the end of the secondbook of his Critical Essay on Cognition, he says I havedestroyed with invincible arguments the system of representativeideas , and with Reid I have put our mind intodirect relation with obj ects ; but this relation, which inthe system of Reid is arbitrary, is essential in mine. I

52PHILOSOPHY O F R I G H T .

have furnished a remedy for the defects o f the philosophyof experience on this important point ; and I have estab

lished that the direct relation of the sensible perceptionnecessarily supposes the reality of the object, and thatsensible perception is the intuition of the obj ect.In his theory of cognition, Galuppi has not been so

happy,since he retains the general idea as the product of an

operation which is called generalisation , and which is preceded by abstraction and attention. In order to separatehimself from the School of Locke, he admits in the humanmind the idea of relations of identity and of diversity,which he calls ideal relations

,and those of cause and of

substance,which he calls real relations. Real relations

have their foundation in direct feeling and in the perception of reality

,internal and external ; whereas ideal rela

tions depend essentially on the ideal synthesis which formsthem and on the syn thetic unity of our thoughts. Inorder to restore to thought all its independence

,Galupp i

was led to combat the synthetic judgments at primeofKant

,and to reduce them to analytic judgments

,because

the former present themselves as mysterious data of whichreason is ignorant, while the latter are the resul t of thedecomposition of thought.In moral science, Galupp i re-established the true rela

t ions between happiness and v irtue,

~by recognising dutyas the supreme law of life

,and happiness as an end whose

realisation is subordinated to justice.In the view of the Neapolitan philosopher

,reason

,i f

not a derivation of sense,was regarded as a subjective

abstract thing devoid of necessary and absolute value.

Antonio Rosmini endeavoured to repair this grave defect .By a subtl e analysis he reduced all ideas to that of possiblebeing, for which he recognised an objective and absolutevalue, and which he constituted a unique and universalform of truth . For this end he establishes the view thatexperience gives the matter of cognition

,and being gives

its form ; and he distinguishes two species of perceptions,

PROLEGOMENA . 53

the sensitive and the intellective. Sensitive perception issensation with its relation to the sensible term. Intellectiveperception comprehends : 1 . Sensitive perception ;2 . The affirmation of actual existence ; 3. The idea of

being. Hecalls the body a co-subject of the mind,and

affirms that the relation between being and its modes canonly be manifested by feeling ; and he goes on final ly tomaintain that we cannot know the divine reality exceptnegatively, because, in order to know it positively, it wouldbe necessary to feel it and to perceive it . H owever

,neither

sensation , nor feeling, nor reflect ion (in the sense of Locke)contains the idea of being. O ur mind has theconsciousness o f seeing it and not o f producing it, as the eye contemplates the stars o f the firmament without believingitself to be their creator. The idea of being is intel ligibleby itself

,and renders all other ideas intelligible . It

manifests itself under the three forms of identity,reality,

and morality ; in other words , of the ideal, the real , andtheir relation. Nevertheless it is merely a logical anduniversal possibility, which contains all ideas with theinterminable series of genera and species and their perfecttypes ; and it comes forth in the approximation whichtakes place in intellective perception between sensationand intelligible truth. This ideal being is also the initialbeing

,that is to say

,it is something divine or of God. It

is obj ective and intelligible,eternal and necessary

,but it

is not the absolute. It is infiniteas idea, but it is not allthe infinite.What

,according to Rosmini

,is the passage from the

ideal to the real ? All the essences united compose themodel or exemplar of the world, but they are not theWord of God

,nor can they be identified with the absolute

perception of being,the unity and simplicity o f which

suffer neither division nor limitation . The creation is thework of the creative liberty of God

,who

,from loving

being, is driven by love to create it in so far as it is rela

tive and finite. Creation takes place by a sort of divine

54PHILOSOPHY O F R I GH T .

abstraction,by that operation through whi ch the intelli

gence of God determines in itself the relatively primordialidea from which spring all the objects of our knowledgeand the types of things. The existence of God is provedby a sort o f integration of being, which is at first indeterminate and is then completed under the real and moralform ; for in reasoning on the infinite, which appears tous under the ideal form,

we very soon perceive that therecan only be a single infinite, as that which unites realityto ideality and therefore attains perfection .

The passage to morals was easy to Rosmini by hisestablishing the proposition that the idea of a perfectessence is a good

,because it includes . al l that can be

attributed to a

'

being of agiven class according to itsnature

,that is

,according to the end of its movement and

of its tendencies ; so that when a being approaches thefulness of its essence and of its perfection , it obeys at thesame time an ideal necessity, and becomes what it was tobe by conforming itself to its own‘ good and to good ingeneral .1 P ossiblebeing i s the relation of the absolutereality to our knowledge and to created things . Now arelation cannot be known without knowing its terms . ButRosmini would not admit that the absolute reality i simmediately known . To him the ideal remained disj oined from the real . Accordingly this possible beingremained

,as it were

,suspended in the air and it offered

a side to attack from two O pposite quarters . The partisanso f the philosophy of experience attacked it on the onehand, reproaching Rosmini for having intruded into theprimitive cognition of the real

,the abstract

,and the pos

sible, in that operation of the mind which he calls intellect iveperception ; whereas Reid had shown that the reali tyof the thing perceived was immediately felt and known

,

because it was at thesametime sensible and intelligible,

and that judgment and affirmation are subsequent acts1 SeeFerri

, Essai sur l’

histoirc dela philosophiceh I tal ic auXI X. S iécle.Paris 1 869 .

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56 PHILOSOPHY O F R I GH T .

philosophers. Heanalysed it minutely. Heconsidered

it as the product of a special faculty which he calledsupra-intelligence ; he showed its connections with theproducts of the other faculties ; and he marked off whatcorresponds to it in the order of reality, that is , the supranatural

,reserving himself for a profounder study of it , and

intending to make of it a separate science in later worksunder the designat ion of the philosophy of thesuprafintelligfibleor of thesupra-natuml. When Gioberti beganto print his works he had already in his mind a system ofphilosophy well outlined and organically put together.But as it was eminently different from the philosophy invogue

,he proposed to make the understanding of it easier

by means of an Introduction to theS tudy of P hilosophy.

In this introduction he aims at showing that the beingprimarily intuited was real, not shut up in itsel f butcreative

,and hence that the order of knowledge proceeded

identically with the order of things . Hedistinguishedpsychological reflection from ontological reflection,

and thelatter from intuition ; but he did not enter on discussion ofthe intimate nature of intuition

,nor as to whether the

intuition of finitereality was in everything iden tical withthe intuition of the infinitereality. Helaid down thesubstantial difference between intelligence as a facultyapprehensive of the absolute Intelligible

,and sensibility

which apprehends the contingent ; but he did not inquireas to whether what is sensible was in its essence a relativeintelligible. Heindicated and promised to speak of itafterwards in detail whenever he should have expoundedthe new and recondite part of his doctrine which is foundin his posthumous works

,where is explained the being

of immanent thought, and its distinction from successivethough t.To the double state of thought he makes the doublestate of nature correspond ; and this is not wonderful,since spirit and nature constitute the existent

,which in so

far as it 18 created by Being ought to resemble it , NOW

PROLEGOMENA . 57

being is one and infinite,and the existent ought to be in

like manner one,except that its unity being finitehas to

include multiplicity,and therefore must be a manifold

unity or a manifold one. Similarly the existent must bea relative intelligibility

,a potential infinity which corre

sponds to the absolute unity which analogy between theexistent and being

,or between the copy and the original ,

i s designated by the termmethem'

s,

1 which means properlyparticipation. The sensible, which Gioberti calls 771.75mesis,2will gradually become intell igible. Mysteries are to becleared up by the way of analogy

,and the cosmos will be

succeeded by the palingenesis. In nature as in mind, underall the forms of being and of cognition

,there is hidden

and there moves a force which opposes contraries to eachother

,puts them into harmony in a third term

,and draws

from them incessantly new O ppositions and new harmonies .The propositions which compose

‘

the interminable soritesof beings, Spring from the categories : fundamental ideasproduced by the infinitethought in its marriage withSpirit and with the things which it engenders . The cate

gories are the most general ideas ; the ideas are 1n God ,and form in H im only one single Idea which differentiatesi tself and passes from the absolute to the relative bymeans of the creative activity. The categories are dividedconformably to the terms of the primitive formula to whichthey are related for they are divine and incommunicable

(Being) , mathematical and mediating (Creation) , cosmicand communicable (Existence) .In other passages Gioberti developed his doctrine ina sense more favourable to Platonism and Christianity

,

combining together the methexis and creation,and sub

stituting partial unity for the absolute identity of H egel ,without breaking the unity of the universe ; for

'

the ideaand its eternal causality are the supreme condition of allthe ideal relations and of the substantial unity of theworld . According to Gioberti

,the identity of contraries is

1 Méfiefts. 1 M(71 170 6 .

58 PHILOSOPHY O F R I G H T .

verified in an absolute manner only in ‘

G od, and their

distinct division and apparition begins really only withthe creative act. In the view of H egel the dialectic is the

unity of the absolute negation and affirmation, which isthe total transformation of the contradictory terms. ToGioberti

,on the contrary, being and existence compose a

primary proposition whose terms are irreducible, that is,are not convertible and their ontological dependence hasplace by means of the creation

,that is

,by means of a

causality which is imperfectly intell igible so far as we participatein it . According to Gioberti, dialectic is not barelyformal

,but real and objective ; it is not a pure art but a

science : the science of opposites and of their harmony .

It is developed in the world and in the human mind,not

in God. The divine dialectic is subjective and apparent ;it is not in the obj ect which is one and immanent

,but in

the subject which apprehends it,seeing that the opposites

do not harmonise but are identified,their opposition not

being real and effective. Herepresents it to himself asthe movement of finitethought which realises itself intime and space

,and is parallel to the life of the world.

H egel was wrong,according to Gioberti

,in substituting

contradictories for contraries,and in t iansport ing them

from Existence to Being. The possibil ity of transformingthe cosmological categories into each other may

,it is true

,

have for a foundation the unity of the cosmical substance,

that is, the oneand finitereality which is intermediatebetween individuality and generality

,and from which

dialectic, aided by experience, draws the various forms o fbeings ; but this metamorphosis stops at the finite. For ifthe chain of the categories is prolonged further

,this arises

from its traversing the creative act and sinking in themysterious bosom of the absolute unity

,which takes

away from this transformation any pan theistic significance.Accordingly, Gioberti neither admits the unity of contradictories

, which he regards fwith Plato and Aristotle asthe destruction of reality and of science

,nor the identity

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60 PHILOSOPHY O F R I G H T .

does not appear to him that the principle of cause is con

tained in the immediate and common intuition of beingitself

,but is a cognition posterior and reflex inasmuch as it

demands a clear consciousness of our passivity, and is bornfrom the need of combining in a single judgment the objectand the subject together with their connection . Creation ,then

,he regards as necessary

,not free, caring little whether

this is repugnant or not,andmay even lead logically to pan

theism and all the more that he has placed the principle o fidentity in the unique and absolute judging of the real andknowable . Ideas are representations which the Absolutemakes of H imself

,unveiling them to such intellects as are

sufficient for it . They are all real, all objective in the ahsolute reality and objectivity of the being which sustainsthem, but they are not themselves the divine paradigms andthe archetypal andefficient causes of things

,although their

representations are faithful and perpetual. In this mediatenature of the ideas

,Mamiani finds the qualitative character

o f the Platonic revival of the modern Italian philosophy.

Every oneof these ideas furnishes the firm support forparticular sciences. Thus on the conception of absolutejustice, he founds all his books which treat of right. O n

the conception of the holy,he founds the theory of re

ligion, and so on. Although all his works abound insubtle analyses , in acute psychological observations, andin rigorous argumentation

,yet they are deficient in cc

herence, and above all they want logical connection. In

fact he admits the contingent and the necessary,sensible

facts and ideas , but hedoes not explain scientifically howthe one depends on the other

,or how they are united to

each other. In his view,the conjunction of phenomena

wic theideas, and of the ideas with the absolute , constitutes the relation which is reflected from being in science,by means of perception as the ideal representation andintuition of the infinite. Hemaintains creation

,especially

in his Cosmology, where he has philosophically co-ordinatedtheultimate results o f the n atural sciences ; and he vindi

PROLEGOMENA . 6 1

cates progress, which he makes to consist in a smeessz'veincreaseof being appropriated andeo-ordinated to itsend.

There were other thinkers in Italy who sought withmuch ability to harmonise the doctrines of the ScottishSchool regarding the perception of the external world

,

with the innate activity of the mind which is reflected inconsciousness. They thus continued the work of Galuppi

,

as did Augusto Conti. O thers tried by a bold scepticismt o prepare the way for positivism

,as was done by Guiseppe

Ferrari.

France began to pass from the sensualism of Condillacwith the writings o f Laromiguiere, who distinguished attention from sensation . Royer Collard brought the ScottishSchool into honour

,and Maine de Biran examined the

volun tary and fre e activity which constitutes personality.

Cousin introduced the German philosophy into France,

wedding it with th e Scottish philosophy. Their unionresulted in a system to which he gave the name of Ecclect icism.

”Hestarts from common sense in order to descend

into the depths of consciousness, throws a glance over theexternal world

,and then rises to the eternal ideas of the

true,the good

,and the beautiful . Hethus believed that he

had adopted whatever truth the various systems contained .

In the conclusion which he added to his General H istory ofP hilosophy a few days before his death, he speaks no longero f ecclecticism,

but of “ spiritualism,

” and exclaims“Let us then enter without fear upon the uncertain andobscure path that has been opened before us by the FrenchRevolution ; let us enter upon it under the auspices ofcommon sense to which the last word in all things belongs ;let as attach ourselves to this experienced guide ; le t usnever abandon it ; and let us be persuaded that in thec rash of the world and among all the ruins of the past itwill guide us and will bring us always back to the souland to God .

” We see that, notwithstanding certain for

62 PHILOSOPHY O F R I G H T .

mulac adopted from Schelling and H egel , Cousin remainedfaithful to the method of Descartes and to psychology.

The impulse given by him to philosophy in France was

beneficial , and it was carried on by his disciples . Thus weowe to Joufi

'

roy some finepsychological analyses , to Saissetand Janet learned polemics against pantheism and a moreor less disguised sensualism, with important historicalworks by Jules Simon

,V acherot

,Ravaisson, and Barthe

lemy Saint-H ilaire.We have seen that the scepticism of H ume begot thesubjectivism of Kant . Auguste Comte admits with H umethat the causes of phenomena are other phenomena which

aretheir invariable antecedents ; and he als o admits withKant that we can know nothing of things in themselvesor noumena, declaring that such knowledge is of no valueto us. According to Comte human O pinions in this regardhave not varied by chance. They have obeyed a law whichmakes them pass through three successive states. Thefirst state attributed concrete forms to the absolute causeo f events by a pure fiction of the mind ; and this Comtecalls the theological state . The second state gave to thissame absolute cause an abstract and purely ideal form ;and this Comte calls the metaphysical state. Finally, thethird state renounces investigation of the origin and destination of the universe for the knowledge of the immediatecauses of phenomena, and confines i tsel f to di scoveringtheir effective laws, that is, the relations of succession andresemblance, their positiveand real state. The first explanation gradually raised itself to its perfection by substitut ing the providential action of a single being for thenumerous independent divinities which it had primarilyimagined. The second explanation

,which substitutes for

the one divinity a being of reason, follows the same road ,reducing all unities to a single unity

,which is nature

,

a grand entity regarded as the one source of all phenomena.

Finally, thethird explanation , which is that of the positivestate, considering facts as particular cases of more general

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64 PHILOSOPHY O F R I G H T .

the infinite. In Scotland , Sir William H amilton showedhimself more radical

,as he reproaches Kant for not having

once for all exorcised the phantom of the absolute. Kant,he says

,ought to have shown that if the unconditioned

has no objective reason,this is because it is not susceptible

of a subjective affirmation,since it cannot yield any true

cognition from its containing nothing that is conceivable .Notwithstanding this, he admits immediate perceptions

with Reid, and the pure forms of thought with Kant.John Stuart Mill denies both the immediate perceptions of the Scottish School and the d prion

'

forms of theGerman School. Hemaintains that the belief in theexternal world is not a primitive fact

,but the result of

induction derived from experience. The Ego is the bondwhich unites the various sensations, and matter is

“ a permanent possibility of sensation .

” Every species of knowledge Springs from the association of ideas. Induction i sthe key of nature ; it discovers and proves the generalpropositions by which we conclude from the individualto the class

,and from one time to another. Axioms are

only a class,the most universal class

,of the inductions

drawn from experience they are generalisations of factsfurnished by the senses and by experience . The onlyuseful propositions are those which connect one fact withanother so as to enable us to conclude from one particularfact to another particular fact . Mill in his I nductiveL ogic establishes four me thods for the experimental discovery of connection : that of agreement,” that of difference ,

” that of “ residues ” (which consists in taking fromthe phenomenon the part which is known to be the effectof certain antecedents in order to see whether the residueof the given phenomenon is the effect of the antecedentsthat remain) ; and that of concomitant variations,

” whichoperates not upon two phenomena directly by themselves

,

but upon their v ariations .1

1 T hesefour methods are.found theory of thethreeT ables of P re

ahnost li terally 1n Bacon, 1n his sence, Absence

,and G radation

PROLEGOMENA .

Induction is founded on the law of causality ; but asMill admits only phenomena or combinations of phenomena which follow each other in an invariable and unconditional manner

,the relativity of knowledge follows

from this position. Mill is distinguished from Comte bythe greater importance assigned by him to psychology

,

which Comte had denied a place among the fundamentalsciences in order to make it dependent on biology.

Al exander Bain deepens the furrow traced out by Mill,

showing by a greater range of observations that all thephenomena of the mind spring from the association ofideas. Bain treats psychology as a continuation of physiology, and studies all its phenomena under the physicaland mental aspects . In contrast to other psychologistswho are advocates of association

,he gives much prominence

to the activity and spontaneity of the mind. Sensation ,memory, and association are passive facts which mayserve to explain our dreams

,our phantasies

,and our for

tuitous thoughts . Bain shows that the braindoes notsimply obey impulsion

,but that it is sel f—acting ; that the

nervous influencei s not transmitted by it to the motornerves automatically

,nor without rule and cause

,but

is produced by the organic stimulus of nutrition. Heseeks the germ of the will in the spontaneous activi tywhich reside s in the nerve centres. Excitation producesmovements

,changes of posture

,and in consequence sensa

tions. There i s thus established in the yet empty minda connection between certain sensations and certain cor

poreal movements ; and whenever afterwards sensationmay be excited by some external cause

,the mind will

know that a movement will take place at some point . In

which contains theessential con successively all thesecircumstancesdit ions of all positiveinvestigation. until wecomet o that circumstanceBacon founds his method on thewhich, when suppressed, suppressestheory that theonly way of dis thephenomenon itself, and, finally,covery in thesciences consists in inmaking that circumstancewhichascertaining certainly al l theimpor is presumed t o bethecause, vary ,tant circumstanceswhich accompany in order to notet heconcomitanta phenomenon, then in suppressing . variations of theeffect.

V O L . I c

66 PHILOSOPHY O F R I G H T .

a word,consciousness verifiesefl‘

ort, but does not constitute

it . Efi’

ort is produced by the organic state of the nervesand muscles . The moral laws which prevail in almost allsocieties

,if not in all , are founded in part on util ity and

in part on sentiment. The individual conscience is aninternal imitation of the external Government, and is

formed and developed by education .

H erbert Spencer does not stop at psychology, which,l ike Mill and Bain

,he regards as a continuation of phy

siology, but he seeks to enter the field of metaphysics . Headmits with Comte the exact correspondence of perceptions with sensations

,and holds that we have two classes

of states of consciousness : the internal state which is

called the subject, and the external state which is called theobject

.Ideas are formed on the model which is furnished

to us by things, through a constant repetition of the sameassociations during an incalculable number of generations.The forms or laws of thought are absolute uniformitieswhich the world engenders in nez the most comprehensivekinds of a vague experience lasting through an immenseperiod

,during which the correspondences of groups of

states of consciousness with groups of the states of theworld are formed, and during which the relations of succession and of co-existence are gradually fixed

,s o as t o serve

as a rule to individual experience . The indissolubili tyof an association of states of consciousness

,is what regu

lates thought and constitutes necessary propositions. Theinfinitevariety of phenomena depends on the metamorphoses of force, and all movements obey the laws ofev olution

,that is

,equival ence

,rhythm

,and cohesion

,which are

corollaries of the principle of the persistence of force.Matter and motion are manifestations of force variouslyconditioned. The concentration of matter implie s thedissipation of mo tion ; and reciprocally the absorption ofmotion implies the diffusion of matter. H ence arises aconsecutive integration and disintegration of evolution anddissolution . If we are obliged to conceive an immense

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68 PH IL O S O PH Y O F R I GH T .

environment is changed by terrestrial and telluric revolutions

,a change in the organism will be necessary in order

to adapt it to the new conditions of existence . But thislast change will be produced by an internal force, that is,by the vital force. The use of the organs wil l thencomplete what the vital force had hardly begun. Facts,however

,have abundantly demonstrated that exercise may

strengthen organs, but cannot create them.

Charles Darwin saw that it was necessary to have recourse to other principles in order to explain the transformation of species. Hewas struck by the method ofcrossing used by English agricul turists in order to improvethe breed of cattle

,swine, sheep, and horses, and which

consists in selecting individuals possessing in thegreatestdegree the qualities which are in demand, such as theslimmest for swiftness, and the largest for the productionof fatness, 810. Why should nature not have reachedSpontaneously what man obtains by his art

,transmitting

by way of heredity in the course of ages certain individualqualities that were due to mere chance ? Such perfectingby transmission is what Darwin calls Natural Selection.

”

This principle is at work in the Struggle for Life,

” thatstruggle which

'

animals carry on for subsistence,and from

which the strongest survive ; and the good results areperpetuated by means of heredity and adaptation ” to thevarious conditions in which animals and plants are calledto live. Thus Darwin explains the origin of species fromsome ten primordial types created by the Creator . Everytype may perfect itself accidentally and its varieties willnot deteriorate, because they are well armed, al though indiverse modes, for the struggle for li fe. Those types

,on

the contrary, which have not acquired any advantage,perish . According to this law the primitive type disappearswhen the varieties by acquiring advantages become diver31fied, and the trace of their common origin is lost

. S o it

P R O L EG OMENA. 69

he woul d have conquered it in the struggle for life, andtherefore would have absorbed and destroyed it . Ratherare man and the monkey descended from the same type

,

which has been lost,and of which they are divergent

divisions. In a word, according to this hypothesis, themonkeys are not our ancestors

,but our cousins-german.

Generalising this example,it is not necessary to hold that

the vertebrates have been molluscs,nor that the mammalia

have been fishes or insects,but that the four branches may

have been four rays parted from a primitive centre,which by

removing from each other have become infinitely varied .

Darwin has found followers everywhere,especially in

Germany. They generally hold that all organic beingshave sprung from one primordial form

,that is

,from the

cell or ovular vesicle. The plants and animals,even the

most perfectly organised, are only an agglomeration moreor less complicated of this first elementary organic form

,

the cell. H aeckel adds that the cell is not the last term,

but that it is necessary to seek it among those formsrecently discovered which are not yet cells

,and which con

sist simply in small animated vesicles,or in almost formless

mucosity. The cell has already too complicated a conformation

,and cannot be considered as the primordial form,

which would rather be a hesby bit of matter (sarcode) towhich the name plasma would be more applicable. Whatdistinguishes the animal from the plants is contractility.

There were beings intermediate between the animal andplants

,which are called protistz

’

. Then there arosestructureless organisms

,which nourished themselves by

absorption and reproduced themselves by scission. Thesewere only l ittle masses of contractile albumen capableof nutrition and reproduction ; and in their case all thefunctions

,instead of being performed, as in the case of the

superior animals,by means o f special organs, proceeded

directly from the unformed matter. O n account of theirsimplicity

,H aeckel calls them moneres, from the Greek

pomipns (single) . The transition to the cell iseflected by

70 PHILOSOPHY O F R I GH T .

a condensation of the central point, which becomes thenucleus in the plastic mass of the monere; then thereappears a viscous substance, and final ly the membrane

which encloses this nucleus.But how were these moueres produced ? In the ocean

which surrounded the earth when yet hardly cooled, therewere brought forth, says H aeckel, great quantities of

moneres of the same kind ; and the diverse conditions oflife to which they had to adapt themselves, produced

modifications on their homogeneous albuminous mass . Itstill remains to be known what was the origin of theorganised compounds of the globules of albumen fromwhich the primordial cells were formed. In the presentday

,chemistry extracts organic compounds from inorganic

materials,such as alcohol

,grape-sugar

,oxalic acid

,formic

acid,fat bodies

,and even albumen and fibrin

, which arenot crystallisable

,but only coagulable. This has been

called “ spontaneous generation ”

(generatio aegui'voca orheterogenea) . It was indicated by Lucretius o f old whenhe said : Living worms are seen to emerge from the mudwhen the earth

,saturated by the rain

,comes to a state of

putrefaction. The elements, set in motion and broughttogether in new conditions of existence

,give origin to

animals. This doctrine had still followers in the 1 6 thand 1 7 th Centuries . Van H elmont describes the meansof bringing forth mice ; and others taught the art of producing frogs and eels . An experiment of Redi destroyedthese illusions by demonstrating that the worms whichare found in putrefying flesh,

are the larvae of the eggs offlies

, and that by enclosing the flesh in a very thin veilthese worms are not brought for th. The microscope hasfurnished to the predecessors and successors of Darwinother arguments for spontaneous generation

,but the latest

experiments of Pasteur are decisive against it. Heprovesthat the air containsmillions of corpuscles organised likegerms , and they decrease in prop ortion as werise in theatmosphere . Heshows that when weremove these

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7 2 PHIL OSOPHY O F R I GH T .

sought for the primary elements without explaining change.

H eraclitus presents himself as the philosopher of thebecoming

,and he is the precursor of Democritus and

Leucippus. On the other hand , Anaxagoras held that all

was confused,and that a mind intervened and ordered all,

without,however

,distinguishing it from material nature.

Plato,after having defined matter as a being extremely

difficul t to understand, an eternal bond that is not clear tothe senses yet perceptible

,says that the supreme orderer

took this mass which was agitated by an unbounded andunregulated motion

,and from the disorder made order

spring. According to Aristotle, indeterminate matter atthe highest degree of abstraction is without attributes . I fit always tends to form

,to actuality

,it is because it has

in itself a principle of potency,of force. In the view of

Aristotle,force is the principle of form which is sub

stantial.

Christianity was not favourable to matter,which it re

presented as a dark inert substance,fixed and absolutely

passive ; in a word, as an obstacle to the spiritual and noblenature of man. Accordingly the Christian system embraced the opinion of Aristotle

,Which represents form as

a necessary attribute of matter,as an external principle .

The Renaissance reacted against Aristotle,and materi

alism became predominant. Bruno himself seems to followthe principle of Lucretius . “There are no determinatel imits to the universe ; a real limit i s not intelligible ;God, the world, and matter, are but one sole and samething ; and the universe is an infinitebeing animated inall its parts. The human mind is a fraction of the divinemind .

”Matter is to Bruno the mother of all that has

life it includes in itself all germs and all forms . Whatat first was seed becomes herb

,ear

,bread

,chyle

,blood

,

seed, embryo, man, corpse, which becomes earth or stoneor some other inert matter

,and so on. Nothing seems

stable, eternal , and worthy of the name of principle,unles s

i t be matter.”There is but little difference between

PROLEGOMENA . 73

this statement and the language of H uxley,a continuator

of Darwin. We open one oi . his L ay Sermmw,

1 entitledO h theP hysical Basis of L ife, and there we read as follows :What

,truly

,can seem to be more obviously different

from one another,in faculty

,in form

,and in substance

,

than the various kinds of living beings ? What communityof faculty can there be between the brightly—colouredlichen

,which so nearly resembles a mere mineral incrusta

tion of the bare rock on which it grows , and the painterto whom it is instinct with beauty

,or the botanis t whom

it feeds with knowledge ? If we regard substance,or

material composition,what hidden bond can connect the

flower which a girl wears in her hair and the blood whichcourses through her youthful veins ? But I proposeto demonstrate to you

,that

,notwithstanding these apparent

difficul ties,a threefold unity— namely

,a unity of power

or faculty,a unity of form

,and a unity of substantial com

position— does pervade the whole living world.

” Nu trit ion

,growth

,reproduction and contractility are common

to all living things ; and they are all composed chemicallyof carbon, hydrogen , oxygen, and nitrogen, which thusunited formprotoplasm. As they live they waste and repair their forces. Every word uttered by a speaker costshim some physical loss ; and , in the strictest sense, heburns that others may have l ight— so much eloquence

,so

much of his body resolved into carbonic acid, water, andurea . For example

,this present lecture, whatever

its intellectual worth to you, has a certain physicalvalue to me

,which is conceivably expressible by the

number of grains of protoplasm and other bodily substance wasted in maintaining my vital processes duringits delivery.

”

Bacon did not deny mind,but intent on formulating

the method of induction,he gave it very little attention .

Descartes, by his incomplete definit ion of substance, estab1 L ay Sermons, Addresses, and Rev iews

, by T homas Henry H uxley,L L .D , F .R .S . z uded. L ond., 18 7 1 .

7 4 PH IL O S O PH Y O F R I G H T .

lished a dualism. Herevived the idea of mechanism innature

,but berequired the “ shove ” o f the Creator to

set it in motion . The Greek atomism, resuscitated andstrengthened by Descartes by aid of the hypothesis of theether

,was adopted by Newton and the modern mechanical

school . This school has foll owed out the discoverieswhich have calculated the celestial motions it has investigated the nature of the ether which is mov ed by the sun ;and it reduces force to the product of mass by the velocity.

O n the other hand, Leibniz made dualism disappear byresuscitat ing the actuality o f Aristotle becauseif matter tends to form

,this is because it has in itsel f a

principle of potency or force. The dynamism of Aristotlewas indeterminate, and Leibniz completed it by demonstrating that the type and source of force is the mind . Thenew dynamical school o f the present day has proved theabsolute indestructibili ty of energy

,and has demonstrated

by numerous examples the fundamental identity of theappetent and elective forces o f chemistry and of crystallography with those that psychology reveals.1

The atomic school formul ated a first theory of knowledge . It considered the soul as composed of atoms verysubtle and spherical like those of fire. Thesoul makesevery possible effort to go out o f the body, but it is retainedby the breath

,and death takes place with the suppression

of the breath. Sensation is the sole source of our coguitions ; for bodies send forth atomistic emanations;whichpenetrate into the brain and excite the images of things .Pythagoras was the first to rise to general relations , makingthe principles of things consist in numbers . The numberso f Pythagoras are the first germs o f the ideas of Plato

,

the pro totypes of things,and of the actuality of Aristotle .

The Alexandrians tried to make it more conceivable howthe intelligible implies the intell igent and the ideal themental , by considering the intelligible species as Ideas ofGod, and thus explaining the theory of Plato under this

1 SeeF . Papillon, La natureat la vie. Paris,1 874.

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76 PH I L O S O PH Y O F R I G H T .

the fact that sensible phenomena are in agreement withintelligible truths.” Let metaphysics therefore comparethings possible with each other and seek for the best, thatis,that which will contain most convenience, simplicity,

and beauty,and thus it wil l penetrate into the secret of

creation.In order to attain this it will have to make use

o f the principles of contradiction and of sufficient reason .

The first will conduct us to the possible, the second tothe real . As ideas are linked together with each other, sobeings are interconnected with each other, since the lawsof thought and of nature are the same. Substance isessentially active ; that is, it is composed of forces ormonads which s trive after and comprehend each otherreciprocally

,according to the degree o f their development.

H ow is this possible,seeing that monads are independent

By means of a harmony pre-established by the Creatora view which takes from man all true liberty. Giobertihas perfected philosophy by rightlydistinguishing intuition from reflection, and immanent thought from successivethought

,and by this he puts the obj ectivity of the idea

beyond all doubt. Hehas also better explained the nexusbetween the subject and the object

,between things and

ideas, by his theory of the creative act . This explanation has been always present to the human mind

,and has

been more or less clearly enunciated in the systems thatare truly idealistic, such as those of Pla to, Aristotle, S t.Augustine, Thomas Aquinas, Leibniz, and Vico. It reduces itself to the principle of contradiction

,and to those

of causality and of sufficient reason,resumed in a primary

judgment. Vico had said openly The true is the fac t,

fie, what is, is what is done, and therefore God is the first

truth because Hei s the first doer ; God does or makes ,that is, creates ad extra

,and Hegenerates ad intra.

”

Gioberti has the merit of ‘having definitely formulatedthe theory of the creative act

,around which the battle of

modern science is being carried on.

Psychology is the substratum of metaphysics, and some

PROLEGOMENA . 7 7

schools have wished to reduce all philosophy to it, as the

reader may have remarked in the course of our rapidsketch . Materialism could not but necessarily attributethought to matter

,and definethe soul as a subtle matter

,

or a breath . Cabanis says expressly that thought is asecretion of the brain. Carl Vogt has added for the sakeof greater clearness that the brain secretes thought asthe liver secretes bile, and as the kidneys secrete urine .Sensualism says the same in terms that are only less crude .Condillac introduces us to the birth of all ideas and of allthe faculties of sensation . The English School

,which

prefers to call itsel f positive,seeks the germ of our faculties

in the reflex action of the universe upon us. Thus H erbertSpencer says that reflex action becomes instinct

,and from

instinct there spring on the one side the faculties whichhe calls “ cognitive,

” such as memory and reason,and on

the other side the affective faculties,the sentiments and

the will . Similarly Bain reduces the laws of intelligenceto intellectual molecules which are conj oined and heldtogether by association. All the e fforts of this school tendto confound psychology with physiology (which Joufiroyforty years ago had taken so much pains to separate) , andt o bring human physiology into close connection withanimal physiology in order to subject it to the law o fevolution.

Plato considers the soul as an active force,and distin

guishes in it the rational part and the animal part, whichare united together by the Humid It is a prisoner inthe body

,and it rises to knowledge by means of certain

notions or ideas proper to reason , which are , as the basis ofevery thought that reside s in us

,anterior to all particular

perception,and determine our actions . Such ideas are

resuscitated in the mind by the perception of things madein their image

,and this takes place as by a species of

1 T his word is usually translated theafi'ect ivefaculty which particiby t heterms soul,

"courage, pates in thereason and thesenses.

appetite,” but it properly indicates

7 8 PHILOSOPHY O F R I G H T .

remembrance.Plato distinguishes with sufficient exact

ness the faculties of knowing, feeling, and willing, andthe different kinds of perceptions, sentiments, and deter

minations.

Aristotle defines the soul to be the first “ entelechyof a natural organised body which potentially containslife

. Heenumerates fivekinds of souls : the nutritivesoul

,common to animals and plants ; the sensitive soul ,

the cause of sensation ; the locomo tive soul the appetitivesoul

,the source and spring of the will ; and lastly, the

rational soul. Hedoes not distinguish well the organicpart from the rational ; and he has thereby given occasionfor the most opposite interpretations.Plotinus explains that the soul is present in the wholeof the body and in every part of it . S t. Augustine addsthat we know the soul directly, and that weknow it asimmaterial ; and therefore that it can be present in everypart of the body

,and can contain images of the most

extended objects . As Augustine perfec ted Plotinus,so

Thomas Aquinas perfected Aristotle . Hefinds that thenutritive faculty

,the sensitive faculty

,the locomotive

faculty,and the rational faculty belong to the same soul .

“Auima enim est primum quo nutrimuret sentimus etmovemur secundum locum,

et similiter quo primo intelligimus.

” The identity of the soul in its various operationsis demonstrated by the fact that when it employs onewith energy the others are suspended. The superior formaccordingly comprehends the inferior ; that is, the rationalsoul includes the sensi tive and nutritive soul s of Aristotle

.

This opinion was recognised as a dogma by the Council o fVienne in 131 1 .

Descartes asks,“What am I ? I am

,he replies

,

“ athing that thinks, or that doubts, understands , conceives ,affirms

, denies, wills, does not will, and that imaginesand feels.

”To Descart es the essence of man consists in

though t, which, as wehave seen above, is one of the mode sof substance. Leibniz directs his mind to explaining the

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80 PHILOSOPHY O F R I G H T .

and to act.To have consciousness is also acting ; it is

willing.Reason itself is only an extension of the will .

We are now able to formulate our conceptions of nature,knowledge , and the soul .We have seen Leucippus and Democritus teaching fromthe most ancient times that matter is composed of cor

puscles that are indivisible but indestructible , the numberof which is infiniteas is the greatness of the space 111

which they are scattered. These corpuscles are solid andendowed with figureand motion . The diversity of theirforms determines the diversity of their movements andof their mode of aggregation, and consequently of their

figure. The Greek atomism, however, had an enormouslacuna which Descartes has filled up by discovering theether which serves for the transmission of motion . But,exclaimed Leibniz, everything can be explained mechanically except the mechanism itself . In ancient times this

was understood and Pythagoras, Anaxagoras , and Platogave the predominance to a spiritual principle . Accordingto Aristotle

,matter at its highest degree of abstraction is

indeterminate, and tends to form or to actuality. It hasin itself a principle of potency

,of force

,which is a simple

,

unextended,incorporeal principle . The universe is a vast

dynamism,a wise system of cc-ordinated forces . Leibniz

reproduced the doctrine of Aristotle,denying all imme

diate action (influxus physicus) between the monads, andbelieving that an ideal connection

,or a disposition to the

internal modifications which would make them harmonisewith each other, was sufficient . Neither Aristotle norLeibniz wished to exclude substance

,which they considered

essentially active. Kant, in his Metaphysical F oundationsof Physics, seems to have wished to cons true nature withthe simple notion of force. Heimagines two elementaryforces, attraction and repulsion

,which compose the uni

verse. This doctrine is foll owed by Schelling. It i snecessary to come to an understanding as to the meaningof the word force.

”In mechanics, force is the cause of

P ROLEGOMENA .

motion ; in metaphysics it is not only a cause, but itbecomes a substance

,a species of spiritual atom. Sub

stance and force are indissolubly united so as to compose what wecall a being. The basis of corporealthings cannot be extended substance , although there willalways remain a residuum irreducible to the notionof force

,which it has been sought in vain to absorb

into this notion . Substance without force is nothing,j ust as the concave is nothing without the convex .

Leibniz was right in seeking the origin of mechanicsand mathematics in metaphysics but he was wrong instopping at the notion of force, which is itself a mechanical and mathematical notion , and in not ascending to theactuality of Aristotle which is the inexhaustible source offorce.1

What philosophers call ed the Soul o f the World,was

an immaterial force mingled with matter,not extending

beyond it , and which served as a motor and plastic principlegiving it movement and that v ariety of forms whichwe admire in the universe . Plato

,thinking that pure

intelligence or the substance of the eternal ideas couldnot act directly on matter, imagined a substance intermediate between these two principles. Heconceived itas formed of an invariable identical element, like intelligence

,and o f a v ariable element like sensible objects .

The active substance of Leibniz, the metaphysical pointof Vico

,and the methex is of Gioberti , ought not to be con

founded with the soul of the world,which has been set

aside as a useless hypothesis, because there is nothing toprevent God from acting directly upon bodies or to hinderthe manifold immaterial forces from producing all th ephenomena of nature . H ere arises the somewhat indiscree tquestion as to whether God created one substance of asingle species which , by transforming itself, has producedall other species or whether Hecreated all the existing1 SeeJanet, L ’

ide’c deforcect la philosophic dynamique. RevuedeDeux Mondes, 1"Mai 1874.

VO L . I .

82 PH I L O S O PH Y O F R I GH T .

and extinct species,which differ from each other not only

in degree but also in essence.The theory of knowledge may be appl ied to elucidatethe theory of existence . If ideas are the prototypes ofthings, and if their totality constitu te s the essence of Godin which our mind perceives them, it follows that specificessences ought to correspond to the specific ideas. Theproper form of the intellect i s the intelligible species,which abs traction separates from sensation, and which isfound in all minds

,and is applied to all the objects of

the same class . The controversy became burning in theMiddle Ages

,first in opposition to the Nominalists, who

considered the genera and species asfiatus 1100713, and thenin opposition to the Averroists, who maintained thoughtto be impersonal and identical in all men. In our daysthe controversy has been renewed again with Positivismand Darwinism ; and wehave no other means of defendingknowledge and existence than the Platoni c doctrine ofideas as carried to perfection by Gioberti. A singularway this of provmg facts by a hypothesis ! will be theexclamation of some minute observer o f nature

,not con

sidering that there are not only physical facts but alsomental facts . Men

,says Plato

,are like prisoners chained

in a cave underground,and above them over their shoulders

there is an opening through which there penetrates alight, produced by a firewhich they cannot see , becausethey are chained to the walls of the cave in such a waythat they can neither move their body nor their head .

Before the aperture of their dungeon men pass over alow wall who carry objects

,the shadow of which is re

flected on the wall s of the ca’ve. What do the prisonersthink of these shadows ? They fancy that they arerealities , the only realities which exist ; and ii the passersby to whom wehave referred should speak and theirv oices were to be repeated by the echo of the cave

,the

prisoners would naturally believe that the shadows werespeaking. If one of these prisoners were to hesuddenly

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84 PHILOSOPHY O F R I G H T .

t ion,the activity involved is not distinct nor separated

from thought,but they are one and the same thing.

H ence thought has not for its immediate cause the think

ing activity or the existent, but Being, which at a certain

point creates the thinking activity. And on this accountthe spirit introduces nothing of its own into the object,seeing that that object arises at that very point at whichi t springs itself into existence

,and it cannot unfold any

act of its own before it thinks ; and thus its essentialactivity is just thought . In this way Being, whollystripped of any subjective property, offers itself to ourimmanent thought. Consequen tly it cannot be that theSpirit has cognition of itself in this immanent thought,although it does yet know itself in a certain way ; but thisprimitive manner o f knowing itsel f may be compared totheeye which sees the light and itself in the light

,because

light is itsessence . It does not know itsel f in itself asexistent

,but in its cause and in the transition of the

creative act. The immanent thought is a pure intuitionof the intelligible ; it is a sort of terminus or an effectwhich regards the intelligible Being as its principle and itscause. It is perfect

,identical in all men

,not susceptible

of progress,necessary

,and out of time. It is a perception

of being without judgment,since every judgment implie s

an act of attention and consciousness,which cannot have

place in this thought,as it i s included in thecreative act

o f this Being,which as it is alone truly operat ive, so it

alone truly affirms and gives place to the two objectivejudgments : I em I create. H ence it follows that immanent thought cannot be directly apprehended

,although

every act of attention or reflection implies a human judgment, and is related to the succeeding thought. Similarlythis immanent thought does not by itsel f constitute science ,which involves consciousness. It only furnishes the confused matter or the germ of science ; and science is therefore the explication of the material thus furnished by

PROLEGOMENA .

means o f reflection and speech .

1 This mental processmay be verified by every attentive observer becauseit isa fact.To this double state of thought there corresponds adouble state in nature

,because the existent as created by

Being ought to resemble it . Now Being is one, infinite,and essentially ideal and creative. The existent has afiniteunity which does not exclude multiplicity ; it hasa relative intelligibili ty, a potential infinity, and a concreative power

,which correspond to the absolute identity

,

the actual infinity, and the creative power of Being. Thisanalogy between the existent and Being

,between the

copy and the original,is expressed by the term methexis,

which properly means participation. The Methexis is theuniverse viewed as an intelligible unity which combinesin its bosom an always increasing number of forces .There are three methexes the initial methexis

,the medial

methexis,and the final methexis. The medial methexis

is differentiated from the first and last, because in itmultiplicity prevails over unity

,chaos over order, and the

sensible over the intelligible. The medial methexis is thepassage and transition from the initial methexis to thefinal methexis. This transition involves the issuing ofthe diverse from the identical

,of the individuals from the

species ; and as an intermediate factor it binds togetherpower and act, and has the contrary qualities of the twoextremes . H ence Gioberti calls it mimesis, or imi tation .

The mimesis i s essentially progressive, inasmuch as theini tial methexis goes on actual ising itself in order tobecome final

,and the more the mimesis approaches the

final methex i s, the more does the intelligibility and unityof things increase . Every thing is thus on theway to1 T his is thehighest point ofmeta filosofia nuova ital iana, vol.

physics. Wehaveadopted in our L uciani has first shown that theexposition thewords of Professor P rotologia of G ioberti constitutes aL uciani in his work, already tenew sciencedistinct from theOntoferred to , on G ioberti and thenew logia which is subordinateto it .I talian Philosophy (G iobert i ela

86 PHILOSOPHY O F R I G H T .

become thought ; the essence of things i s thought, becauseit is the methexis . It is to be noted that what is herespoken of, is created thought and not uncreated thoughtfor the methexis is not the Idea.The soul in the methexis occupies a distinct place ; but

it may be asked : is it a force and is it only a force ? Ifso it would be necessary to hold with H erbart that psychology is a part of mechanics, and that the laws of number

and weight are applicable to spirit as well as to matter.But there is in the soul a different element higher thanforce

,and this is mind . F orce is attached to the soul,

depends on it,and emanates from it, but does not con

stituteit. In order therefore to have an adequate idea ofthe soul we must not stop at force, but rise to the activitywhich is the inexhaustible source of all force . Maine deBiran has given a new development to dynamism, bringing into light the properties of effort and of the will whichproduces it . The ancient philosophy had left a lacunain reference to the free will . In the view of Plato theintellect had always the power of making us determinefor the good ; love, according to him, was a species offatal desire ; and virtue cost hardly any effort. Aristotleapproached the truth when beconceived of morality asthe 'proper and personal activity of the agent ; but hestops at the supremacy of the intellect

,not understanding

that man possesses in his free will an infiniteand absoluteworth which makes him an end and never a means or aninstrument. Stoicism retained liberty

,regarding it as

necessity rightly understood. Christianity put forwardcharity as the love of our neighbour

,and consequently

gave prominence to duty,leaving law and right in . the

shade. The first systems of modern times,those of

Descartes and Leibniz , did not assign to the will the placethat was due to it . Descartes did not exactly distinguishthe faculties of the mind, and beconfounded thewill withthe intellect. Leibniz

,not recognising any reciprocal

action among his monads,had recourse to the hypothesis

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PHILOSOPHY O F R I GH T .

things more distinctly because they have profited by theobservations of all their predecessors. What is there thatis not comprehended in the system of Gioberti ? We haveseen how the “methexis ” from being initial and thenmedial becomes final . If Space allowed us we mightshow how the supernatural is an anticipation of the finalmethexis, and how the supra-intelligible w ill diminishwithout being annihilated .

H aving thus found a guidguid tnconewssum, wemay nowbegin to rear our moral and juridicaledifice.

E T H I C S .

WE feel,think

,and will . This being recognised

,it remains

for us to see how these faculties act in practical l ife,and

whether their activity proceeds in view of a final end.‘

Undoubtedly sense predominates in the first period of life ;our life is then instinctive and wholly animal. Reasonappears with speech

,and then we act no more from im

pulse, but from calculation . Later on reason shows otherrelations

,such as those referring to order and to the good

in itself, and the will does not all ow itself to be determined merely by pleasure or by the useful

,but feels itsel f

obliged to actualise the good. The moral life, properly socalled, appears only in the third period of man

’s life,the

first and the second periods being common to us with theanimals . All the fundamental systems of philosophy havenot recognised the three periods for sensualism, scepticism,

and partly also mysticism,deny the power‘ of the will to

elevate i tself to the moral law, as well as the universalityof this law. Idealism alone demonstrates the insufficiencyof the instinctive and egoistic state to explain all themoral phenomena. We have already shown the closerelations o f knowing and willing ; and it now remains forus to indicate what the principal philosophical systemshave' graduall y unfolded with reference to the doctrin e ofmorals.Ethics as a moral doctrine seems to Spring full armedfrom the head of Plato

,for he sums up Pythagoras

,the

ancient sages,and especially his master Socrates. No one

89

90 PHI L OSOPHY O F R I GH T .

has better distinguished than Plato what the absolutegood is ; and he identifies it with God, whom we ought toseek to imitate . The good in everything is order ; andthe soul to be happy and wise ought also to be wellordered

.The soul realises the good by means of virtue

,

which is composed of four elements : wisdom , courageorconstancy, temperance , and probity or justice. There isnothing more beautiful than justice ; and love leads usto it . Injustice is an evil and demands a remedy whichconsists in punishment and expiation. Punishment, saysPlato

,liberates the soul from evil.

Plato,however

,in his psychology

,does not rightly dis

t inguish the faculty of knowledgefrom that of will. Evilis committed only from ignorance. We do not find anydescription of that intermediate state in which the souldoes not do the good which it knows and loves

,and in

which it prefers the evil which it knows and hates. Thepersonal activity is thus limited ; and this is a point whichAristotle undertook to correct.Aristotle

,in his Metaphysics, distinguishes between

potentiality and actuality. In his Ethics, he explains thatactuality is identical with the end or purpose ; and hecalled the aspiration which every being has to pass frompotentiality to actuality

,desire . The end of a being can

consist only in the good ; and the perfect being will bethat one in which there will be no more potentiality

,but

all will be actuality. Man loves action,and virtue con

sists in attaining actuality. Pleasure springs from action ;it is an adjunct or complement which is superadded toactivity as beauty is to youth. Aristotle, in his theory ofthe virtues, distinguishes free will , personal responsibil ity,and the influenceof habit in the exercise of the virtues .In these points he excels Plato

,who had confounded

virtue with science , and had left the practical conditionsof morality in the ‘shade . Heapproaches Plato again,when he gives the predominance to the intellectualvirtues over the moral v irtues

,and makes the highest

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92 PHIL OSOPHY O F R I GH T .

all justice,and actualis es it by means of free wil l. But

in the later period of his li fe,in connection with his con

troversy with Pelagius, he abandoned this idea, and maintained that the soul after thefall lost the liberty ofabstaining from sin

,but preserved that of committing it ,

and that God immediately directs the will to do good ,granting or denying this grace according to H is pleasure .This is the Augustinian doctrine of election and predestinetion. The Church modified the Augus tinian doctrine byestablishing the view that human liberty is not ann ihilated ,but is supported by the divine grace

,which is granted to

whoever does not rej ect it .As Augustine had thus sought to attach the Christianethics to Plato

,Thomas Aquinas endeavoured to connect

them with the doctrines o f Ari stotle. Helays down theposition that all beings have an end

,and that the final

end of man is happiness . But he asks , what is this happiness ? It is not the happiness which springs from materialgoods, which are transitory ; nor that of a tranquil soul, asthe soul cannot rest in itself

,but only in its finalend, whi ch

is God. Hetherefore distinguishes an imperfect happiness,whi ch is that of this world here below, from the perfecthappiness, which must be exempt from all evil, and whichbeing attainable only in the other li fe

,consists in the

contemplation of God face to face. By this distinction,Aquinas departed very far from the views of Aristotle, asAristotle placed happiness in meditation

,or in the philo

sophical life, and believed that the natural virtues weresufficient . Thomas Aquinas, on the con trary, shows, likePlato, that every created being is imperfec t, because it isonly in part, and that the supreme good is in God. And

he adds as a Christian,that the natural virtues which are

derived from the intellect and the will are insufficient toelevate as to the supra-natural order ; that intelligence issubordinate to the supra-intell igence which is faith andthat the will is attracted by faith and love . Faith

,hope

,

and charity do not pass above nature,but complete it.

PROLEGOMENA .

The Renaissance attacked scholasticism ; and in a moredisguised way it attacked Christianity itsel f in the nameof reason and nature . The Court of Rome was seduced bythe splendour of the arts and by eloquence ; and paganismseemed to be reviving. A vigorous reaction was not longin manifesting itself ; and Lu ther and Calvin denied all

efficacy to human works by resuscitating and exaggeratingthe Augustinian doc trine. Melanchthon was regarded asalmost a heretic when he maintained that we have theliberty to resist grace.The modern period was opened by Bacon . Hedivides

moral philosophy into two parts : the good in general,which he says has been well treated by the ancients andthe scholastics ; and the mode of regulating our conductin life

,which deserves to be better cultivated. Bacon

denies the superiority of the contemplative life when itdoes not tend to better the active life. Hedesideratesthat the passions and affections be studied and described,a thing which had been done till then rather by the poetsand historians than by the philosophers.Bacon’s wish was soon carried out. In 1 649 thereappeared a treatise by Descartes on the passions

,which

he analysed from the physiological and psychological side,

and he also considered the method of regulating them.

Nevertheless, Cartesian ism was not directly favourableto moral philosophy, as Descartes did not recognise theaction of second causes

,but regarded them as existing

only because they are created every moment by God.Malebranche

,with a certain originality

,distinguishes in

things the relations of quantity and perfection,that is to

say, he distinguishes the mathematical and the moraltruths. The mind uses the mathematical relationshipsin order to know things and to submit them to calculation ; but the relationships of perfection induce and obligeit to prefer and love those things which possess them.

Man is therefore driven by his nature not only to knowbut to love ; and he loves what is most perfect, that is,

94 PHILOSOPHY O F R I GH T .

God,and then things in proportion as by their perfection

they approach God . But as God creates in us our ideas,Healso creates our acts. Thus our liberty consists in theattention which we accord to the work of God ; and virtueconsists entirely in spiritual force . Malebranche was thefirst to divide the science of ethics into three parts, treating respectively of the duties towards God , towards ourselves

,and towards other men . Spinoza carried out to its

extreme issue the definition of substancegiven byDescartes ,and he found only onesubstance which ‘

develops itselfaccording to secondary laws. H ow is a doctrine of moralspossible in this system ? The good and the evil are merelyrelative ideas. Virtue is power, and it consists in havingadequate ideas

,as the soul is passive and enslaved in

inadequate and confused ideas . It is necessary thereforeto make reason predominate over the passions

,and to get

near to the supreme intelligence. Leibniz vainly endeav oured to eradicate the germs of pantheism which hediscerned in the Cartesian philosophy, by substituting forthe view of a continuous creation that of a continuousparticipation

,and for the absolute passivity o f the crea

tures their essential activity for he does not explain thephysical and moral order otherwise than by an hypothesis

,

namely, that of a pre-established harmony.

Vico,considering God as the immovable mover of all

created things, makes H im also the mover of the humanspirit. This movement, however, does not consist in animpulsion or mechanical push

, but in its virtuality ascommunicated to it by creation

,a virtuality or power

which includes what are called faculties,such as are ex

hibited in thought and will. And as the mind cannot butthink Being, that Being which is the true and the

'

goodin itself

,so it is never separated therefrom

,not even in

its errors, as it is not possible that the mind even inits aberrations should think of nothingness

,nor that the

will , however culpable , should wish it. Thus we layhold of the false only under the appearances of the true

,

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96 PHILOSOPHY O F R I GH T .

to sympathy. It did not cost Price much trouble to

demonstrate that the idea of the good can only take itsorigin in the intuitive reason , and he was followed in thisl ine by Reid and Dugald S tewart. This school renderedgreat services to moral science by its finepsychologicalanalyses. This is sufficiently shown by referring to theinvestigations of Reid relating to instinct, the appetites ,the desires

,and the affections, which he designated by the

complex term,principles of action .

We have already seen that Kant in his Critiqueof thePureReason became imprisoned in the Ego ; but he didnot suffer this imprisonment long, for he sought to breakhis fetters in the Critiqueof theP ractical Reason. Themoral law, he said, i s given by pure reason , as a fact ofwhich we have consciousness dpriori, and it is apodictically certain . In the universal and obligatory characterof this law

,Kant sees the passage to objective reality ;

and therefore he does not make it depend on the idea ofthe good

,which according to the first of these Critique s

would be a. concept of our mind. The existence of thislaw is attested by the consciousness of all

,as well as the

freedom which consists in conforming our actions to it .

The moral principle is called by Kant the CategoricalImperative, and it is thus formulated } “Act so that themaxim of thy action may be capable of being raised bythe will to a universal law. H ere it seems evident thatKant confounds the will with the reason

,maintaining

that the will is autonomous,or that it obeys only its own

law, that is to say, that law which is conformable to it ,and which may be valid for every rational will

.Duty

consists in conforming our actions to the prescriptions ofthis law, so that our actions acquire a moral value

,not by

the end which they put before them,but by the principle

which determines them. But o f this,consciousness ought

evidently to apprise us. Now if we hold with Kant thatconsciousness is a mode of the sensibility

,how can it

reveal to as the law of duty ? And what else could th is

PROLEGOMENA . 97

law be but the simplest form of the relations o f phenomenaamong themselves ? From the existence of the law ofduty

,Kant deduces as a postulate the immortality of the

soul and the existence of God,who distributes rewards

and punishments according to desert.1

Fichte carried out the system of Kant to its extremes tconsequences both in metaphysics and in ethics . TheGerman philosophy

,having thus developed the notion

of liberty in Kant and Fichte,proceeded in Schell ing and

H egel to absorb it in the notion of necessity. It alwaysmaintains the idea of freedom in the third moment orphase of the metaphysical evolution

,but in such a trans

cendent sense that it rather denote s the rational unity ofthe great whole, than the individual unity of the humanpersonality. The successors of H egel have understoodthis necessity in a wholly material sense

,and they have

taken for their idea the mechanism of matter and theorganism of life

,subj ecting effects to causes

,means to

ends,the individual to the State , the weak States to the

strong States,and the alleged inferior races to the superior

races. We have already spoken of the ethics of Schopen

hauer and H artmann in dealing with their metaphysics .Against these doctrines, Fichte the younger, Wirth, andU lrici, have combated in the name of liberty andreason

,in the “Review of Philosophy and Philosophical

Criticism.

France availed herself of the aid of the Scottish andGerman philosophy in order to combat sensualism. Mainede Biran

,in res toring activity to the Ego

,by an excess in

his reaction,concentrates it entirely in the will, which he

confounds with force . Joufi‘

roy puts everything in itsproper place. What was the principal thing to Maine deBiran becomes accessory in Joufl

‘

roy. The will appearsand disappears in the intellect which persists always

,

both in the voluntary state and in the state of spontaneity.

Joufl'

roy carefully distinguishes the physiological func1 SeeCousin, La philosophic dcKant. 3rd cd. Paris, 1 857 .

VO L . I . G

PHILOSOPHY O F R I GH T .

tions from thepsy chological functions. Herecognisesthree primitive tendencies : the desire of knowing or curi

osity,the love of others or sympathy , and the love of power

or ambition ; and he shows the pleasure and pain which

thesatisfaction or repression of these tendencies causesus,and thepart taken in them by the external world, the

reason,and the will. O bstacles serve to develop our

l iberty and to form our personalitw and life has the

double merit of making us free, and putting our freedomunder the empire of reason . Joufi

’

roy is n ot satisfiedlike Kant with deriving duty from liberty, but he hasrecourse to the principal of finality. What then is ourdestiny ? Every being, says Joufi

’

roy, i s predestined byits nature to attain to an end . This end is its good ; andthe end of man is indicated by his primitive tendencies

t o know,to act

,and to love . These tendencies are blind

and disinterested,because they impel us to action before

knowing whether it will bring us pleasure or pain . The

first development of human activity is instinctive andinnocent ; but as soon as we have learned that the sat isfaction of our tendencies procures us a pleasure and theirnon-satisfaction a pain , weact no longer from instinct,but from calculation. Reason has now intervened ; andit has learned that all our tendencies look to the individualgood

,but that this good cannot be complete. It makes

us aware that it is necessary to sacrificethe lively pleasures of the moment in order to attain to pure and morelasting pleasures in the future. It assigns to actions theprincipl e of interest well understood . O ur nature runsaf ter thi s end , which is indicated to us by reason , andthe love of the well-understood interest is superadded totheprimitive passions, which always subsist

.This new

state is called egoism or selfishness, which did not exist intheinstinctive state . But this i s not the ultimate stateof human nature ; for reason is not long in c oming tounderstand that as all beings have to attain an end

,the

individual good is part of the universal good,of the

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l oo PHILOSOPHY O F R I GH T .

of morals an objective basis. Hehad as his associate inthis attempt

,Cousin

,who lost himsel f in the subtleties of

his theory of the impersonal reason.

It remained for Gioberti to substitute the ontologicalprocess for the psychological process in the knowledge ofthe good, and thus to give us an exact synthesis of themodern principles of ethics in his elegant treatise Of theG ood. Heexhibits the Creator in intercourse with manas will and thought . As will, Hemanifests H imself inthe quality of the obligatory law to which Kant gave thename of the Imperatire. But the Kantian Imperativeis purely abstract and subjective

,and accordingly it has

little or no efficacy on thehuman will . TheImperativeof Gioberti is founded in a commanding person who is theintuitive concrete of which the impera tive is the reflectiveabstract . Both of these are the volition of God withreference to the liberty of man . This volition prescribesto free spirits the observance o f the orders established inthe sphere of the cosmical forces . God says to everyman : Maintain the order of the creation. The Imperative accordingly is the voice o f the Supreme Being whospeaks to our conscience and promulgate s an absolute anddivine command . From this it follows that the imperativeincludes the notion of right

,that is

,the idea of a supreme

and absolute will having the power to command the creatures . In the primitive order of things

,the conception of

duty springs and proceeds from the correlative notion ofright. The absolute right of God creates the absoluteduty of man , who has in relation to his Creator dutieswithout rights. From such absolute duty

,which is the

effect of that absolute right,then arise the relative duties

which bind men among each other,and finally the rela

tive rights which are the necessary correlation of theserelative duties .

It remains for us to speak of the positivist and naturalistic schools of Ethics. Positivism began by maintainingthat it was vain to attempt to construct sci ence at priori,

PROLEGOMENA . xox

seeing that every metaphysical system,whatever may be

i ts pre tensions,has only a logical value

,and in the real

order expresses but more or less ‘ perfectly the scienceof its time . As an example of this the Ionic School i sadduced

,as its systems correspond to a first glance cast

upon nature,and the Pythagorean School

,which transferred

to its system the discoveries made by it in geometry,

astronomy,and acoustics. It is added that Plato himself,

when in his T imaeus he expounds dprion: the plan followedby God in the creation, uses the imperfect theories of theastronomy

,physics

,and physiology of his time. And

finally the posit ivists assert that the universe which H egelbelieved that he had constructed solely by means of histranscendental logic

,is found conformable at every point

to the d posteriori cognitions of his time . Positivismwasnot long in displaying its inconsequences

,by making an

imperfect use of observation ando

reducing psychology toa species of cerebral physics

,the soul being defined as

the complex of the functions o f the brain and o f thespinal marrow. In making physics the‘

basis of psychology, it follows that anthropology and history willhave to become social physics . Pos itivism is thus confounded with naturalism

,and wesee an interchange of

theorie s between these two systems.What then can the moral law be according to positivism ?The whole doctrine of morals

,says Littré, springs from two

impulse s : the love of self and benevolence towards others,egoism and altruism. The first of these impulses springsfrom the necessity of nutrition

,which is experienced by

the organised substance in order that it may subsistindividually and the second from the necessity of loving,which by means of the sexual union serves to preservethe species.1 Moral science accordingly will have as itsobject to deduce from the laws of life and from the conditions of existence

,rules of conduct for the attainment of

the individual and social well-being . This well-being or1 L ittré

,Laphilosophicposit ive. Paris, 1870.

10 2 PHILOSOPHY O F R I GH T .

good consists in pleasure and utility ; and it will be pro

duced mechanically, for in us liberty lies onl y in theexecution and not in the volition, which is determined bycauses independent of us.For the brutal selfishness of H obbes , Bentham substi

tuted a moral thermometer by means of which he hopedthat the science of the passions or mental pathologywoul d be able to measure pleasure s both in their intensityand in their extension. The question of duty was thusreduced by him to a problem of arithmetic. John StuartMill took up the problem

,recurring to the association of

ideas as a view that was dear to the English psychologists,who put the criterion of the justice or injustice of anaction in its foreseeable consequences. A mental habitassociates with an action an idea of approbation or disapprobation . The moral sense is an acquired sentiment,not a primitive faculty. Conscience

,being only a serie s

of instincts and hereditary habits,is subject to the laws

which preside over the formation of the instincts. Thisi s found in divers degrees in all the divis ions of theanimal kingdom ; and natural selection develops it in thehigher animals . Darwin claims to have discovered in theanimals a sort of moral instinct which rises to the consciousness of social solidarity

,and intelligence being added

to this instinct there arises,according to this celebrated

naturalis t, the sentiment of moral obligation and duty.

The law of adaptation to the environment,of which the

law of association is only a consequence,gives to the

moral sense new energy ; the instincts contrary to th econditions of existence created by external circumstancesd isappear, and the others form organs . Every ins t inct,says Darwin, which is permanently stronger or morepersistent than another

,brings forth a sentiment which

we denote by the expression,must obey. This is the moral

sanction . The conclusions of Darwin have been adoptedby Bain, and have been somewhat modified by H erbertSpencer. Spencer holds that just as the intuition of space

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PHILOSOPHY O F R I G H T .

exists in any phenomenon of the universe whatever ; everychange is the effect of a preceding change, and no effectcan be spontaneous . All the acts of any being whateverare reactions excited by the influences and impressionswhich the being receives from the extern al universe. I t

i s an influencewhen there is no consciousness, and an

impression when there i s perception by means of theorgans of the senses . In the absence of motives aris ingdirectly from without, it is impressions whi ch act on thesenses

,including ideas, images , and representations— that

is to say ,the subjective sensations indirectly excited in

the nerve centres. In either case,there is no activity

,

because there are no motives. 2 . The will is the consciousness of the determining motive combined with thatof the

'

image of the act, or of the series of acts whichhave to be executed after the victory of the predominatingmotive . In other words , the will is only the perceptiono f the tendency to act or not to act in some particul arway

,in consequence of a particular combination

,or of

the resultant of all the causes which provoke the action .

3. Individual liberty or free will is a subjective sensationarising from what is incalculable and unexpected , condit ions which always exist in our actions

,and which render

it impossible for us to foresee all the circumstances whichmay supervene and influencethe final resolution. H encethe feeling of freedom or of the resolution is simply theconsciousness of the possibility of a change in the tendencyto execute this or that o ther act in consequence of a modificat ion in the external or internal motives which may ariseand exert an influenceupon our action . The illusion of thespontaneity of an already completed action

,persists only

when the agent has not been conscious of the determiningmotive , or has ignored it ; not having observed it , or hav ingforgo tten i t on accoun t o f its small

’

importance. Theillusion of the freedom of a future action subsists untilthe moment in which the victorious motive makes all itsforce felt . As soon as weknow what weare going to do ,

PROLEGOMENA . 105

we know also the reason of it and accordingly we knowthe determining motive of our action. But before knowingi t there is for as a moment of undecided equilibriumamong the different motives ; and being ignorant o f thefinal result we form a representation of various possibleresults. This moment produces in the individual theillusion of freedom as a faculty of free choice or free wil l .

4 . The final determination of the will i s the infallible ,necessary

,and exclusive product of thefollowing three

factors : a. The individual organisation, or the innatephysical or moral constitution

,including the dispositions,

the desires,the passions

,the character

,&c. ; b. The state

of the nervous system at the moment in which it receivesthe impression which sets it into activity, that is, themoral state of the nerve centres

,produced by education

in the widest sense of the term ; 0. The sum total of theimpressions perceived in the moment of acting

,whether

they are derived directly from an external s ource , or areawakened by reflex action or by association in the internalramificat ion of the nerve centres. 5. Individuality isthe positive and real concep tion which ought to take theplace of the metaphysical conception of freedom. Theterm freedom or liberty, when applied to the individualactivity, precisely

'

signifies the absence of obstacles external or internal, physical or moral, which might possiblyprevent the individual from acting con formably to thetendencies inherent in his physical or moral constitution

,

or the conditions in the midst o f which he is developed.

In other words, the freedom of the individual consists inthecapability of being able to react in his own way

,and

without constraint, according to the voli tions or desiresawakened in him by the concourse of circumstances. T heindividual is therefore free to do whatever h e wil ls whenthe execution of his will ing is not impeded but he is notfree to we'll what hewill

,since his volitions are produced

by the conditions above enumerated,which conditions in

no way depend on the individual. But just because the

106 PHILOSOPHY O F R I GH T .

organisation is one of the three factors of the volitions towhich it gives an individual character, the positive conception of individuality is clearer and much more suitablethan the negative conception of freedom.

”

Free will being denied,the question arises

,will it be

possible to foresee human actions ? To this questionH erbert Spencer gives the following in reply z— A freebody in space subject to the attraction of another singlebody

,will move in a direction which can be predicted

with great precision . But if it is attracted by other twobodies

,the displacement can be calculated only approx i

mately,and with still l ess precision i f it i s attracted by

three bodies. Finally, let us suppose the said body surrounded by various bodie s of all sorts of dimensions,situated in al l directions and at all distances

,its motion

will heapparently independent of the influenceof each ofthem ; it will move in an indefiniteand oscillating line ,and it will seem free, just as if it determined itself spontaneously. In the same way

,in the degree in which the

relations of any psychical state are multiplied,the psychical

modifications become incalculable and appear independentof all law.

And now, turning our attention from the individualman to coll ective man

,i t may be similarly asked, whether

we shall be able to foresee anything o f the future. H ereLittré answers as follows : Sociology is the sixth of thefundamental sciences

,and it is therefore subordinated to

biology, which depends upon physics and chemistry. Thephysiological man— that is

,man regarded as without any

acquired quality material,moral

,or intellectual— is trans

formed into the sociological man,or rather the historical

man, by evolution . What takes place by means of naturalselection in the animal kingdom

,says Littré

,is attained

in the human kingdom by means of education,which is

first instinctive and unconscious,and then determinate

and conscious . The sociological evolution is producedby the capacity e

which the societies have for accumulating

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108 PHILOSOPHY O F R I G H T .

animal and vegetable, are likewise most exactly adapted.

to every part of the globe, and instead of having recourseto the vain hypothesis of transformation , this celebratednaturalist bows before the creative wisdom . In life weobserve not only physico-chemical phenomena, but thereis a sort of vital design for every being and every organ ,and this in such a way that the various phenomena of theorganism taken isolatedly, are subjected to the generalforces of nature but considered in their succession andin their totality, they reveal a special connection, andseem directed by an invisible condition. This invisiblecondition is the power of evolution immanent in the egg,whi ch includes the phenomena of nutrition and generation. Biology is not capable of explaining the moralphenomena

,just as sensation could not give account o f

consciousness . The soul makes use of the organs andcomes under their influence. The beasts have a soul , butthey have not an ego on account of the imperfection oftheir mental faculties . The animals do not pass beyondthe instinctive

,or at most the selfish state ; and as they

do not possess the in tuition of the true they cannot directtheir will to the realisation of the good. H ence it is thatthe animal i s born and dies an animal

,whereas man is

born an animal and becomes a free person .

In what does freedom properly consist ? When cognitionis involuntary the mind acts unconsciously and calls itsel ffree, because it follows its nature . When cognition isvoluntary and the mind ac ts after deliberation

,it is s aid

to be free, because it i s always possible for i t to do th econtrary. This possibility of doing the contrary is deniedby the positivists, because according to their system allour ideas come to us from sensation and have nothingabsolute in them, and the strongest motive must alwaysprevail . In the view of the positivists there is no otherway of making man better than by multiplying motiyesby means of instruction . That attentive observation whichhas discovered intuition and reflection in the Sphere of

PR OL EG OMENA . 199

metaphysics, has also recognised in the moral sphere thepossibil ity of doing the contrary. This is expressed bythe Latin poet in the well-known words : Video meliora

proboque, Deteriora sequor. This freedom in doing evilmakes our good ac tions meritorious

,as it is necessary the

more frequently to combat the strongest motive in orderto make the most reasonable motive triumph . Nevertheless weare not alone in this struggle , because as weattainideas in God

,we likewise obtain the strength to realise

them in action. Man,

” says Maine de Biran,is a being

intermediate between God and nature . Hetouches Godwith his Spirit and nature with his senses . It is possiblefor him to be immersed in nature by allowing his Egowith his personality and freedom to be absorbed

,and by

abandoning himsel f to all the appetites and impulses o fthe flesh . It i s possible for him up to a certain poin tto be ident ified with God, by transporting his Ego intoGod by the exercise of a higher faculty. H ence i t followsthat the lowest degree of degradation and the highestpoint of elevation

,may be equally connected with two

states of the soul in which it lose s its personality,accord

ing as it is confounded with God or annihilated in thecreature .” 1

We observe in society as in the individual the struggleo f the passions with reason , and the triumph of reason bymeans of the free will . T hepassions, however, in passingfrom the individual to the social body, lose in strength .

They agitate only the surface leaving the foundation ofsociety

,or the ideas on which i t is based, almost unmoved.

It is not long since it began to be perceived that there isa logic and a progress in the political

,religious , c ivil, and

military institutions of the peoples . Pascal was the firstto indicate it in an important fragment from which we

1 WehavequotedMainedeBiran will. F icbte, l ikewise, after havingin order t o show that thestrongest exaggerated thepower of theEgo ,championof thewill, inh is lastwork, closed his career by adopting a

N ouveaux essais d’

anthropologie, had species ofmysticism.

to admit divineaction on thehuman

1 10 PHILOSOPHY O F R I G H T .

may quote the following words Man in the first age ofhis life is in ignorance

,but he goes on learning without

ceasing as he advances ; for he derives advantage not onlyfrom his own experience , but al so from

‘

that of his pre

decessors, and because he always preserves in his memorytheknowledge which he has once acquired, while theknowledge o f the ancients is always present to him in thebooks which they have left . And as he preserves thisbody of knowledge

,he can also easily increase it, so that

men are to-day in the state in which those ancient philosophers would have found themselves if they had beenable to have lived on till now

,and to have added to the

knowledge which they had,th e further knowledge which

their study might have enabled them to acquire throughso many ages. H ence it follows that by a pecul iar prerogative not only does every man advance from day today in the sciences, but all men together make continualprogress in them as the universe grows older, because thesame thing happens in the succession of men as takesplace in the different ages of an individual . In this waythe whole succession of men during the course o f so manyages

,ought to be considered as the same one man who

subsists always and learns continually.

” 1

The ancients attributed all change in society to thepassions and to the characters of individuals. The modernshave come gradually to recognise an affiliation betweenideas and facts

,and they have thus created the philosophy

of history. Bossuet, following in the footsteps of S t .Augustine, described the part taken by God in events.Vico taught that the world of the nations i s the fruit o fthe human mind. H erder showed the influenceof natureupon man . Thus the moral development takes place inthe same manner both in the individual man and inthe social man. Virtue is always an effort

,a habit of

making reason triumph over the senses and follow thedictates of the moral law. Politics does not differ essen

1 Pascal , F ragment d’un traité da vide. Paris

,1 663.

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TH E PH I L O S O PH Y O F R I G H T .

MAN does not always act for a dis interested end, or inviewof an absolute good

,but most frequently he seeks to obtain

what is useful for himself and for others . H is actions arethen measured by ano ther standard ; abstraction is madefrom the determining motive , and the result is considered.

The rule in such actions is no longer absolute goodnessbut justice ; or, as Vico says, it is the good recognised inits equality.

Plato,as wehave seen , makes justice one of the four

elements of virtue. Jastice, he says, makes man a measured whole that is proportional and full of harmony. Ithas its realisation in the State , which is man on the largescale

,and whi ch has to actualise the whole good . It is

e v ident that Plato confounds justice with goodness,and

right with moral ity. Aristotle, on the other hand, laysdown a principl e of distinction

,maintaining the position

that justiceis virtue in relation to others ; that it is thegood of others and that the State should not absorb thewhole citizen as Plato wished. Stoicism gave greaterprominence to the inner man and endeavoured to emaneipate the individual from the State

,recognising the unity

of the human race and the harmony o f all the parts ofthe universe.Christianity weakened the feeling of right, as a religion

giving the predominance to morality. As Christians weought to bear injustice

,and even to rej oice at it ; but we

are not bound to this as a matter of right. As Christians

PROLEGOMENA . 1 13

we ought to love our persecutors ; but in right we mayoppose force by force. Without doubt the Christian ideais more sublime than that of right ; but the idea of rightis indispensable in order to maintain order m society

,and

to prevent some from abusing the candour and charity ofothers.1

Christianity,however

,was not able to dispense with

a legal doctrine for the common uses of li fe. ThomasAquinas dehues jastice in almost the same words as Aristotle: “ O rdinat hominem in his quae sunt ad alterum.

”

In order that justice may exist,there must be a relation of

equality subsisting between the things exchanged ; and thisrelationship or proportion between two obj ects

,the will of

the agent not being taken into account (non consideratogualiter ah agentefiat ) is what i s termed right (jug) .Dante only hlls up and completes this definition when hesays : Jus est realiset personalis ad hominem proportio ,

quae servata hominum servat societatem et corruptacorrumpit

”

Controversies concerning the origin of political powerwere carried on very keenl y in the Middle Ages and itis curious to observe that the supporters of kings maintaintheir divine origin in order to render kings inviolable,while the supporters of the Church hold that power is o fhuman and popular origin

,in order to make the kings

dependent on the Pope as the sole representative of Godon earth .

H ugo Grotius wishing to c ircumscribe the rights of war,began by emancipating jurisprudence from theology

,and

he thus founded the science of natural right. This is howhe enters on the subj ect : “Many authors have undertaken to comment upon and to summarise the civil law

,

both the laws of the Romans so called by autonomasia,

and the particular laws of every nation . Neverthelessthe right which has to be observed between differentpeoples

,or towards the rulers of the various States

,and

1 Janet, H istoiredes doctrine: moraleaet politiques. 3rded Paris, 1886.VO L . I . H

1 14 PH IL O S O PH Y O F R I GH T .

which is founded on human nature, established by divinelaws

,or introduced by customs and by a tacit convention

of men,has occupied the attention of few ; and no one

has examined the subject in all its extent and in a systematic form

. H owever, it is not the less a need of thehuman race that every one requires to be instructed througha work of this kind . Hethen investigate s the principleof right

,and finds it in human sociability, or in the need

of maintaining society in a manner conformable to thecognitions of the understanding, that is to say, by abstain

ing religiously from taking the goods of others, by keepingthe word which has been pledged, by repairing any damagethat has been done

,and by accepting a punishment for

every violation of these principles. It is at once evidentthat Grotius does not regard sociabil ity as a material factcommon to men and animals

,but as an index of reason.

“From this idea there arises another more extended ideato which has been given the name of R ight. The superiority of man over the other animal s consists not only inthe feelings of sociability of which we have spoken

,but

also in the faculty of valuing things that are pleasing ordispleasing

,whether present or future

,and discriminating

the use ful from the prej udicial. I t is recognised that iti s conformable to human nature to regulate oneself according to a right and sound judgment

,in as far as the weak

ness of the mind permits it,and not to allow onesel f to

be intimidated by an impending evil,nor to be seduced

by a present pleasure,or to be conquered by an uncon

sidered impulse . All that is opposed to such judgmentis regarded as contrary to natural right or to thelaws ofour nature.Samuel Pufendorf, although severely characterised by

Leibniz as fuirparumjurisconsultuset minimephilosophus,rendered services to the new science by developing whatGrotius had sketched. Hedistinguishes natural rightfrom moral theology and from the civil laws

,explain ing

natural right as that which is ordered by right reason,

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1 16 PH IL O S O PH Y O F R I G H T .

Kant,in his Critique

‘

of theP ractical Reason, shows usthe human will subjected to the rat ional law of duty,which he calls the Categorical Imperative. It remainedfor him therefore to make a scient ific enumeration andco-ordination of the duties and this he did in the Meta,physio of Morals. H ere he divides the duties into twoclasses : those which may be the object of an externaland positive legislation

,and these are the duties of right

and those which are immediately imposed on the will byreason

,and these he calls theduties of virtue. These two

classes of duties are treated in the two parts of the Metaphysieof Morals, the one of which is entitled theMetaphysical E lements of thedoctrineof R ight, and the othertheMetaphysical E lements of thedoctrineof Virtue.Kant lays it down as a general principle that everyaction which does not hinder the accordance of the libertyof each individual with the liberty of all

,is conformable

t o right . The idea of righ t, according to Kant, is therefore founded upon that of freedom , which is its condition ;and hence the canon : “Act externally

,so that thy liberty

may be able to co-exist with the liberty of all . Thepower of coercion springs immediately from the notion ofright , since the capability of removing every obstacle toour freedom is an integrant part of our freedom. Rightaccordingly is the form of the will

,and it therefore con

sists in agreement,whence arise all contracts

,not from

desire, nor from regard to their end. Right takes noaccount of good or bad motives

,and only looks to injuries.

But wemay ask Kant : Why is human freedom notto be impeded , and why is accordance or harmony in it tobe sought ? Hecan give no other answer than the rulewhich is incidentally formulated by him in theMetaphysicof Morals :

“Act so as to consider humanity both in thyown person and in the person of others as an end

,and so

as not to use it as a means .” Right will thus not bea condition nor the sum of conditions

,but subjectively

afacultas agendi of the moral being anterior and superior

PROLEGOMENA . 1 1 7

to the conditions in which it may be able to manifest itself ;and objectively it will be the good in relation to freebeings .In Schelling’s “ System of Identity, the divine action,

fatal and unconscious in nature,becomes free and con

scious in the Spiritual world, where it is manifested aswill. The idea of an organism was transferred from thephysical world into the moral world ; and 5the individualconsidered till then as a whole in himself was viewed inhis organic relations with the family and the State fromwhich he cannot sever himself.In H egel’s view, Right is always liberty realised ; but

when wereflect that we are only a mode of the Absolute,it i s soon understood that liberty is only realised fatally .

H egel says in so many words : “Man is undoubtedly an

end to himself,and he ought to be regarded as such ; but

the individual man has to be regarded as such only by theindividual and not by the State

,because theS tateor the

nation is his substance.”Krause begins by making an analysis of our faculties

,

and he finds that by means of reason we rise to the universal . God is the immanent and always active reasonof the existence of the universe, with which Hedoes notcease to be united . Creation, according to Krause, is botheternal and temporal : it i s eternal in so far as spirit,nature

,and humanity, being th e form of the eternal

attributes of God,are eternally will ed by H im and it i s

temporal in so far as spirit, nature, and humanity, whiledeveloping themselves under the successive law of timeand of space , demand the incessant action of God. Thewill is that operation by means of which the spirit determines its own activity, or realises its eternal essence intime. Freedom is the form of the will, and its obj ect isthe good . The absolute law of the good may be brieflyexpressed thus Will and do the good purely andsimply

, or, be the temporal cause of the good . God doesnot remain extraneous to the fulfilment of this law, since

1 18 PH IL O S O PH Y O F R I GH T .

Hereveals H imself to our mind as the absolute reason o fthe subject and as the object of our desire . When we

accomplish the good unconditionally weare in the domainof moral s ; when we work for an external end we enterthe domain of right.Ahrens

,the distinguished foll ower of Krause, in his

celebrated work on Natural Right, insists on the condi

t ional side of right. Heexplains that all that exists inthe world is

,at least under oneaspect, finiteand condi

t ional. God alone i s the Being infinitely absolute andabsolutely infiniteHeis the Being from whom the worlddraws its essence and its existence

,but who in His abso

lute and supreme unity is above the world and al l thatis finiteand conditional . The uni ty of origin attributableto all that exists in the world

,establishes among beings

relationships of dependence and community by means ofwhi ch the existence and life of some are more or lessdetermined by the existence and life of others. The relation according to which beings depend on each other andare reciprocally determined in their existence and theirdevelopment, i s called a condition. Conditionality therefore supposes a higher unity it involves a community anda solidarity in the existence and life of finitebeings who

,not

being able to sufficefor themselves,demand the concur

rence and assistance of other finitebeings . These conditions are of two kinds . Some are established by God andare independent of the human will

,and such are the laws

of nature ; others are dependent on the will , or on theindividual and social activity of man

,and these last only

enter into the domain of right .The differences between right and morality are determined by Ahrens as follow — 1 . Morality considers themotive of an action right views it in its effects. 2.

Theprecepts of morality are absolute and invariable

,or in

dependent of places and times,whereas the conditions

imposed by right may vary according to the degree of theculture of the people. 3. Conscience is the sole judge o f

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1 20 PH I L O S O PH Y O F R I GH T .

the original precedes blind force and rules it ; or finally,both are really the same

,only different in our under

standing,and as they are nothing but different expressions

of the same being,they do not stand in a causal connection

with each other. And hence there can only be threeessentially different views of the world : the first is theconception of an acting cause (causaefieiens) which givesthe physical or mechanical vi ew of the world ; the secondis the conception of an eternal end (eausa finalize) whichgives the organic or teleological view of the world ; andthe third is the conception of the indifference of the actingcause and of the end. These three views o f the worldmay be called after their originators, Democritism, Platonism

,and Spinozism .

”

Trendelenburg attaches himself to Platonism as correctedby Christianity

,and he finds the ethical principle in that

organic conception of th e world which is based on thegreat fact of vitality

,and which brings the blind force s

into equilibrium and presents thought in nature. Whati s will in the absolute becomes duty in the relative

,and

man transforms duty into an ethical value when he willswhat he ought

,or what

.

God wills . The destination ofman is to realise the idea of his nature. All the greatobjective systems have had as their aim the realisation ofman as man. The ethics of Plato are real ised in the State

,

but to Plato the State i s man on the large scale,so that

thepsychological tendencies of man pass over into theS tate and form a harmonious unity . H ere psychologyenters into al liance with metaphysics

,and shows that man

is organised in such a way that by his feeling, thinking,and willing, he fulfils the end of the creation .

1 The individual, in so far as he is an organ of the idea, is th e1 Wehavebeen delighted to read ciplemay beunderstood as a. way

111 33 of thegeneral part of T ren of tak ing and treating thingsdelenburg’

swork thefoll owing state cording t o thediv inedestination.

ment : “According t o t heorganic H as thesystem o f G ioberti thenconception of theworld

,t heessencepenetrated into Germany, or did

of t hmgs rests on acneat ivethought ; T rendelenburg arriveat thesameand consequently theethical prin resul ts in another way ?

PROLEGOMENA . 1 2 1

instrument of a special purpose which is properly theobject of consciousness and by this correspondence theseactions include the true in the strictest sense of the term .

The internal ends of moral ity are themoving forces ofright ; and the necessity of their conserv ation and development gives origin as a necessary consequence to the notionof right . Right is defined by Trendelenburg as the sumof those universal determinations of action by which itcomes about that the whole of ethics and its parts are ableto be preserv ed and developed.

” All right,he adds, in so

far as it i s right and not injastice, springs from the impul seto preserve a moral existence . This conception of rightis the only one that i s possible in the ethics of an im

manent teleology .

Reduced to these terms,the difference between moral ity

and right is a difference in degree and not of essence .Yet it i s a very important difference, as it reduces thepower of coercion

.

to what is absolutely necessary for theharmonious co-extstenceof theindividual with thewhole.Al l the systems

,however

,do not derive right from

justice . Thus from the earliest antiquity wesee theSophists maintaining that man ought to seek only for

pleasure, as by Callicrates in Plato’s G orgias. Carneades

maintained that util ity i s the mother o f justice and equity.

Ep icurus taught that justice i s the utility of the greatestnumber ; and that we ought to obey the laws becausethey shield us by their protection and accordingly secureus a pleasure , and because if we violate them we shallbe punished

,and we would accordingly have to undergo

a pain .

Among the scholastics,John of Salisbury is the only

one who0

can be reckoned among the utilitarians. In histreatise en titled P olycmtus seu denugis curtaltum,

he laysit down as a principle that the pursuit of the usefuldetermines all human actions ; and he approves theendassigned to human life by Epicurus

,al though he blames

the means adopted by his followers in order to attain it .

1 22 PH IL O S O PH Y O F R I GH T .

At the close o f the Middle Ages, the human spiritbecame impatiently desirous t o differentiate right frommorals and theology ; and it need not be wondered at that

in some the distinction almost degenerated into divorce .The great rul ers, Louis IX. and Ferdinand of Arragon ,furnished the facts ; and Machiavelli raised them into atheory. The highest object was success the end justifiedthe means ; and it was reckoned better to anticipate thanto await the effects of astuteness and violence. If Machiavelli did not found the new science of politics, he establ ished itsmethod by introducing into it freedom of inquiry,historical and critical analysis

,and direct observation .

According to H obbes man is born with bad propensitie s,and his natural state i s war. In this state , accordingly,there is neither justice nor injustice. Force and cunningare the cardinal v irtues. Jastice and injustice are qualit ies neither of the body nor of the spirit

,and they do not

belong to man as man,but as a citizen. H owever, i f the

greatest good of man is his own preservation,and the

greatest evil is the fear of death, it follows that the stateof nature is insupportable

,and that man must seek all the

means of going ou t of it by establishing peace and security,

which are to be obtained by natural law. H obbes distin

guishes natural right from natural law,making the former

consist in theliberty which each one has to use his forceas best pleases him for his own preservation

,wh ile the

latter consists in the rule which he imposes on himself inorder to abstain from all that may turn to his disadvantage. Thus the law serves as a limitation of right ;and there is the same difference between them as there isbetween liberty and obligation .

Sp inoza, starting from different pr1nc1ples, arrives at thesame consequences as H obbes by identifying right withmight or force. By natural right, says Spinoza, must beunderstood the natural laws of every individual accordingto which he is predestined to act. For example, fishes arenaturally made to swim

,and the larger hsbcs to eat the

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PH IL O S O PH Y O F R I G H T .

consent.If it is asked whether a state of nature has ever

existed,Locke replie s that all people s and independent

princes are found in this state of nature, before they haveconcluded compacts by means of which they enter into acertain political community.

Rousseau modified the juridical doctrine of Locke forthe worse

,by making right spring from the will instead

of from the reason. According to Rousseau contractcreates right

,whereas according to Locke it declares it.

Rousseau vainly seeks to distingui sh the general will fromthe wil l of all. H is consequences are always unfavourableto the individual

,and his fundamental maxim is always

the one which was applied with so much atrocity by theFrench Convention : S alaspahlt

'ea, supreme, lexesto.

The influenceof Rousseau on the German philosophy isundeniable ; it is at testedby H egel himself in his Lectureson theH istory of P hilosogahy. Rousseau

,he says

,

“ proclaimed that the free will is the essence of man ; thisprinciple is the transition to the doctrine of Kant

,of

which it is the foundation .

” Schell ing and H egel tracedout another path

,as we have already seen , in dealing with

ethics and Schopenhauer says expres sly : In the humanworld , as in the animal world, it i s force and not rightthat reigns. Right is only the measure of the power ofeach individual . Al exander Ecker

,in his essay on natural

selection as applied to peoples,concludes as follows : The

last war has proved that the history of nations restsequally on natural laws

,and i s composed of a series of

absolute necessities,in which the balance hangs always on

the side of progress.” Prince Bismarck,in a speech to

the German Parliament,formulated the same principle in

the words : Might beforeright }1 Gewal t t or Recht . Bismarck has T hucydides into themouth of the

said that hedoes no t remember pro A thenians after thetaking of Melos,nouncmg thesewords, which areand thosespoken by t heEnglishfound in theparliamentary reports ambassador t o thePrinceof Denbecausehehas no timeto rev isehis mark when his capital had beenspeeches. I n conciseness andeyni bombarded during a timeof peace.018m they surpass thewords put by

PR O L E G OMENA. -5

The successors of Locke in England had not his prudence and circumspection . The most important of themis Bentham, who, with imperturbable logic, says : “Giveme pleasure and pain, and I will create for you the wholemoral and social world ; I will produce not only justicebut generosity

,the love of country

,philanthropy

,and

all the amiable or sublime virtues in their stabili ty andexaltation .

” Sir James Mackintosh appli ed himself t operfect the work of Bentham, endeavouring to showthat even remorse and the feeling of justice are derivedfrom utili ty. James Mill added nothing essentially new.

Austin answered certain objections taken to the possibili tyof moral accountability

,and made a profound analysis of

the relations of law to ethics. John Stuart Mill,in his

treatise on Utilitarianism , gathers up the ideas of his predecessors, and defends them against all obj ections . Heproves that through the principle of solidarity the individual interest is identical with that of the greatestnumber

,and that j ustice is the chief part of social utility

.

Hedefines right as a power which society is interested inaccording to the individual.Al exander Bain shows that the rules of justice aree ternal and immutable, because they correspond to themost essential conditions of social existence. They haveas their object the most important part of utility

,namely

,

security. A permanent violation of these rules wouldoccasion in a short time the destruction of the humanrace . This is why their fulfilment becomes obligatory

,

andwhy those who infringe them ought to be punished.

Man is therefore moved by selfishness and by the sympathy which prudence and benevolence engender ; butthese qualities are not sufficient to regulate

C

his conduct,

which is marked out for him by an extern al authority.

Government,authority

,law

,obligation , punishment , are

all comprised in the great institution of society. Moralityis not produced by prudence and benevolence, but byexternal law ; and the moral sense is formed by educa

PH IL O S O PH Y O F R I GH T .

tion in conformity with the law, and by the fear of

punishment.1

H erbert Spencer explains the universal and immutablecharacter of the principal moral rul es by the hereditaryaccumulation of experiences of the useful, and byevolution ; and instead of deriving morality from right, as Bainwould do

,he anticipates a state o f equilibrium between

the nature o f man and the social organisation— a statein which man woul d have no desire which he could notsatisfy without going out of his sphere of action

,whil e

society will impose no other limits than those which theindividual will freely respect. The progressive extensionof the liberty of the citizen s and the abrogation of thepolitical institutions, is the ideal of H erbert Spencer.Government, he says, is a function correlative to theimmorality of society.

2

Darwin seeks to fill up the abyss which moral sciencehad hollowed out between man and the beast. Heendeay ours to show that the moral sense is not the exclusiveprivilege of man

,but the highest manifestation of the

tendencies which are common to him with the higheranimals

,and that the same causes which explain the

graduated evolutions of nature from the lowest stages ofanimal ity up to the quadrumana, are sufficient to giveaccount of all the steps of progress by which the delicatemorality of the civilised peoples has gradually disengageditself from the primitive brutality of the ancestors of ourrace by means of natural selection and heredity.

3

The Engli sh School thus returns to its point of departure, to H obbes, wi th this difference, that the Leviathan nolonger represents society merely but all nature. Sciencehas shown that the being that desires to live must adap titself to the environment in which it lives

,or it will perish.

The universe is the environment to which humanity

1 Mental and Moral S cience. L ondon, 1 868.

Seehis F irst Principles, L ondon, 1 862 and later works.

3 SeeT heDescent of Man, &c. 1 862.

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1 28 PH IL O S O PH Y O F R I G H T .

human species,constitutes for R omagnosi the conception

of right and duty. The principle of moral education isnothing but the necessity of conforming our actions to theorder of the means indispensable for attaining the end of

our perfectible conservation ; and the foundation of justice is only the expression of a calculation of utili tyfounded on the inev itable order of things . Consequentlyevery positive obligation or bond not legitimated by thehope of a greater well-be ing is juridically null

,while

those obligations by which a lesser advantage is sacrificedto a greater are juridically binding. The science of righthaving to develop its obligatory rules parall el to theordinances of the art of civili sation, should not be limitedto considering abstractly the relationships subsisting amongliving men, but ought to follow part passu the development of civilisation in the course of centuries ; andaccordingly it should elevate the whole order o f progressive perfection to a rule o f rigorous natural right . Civilisation tends to the equalising of goods and powers whichthis civil justice will alone be able to make us attain .

The doctrine of R omagnosi may be summed up as atheory of the co-etficient forces o f human interest expounded in conceptions

,axioms , and general mediate

precepts (that is , such as are neither too general nor toospecial) , from which there results a grand connection andsimilarity for the whole system of the individual innerman and of the social inner man

,and which tend to their

perfectible conservation under the dominion of nature andof reason.” The modern positivists have done nothingmore than diminish the influenceof reason in favour ofthat of nature .As will now be seen

,all the philosophers are divided

into two groups : some of them assigning the good tomoral s and law as their content

,and others basing them

on utility. It is naturally asked whether a reconciliationof the two views has been ever attempted ? And in factfrom the remotest times it has been shown that virtue is

PROLEGOMENA 1 29

useful because it is conformable to the eternal order ofthings. Epicurus himself was led to place his highes tgood

,which was pleasure

,in the mental tranqu ill ity of

the wise man . Vico says expressly that the moralelement is the cause of right, and utility is its occasion.

Heproceeded to show this philosophically and historically,

saying that man receives from God the eternal light o ftruth

,but that ideas are awakened in him by sensations

and therefore he first lays hold of the certain,and then o f

the true . The metaphysical world is followed by thecivil world

,or that of the nations

,which is founded upon

three primitive facts which are found universally amongall

9peoples. These are the institutions of religion, of

marriage,and of burial

,which are called foedem generis

humant , and which correspond to the three fundamentalideas of the human mind, namely, the existence of divineprovidence

,the necessity of moderating the passions and

turning them into social virtues,and the immortality of

the soul . Vico finds his theory confirmed by the historicaldevelopment of the Roman Law

,which began with bar

barous laws (tmttationes violentiae) . In the degre e inwhich the plebeians acquired strength in the State thehardness o f the laws came to be mitigated by juralfictions, and equity was developed in the edicts of thepraetors until the complete predominance of rational rightwas reached under the emperors, who finally removed theexceptions of the written law

,and the jurisconsults

became true philosophers.1

If Grotius founded the science of natural right,Vico

has completed it by defining natural right as the goodrecognised as equal

,and by showing how men attain

to it by means of violence itsel f and material utilityMontesquieu advanced in the footsteps of Vico

,holding

that laws consist in the necessary relationships which1 T hework of S ir Henry S umner ment of theideas o f V ico ,especially

Maineon Ancient Law, however in regard t o juridical fict ions, testaoriginal its v iewsmay haveappeared ments

, contracts, 810.

out of I talyt only gives a developVO L . I .

130 PHILOSOPHY O F R I GH T .

aris e from the nature of things, and analysing the externalcauses

,such as climate and other influences, which act on

legislation.Bentham took up a position away from Vico

,

treating utility not as an accessory element or occasion,but as the reason of law and right. The H i storical Schoolin Germany

,as founded by H ugo, H auboldt

, and Savigny,returned to Vico

,but it left out of view the ration al

element which makes history intelligible.We concluded our review of metaphysics and ethicswi th Gioberti

,and we now close our review of the philo

sophy or science o f right with Vico . The tru e becomesthe good in ethics

,and the just in jurisprudence ; the

matter contained is the same , the relation s are changed.

The weakness of our mind obliges us to study theserelationships in so many separate sciences

,but we ought

not on this account to lose sight of the whole. We have,

however,gone at some length into an exposition of the

doctrines which the ages have transmitted to us in orderto justify our choice

,and to show how here too : “Mul ta

renascentur quae jam cecidere.

H aving spent the first half of our life in combatingsensualism

,we gladly spend the second half of it in the

defence of spiritualism . But some wil l say,what are we

to make of a book composed according to the principlesof Vico and Gioberti ? H ave not the moral sciences madevery great progress through others ? We shall only sayin reply that we hope our readers will find in our workan organic unity whi ch embraces all the progress thathas been really made ; and these Prolegomena may be aguarantee to them of the impartiality and fulness withwhich we shall expound the opinions opposed to our own

,

in order that students may be able to make their choicebetween them, as it is our desire to offer them above allthings what Montaigne calls an lit redebonaefat.O urwork will be divided into two parts

,the first of which

wil l be designated theObjects of R ight, and the second

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132 PH IL O S O PH Y O F R I G H T .

O ur discussion would be incomplete if we confined ourselves to the present alone, and hence under every one ofour sections

,both in the first part and the second part

,we

shall cast a glance over the past from which the presenthas been historically and rationally derived. In doing sowedo not consider that weare passing beyond the l imitsof the Philosophy o f Right, in view of the close connection which Vico has established between philosophy

,

philology,and history.

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136 PH I L O S O PH Y O F R I G H T .

there is a faculty of faith in man independent of all his

torical religions. If we say that it is religion whichdistinguishes man from the animal, we do not mean theChristian or Jewish religion ; we do not mean anySpecial religion but we mean a mental faculty which

,

independent oi,nay

,in spite of sense and reason

,enables

man to apprehend the Infiniteunder different names,and

under varying disguises . Without that faculty no religion,

not even the lowest worship of idols and fetishes, wouldbe possible and if wewill but listen attentively

,we can

hear in all religions a‘

groaning of the Spirit, a struggle toconceive the inconceivable, to utter the unutterable, alonging after the Infinite, a love of God. Whether th eetymology which the ancients gave of th e Greek word

c’

ivepw'nps, man , be true or not (they derived it from6 c

’

z’

vco d0pé3v, he who looks upward) , certain it is thatwhatmakes man man, i s that he alone can turn his face t oheaven ; certain it is that he alone yearns for somethingthat neither sense nor reason can supply. If then thereis a philosophical discipline which examines into theconditions of sensuous or intuitional knowledge

,and if

there is another philosophical discipline which examinesinto theconditions o f rational or conceptual knowledge

,

there is clearly a place for a third philosophical disciplinethat has to examine into the conditions of that thirdfaculty of man

, co-ordinate with sense and reason,the

faculty of perceiving the Infinite, which is at the rootof all religi ons. In German we can distinguish that thirdfaculty by the name of Vernunft, as O pposed to Verstand,reason, and S inne, sense. In English I know no bettername for it than the faculty of faith .

” 1

H ow is the multiplicity of the religions to be explained ?In two ways. Diderot said that all revealed religionswere heresies of natural religion

,meaning by natural

religion that sum of truths which human reason is ableto d iscover independently of all historical and local

1 I ntroduction to theS cienceoc ligion, p. 1 8 . 1 873.

REL I G I ON . 137

influences. The existence o f God , th e nature of H isattributes (such as H is omnipotence, omniscience, omnipresence

,goodness) , and the distinction between good

and evil,virtue and vice

,with the coroll ary of the rewards

and punishments that are to be assigned to our actionsin a future life

,form the substance of Natural Religion .

In the beginning of the present century Pal ey tried toformulate methodically and scientifically what he calledNatural Theology. It has not been difficul t for MaxMuller

,by analysing the positive religions of the princip al

human races,to show that this Natural Theology is an

abstraction . Under the guidance o f ph ilology he goesback to the time when the Aryan

,Semitic

,and Turanian

races were not yet divided into their innumerable branches.Hefinds that the supreme divinity of the Aryans wascall ed “Light or “ H eaven

,a name which afterwards

became Dyaus in Sanskrit, Zeus in Greek, Jam'

s in L atin,

and D iu in German ; and comparing the Dyauspetar ofthe Vedas

,the Z er) mi-rep of the Greeks, and the Jevispater

(Jupiter) of the Latins, he infers that H eaven was nottaken merely in the material sense

,but also in the sense o f

Providence,or as it was afterwards more clearly expressed

in the words Our F ather which art in Beaten. The rooto f the name of all the Semitic divinities is found to beEl

,which signifies the strong ” or the powerful ;

” and itshows us that the Semite s conceived of God as the rulerof the peoples rather than as the regulator of the forceso f nature . The feminine names denoted at the beginningthe energy or facul ties of the Supreme Being

,and not

female divinities . The Turanian languages cannot besaid stric tly to form a family for it has not been demonstrated that the Chinese is the point o f departure of thenorthern branch

,that is

,the Tungusian

,the Mongolian

,

the Turkish,the Finnish

,and the Samoyedan, and of the

southern branch,including the Tamil

,the languag e o f

the Dec can and the Botigan, the languages o f Tibet andof Bhutan

,of the T aic, the languages of Siam, and the

138 PH I L O S O PH Y O F R I GH T .

Malesian, or the languages of the Malay Peninsula and ofPolynesia.Mythology confirms the original parentage of thes emany groups by showing the Chinese term T ten (H eaven)in the T ang-lt of the H uns, in the Tengri of the Mongols ,and even in the Num of the Samoyedans, in the Juma.of the Finns and in the Nam o f Tibet. These namesnot only designated the material heaven , but also thespirit of heaven

,who is the father and mother of all things

,

andwho has in his service a great number of spirits (Shin) ,and among others , those o f the dead. To Confucius T ien,

or the spirit o f heaven,was the supreme God, and he

looked upon the other spirits as Socrates looked uponthe gods of Greece.The other way of explaining the multipl icity of the

religions,is to regard them all as alterations of the true

religion which was reveal ed by God to our first parentsand preserved by the elect people . The Church , accordingto the Catholic view,

has existed from the first day ofthe creation

,and it is the ul timate terminus to which

Providence will bring the whole human race by traditionand conscience. The Light has come into the world,says S t. John

,but men loved the darkness rather than

the Light,because their deeds were evil . In consequence

of sin, the idea of God became darkened, and men kneeledbefore trees and animals (Fetishism) , before the stars

and before the forces of nature and personifiedmoral qualities (P olytheism) . More attentive observationdi scovers that there is almost always in these systemsthe subordination of the various gods to a supreme Beingfrom whom they emanate ; and hence the religions arewell distinguished into two categories

,according as they

are founded upon pantheism or creative monotheism.

The most celebrated of the former class of religionsare : I . The Chinese Religion, which is represented inthe text of the Y-Ktng (Book of thetransformations) , at tri

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140‘ PH IL O S O PH Y O F R I GH T .

or Athor,the mother of the gods and of men. From the

egg which falls from the mouth of Kneph , there is borna fourth divinity named P hta, who is the soul of theworld or the demiurge. 4. The Persian Religion resemblesthe Egyptian religion . The mythologists recognise Amunin Zervane-Acherene, or the Infinite, the supreme principlefrom which proceed good and evil , intelligence and matter,light and darkness. Similarly Kneph , the good genius,i s found again in O rmuzd Athir

,or matter and darkness

,

in Ahriman ; and finally P hta, the soul of the world, orthe mediator between beings, in Mithra.The social effects o f the religions were different according to places and races . China, being poor in imagination

,had a simple worship

,and it was wholly domestic,

without a vestige of hierocracy . In India,some time after

the conquest by the Aryans,we see the sacerdotal clas s

acquiring a pre-eminence,and the whole o f society arranged

according to castes which were supposed to have proceededfrom Brahma. The Brahmans or priests were believed tohave sprung from his mouth

,the Kshatryas or warriors

from his arms,the Vaysias or artisans from his thighs, and

the Sudras or the remainder of the population who werethe descendants of the conquered tribes

,from his feet.

The code of Manu regulated minutely all that Speciallyconcerned the Brahmans

,declaring them to be the lords

of all things, which they let other men also enj oy frompure generosity. No sooner is a Brahman conceived thanit is already necessary to offer a sacrificefor the purification of the foetus. When born he is made to taste clarifiedhoney and butter. Certain rules are established conditioning the name which is to be bestowed upon him,

regul ating his first outgoing from the house,and how he

is to be dressed. When three years old he has to receivethe tonsure ; and from his fifth to his sixteenth year hemust be initiated with investiture o f the sacred threadunder penalty of excommunication. The lawregulateshow this thread is to be made

,and what must bethe kind

R EL I G I ON . 141

of wood,and what the length o f the stafi" of the novice .

The novice,when once initiated by the ceremony of the

hesanta,can be fed on alms only. Heis allowed to eat

only twice a day,in the morning and evening

,and sitting

according to the established rules,and after having per

formed his ablutions. At sixteen years of age he passe sunder a spiritual teacher called the Guru, who becomeshis second father

,and receives no remunerat ion for his

instruction , which may last fifteen or twenty years. TheGuru makes the novice constantly study the Vedas

,ih

terrupting his explanations by frequent prayers . Thenovice watches the rising and setting of the sun

,and

learns to mortify his senses. When his noviciate isfinished the young Brahman may become the father o f afamily, taking a wife of his own caste, and living principally on alms, and not eating flesh. After having procreated a family and educated them

,the Brahman should

separate himself from the world,and think o f his eternal

salvation . H aving retired to the depths of a forest,and

covered with the skin of a gazelle or the bark of a tree,

he has to bathe morning and evening, to wear his hairlong and shag

oto let his beard, hair, and nails grow,

and to live on roots or wild fruits, in some cases evenrefusing alms . Hemay take with him his old compani onin life

,but he must keep himself chaste as in the time of

his noviciate,and bear the heats of summer and the rains

of winter,and sleep on the naked earth. When he feels

himself s eiz ed by an incurable malady he is to walk without stopping in the direction of the north-west until hisbody dissolves, living only on air and water. O ften amore rigorous period closes the life o f the Brahman

,when

he finally embraces the ascetic life, and renounces everysort o f affection, becoming a Bunyasst. Then he no longerneeds to read the Vedas hehas to live absolutely alone

,

without having either bed or roo f ; if hunger tormentshim

,he goes about asking alms in a neighbouring vill age ,

taking care not to tread on impure objects, and filtering

PH I L O S O PH Y O F R I G H T .

the water before drinking from fear of killing the insectswhich may be found in it . Hepurifies his words withtruth ; and inaccessible to all that surrounds him, superiorto every sensual desire

,and without any other society than

his own soul,he has only one solemn thought in his

mind,that of uniting himself with the divine spirit. H ad

these prescriptions been really observed , the Brahmanswould have paid a high price for their power.But such was the corruption of the Brahmanic system

that in the sixth century Sakyamuni, afterwards calledBuddha

,felt the necessity of a reform. Helaid no im

portance upon caste , proclaimed equality, and prescribedcommon duties to all , and special duties to the religiousdevotees . The latter were not to be clothed with anything but rags picked up on the highways or from thedunghills or the cemeteries, according to the examplewhich Buddha himself gave. They were to be fed onlyon alms

,receiving in a wooden dish what was offered to

them without being allowed to ask it,or to give any sign

o f importunity. They were to eat only once, before midday and they were to sleep in the forest with their backleaned against the trunk of a tree

,and the rest o f their

body stretched on a mat . O nce a month they were topass the night in a cemetery, in order to meditate on theinstability o f human things . They were to observe themost rigorous celibacy

,and to break off all relations with

their familie s. In the depths of winter they were permitted to take shelter in convents

,which the sympathy

of the people and the munificenceof the kings built forthem in all countries.In Tibet, where there is a Buddhist pope, there is nosecul ar clergy, and the Grand Lama is only the head ofone of the many monasteries. Buddhism

,in thusexagge

rating dogma and di scipline,has caused the retrogression

of the civi lisation which Brahmanism,notwithstanding its

regime of caste , had promoted.This reproach cannot be cast upon the Egyptian priests.

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144 PH I L O S O PH Y O F R I G H T .

into so many men of a superior nature, and devoted thepriests to presiding over prayers and sacrifices. Thereligion became an instrument of government, by meansof oracles among the Greeks and auspices among theRomans .

We come now to those religions which have creativeMonotheism as their basis . Modern criticism has triedto give an entirely natural explanation of creative Monotheism

,denying that it was special to the H ebrews

,and

attributing it to the whole Semitic race. Thus Renanwrites : “Nature plays a small part in the Semitic ~religions. The desert is monotheistic ; sublime in its immense uniformity

,it suddenly revealed to man the idea

of the infinite, but not the feeling of that incessantlycreative activity which a more fertile nature has insp ire din other races . This i s why Arabia has always been thebulwark of the most exalted Monotheism. It is an errorto regard Mohammed as having founded Monotheismamong the Arabians. The worship of supreme All ah

(Allah toala) had always been the basis of the rel igionof Arabia. Exclusively moved by the unity of thegovernment which is displayed in the world

,the Semites

have perceived in the development of things only thefulfilment of the will of a Supreme Being. They hav enever understood the multiplicity in the universe. Godis God has made the heaven and the earth ; this is alltheir phil osophy.

” 1 Let us hear the reply of the celebrated orientalist Solomon Munk

,who says : The instinct

of Monotheism has been attributed to all the Semites,

but all efforts to trace it out have proved futile,as it

has always concealed itself from our view,because it is

founded upon the strangest philological deductions , andnot upon authentic documents . We find constantexceptions in the Phenicians, the Syrians, and even the Arabians.

1 Renan, H istoiregénéraleat system comparé des lamgues seinitiqucs,vol. ii. I. i. c. 1 .

REL I G I ON . 145

F orwhen I open the Koran I réad the’

nameof severalpagan divinities worshipped by the old Arabians . It i sasserted that the names o f the Semitic divinities all indicatea certain dominion : Baal, the master Adonai

,my

lord ; Moloch, the king ; but there are passed over insilence the names of Astarte

,Derketo

,Dagon

,Chemosh

,

But notwithstanding this,weadmit the primitive

idea of lordship,and hold that the Semites worshipped in

the beginning one God, who became multiplied by casualcontact with the Indo-European cults . The Semitic gods

,

i t i s replied,are nothing in themselves ; they represent

only the attributes of the true God , whereas the IndoEuropean gods act on their own account and of their ownwill. But in spite of

,the more accurate investigations

,

I do not find the autonomy of the Indo-European gods.Do not the Greek divinities recognise the primacy o fJupiter ? H ave not the Romans their Jupiter OptimusMaxtmus ? In fact, neither the Semites nor the IndoEuropeans were monotheists. T hedifference between thetwo races is that the Semites, being poor in imagination ,worshipped only what appeared to the senses, such asthe sun

,themoon, the planets, the constellations of the

zodiac,&c.,while the imagination of the Indo-Europeans

created everywhere divinitie s in sublunary nature,as well

as in the firmament . In a word,the Semi tes were

astrolaters, and the Indo—Europeans worshipped all nature.But both of them confounded nature with God

,and

neither of them were able to rise to the idea of a first

cause, absolute, unique , independent of the world, andcreative . Monotheism belongs to the H ebrews alone, andit became theirs by the direct intervention of Providence.”

The one God,the living God, revealed H imself to

Abraham, who made H im known to Isaac, and Isaac to

Jacob. The head of the family was . at the same timea priest and king ; and all the worship consisted in prayersand sacrifices. When at the exodus the family becamevon 1 . x

146 PH I L O S O PH Y O F R I G H T .

a people,thereligion became national , and aspired at

becoming universal. The God of Abraham, of Isaac, and'

of Jacob was made known by Moses as the God of theuniverse and the King of kings. That the true religionmight not be corrupted it was entrusted to the guardianship of the tribe of Levi , and the H ebrew people wasisolated as much as possible from its neighbours. Theark

,and thereafter the temple

,with the tabl es of the Law,

were the material symbols of the alliance between Godand the elect people. The solemn promise of a delivererwas taken in an entirely material sense

,and hence the

H ebrews did not recognise the Messiah in Jesus Christ.Hedeveloped the germs of universal charity containedin the H ebrew religion

,and said : “Love God above all

things,and thy neighbour as thyself ; for this is the law

and the prophets.” In such passag es of the O ld Testament as the following

,the same sentiment i s accentuated

The stranger that sojourneth with you shall be unto youas the homeborn among you

,and thou shalt love him as

thyself ; for yewere strangers in the land of Egypt ”(Lev . xix. If thou meet thine enemy’s ox or his assgoing astray

,thou shalt surely bring it back to him again .

If thou see the ass of him that hateth thee lying underhis burden, and wouldest forbear to help him,

thou shaltsurely help with him (Exod . xxiii. 4,

The modern criticism has endeavoured to distinguishseveral p eriods in the founding of Christianity. The firstdisciples still considered themselves as H ebrews, and didnot wish to admit any but the circumcised to the promisesof the kingdom of G od. S t . Paul pleaded the cause ofthe Gentiles and expounded the doctrines of sin and grace

.

The Apocalypse was the manifesto of the Jadeso-Christianparty, as the Fourth Gospel was represen tative of theGreek philosophy. In this way the attempt has beenmade to show that the primitive Christianity was entirelya human work. Bu t as Reuss

,a Protestant theologian

,

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148 PH IL O S O PH Y O F R I G H T .

(but not that of the Pope, whose primacy was denied bythe Greeks) and the semi

-Pelagian doctrine of originalsin and grace ; and they held the same views about theseven sacraments, purgatory, the invocation of saints ,prayers for the dead

,and veneration of images , although

the Greeks admitted only painted images .1

In 1520,Luther separated himself Openly from the

Roman Catholic Church,and gave origin to the religious

reformation called Protestantism,which produced a much

deeper separation than the Greek schism. The chiefdifferences between Catholicism and Protestantism arethe following — I . The interpretation of the Sacred Booksbelongs

,according to the Catholics

,to the clergy assembled

in Council and to the Pope,whereas according to the

Protestants it is left to the judgment of the individual.

2 . According to the Protes tants eternal salvation i s at

tained by faith, whereas the Catholics maintain that faithis not sufficient without works. These two Protestantprinciples tended to emancipate the indi vidual from'

authority and external practices. 3. Luther substitutedthe word “ consubstantiation ” for “ transubstantiation

,

maintaining that the elements in the H oly Supper,without

losing their proper substance,as was taught by the Catholic

Church,became the body of Christ, just as red-hot iron

contains the heat without ceasing to be iron . Calvin wasmore logical

,seeing a simple symbol in this sacrament.

4. Protes tantism,founding on individual inspiration

,which

was afterwards called private judgment,became sundered

into a multitude of sects.O n the occasion of the tercentenary of the Reformation

( 27 th September Frederick William I . of Prussia

1 Seefor thedogmatic views thesummary, may beconsulted the0071work of John of Damascus (Dela fessto Ecclesiaegraecaeorthodoxaeafoi ort hodoxe, Paris, and for Petro Mogila composite, L ipsia, 1595,t hecanonical position theN omo which was approved by theEasterncarton of Photius in theBibliotheca. Patriarchs in 1 643, and sanctionedjun}: canonici, Paris, 166 1 . As a by theSynod of Bethlehem in 1672.

RELIGION. 1 49

expressed publicly the wish for a general Union'

of theProtestant Churches

,and at the same timehe published

the official scheme of a synodal constitution which wasto be discussed in a future synod of the kingdom. Themovement extended to the Duchy of Nassau

,the Grand

Duchy of Baden , the Bavarian Palatinate , and other smallGerman States . The differences between the churcheswere attenuated

,and a common symbol was compiled

,

taking the H oly Scriptures as its basis , without, however,diminishing the authority or independence of the twoprincipal confessions

,the Lutheran and the Reformed ;

and this union assumed the common name of the Evan

gelical Church.

”O nly the so-called O ld Lutherans have

kept themselves separated, in accordance with a concession of the sovereign of 1 845. Gradually the otherGerman States, with the exception of Mecklenburg, received the organisation by communities

,and the synodal

constitution was harmonised as well as possible with theconsistorial constitution.1

The restoration of the German Empir e in the person ofa Protestant Prince took place about the same time as thepassing of the decrees of the Vatican Council ; and thisgave occasion to a species of persecution against theRoman Church which was called the “ culture-struggle ”

a word which was first used by Virchow inthe electoral programme of the progressive party in 1 873.

The Laws of the 4th, r1 th , 1 2th, 1 3th , and 14th May sub

jected the ecclesias tical authorities to the civil authorities ,so as to render the exercise of worship impossible withou tthe greatest abnegation . The articles 15, 16 , and 1 8 ofthe Prussian Const itution of 3l st Jannary 1 850, which

1 F or thedoctrinal position of theto consult theChrist ianaerel igioniaLutheran Church seetheAugsburg imtitutio ( 1536 ) of JohnCal vin. As

regards themodern E vangel icalthetheological treatiseof Melanch Church , seetheworks o f R ichterthon theArticles of Smalcald (Geschichtederevangel ischenKirche,

and thetwo Catechisms of Leipz ig, and of G . F . S chulteLuther F or thedoctrineof (Lehrbuch des hath. 14nd evang.

theReformed Church, it will sufficeKzrchenrechtes, G iusen, 1886.

150 PHILOSOPHY O F RIGHT.

secured the Catholic Church as well as the EvangelicalChurch by precious guarantees, were abrogated by the

Law of 1 8 th June 1 875. In the spring of 1 886,the

May laws,above referred to, were mitigated in their

application,and on the 29th April of 1 8 87 they were

almost wholly abolished .

1

The English Church,when compared with other Pro

testant Churches,comes nearest the Catholic Church. Its

Thirty-nine Articles,which were approved in the London

Assembly of 1 562, rej ected the primacy of the Pope, theworship of the Virgin and of the saints

,and purgatory

,

made the ceremony of the H oly Supper simply com

memorative,took away the character of a sacrament from

auricular confession and marriage,&c. The Quakers

,the

Moravian Brethren , and the Methodists, adopted more orless of the mysticism proscribed by the first Reformers

,

while the Armenians and the Unitarians of the presentday have come to adopt a pure rationalism.

Mohammedanism is considered by many as a heresyof Christianity, but this view is erroneous. Islamism israther a return to the religion of Abraham

,the gift o f

prophecy having been granted to Mohammed and henceits great simplicity and it s tolerance of poly gamy. I tsreligious creed is summed up in these few words : Godis great, and Mohammed is H is prophet. The Koran isits only foundation according to the Shiites ; and it alsoincludes, according to the Sunnites, the sayings of theprophet gathered by his familiar friends

,the decisions o f

the four first Caliphs and of the four Imams. TheWahabites wished to reduce the worship to prostratingoneself before the idea of the existence of God

,without

the need of any intercessor ; and they profess to believethat the destroying of the tomb of the prophet and

1 SeeDeutscheReichs und Preus kirchenrecht zusammengestellt vonA.

t icheS taatsgesetzebetrefi'enddasS taats Kleinschmidt. Berlin,Mai 1 887.

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PH IL O S O PH Y O F RIGHT.

Modern criticism has found easier access to Islamism .

The life of Mohammed,says Renan , i s known to us l ike

that of a reformer of the sixteenth century. Hecouldneither read nor write but his travel s in Syria, his relationswith the Christian monks

,and the Biblical and Christian

tradition of his uncle Waraoe, awoke in him the religiousvocation . Arabia was then passing through a crisis.Greeks

,Syrians

,Persians

,and Abyssinians had penetrated

into it on all sides, and had given rise to a species ofreligious syncretism. The ideas of a single God, of paradise,of a resurrection

,of prophets

,and of holy books

,were in

troduced among the idolatrous tribes. T heKaaba was thepantheon of all the cults and when Mohammed destroyedthe images of the holy house, he found a Byzantine Virg inwith the child in her arms painted on a column .

Mohammed had conceived the thought of a religi ousreform for Arabia alone. The idea of a universal conques t belongs to Oman . By the simplicity of its dogmasand the absence of an official clergy

,Islamism resembles

natural religion . Renan combats the ideas of Forster,

who compares the Caliphate to the Papacy.

“WhateverForster may say

,the Caliphate has never resembled the

Papacy. The Caliphate has never been a powerful State,

except in the period of the conquests of Islami sm ; butwhen the temporal power passed to the Emtrt-al-omra

,

and the Caliphate was only a religious power,it fell soon

in to oblivion. The idea of a purely spiritual power is toohigh for the East. All the Christian branches have notbeen able to reach it the Greco-Slavonic branch hasnever understood it ; the German branch has rej ected it ;i t is only the Latin nations that have been able to understand its value. N ow experience has shown that thesimple popular faith does not. sathoe to preserve a religionunless a consecrated hierarchy and a sp iritual head watchover it .

” 1 Renan elsewhere 2 says : Under the Caliphate,

1 E tudes d’

hiato ireo

rel igieuse, 2ndedit. p. 298— 9. Paris, 1 860 .

1 U nderMahométwmein theDictionnairegeneral dela pol itique.

RELIG ION. 1 53

as under th e dynasties which burst from it like clouds,one sole guarantee remained to the Mussulmans in thelaw which had descended from heaven. This law is placedunder the guardianship o f judges and juris-consul ts

(ulemas) , who form the first two orders of the Mussulmanclergy . The interpreters o f the law have of ten obeyedthe precepts o f the Koran to oppose the v iolation of thelaw ; and often the Sheik-ul-Islam was as great onaccount of these resistances as any pre fect of the praetorium under the Roman emperors . Some canonists evendeny the Sul tans thepower to make organic laws inorder to secure the execution of the sacred law. Thepublic law of the East appears to have always conferredon the monarch an unlimited power over his functionaries,and generally over all those who have the misfortune tocome near him . This cruel law of exception has itsorigin in thecondition o f the ancient ministers o f theEast, who were chosen from among the slaves of theseraglio ; and it was also founded upon the peculiarposition of the kings

,who were strangers to the whole

of their kingdom,— the first prisoners of the palace, as

Montesquieu calls them . This deplorable policy hasrul ed all the monarchies of the East

,and Islamism has in

n o way modified it. It has been wrongly asserted thatthe Koran does not recognise property . The property ofthe lands possessed by the Arabs before the conquest

,and

theproperty of lands abandoned by the infidels anddivided among the faith ful , are as well secured as anylanded property can be in the East ; and they are transmitted by ‘

sale,donation

,and succession. The Koran

and Sunna further recognise full proprietorship in desertlands which labour recalls to life. If any one gives lifeto a dead bit o f land

,

” says Mohammed,it is his. To

the conquering Arabs there was assigned a t ribute fromthe conquered lands , the precarious possession of theselands being le ft to the conquered . The old population

remained attached to the soil under the surveillance o f

154 PH I L O S O PH Y O F RIGHT.

the victorious army. These warriors were collectors ofthe imposts

,and were arranged in a wise hierarchy ; and

they lived on vast domains such as the Europeans tookfor fiefs, but they were only financial divisions, as theywan ted the most essential quality, namely, the proprie

torship of the land. Islamism tempered the rigour ofproprietorship with the precept of almsgiving, whichwas fixed at the tenth of the revenues ; and it thussettled the question of pauperism

,which Catholicism

sought to solve by the monasteries . We now knowIslamism under its most disadvantageous aspect, saddenedas it is by Turks and barbarians ; yet it is not incompatible with a certain culture

,as was seen in the

eighth and ninth centuries at Bagdad, and in the tenth atCordova.

The true liberty entered into the world with the wordsof Jcsus Christ when Hesaid : “Render unto Caesar thethings that are Caesar’s

,and to God the things that are

God’s.” Religion has eternal salvation in view, and consequently also mortality in the most absolute sense ; whilethe State has as its object terrestrial prosperity, and , consequently

,right in the most human sense . Their efforts

are not opposed but convergent,since eternal salvation

does not exclude temporal prosperity, but would haveit subordinated to itself . Such subordination, however,ought to be carried out by the free-will of the individual ;and the State is therefore obliged to secure the individualhis full liberty in matters of faith .

The worship of the first Christians is thus described byPliny the Y ounger (Lib . X. Let. The Christiansassemble on fixed days before the rising of the sun ; theysing in turns hymns in praise of Christ as a God ; thenthey bind themselves to commit no thefts

,crimes

,or

adulteries, and not to break a promise or deny a deposit ; and after this, they disperse and assemble anewto eat common and innocent food.” In order to attract

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1 56 PHILOSOPHY O F RIGHT.

the institution of the sp iritual power by means of electionalone

,while there are some instances in which the election

is neglected. S t . Paul enj oin s his disciples Timothy andTitus to institute priests in the cities, that is to say, tochoose those who were to preside over the worship, and toordain them by the imposition of hands.

The government of the Church was a mixture ofmonarchy

,aristocracy

,and democracy. Monarchy was

represented by the pope,aristocracy by the bishops

,and

democracy by the clergy and people. In the year 316 ,we find a canon of the Council of Laodicea which seemsto restrict the popular right in elections but it servesrather to restrict the abuse of it , since we have in thefollowing centuries the most incontestable proofs of theintervention of the people in the elec tions of the clergy .

The most powerful obstacles to this intervention camefrom the princes who desired to make themselves mastersof the elections. The Church had granted them a certainright of nomination

,or of confirmation in the case of the

election of bishops, which , however, was to be alwaysfree ; that is to say, it was to be effected by the con

currence of the bishops, the clergy, and the people. Inthe eleventh century the abuses of the secular powerreached their height

,and a long struggle began between

the popes and the emperors wi th reference to the so-calledinvestitures.The Treaty of Worms of 1 1 22 recognised the full libertyof the canonical elections

,and left to the emperors onl y

the right to give the elected bishop with his sceptreinvestiture in the goods attached to his church . Themisfortunes of the times did not always

'

permit the freeassembling of the electoral Christian body ; but InnocentIII. and the fourth Lateran Council created in the Churcha restricted electoral body, and entrusted the elections ofbishops to the cathedral chapters

,yet stil l leaving some

traces of the intervention of the clergy and the people

RELIGION. 157

in such elections.1 By the concordats of the sixteenthcentury

,the nomination of the bishops was granted to

the princes,their canonical institution being reserved for

the pope.The laity not only took part in these elections

,but

also in the Councils of the Church. We may quote tothis effect the words of one of the latest defenders ofthese solemn assemblies : The Christian society

,says

Monsignor Maret,rests on the authority of the First

Pastors (Bishops) . These are the vicars or represemtat ives of God made man, and of the primordial andinfinitereason . Their government ought therefore to bea government of reason and wisdom . Reason enlightensall men

,and thefirst pastors ought to take counsel with

each other in order to their mutual illumination . Butbesides this natural motive there are others which arisefrom the very essence of the religious society. Th issociety has received from its divine founder the deposito f the revealed truths

,and preserves it in its memory

and heart in order to become the interpreter o f it whenever there arises a doubt regarding dogma or morals.The First Pastors are the witnesses of this tradition

,and

show its antiquity and perpetuity by their assembly,its

immutable unity by their agreement, and its charity bythe tenor of their discussions. When assembled theyattest the tradition of the Church

,comment upon it ,

develop it , and propose all the laws necessary for thereligious society. Thus the agreement of the chief pastorsis the manifestation of Christian truth . H owever

,

the chief pastors do not only agree among themselves,

but call forth the councils of th e Pastors o f the secondorder (Clergy) , and also of the faithful . This invitationis suggested by the great law of humility and Chris tiancharity. H umility teaches the chief pastors. that theymay receive from their subordinates salutary advices,because the Spirit of G od bloweth where it listeth .

1 SeeT homassin, Disciplineecclesiastiquc, t. 11.

158 PH IL O S O PH Y O F R I G H T .

Charity enjoins them to act always in harmony ; for whenunity reigns in the souls of men , laws _

becomemorerespected and more effect ive, and goodness becomeseasier

.

” 1 The same author further explains that theclergy had a deliberative vote, and the laity simply aconsultative vote.The Bishop of Rome was chosen like all the other

bishops until a special mode of doing this was establishedon account of his peculiar importance. As the name ofPope became a privil ege of the Roman Bishop, so did thetitle of Cardinal become a privil ege of his presbyters .wefind in Baronius the following decree , which emanatedfrom Nicolas II. at the Council of Rome in 1059 : Inprimis cardinales episcopi diligent issmi simul deelectione(ponttfices) tractantes, mox ipsi clericos cardinal es adhibeant : sicquereliquus clerus et populus ad consensusnovae electionis accedat .” A letter of Petrus Damiani

,

written in the time of the successor o f Nicolas II., addsSic suspendenda e st causa usquedum RegiaeCelsitudinis

consulatur auctoritas n isi, sicut naper contigit , periculumfortasseimmineat

,quod rem quandocius accelerare com

pellat .” Accordingly, the cardinals elected ; the remainingclergy and the people gave consent ; and the emperorapproved the election . If the new pope was taken outof the body of cardinals

,it was not a necessity, nor is it

s o to-day,but a matter of convenience.2

The first pope elected without the intervention of theRoman people, was Celestine II . in 1 143. The high clergy

,

using as a pretext an insurrection against Innocent II .,

the predecessor of Celestine,laid claim to the right of

choosing the pontiff. The Romans complained of it,and

at the death of Celestine II. reclaimed this right arms inhand. Lucius II ., Eugenius III Anastasius IV.,

andAdrian IV. were als o elected by the common sufi

'

rages of1 MonsignorMaret

,L aConcilegeneral ct lapaz'z rel igieuse. Paris, 1 869 .

1 G ughelm0 Audi sw, Diritto pubblico della Chiesaedellegenti cristiane. V ol. I . R oma, 1863.

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1 60 PH IL O S O PH Y O F RIGHT.

rituum,instituted by Sixtus V . for the liturgy and

canonisations. 6 . The Congregatio depropaganda fide,founded for the direction of missions by Gregory XV.

in 1 622, whose jurisdiction was extended by Urban VIII.

7 .The Congregatio super negotiisepiscoporum, and another

super negottis regulartum, instituted separately by Sixtus

V and then combined by him into one. 8 . The Con

gregatio immunttatumet controverstammjuredictionaltum,

established by Urban VIII . 9 . The Congregatioexamintsepiscoporum,

which takes due information for the nomina

t ion of the bishops. 1 0 . Finally, the Congregation instituted by Clement IX . in 1 669 to provide against theabuse of indulgences and of relics .1

In the gravest cases,the pope was not satisfied with

the consul tative vote of the cardinals,but had recourse to

the deliberative vote of the Councils . H ere rises thequestion as to the superiority of the Council over thepope

,or that of the pope over the Council . There is

invoked on the one side the decree of the Council o fConstance

,Secti on V “ Sancta Synodus declarat, quod

ipsa potestatem a Christo immediate habet, cui quilibetcujuscumques tatus vel dignitatis, etiam si papalisexistat ,obediretenetur in his quae pertinent ad fidemetex tirpationemdi oti schismatis,et reformationemdictaeecclesiaein cap iteet membris .” O n the other side there is citedthe Bull P astor aetemus, approved in the fifth LateranCouncil , from which we extract the following passage :“ Cum etiam solum P ontificem R omanum

,pro tempore

existentem, tanquam auctoritatem super omnia conciliahabentem, tam conciliorum indicendorum,

transferendorum,

dissolvendorum plenum jus et potestatem habere, nedumex sacraeScripturaetestimonio, dictis sanctorum Patrum,

ao aliorum R omanorum P ontificum etiam praedecessorumnostrorum, sacrorum canonum decretis

,sed propria etiam

eorumdem conciliorum confessione manifesta constat.”

1 Walter, Manuel da droit ccclésiast iquedc tout“ la confessiam chré.

tiennes. Paris, 1840.

RELIGION. 1 6 1

The F rench clergy,being met in a representative

assembly on the l gth March 16 82, held to the first ofthese two opinions

,and formulated in their famous Declara

tion the following two articles : 1 ) That the power of theCouncils is superior to the power of the pope

,according

to the decrees of the Council of Constance and (2) Thatthe decision o f the pope is not infallible nor irreformable

,

excep t in so far as it has been confirmed by the consento f the Church. This opinion , although disapproved bythe pope, continued to be taught in France, and Article 24of the O rganic Law of the 1 8 th Germinale

,anno X. ,

whichwas a sort of complement of the concordat of anno IX . ,

demanded that the qual ified teachers in the seminarie sshould subscribe the above Declaration of 1 682.

The Vatican Council has changed this state o f thingsin declaring the infallibility of the pope in the followingterms : “ R omanorum P ontificem

,cum omnium Chris

t ianorum Pastoriset Doctorismunerefungens, pro supremasua Apostolica auctoritatedoctrinam de fidevel moribusah universa Ecclesia tenendam definit , assistentiam divinam, ipsi in beato Petro promissam,

ea infallibilitatepoliere,

qua divinus Redemptor Ecclesiam suam in definiendadoctrina de fidevel moribus instructam esse v oluit ;ideoqueejusmodi Romani P ontificis definit iones ex sese ,non autem ex consensu Ecclesiae irreformabiles esse.”Does the personal infallibility of the pope follow fromthis definition We give the reply of Alfonso Capecelatro .

The pope,

” he says,is so united to the Church teaching

(ecclesia docens) that when he speaks at cathedrd,he is

always bound up with the Church by the promise o fChrist

,and he expresses its faith. The adverse school

affirms that neither errors , nor much less personal faults ,can separate the Vicar o f Christ from his Spouse when hespeaks of religious and moral dogmas in name of theChurch universal

,or as head and supreme master of it to

the same Church universal . In short, according to thistheory

,the pope is the head of a body which is called

VO L . I . L

1 62 PH IL O S O PH Y O F RIGHT.

the Teaching Church ; and the bishops are members o f it,and are living and vigorous in so far as they are unitedas branches to that first and fruitful vine . When thishead speaks in name of the whole body, when in nameof thi s body he teaches all the believers, and teaches in

matter revealed by Christ, or in that in which Christradiates out H is own infallibili ty in the Church : he isthen so united , and

,I may even say, so immediately

ident ified and unified, with the body, that he always represents its faith , or, which is the same thing, the faith ofChrist. This is the theory of Papal Infallibili ty.

” 1

Let us now examine the relations of the Church with th eS tate . In the first Christian centuries the Church wasignored by the State when it was not persecuted by it .

With the Edict o f Milan in 313, the Christians obtainedthe free exercise of their worship . Soon after, Constantinegranted the Church the power to receive donations andlegacies

,and he gave the first exampl e of them,

and

guaranteed the Church in perpetual possession thereof .

Hemade the Christian priests share in al l the privileges

which the pontiffs .of paganism enj oyed, that is, the righ tof asylum in their temples

,and exemp tion from public

burdens or from personal services,and from imposts. The

least of the clergy coul d not be subjected to torture ; andthe Sunday res t became obligatory, which was a greatbenefit for the slaves. Such great favours were reciprocated ; and the emperor even took a part in the dogmatic

1 I l Concilio Vaticano, apamphletby A lfonso Capecelatro , formerlypriest of theO rato ireof N aples,now Cardinal Archb ishop of Capria.

Wehnd thesameinterpretation int helittlework of Monmgnor Fesler,Secretary of theC ouncil, entitledDelam'

aic et dela fausseinfaill ibil ite. T hecouncil will thereforepreservein thefutureits deliberativevote, as t hepopewill havetheright of confirmat ion. Dogmatic

truth rests on theprincipleofDiv ineassistance, and not on t hewhollyhuman principleof themajority.

After, as beforet heC ouncfl , t hehypothesis advanced by Bel larminof a heretical pope, is always admissible, and then theful l power wouldresideof necessity in t heCouncil

,

which could beconvoked by thecardinals, or might even beas

‘

sembled by thespontaneous motionof thebishops.

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1 64 PHILOSOPHY O F RIGHT.

saw his territory devastated , and Rome besieged by Luitprand

,the king of the Lombards, who was perhaps urged

on by Leo, he asked help from Charles Martel, and conferred upon him the honours o f the patriciate and of theRoman consulship . Pep in, the son of Charles Martel ,admonished Astolf, the successor of Luitprand Propterpacis foedera et proprietatis sanctae Dei Ecclesiae ao

reipublicaerestituenda jura.” When the French armswere already threatening them

,Stephen likewise exhorted

the Lombards : U t pacifice, sin e ulla sanguinisefl‘

usione,

propria sanctae Dei Ecclesiae et reipubl icaeR omanorumredderet jura.”In 7 55, Pepin entered Italy, and did not leave it till he

had received from Astolf forty hostages,as Eginhard savs

F irmitatis causa pro restituendis quae Romanee Ecclesmeableta fuerant.” The Lombard king having broken fai th

,

Pepin crossed the Alps again in 7 56 , and besieging Pavi aanew

,he caused Ravenna

,Pentapolis, and the Exarchate

to be consigned to the pope . The Lombard fidelity wasnot better observed by King Desiderius

,the successor of

Astolf ; and Pope Adrian had recourse to Charlemagne ,the son and successor o f Pep in. Charlemagne marchedinto I talv and in 7 74 took King Desiderius prisoner, andput an end to the kingdom of the Lombards, after it hadlasted 206 years. Hecelebrated Easter in Rome

,and

confirmed and augmented the restitutions and donat ionsof Pepin . In order to suppres s the revolts of the unsettledLombards, he returned several times ; and on the lastoccasion he was crowned Emperor in Rome by the handof Pope Leo III . on Christmas day of the year 800 .

What was the historical significanceof the renovationof the Roman Empire ? The peoples had trodden eacho ther down , but after Charlemagne the great invasionsmay be said to have come to an end. The Church believedthat it might rest under the shelter of the empire. But

,

says Cesare Balbo, in Italy the eternal and real seat o fthepope was but a nominal seat

,and was too far away

RELIGION. 1 65

from the new emperors ; and collisions immediately aroseand were infinitely more felt. Every election of an

emperor, and every election of a pope, was felt and wasfollowed by trouble s and misfortunes ; and there arosebad and foreign emperors

,and bad simoniacal and corrupt

popes for more than two centuries .” 1

The juridical condition of the Church almost becamethe same as in the time of the Roman emperors . Thebishops took a distin ct place among the aristocracy

,which

was gradually transformed into a state o f feudal ity.

H ence it came about that the bishops depended canonicallyon the pope

, and poli tically on the emperor. But thebarbarism of the time did not permit the carrying out ofthi s distinction in fact and the simoniacal elections

,with

the arbitrary distribution of benefices,went hand in hand

with the corruption of the habits o f the clergy. H ildebrand was alarmed at the prevalence of such anarchy

,and

he discussed it as prior o f the Abbey of Cluny wi th PopeLeo IV., who called him to Rome and made him a cardinal.For twen ty-three years he directed the affairs of theChurch under four pope s

,and prepared the great reform

which he accomplished under the name of Gregory VII.“ Heproposed ,” says Guizot, to subject the civilisedworld to the Church, and the Church to the Popes, withthe intention of bringing about reform and progress

,and

not from a stationary or retrograde view.

”

The occasion of the conflict of the Church with thec ivil power arose in connection with the right of Investiture

,a profound question

,since it turned upon the issue

as to whether the Church was to -dominate the State orthe S tate the Church . Gregory VII. did not seek thesimple independence of the Church , but he wished tocommand the sovereigns as the soul commands the body.

Hecombated and he conquered ; for he saw the EmperorH enry IV. ,

the representative of the civil power, at hisfeet. But the victory was not final , because the State

1 SeeS ommario della S toria d’

l ta lia. F irenze, 1 856.

1 66 PH IL O S O PH Y O F RIGHT.

could not abdicate its independence . H enry V .,the son

and successor of H enry IV.,came to terms with Calixtus

II.by means of the Concordat of Worms in 1 1 22, in which

it was established that the pope should give canonicalinstitution to the bishops with the pastoral staff and ring,and that the emperor should take part in the election ,giving the bishops investiture into the possessions whichthey were to hold for the Church.

The moral dictatorship of the popes ended in BonifaceVIII

,the last pope of the Middle Ages . Calamitous

times for the Church followed with the translation ofthe H oly See to Avignon (which the Catholics speak ofas the Babylonian slavery) , and the great schism of theEast which terminated at the Council o f Constance, andfinally the Protestant Reformation.

The cry for reform had become universal in the Church.

The Council of Constance had shown Martin V . thesupreme need of it , and the Council of Basle was deter

mined to follow it out, in spite of the tergiversations o fEugenius IV. In its second period this Council proposedto call the clergy to the observance of s anctity of life ;and it wished to put an end to the abuse of appeals toRome

,to abolish annats and other taxes introduced by

the avarice of the Roman Court,to suppress reservations

and restore the canonical elections,and to provide for

the dignity of the sacred ofii ces. The election of thepopes, the government of the Church , the composition ofthe College of Cardinals

,and their duties

,were objects of

the wisest dispositions . We note in particular the canonwhich restricted the number of cardinals

,and prescribed

that they shoul d be taken in a just proportion from allthe Catholic nations .1 The decrees of re form were sentto Pope Eugenius

,with the demand that he should apply

their dispositions without delay. The pepe thought i tnecessary to excuse himself t o the Council by specialnuncios, who said : “The H oly Father adopts as far as

1,Concil . Basil , p. 562.

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168 PH IL O S O PH Y O F RIGHT.

abandon his post. Two luminaries, the sun and themoon

,give light to the world and two powers, the pope

and the kings,govern it ; but as the moon receives her

light from the more luminous star, s o do kings reign bythe H ead o f the Church , who comes from God , and towhom it belongs to teach, to exhort, to punish, and todecide. The power of emperors and kings, and theundertakings of mortals, are but straw and smoke whencompared with the divine omnipotence and the authorityof the Apostolic Church . God has said to his Vicar :Thou art Pe ter

,and on this rock will I build My church ;

and what thou shalt bind on earth will be bound inheaven ’

(Matt. xvi ) . H as Hemade an exception forkings ? Do they not make part of the flock entrusted toPeter ? If therefore any onedenies the sovereign pontiff,who has succeeded the Apostle, the right of commandingas ruler those who wear the crown , i f he who opens andshuts heaven were subjected to mundane power

,this

woul d be as great an act of folly as if any one wished theson to command the father

,or the disciple the master.

Thus the Roman See being by its power so greatlysuperior to the thrones of the world , the kingdoms belongto Peter

,and owe him tribute. What has once become

the property of the Church belongs to her for ever ; andeven if she lost the enjoyment of it

,she would not lose

her right to it without a legitimate cession. Whoeveri s rebellious against the Lord cannot claim to be obeyedby man . Such is the end ; and in order to attain it , it i sindispensable that the Church shall depend only on herself. . She is living in sin because she is not free ; shemust be delivered ; and whatever may be the obstaclesin the way, as the cause of the Church is the cause ofGod, she will conquer.

”

Innocent III. , in sending the insignia to the chief o fthe Bulgarians, who had asked him to be. raised to theroyal dignity, thus expresse s himself with regard to theomnipotence of the H oly See : The King of kings

,th e

RELIGION. 1 69

Lord of lords , Jesus Christ, to whom the Father hascommitted all things

,putting the universe under H is feet

,

to whom the earth belongs with all it contains and thosewho inhabit it, whom every creature in heaven and earthand hell obeys

,has chosen for H is vicar the supreme

pont ifl'

of the Apostolic See and of the Roman Church ;and Hehas elevated him abovethe peoples and kingdoms ,conferring upon him the power to take away

,to destroy

,

to disperse,to build

,and to plant .”

Boniface VIII. wrote in his Bull Unam S anetamWe believe and confess one only Church

,holy

,catholic

,

and apostolic, out of which there is no salvation. Beingone and single

,it can have only one head

,and not two

,

l ike a monster. This sole head is Jcsus Christ,and Saint

Peter H is vicar,and the successor of Saint Peter.

We learn from the Gospel that in this Church,and under

i ts power, there are two swords , the spiritual sword andthe temporal sword. O neought to be in the hand of theChurch , and therefore wielded by the pontiff, and the otherin the hand o f the kings and warriors

,but it ought to be

drawn for the good of the Church at the beck or permission of the priest. Accordingly

,it is the case that the

one sword depends on the other,or that the temporal

authority depends on the sp iri tual , because the Apostlesays that every power comesfrom God, and all that existsis ordained by G od. Consequently wedeclare and sayand dehne that it is necessary to salvation (denecessitatesalutz

’

s) to hold that every human creature is subject tothe Pope o f Rome.”

Dante’

s book, .DeJl[onarehta, is the manifesto of theimperial or Ghibelline party. The end of humanity

,says

Dante,i s to develop the intellectual and moral facultie s

of man , and this cannot be attained wi thout peace .Peace being a condition essential for the fulfilment of ourmission , the universe ought to be ordered so as to secureas peace ; and a universal monarchy alone can give asthis guarantee, for where there are several equal princes,

1 70 PH I L O S O PH Y O F RIGHT.

there necessarily reign s struggle and discord. O h thecontrary

,the golden age will come again when the whole

human race shall be gathered under a single head . Asthe poet has said : Jem redit Virgo ; redeunt Saturniaregna.” Dante confesses that he had also shared theerror that Rome had become the mistress of the worldonly by force and violence . But now he has come tosee otherwise

,and he holds with Cicero that Rome con

quered the world not from ambition , but for the good o fhumanity. Uni ty being the goal assigned by God to thehuman race

,the empire h as been the means to it . Thus

areexplained the incessant victories o f Rome and the deathof Alexander

,who might have put a stop to them. Christ

was born under Augustus,was enrolled in the census

,

paid tribute,and acknowledged the empire. The emperor

is the master o f the world,but princes and nations have

also their rights and their liberties . To the emperoronly belongs his high jurisdiction in order to put an endto all contests. And he will be equity itself, no l ongeryielding either to fear or to cupidity. Heshould havehis seat in Rome beside the pontiff ; and Caesar shouldexercise towards Peter that reverence which the firstbornson owes his father

,in order that being enlightened by

the paternal grace,he may illuminate the teiraqueous

globe with more virtue .O f these two U t0pias, that of Dante has triumphed.

The reaction had already begun in France under LouisI X.

, who subjected the prelates to the judgment of theking in civil matters

,and prohibited the pope from laying

imposts upon the faithful in his kingdom without theexpress consent of theking and of the national church.

I f Louis IX . confined himself to resistance, his nephew,

Philippe leBel,dared to carry on the attack by imposing

taxes on the ecclesiastical possessions,which till that time

had been exempt from them,and by establishing an appeal

on the ground of abuseto the lay authorities in referenceto all the excesses which the spiritual jurisdic tion migh t

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1 7 : PHILOSOPHY O F RIGHT.

part of the decrees o f the Council of Trent was not'

received in France .From the Council of Trent to the French Revolution

the State was always defending itself from the RomanChurch We may refer on the dogmatic side to twoarticles in the celebrated Gallican Declaration of 1 682 .

The onewhich establishes the independence of the temporalpower

,declares that Saint Peter and his successors

,the

vicars of Jesus Christ, and all the Church , have receivedno other power from God than over spiritual things andwhat concerns salvation

,and not over temporal and civil

things . The king and the sovereigns are not by theorder of God subject in any way to the ecclesias ticalpower in temporal things . They cannot be deposed eitherdirectly or indirectly by the authority of the heads of theChurch ; their subjects cannot be dispensed from thesubmission and obedience which they owe

,nor can they

beabsolved from the oath of fidelity. Moreover,this

doctrine is as necessary for the public tranquillity, andnotless advantageous to the Church than the State ; and itough t to be inviolably observed as conformable to theword of God

,to the tradition of the holy fathers

,and to

the examples of thesaints. The other sovereigns, suchas Joseph II. of Austria, Leopold II. of Tuscany, andCharles I I I . of Naples

,showed themselves equally jealous

of their prerogatives .The French Revolution tore up the Concordat ofFrancis I . , and wished to give a civil constitution to theclergy ( 12th July for whom a political assemblywas not at all competent. This cons titution decreed :1 . The election of the bishops and of the parochialpriests ; 2 . The mode of their election

,which was to

be, not as in . the time of S t . Louis and Charles V I I ,

by the clergy of the cathedral churches and others,but

by the suffrage o f all the citizens who were political andadministrative electors ; 3. Canonical institution to begiven by the me tropolitans instead of by the sovereign

RELIGION. 1 73

pontiff ; 4. The delimitation of the dioceses by the government

,and not by the pope. In 1 793, the French re

v olut ionists went the length of prescribing the Catholicworship .

The Concordat of 15th July 1 80 1 did not restore , norcould it restore

,the ancient state of things . It allowed

a new circumscription of the dioceses, and a dotation forthe clergy chargeable to the budget o f the State in returnfor their renouncing all their immovable goods

,even those

which were not sold. The nomination of the bishopscontinued to be made by the head of the State withcanonical institution by the pope

,and the nomination of

the parish priests was made by the bishops with thesanction of the government . By the Concordat of 25thJune 1 8 13, which was not put into execution , the EmperorNapoleon wrested from the pope, who was his prisoner,the renunciation of the temporal power in his S tates

,and

the right to delay beyond six months the canonicalinstitution of the bishops

,in which case it would have to

be performed by the metropolitan. This was the climaxof the usurpations of the State over the Church. And infact the Convention o f 1 1 th June 1 8 1 7 , which remaineda mere proj ect

,returned to the Concordat of Francis I .,

as itestablisheda dotation in immovable goods or in rentesfor the bishops

,seminarists, parish priests , chapters, &c.

The Belgian cons t itution raised the liberty of the Churchto a canon of public right in its Article 1 6 . The Statehas not the right to intervene e i ther in the nomination , orin the install ation of the ministers of any form of worship ;nor shal l it be able to prohibit these from correspondingwith their superiors and publishing their acts under thesimple responsibili ty of the usual law as to printing andpublication .

”

The Concordat of 1 6 th March 1 851 with Spain reestablished the Catholic religion with all therights and

prerogatives which it ought to enjoy according to thelawof God and thecanonical sanctions. It declared that the

1 74 PH I L O S O PH Y O F RIGHT.

education in all the colleges, universities , &c.

,should be

conformable to the Catholic doctrine, and that the bishopsshould not encounter any obstaclein their supervision ofthe youth in the relationships of morality and o f the faith .

It admitted the unlimited right of possessing and acquiringimmovable goods, as well as in founding religious orderswhich might have for their obj ect charity or the publicutility. The Concordat o f 7 th O ctober 1 87 2 with therepublic of Costa Rica

,recognises as belonging to the

Church the same rights and free communication with the

H oly See in all that concerns spiritual and ecclesiasticalthings, as is enunciated in the Concordat of 1 8 th August1 855wi th Austria, which is conformable in all points tothose new referred to.

We have already indicated the dogmatic differencesbetween the Latin and Greek Churches

,which were irre

vocably divided from the time of the schism in 1054.

We may now pause for a little on the constitution ofthe Eastern Church , and its relations with the State .The Emperor of Constantinople claimed to be rlmperatortumet sacerdos, and this pre tension was tolerated by thepopes when i t turned out for the good o f the Church.

Yea, of a truth,” replied Gregory II. to Leo the Isaurian

,

“ those emperors who have preceded you,namely

,

Constantine the Great,Theodosius the Great

,the great

Valentinian,and Constantine

,the father of Justinian II .

,

who took a part in the sixth synod,showed by the ir

words and deeds what they were with ardent zeal theystudied the truth of the fai th

,and they aided the pont ifi

'

s

in their care of the churches. These emperors,in har

monious relations and unanimity wi th the pontifi'

s, cony oked synods and promoted the true understanding ofthe faith

,and they were ornaments and supports of the

H oly Church . They were emperors and priests in co

operation,and their deeds showed them to be such.

” Inthe Council of Constantinople, the bishop of the new

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1 76 PHI L OSOPHY O F RIGHT.

Moscovite Church as a dependant on itself. The metro

politans of Kieff were usually nominated by the patriarchof Constantinople

,and often they were Greeks. The

invasion of the Tartars and the removal of the capitalfrom the shores o f the Dnieper to the basin of the Volga

,

had relaxed the bonds existing between the two churches.The metropolitan of Russia, who followed the great princesto Vladamir

,and then to Moscow

,was still a sufiragan

of the Greek patriarch,but he was now a Russian

,and

he was elected by his clergy, and chosen by his sovereign .

After the example of her Byzantine mother,the Russian

Church showed herself from the beginning full of respectand deference towards the temporal power. The civilwars

,and then the Tartar domination

,enabled her to

acquire more influenceand independence . This wasthe heroic age of the Russian Church

,the epoch of the

great national saints,o f Alexander Newsk i

,of Al exis, of

Sergius,and of most of the monastic foundations. The

elevation of the autocracy,along with the ceasing of the

Tartar domination, took from the Church part of herascendancy, but the extinction of the dynasty for a timerestored it . Ivan the Terrible humbled both the Boyardsand the clergy , and he had as metropolitan , S t . Philip,who was his Thomas aBecket . The metropolitan

,the

only head of the Moscovite Church,was already too great

a personage in the eyes of the autocrat and neverthelessin 1589, Ivan the Terrible was no sooner dead than themetropolit an dared to demand the dignity of a patriarch

.

Good reasons for this were not wanting. Moscovy hadbecome a very vast State, and could not be governed fromthe shores of the Bosphorus ; and as Constantinople hadfallen into th e hands of the Turks

,the patriarch was

consequently in a position of dependence on the Sul tan .

The patriarch of Constantinople,having gone to Moscow

to erect the new patriarchal see,was offered the seat

himself while preserving the title of oecumenical patriarch.

The Byzantine prelate who had come to obtain succour

RELIGION. 1 7 7

for his Church,refused theofi‘er of the Czar, and con

sidered h imsel f repaid by his largesses .1 The Moscovitepatriarchate was an entirely national institution

,and i ts

jurisdiction extended with the political l imits of theempire. The Russian bishops assembled in council hadthe right to nominate their head ; they chose three names,and the lot had to decide between them . The prerogativeso f the patriarch remained in substance the same as thoseof the metropolitan

,but surrounded with greater honours.

Like the metropolitan,the patriarch was the supreme

head of the ecclesiastical jurisdiction,and besides the

affairs of the clergy and matrimonial causes, his administration of justice included cases of succession down tothe time of Peter the Great. Heenjoyed the revenuesof cert ain convents and lands ; his house was kept uplike that o f the Czar ; and he had his court, his boyards,and his great officers, as he had his tribunals and hisadministration .

The patriarchate o f Russia lasted little more than acentury ( 1589 and it is considered by the ecclesiastical his torians as a providential fact. Instituted onthe eve o f the extinction of the dynasty of the Rurik s,the patriarchate passed through theanarchy of theusurpation

,and contributed to the consolidation of the

Romanoff dynasty. In the first period of its existenceit contributed to save Russia from dissolution and fromforeign dominion ; and in its second period it communiosted to the recuperative reign of the first R omanofl

’

s

a religious and paternal character, which rendered thatepoch a sort of golden age in Russian history. Althoughthe patriarchate was in full decline under Peter theGreat

,he believed it was an obstacle to his great re forms

,

and seizing the opportunity of the See being vacant, heabolished it . The ecclesiastical reform was carried outby this sovereign under an occidental inspiration whichwas in part Protestant . The substitution of an assembly1 AnatoleLeroy-Beaulieu, L ’empiredes tzars cc les R usscs. Paris, 1 88 1 .VO L . I . M

1 7 8 PHILOSOPH Y O F R I GH T .

for a single head was not an .isolated fact special to the

Church ; it was a general system then in vogue in theWest

,particularly in France , where the ministers of Louis

XIV . had been superseded by the Councils o f the regency.

The administrative colleges o f Peter the Great havebeen succeeded in the beginning of this century by theministers ; but the ecclesiastical college of the H oly Synodhas remained. We shal l glance at its composition andits prerogatives .The H oly Synod is nominated by the sovereign , and iscomposed of irremovable members, namely, the metro

politans of thesuccessive capitals o f the emp ire, Kiefi'

,

Moscow,and S t . Petersburg ; and the last named , who has

usually under him the diocese of N ovogorod, is the president. The other members are four or fivearchbishops,bishops

,or archimandrites , two members of the secular

clergy,and two arch—priests

,one of whom is usually the

chaplain or confessor of the emperor,and the other that

of the army. Along with the Synod there sits a delegateof the emperor under the name of Procurator-General

(Ober-procurator) . Under the Emperor Nicholas, this delega te was a general of the cavalry . Heis a mediumbetween the Emperor and the Synod, presenting to theSynod the proj ects of laws formulated by the government

,

and to the Emperor the regulations discussed in the Synod.

The Synod does nothing without the intervention of theProcurator-General

,who brings forward the matters of

business,and is the executive of the resolutions adopted .

No synodal act is valid without his confirmat ion, and he

has a right of fveto in cases in which the resolutions of theassembly may be contrary to the laws . Every year hepresents a report to the Czar regarding the general condition of the Church , the state o f the clergy, and orthodoxy.

There i s associated with every bishop an ecclesiasticalcouncil called the Eparchial Consistory

,whose members

arenominated by the Synod on theproposal o f the bishop,

and its resolutions are valid only if approved by the

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1 80 PH I L O S O PH Y O F RIGHT.

The second great scission of Christendom was a muchdeeper one than that of the Eastern andWestern Churches.Luther exaggerated the supernatural by taking awayeverything intermediate between man and G od. He,however

,precisely distinguished the spiritual power from

the temporal power. The Confession of Augsburg in its

28 th Article says The power of thekeys,or rather the

commission has been given by Jesus Christ to H isApostlesto preach the Gospel

,to forgive sins

,and to administer

the sacraments. This power has to do with the eternalgoods

,but it i s exercised only by the minister of the

Word,and is not mixed with the political administration

,

which has an entirely different thing for its object and isnot occupied with the Gospel . The magistrate protectsnot souls

,but bodies and temporal goods

,which he defends

from all attack, constraining men by the sword and bypunishments to observe civil justice and peace . H encethe power of the Church is not to be confounded with thepower of the State . Some have foolishly confoundedthe power of the bishops with the temporal power, whencehave aris en great wars

,revolutions, and tumults .

The power of the Church ought not to invade a domainwhich is not its own . Chris t said : ‘My kingdom is notof this world ;

’ and elsewhere : ‘Who has made Me ajudge over you ;

’ and Paul says to the Philippians‘O ur conversation is in heaven .

’ Let the Church thennot interfere in the affairs of this world let it not pretend to grant kingdoms

,to command magistrates

,nor to

abrogate civil laws . Bishop s have no other jurisdictionand no other power than to remit sins and if in fact theyhave any power

,i t comes to them not by divine right ,

but by delegation from’ princes .” Thus the Protestantsreduced the Church to a kind o f association

,and they

invested the clergy with a simple power of direction asrepresentatives of the parishes. Melanchthon was notslow in apprising the multitude of his time that they werenot competent for this noble othee

,and he wrote (in

R EL I G I O N . 1 8 1

the Corpus reformataram) as follows Non debet esseEcclesia democratie

,qua promiscue concedatur omnibus

l icentia v ociferendiet movendi dogmata, sed aristocratia

sit,in qua ordine hi qui praesunt , Episcopiet Reges , com

municent consilia. The Protestant minister Jurieu statesthat “ the Reformation was accomplished by the aid ofthe sovereigns : at Geneva, by the senate ; in Switzerland,by the supreme council of every canton ; in Germany, bythe princes of the empire ; in the United Provinces, bythe States-general ; in Denmark , Sweden , England , andScotland

,by the authority of the kings and parliaments ;

and in France,by the authority of the grandees.” The

princes and magistrates were considered as principalmembers of the Church. The Reformers declared thatGod had entrusted them with the care o f souls ; that itwas their duty to watch over purity of doctrine

,to pro

b ibit impious cults,and when necessary

,to constrain their

subjects to the external duties of religion . Calvin himsel ftreats as a folly the O pinion of those who wished thatthe magistrates should put God and religion under theirfeet

,and should have no other concern at heart than to

administer justice,as if God had set up superiors in

'

H is

name to decide lawsuits,but having no care about H is

worship . Princes who neglect the honour of God in orderto procure for men only temporal good, put the ploughbe fore the oxen . H ence the retort of Bossuet : Theadvantage of the Reformation is reduced to having a laypope in place of the ecclesiastical pope, the successor ofS t . Peter ; and in handing over to the magistrate s theauthority of the Apostles.” 1

We shall describe the organisation of the ProtestantChurches

,beginning in order from the one which is least

removed from the Catholic Church . It i s a popular errorthat the Reformation took place in England on accountof the refusal of the pope to approve the divorce of H enryVIII . from Queen Catherine. This was the occasional

1 Bossuet, Il ietoirc des Variations, L . v . p. 151 .

1 82 PHIL OSOPHY O F R I G H T .

cause and not the efficient cause, whi ch must be soughtin the national pride of the English, which unwill inglyendured dependence on a stranger, even in matters ofreligion . It will sufliceto recall the famous statuteP roemum’

reo f the reign of Richard II., which enacted thepunishment of those who appealed to Rome

,and pro

hibited the publication of any pont ifical Bull which mightbe contrary to it . The movement of Wicli f and of theLollards was also a precursor of the Reformation

,and it

prepared the way for H enry VIII. In 1530 ,the clergy

assembled in convocation addressed a petition to the kingin which they called him the supremeprotector, lord, andhead of theChurch of England under the restrict ive clause

per quantum per Christi legem licet. The parliamentpassed various acts to abolish appeals to the court ofRome

,as well as dispensations

,provisions , bulls of in

stitution for bishoprics, the payment of Peter’s pence

,and

annats. There was also established an oath in favour ofthe royal supremacy

,which is still in force as it was

formulated in the reign of El izabeth,in these terms

That Her Majesty the Queen is the only and supremesovereign of the realm, both in temporal matters and inspiritual and ecclesiastical matters ; and that n o prince ,prelate

,S tate

,or foreign potentate can exercise any

jurisdiction,superiority

,pre-eminence

,or ecclesiastical or

spiritual authority throughout the whole extent of theKingdom. By an Act of I 559, it was explained that theQueen did not intend to claim any authority in theologicalmatters, but wished to exercis e her ful l authority over allsorts o f persons.The English Church in separating itself from theCatholi c Church professed to preserve the apostolical

succession of its hierarchy. Its prelates considered themselves the legitimate sp iritual heirs of those who hadproclaimed the gospel in the British Islands. The Beformation was accomplished with their concurrence

,and

hence the Canon Law remained in force so far as it was

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PH I L O S O PH Y O F R I G H T .

domains, and gathers a Chmch rate which is levied even

1rom dissen t ing parishioners to maintain the celebrationof worship. For a long time its special tribunals havebeen taken away, but the Church enj oys certain purelyhonorary prerogatives in connec tion wi th the administrat ion of common justice. The ep is copal tribunals dealwi th cases of e cclesiastical dis cipline which may beappealed to the archbishops . Divorce is regulated bythe S tatute of 1 857 , and it falls wi thin the compe tencyof a special Court of divorceand matrimonial causes.

In Sweden and Denmark the Church is organisedaccording to an analogous system. In the former ofthese two kingdoms the bishops have a consistoryassociated with them

,and in the latter they are called

general superintendents .

In Germany,the fatherland of the Re formation

,Luther

sought to O ppose the interference of the princes with theproper administration of the Church . I n 1 543, he wroteas follows If the courts wish to govern the Church fortheir own advantage

,G od will withdraw H is benediction

,

and things will go from bad to worse. Let the princesact as pastors ; let them preach ; let them bap tize ; le tthem visit the sick let them administer the communionin a word

,let them tul hl all the ecclesiastical functions ;

or ceasing to confound callings,let them occupy them

selves wi th civil affairs,and let them leave the Church to

those who honour i t and have to give an account for it toG od. Satan continues to be Satan ; under the pope hemixed up the Church with poli tics

,and now he wishes to

confound poli tics with the Church .

” Luther es tablishedthe consistorial system. We find the first in stance ofit at VVit tenberg in 1 539, where it was call ed togetherto resolve certain matrimonial questions ; but its jurisdiction was soon extended. We then se e consistories inall the countries of Germany

,generally composed of two

REL I G I ON . 1 85

theologians,two legists, a fiscal or public minister

,and a

secretary,al l nominated by the government . Under the

consistory there is a superintendent who has to see to thecarrying out of its resolutions

,and above it there is a

general superintendent whose function is to summon anddirect it.

In the Calvinistic Church,which is more properly

called the Reformed Church,th e Presbyterian and Synodal

system has prevailed . No church,

” says the O ld Discipline of the Reformed Church of F rance

,shall pretend

to pre eminence or au thority over another,nor over a

province or union of churches of the same province.”

The pastors are all equal,and even the shadow of a

hierarchy disappears. Every parish has a presbyteriancouncil or session, which is composed o f the pastor and o flaymen nominated by all the members of the Church. Acert ain number of neighbouring parishes form a presbytery,whose members again constitute the provincial synod

,and

certain pastors and elders belonging to the presbytery andsynod sit in the national synod or General Assembly.

This system flourishes in H olland , in Scotland , and inthe United States of America

,where two cen turies ago

Congregationalist Churches also were formed ; and thesemark the last term of independency

,every church carrying

on its own affairs apart from all the others.

America has the merit o f having first introduced theseparation of the Church from the S tate . Roger Williams ,a Baptist minister

,gave a very remarkable exposition of

the principle of religious equality and freedom in a speechdelivered in 16 35. The ideas of Williams were also maintained by William Penn , the Quaker, and by the CatholicLord Baltimore

,until they passed into the law proposed by

Jefi'erson,and promulgated on 1 6 th December 1 7 75, a law

which was afterwards introduced into the constitutions o fVirginia o f 1 830 and 1 851 . I t bore that no one should be

1 86 PHILOSOPHY O F R I G H T .

constrained to profess any particular creed whatever, orcontribute to its maintenance ; that no individual shouldbe molested in his person or in his goods on account of hisbeliefs and finally, that every one should be free to profess and defend his own rel igious opinions with argumentswithout losing anything of his civil capacities . Thesedeterminations

,which were special to Virginia

,passed into

the Federal Constitution with the revision of the Constitution of 1 7 87 , which declares that the Congress shallnot institute an official Church, nor prohibit the fre eexercise of any religion . The constitutions of the variousStates by degrees adopted these positions, and they areformul ated in the Constitution of New Jersey of 1 844 tothis effect —No one shall be deprived of the inestimableprivilege of worshipping Almighty God in the mannercorresponding to the injunctions of his own conscience .No one under any pretext shall be constrained to attenda religious service which is contrary to his faith and hisconviction . No one shall be compelled to pay tithes

,

taxes, or other imposts to build or restore a church, or tomaintain a minister of another persuas ion than the onehe believes good and with which he is associated. Thereshall be no Church in the State with a preference overany other Church . No test shall be required for admission to the exercise of official offices, nor shall any one bedisturbed in the enj oyment of civil rights on account ofhis religious principles.The government of the United States has therefore

neither jus majestatieum circa saera,nor placet , nor appeal

ah abusu. It does not recognise the Church as a unionof the faithful , but the congregation as a civil corporation .

I ts tribunals are competent when there is a case turningon the proper ty or the material interests of the con

gregat ion. Questions of discipline are j udged by theecclesiastical tribunals proper. The usual mode offounding an ecclesiastical corporation consists in nominating certain trustees who represent it

,and every com

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1 88 PHILOSOPHY O F R I GH T .

abundantly accessible. Thomas Aquinas is very reservedon the quest ion of the relat ions between the Spiritualpower and the temporal power. Hecontents himsel fwith saying that in regard to what concerns the salvationo f the soul

,the Sp iritual power ought rather to be obeyed

than the temporal , but as regards civil goods it is be tterto obey the secular authority. Nevertheless the twopowers are always found united in the same person alone

gut utm'

asguepotestatz'

s apieem tenet. The work entitledDeregimtneprincipum is attributed to Thomas Aquinas ,and is certainly from his school. I n it the pre-eminenceof the spiritual power is unfolded in the same

,

way as ina work under the same title by the Romanist Egidius .Charles Jourdain has found in the national library ofParis another work by Egidius entitled Deutraguepotestate,in which the papal pretensions are carried to the utmostlimit. According to this writer

,the Church has not only

a right t o possess material goods,but has a natural

jurisdiction over every kind of such goods. The destinat ion of temporal things

,he says

,is the utility of the body

the body is subject to the soul,and the soul to the supreme

pontiff ; and where this subordination does not exist infacty from being rejected by human passions, it subsistsby right. The art of governing the peoples

,he continues,

consists in co-ordinating human laws with those of theChurch , as matter is co-ordinated with form. Janetrecognises in this work that exaggeration whi ch is usuallythe sign of powers that are about to fall.After the excesses of the French Revolution

,we see

the so-called Theological School reappearing,and as a

School it seeks a fixed point in revelation and in thepontifical authority. De Maistre

,with an austere imagina

tion and an incisive style,maintains that as all men are

born in the guil t of sin,it should not surprise us if the

just man suffers here below,since he suffers not as a just

individual, but as a man. All suffering is due to us as aconsequence of original sin

,and there is no other means

RELIGION. 1 89

of diminishing it than prayer and the reversion of goodworks performed by the good , which God in H is mercyreckons to the account even of sinners. Heregards thegovernment of Providence as an inexorable government,and wishes that the temporal governments would imitateit . The supreme authority he attributes to the pope, onwhom princes ought to depend .

De Bonald finds the nexus of all truths in a primitivelanguage revealed to man . The Bible furnishes himwith the historical proofs of this fact ; and reason tellshim that it was impossible for man to invent language,since according to Rousseau speech is necessary in orderto establish the useof speech . The language revealedto man by the Creator must have been perfect

,and there

fore must have contained true ideas . In consequence ofthe fall

,the true language has been lost

,and with it many

truths have been obscured ; but the Bible and the Churchhave preserved for us as much as God considered necessary for our salvation. Casting a glance upon the world

,

De Bonald finds three fundamental ideas,which embrace

the order o f beings and their relations,and these are

cause, means, and eject. The cause stands to the meansas the means to the effect. What God is in the generalorder o f beings

,the husband is in the family and the

rul ing power is in the State. God reigns absolutely inthe universe ; and the father and the sovereign shouldbe absolute in the family and in theState. But betweenGod and man there has been a Mediator participatingin the divine and human natures, and s o there should bea mediator in the family, namely, the wife ; and in theState there should be an aristocracy, a body intermediatebetween the people and the sovereign . Domestic societyshould be regulated by natural religion ; and politicalsociety ought to be founded on revealed religion. Thusdoes De R onald attempt to demonstrate by reason andhistory the identity of the religious law and of thepolitical law.

190 PHILOSOPHY O F RIGHT.

Lamennais in his first work , entitled an “Essay on

indifi’erencein matters of religion ,” 1 finds no ground of

trust in the senses,nor in the feelings, nor in reasoning,

and he derives truth from authori ty,that is to say

,from

the testimony of a great number of persons wor thy of

faith which begets common consent. In the earliestt imes God directly governed men from the bosom of acloud

,or by means of a moral law engraven in their

hearts. But Hehas now a representative on the earthin the pope. The sp iritual power, in the largest sense ofthe word

,pertains to the pep e and to the Church . The

civil governments represent only the material side ofpower

,and they ought to depend upon the pope. Around

L amennais gathered Lacordaire, Montalembert, Gerbet ,de Salinis ; and after the Revolution of July, they foundedthe journal called L ’

Avem’

r in order t o combat for God andliberty

,and for the pope

,and for the people. They were

condemned in the celebrated Encyclical of 1 5th August1 832 ; and the little community was dispersed, but theseed sown was fruitful, and weshall see it bring forthfruit.The oracles in Greece and the auguries in Rome were

the most powerful religious instruments in the hand ofthe State . In the time of the Republic there were added tothese the pontifiees, or the fiveconstructors of bridges, whoas engineers knew the mysteries of numbers and measures ;and therefore they compil ed the calendar

,predicted the

new and full moon , fixed the festival days, and, in a word,took care that every religious or judiciary act should takeplace on the day and in the forms prescribed. Cicero wasenthusiastic about this system

,and Polybius attributed

the happy resul ts of the enterprises of the Romans totheir great respect for religion.

The Emperor, in addition to all his magisterial offices,held also that of the pontificate, and he even became agod, so that both temporally and spiritually the legal

1 Essai sur l’

indtfi'e’renceenmatieredc rel igion.

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1 92 PHILOSOPHY O F RIGHT.

says : “Ad observanda praecepta divinaelegis , poena velsupplicio temporali, seu praesent is seculi, nemo evangelicascriptura compelli praecipitur ” 1 Under this point ofview Marsilius is the precursor of the great thinkers whoadvocate the reciprocal independence of the Church and

the State. After the Council o f Trent,’

Paolo Serpi resuscitated in its en tirety the doctrine of the omnipotenceo f the pagan State

,and it formed the secret insp iration of

the great and unhappy Pietro Giannone. The Renaissancein general fondled this idea

,which rules in Machiavelli,

and glimmers also in the Utopia of Sir Thomas More and inH arrington’s O ceana. Rousseau made the idea his in hisContrat social

,which inspired the Constituent Assembly

with the civil consti tution of the clergy .

The Protestant writers declared themselves unanimouslyin favour of the pre-eminence of the State . Their commonthought in opposition to the papacy was : Oujusest regioejus religio. H ugo Grotius made vast researches

,and

concluded by attributing all ecclesiastical authority tothe State. H obbes and Spinoza incorporated the Churchdirectly in the State

,Spinoza making ampl e reservations

in favour of freedom of conscience . But from thePresbyterians and Congregationalists other maxims couldnot but arise , and these were reduced to a theory byThomasins, who would have the Church be regarded asa simple association tolerated by the State.The Gallican writers furnish a fruitful mine for thesystem of concordats ; and without going back to P ithou,

Coquill e, and Pasquier, we shall confineourselves toreferring to the learned reports of the Minister Lanjuinais,and the Counsellor o f State

,Portalis

,in the discussion of

the Concordat of 1 80 1 and theorganic articles whichfollowed it . The Belgian Laurent declared himself infavour of concordats in the French manner

,despairing of

suppressing all the power of the Church,and believing

1 Janet, op. cit .

RELIG ION.

that its absolute separation from the State would beprejudi cial to the religious sentiment .1

The same author witnesses to the influenceexercisedon the Belgian legislators by the doctrines advocated byLamennais and the other writers of the j ournal L ’

Aventr.

The following are briefly the aspirations of this school.Let the clergy of France abjure in some way the oldmaxims of the Gallican Church as the source of equivocations and errors, as principles of a slavery imposed onreligion by the poli tical despotism

,and too easily accepted

in the seventeenth century by the prelates of the court,

as a fatal barrier raised by profane interests between theChurch and its head

,as a perpetual danger of national

schism like to that provoked by H enry VIII . in England,

or to the one that reigned so long in the empire o f theczars. Let the Church take again all her l iber ty both inaction and in doctrines in face o f the governments ; lether claim those indispensable rights now denied to herby the Concordat of 1 80 1 and the O rganic Articles lether be permitted to meet at will in provincial councilsand in synods

,to communicate with the sovereign pontiff

without requiring permission,to found religious orders

without needing the council of State and the decree o fthe prince

,to open as many schools as may be thought

necessary in the interest of religion , and to teach herdoctrines in them without being subject to any surveillanceby the State

,and to receive her bishops only through the

institution of the H oly See. But in exchange for theseprecious benefactions

,let her make the sacrificeof all the

temporal goods which the government has secured toher ; let her renounce her budgets and her revenues ,the official and privileged protection with which she issurrounded

,and the political dignities which have been

conferred on the episcopate ; let her lay account onlyupon herself ; let her hold her authority and her meansof subsistence only from fai th , from piety, and from the

1 L’

Egliseet l 'Etat , p. 482et seq. Bruxelles, 1858.

194 PHILOSOPHY O F RIGHT.

voluntary offerings of the Cathol ic populations ; let theold alliance of the throne with the al tar be completelydestroyed ; let there be no more solidarity between theChurch and any of th e dynasties which revolutionsmay put at the helm of the State ; and let all confusionor mixing of the two powers cease. Let the Church ,accepting the consequences which necessarily arise fromthis new order of things

,acknowledge with good faith

that the Catholic religion is not incompatible with libertyof worship

,nor with liberty of teaching

,nor with th e

liberty of the press,seeing that these various forms of

liberty are the only power which can preserve the Churchin France from a catastrophe similar to that which destroyed Catholicism in England .

”

In the Reformed pastor Vinet,we have an echo of these

doctrines. The State , he says, cannot have any religion.

And in fact, what is religion ? It is a sentiment orfeeling entirely concentrated in the most secret and mostprofound life of the soul . It regulates no other relationsthan those of the invisible with the visible ; and theexternal life is to it only a means of reacting on theinternal life. Men by combining into civil society makeonly their interests and their ideas common

,but they

reserve to themselves the most intimate part of their soul,

their religion. Vinet does not say that the State hasnothing in common with religion

,since it has the

morality which springs from a primitive revelation ; butin the internal sanctuary every one ought to be perfectlyfree. The spiritual and the temporal , he adds, are distinct like law and morality

,and this distinction is not

an accident, but a necessity ; it i s not a passing phase,but the normal and definitestate o f society, one of theaxioms of science and society. To believe that theexistence of a religion is threatened by its separationfrom the State

,is an avowal that it has no root in

humanity, and no forcein itself. We therefore demand this separation in order to demonstrate that

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196 PH IL O S O PH Y O F R I G H T .

in the baptismal formula. Bishop Whi tehouse interdictedCheney

,and deprived him o f his living. The congrega

tion decided to retain their rector, and Cheney raised anaction against the bishop before the Superior Court ofthe State of Illinois in o rder that this canonical sentencemight be annul led

,as he alleged it inj ured his rights as

a citizen . Hegained his case in the first instance ; butwhen it was carried by appeal before the Supreme Courtof the State , the sentence was quashed. The tribunaldecided that whenever a particular church and its pastorwere subject to the surveillance and censure of higherecclesiastics

,and formed part o f a church wh ose creed

and discipline they had voluntarily accepted,then the

members that continued faith ful to the communion shoul dbe considered as alone composing the church

,and as

having the right to retain its property,even although these

faithful ones might be in a minority. The maj ority oughtnot to be allowed to abandon the communion and withdrawthemselves from the disciplinary jurisdiction and carryaway the property of the congregation ; for this would bean act of bad faith which no court of justice coul d tolerate .H ere then in these microscopic proportions

,the secul ar

arm shows itsel f in America. H ere are cut by the rootthose mixed questions which for so many ages have beenthe despair of jurisconsults and canonists . Certainly i ti s desirable that all controversies between Church andState should be resolved by reciprocal agreement

,includ

ing such questions as the institution of new dioceses,the

nomination of bishops, the stipends of the clergy, questionsof marriage, schools , hosp ices, cemeteries, processions, &c. ;

but human nature is so constituted,that the strong always

seek to oppress the weak,and hence these conflicts and

usurpations go on. But this system supposes a state ofgreatly advanced civilisation

,and it has therefore been

the l ast to appear in practice and theory.

The great thought of Cavour was modified by his representatives and successors. Pasquale Stanislao Mancini,

RELIGION. 197

late minister in Naples,by a decree of 17 th February

1 86 1 , deprived the priests of the privil ege of being takento prison in a carriage . Afterwards, they were deprivedof all exemption from military service , and by extremeinterpretations they were allowed to marry. All civilexecution is re fused for the sentences of bishops whodeprive their subordinates of their stipends or suspendthem a divinis. The suppression of the religious ordershas gone beyond all limit, and has violated acquired rights .The law of Piedmont of 1 855 respected the religiousorders devoted to preaching

,education

,and the assistance

of the sick . The Italian suppression took effect only inthe future

,concentrating gradually the surviving monks

in the monasteries o f the order till their total extinction .

The conversion imposed for economic reasons on thechapters and other ecclesiastical bodies, was left to becarried out by themselves according to an estimated stateand in a determinate period of time. The law of guarantee sdid not break all bonds between the Church and theState ; it demands theexequatur of the papal bulls in thenomination of bishops when they claim the temporalities .We are far from agreeing with the maxim uttered by

O dilon Barrot in a celebrated case, namely, that the lawis atheistic. The modern State, answers Renan, has noofficial theological dogma ; it i s neither atheistic norirreligious ; it i s even essentially religious, since it supposes right and duty

,admits the taking of an oath

,

respects death,and believes in the sanctity of marriage.1

Summing up, we say that the State is the expressionof the majority

,and hence it should conform its conduct

in whole or in part to religious rule s according as theremay exist one or more kinds of worship in its territory .

Every one should be free to believe in his own way, butnot to exhibit his religious opinions except within limitswhich will not injure the rights of others ; and hencefollows toleration

,or liberty of worship, according to cir

1.SeeQuestions contemporaines, p. 228. Paris, 1868 .

198 PH I L O S O PH Y O F RIGHT.

cumstances. It nevertheless does not follow in the leastthat the State ought not to receive help from religion

,as

,

for example,in relation to marriage, which may be cele

brated civilly and according to the religious rites of thespouses

,unless they be freethinkers ; and in such a case

the parties should declare it in a public in strument inorder ' to obtain from the magistrates the permission tocontract their marriage only civilly. The formula of theoath might be modified by adding to it

, O h thefaithof a man of honour, which woul d not ofi

'end believersand would bind freethinkers. The cemeteries might bedivided into various sections

,one of them for freethinkers.

Doctrinal teaching might be entrusted to the ministers ofthe various creeds , along with the primary and secondaryinstruction ; and it might be entirely free in the higherinstruction, the right being given to open the universitiesto whoever has means to attend them.

According to this view,religion would occupy in society

the same position which it holds in the human mind,

among the other ends of which wehave still to speak.

1

1 I n 1 86 1 wediscussed therelations of religion with theS tatein a littleworkentitled : L ’

I tal iaela Chiesa, risposta a Guiz ot.

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200 PH I L O S O PH Y O F R I G H T .

derived metaphysics,and Confucius ethics . In the twel fth

century,Ichu-hi formulated the Chinese encyclopedia in

the following way . The generation of the fiveelementsproceeds immediately from the active principle and fromthe passive principle, which are only modes of being ofthe great summit (Tai-k i) . The T at—kt is the same thingas the L i

,or theefiicient and formal cause o f the universe

,

which,putting itself in motion

,generated the Yang (active

principle) , and in its repose produced the Yn (passiveprinciple) . The Li is manifested in man as the rationalprinciple

,which has as its contrary the K?) or material

principle . The first represents movement,and the second

repose their union constitutes life,and their separat ion

produces death, after which there is no more personality.

Sp irits and genii are only the active principle and thepassive principle

,or the breath of life which v ivifies

nature and fills thespace between the heaven and theearth

,and which animates man .

Society was organised in China according to the principleo f generation

,or on the paternal authority. The Emperor

is the typ ical man,and he unites in himself heaven and

earth,and i s the father and mother of the people . He

represents the universal reason,and he is crammed with

all kinds of knowledge from his most tender years . Afterthe imperial family

,the Mandarins or literati form the

second order of the State . The literati are divided intoas many classes or grades as there are sciences ; and thosewho know best the written signs of their science

,form a

council of government beside the emperor under the nameo f H anlin . This council has the censorship of books , andrecommends those which it believes necessary to preservethe ancient precepts and discoveries in arts having animmediate util ity. The Chinese youth are educated soas to be able to manage public and private atfiairs in anentirely practical way. Every science is reduced to rule swhich are committed to memory. Al l undergo examination

,the soldier as well as the administrator and the

SCIENCE. 20 1

lawyer . In order that the supreme college of the capitalmay be the nucleus of the empire

,there is established a

hierarchy among the cities,which forms an uninterrupted

chain down to the lowest village ; but it is only the capitalthat communicate s the nobility of knowledge. After theliterati come the agriculturists

,the artisans

,and the

merchants,without any principle of heredity. Industry

and agriculture depend on tradition and on the police.Before the Europeans had put their foot in China

,the

Chinese were ignorant of mathematics and all the artsthat depend upon them. They were acquainted withgunpowder

,but they used it only for artificial fireworks.

They possessed the mariner’s compass,but they followed

the course of the stars in their navigation and they hadprinted books

,but they produced them by means of

characters cut in tablets of wood,and not by melted and

movable types.The ancient Egyptians resembled the Chinese in theirempiricism

,their spirit of tradition

,and their attitude

towards the arts that are most useful for li fe . Thenecessity of recovering their fields after the inundationso f the Nile, and the division of the land carried out bySesostris , led them early to the discovery of geometry .

It was,however, entirely practical, and without demon

strations ; and as they did not know the measurementof angles and trigonometry

,

’

they made use o f ingeniousmethods which were adopted by the Greek and Romanland surveyors . In astronomy

,they had the merit of re

presenting geometrically the motions of the sun,and moon

,

and the fiveplanets then known . H erodotus also assertsthat they knew the solar year 1 325years before our era .Nevertheless , they had been preceded by the Chaldeans indetermining emp irically, but with some exactness, theperiods in which the same astronomical phenomenareturn. The Egyptians had the incontestable merit ofrecognising the value of labour ; for i f the priests andthe soldiers were distinguished by great honours

,all k inds

202 PHILOSOPHY O F R I G H T .

of trade were held in esteem, and it was regarded as acrime to despise a citizen who contributed by his labourto the public good. The division of labour was not onlyapplied to the mechanical arts, but also to the liberalprofessions

,which were all divided into guilds

,so that i t

was impossible for an idle man to conceal himself. H eredity was establ ished in the arts and professions in orderto render them more perfect .The Greeks no longer sought the laws of nature in thetheogonies

,but by observ ation. Thales determined the

solstices and predicted eclipses. Anaximander alreadydrew geographical maps

,and formed spheres and solar

quadrants ; and Pythagoras, as by a sort of divination ,conceived a planetary system . The milky way was toDemocritus an aggregation of stars. The curves of theorbits of the planets were considered by Plato to bedetermined by attraction

,while Aristotle felt as by

intui tion that motion is a chief and universal fact . H ippocrates laid down medical aphorisms in spite of his physiological hypotheses and the scantiness of h is anatomicalknowledge. Aristotle founded natural history, descriptivemeteorology

,psychology

,ethics

,politics, rhetoric, and

the art of poetry,basing them on observation and

comparison of facts ; and he also formulated the rules ofthe deductive method

,and indicated the advantages of

induction .

The founding of Alexandria,which united the West

with the East,gave an impetus to science . As tronomy

had need of trigonometry,and H ipparchus invented it .

The distance of the earth from the sun and the moonwas calculated by Aristarchus the obliquity of theecliptic was determined by Eratosthenes and H ipparchusand Ptolemy founded a system which lasted for fourteencenturies. While anatomy made progress, physiologyowed to Galen the discovery of the ' minute circulation o fthe blood from the lungs to the heart ; and therapeuticsfound a rival o f H ippocrates in Aretaeus .

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294 PHILOSOPHY O F RIGHT.

medicine,physics

,and astronomy were so bound with

phil osophy,which had embraced them all at the begin

ning,that the study of it was rendered indispensable.

The Arabs took to Aristotle, whom they considered to bethe philosopher parexcellenceand they translated him,

commented upon him,and made him known to Europe .

“ But,

” exclaims Renan,

“men often speak of an Arabicscience and philosophy ; and in fact the Arabs wereour masters for about two centuries during the MiddleAges

,but only until we came to know better the

Greek originals. This Arab science and philosophy wereonly a poor translation of the Greek science and philosophy. No sooner did the real Greece appear beforeour eyes than these indifferent translations becamesuperfluous, and the philologers o f th e Renais sance notwithout reason undertook a veritable crusade againstthem. When we scrutinis e it attentively

,this Arab

science had nothing Arabic in it ; i ts foundation wasentirely Greek

,and among those who created it

,there

was not a genuine Semite,but they were Spaniards and

Persians who wrote in Arabic. The Jews in the MiddleAges acted as interpreters of them ; and the Jewishphilosophy of that time is the Arab philosophy withoutanymodification. A single page of Roger Bacon containsa larger in fusion of the scientific Sp ir it than the whole ofthis second-hand science

,which is worthy of consideration

as a link in the chain o f tradition,but it is-void of any

great originality.

” 1 Nevertheless, the Arabs communicated to Europe the system of numeration and themariner’s compass

,which it is said they borrowed from

the H indus and the Chinese.Among the most celebrated schools at the close of theeleventh century may be reckoned the medical school ofSalerno, whose origin is lost in the night of t ime, andwhich had even Jews and Arabs among its professors.

1 Dela part dc: peuples sémit iques dam l’histoirc dela civilisation.

Paris, 1875.

SCIENCE. 205

In 1 196 , the celebrated Irnerius was called fromRavenna

,where he was a judge

, to Bologna, to teach theRoman L aw. In the course of the twelfth centurythere was added to the curriculum of study the canonlaw

,medicine

,theology

,and philosophy. Fourteen

c olleges gathered together the students of differentnations ; and some of these colleges were founded bypopes

,others by foreign princes

,or by magnanimous

donors . Along with them arose other colleges andcorporations for examining the students and conferringthe degree o f doctor upon them : the doctorate in theology being conferred in name of the pope

,and that in

jurisprudence in name o f the emperor,by the authority

of whom they had been instituted . For a long timeall scientific knowledge consisted in jurisprudence andtheology

,until l iterary studies were added to them. T he

name of Universities was given to these institutions inorder to indicate that the universality of knowledge wastaught in them. In theUniversity of Naples, which wasfounded by F rederie II. in 1 224, wefind the first germsof the Faculties in the teaching of civil and canon law

,

philosophy, mathematics , and medicine . A student didnot become a doctor in jurisprudence till after fiveyears’study

,in theol ogy till after twelve years

,in philosophy

till after three years, and in medicine and surgery tillafter fiveyears. The law inflicted a punishment of threeyears’ exile on students who attended private courses ;and in the other cities o f the kingdom

,no other study of

medicine was tolerated except that in Sal erno,which was

affiliated to the University of Naples.

England has preserved intact the type of the MiddleAges with its twenty colleges united around the Universityof O xford , and the seventeen of the University of Cambridge. The University of London, which was createdbt hedissenters under the royal charter o f 5th December1 837 , is not a teaching body. Its power extends overthe whole o f the United Kingdom and the colonies. It

206 PHILOSOPHY O F RIGHT.

is a sort of corporation for examining students, and by anadditional charter of 27 th August 1 867 , women are alsoadmitted to the examinations . It does not demand afixed residence from the candidates, nor any commonregul ated life

,nor any moral or religious discipl ine. But

teaching is given by University College and King’s College

,the first of which is divided into the facultie s of

Arts,and Law

,and Medicine

,and the second into the

four departments of theology,literature and natural

sciences,applied sciences

,and medicine. These colleges

are both privateinstitutions, the first having been foundedby the Liberal party

,and the second by the clerical or

Angli can party.

The exact sciences and the natural sciences do not,

however,owe their progress to the universities , all absorbed

as they were in jurisprudence and theology. Roger Baconwas driven from O xford because he put little account onscholasticism and ratiocination in general

,which convinces

without in structing, and often demonstrates error as wellas truth with th e same evidence. Their conclusions

,he

said,were but hypotheses when not verified. Experience

fills up this want, and is sufficient of itself,whereas

authority and ratiocination stand in need of it . Nothingdominates experience

,and when Aristotle affirms that

the knowledge of reasons and causes is superior to it,he

speaks of the common and inferior experience employedby artisans who know neither its power nor its means

,

and not o f the experience of men of learning,which rises

up to causes and discovers them by means of observation.

Bacon severely censures scholasticism,despises the cultiva

tion of abstract logic, and prefers the R hetoric and P oeticso f Aristotle to his Organon. Next to languages, he wishedthat mathematics shoul d be studied

,which scholasticism

had erred by confounding with a sort of magic . Hereduced metaphysics to a sort of philosophy of the sciences

,

embracing the ideas which they have in common,furnish

ing their methods, and fixing their boundaries . To the

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208 PH I L O S O PH Y O F RIGHT.

Francis Bacon of Verulam in his I nstam'

atic Magna sethimself to hnd out the laws of all scientific knowledgeand to describe its method, which is observation eitherpure or aided by experiments, and fertilised by induction.Applying this method

,he himself made discoveries ; he

invented a thermometer,carried out ingenious experiments

on the compressibility of bodies and on the weight of theatmosphere and its effects. Hehad a presentiment of theforce of universal attraction

,and of the diminution of thi s

force in the ratio of its distance and he caught a glimpseof the true explanation of the tides

,and of the cause o f

colours,which he attributed to the mode in which bodies

reflect the light in v irtue of the ir diverse texture . Thissame method was afterwards appl ied by the philosophersof the Scottish School to psychology, ethics, and socialfacts

,and it has produced useful results.

The induction of Bacon ought not to be confoundedwith empiricism ; for Bacon admits final causes as aboveefficient causes . But he recommends our stopping at theformer in the natural sciences

,and leaving the latter to

metaphysics.The ancients, especially the Stoics, had divided allcognitions by reference to their objects into three cate

gories, giving the three sciences of logic, ethics, andphysics . Bacon

,however, divided the sciences according

to the faculties from which they emanate,making history

,

natural and civil, arise from memory, poetry and all thearts from the imagination

,and philosophy

,or the science

of God,man

,and nature, from the reason. This divi

sion has been reproduced with new developments in thediscourse prefixed by D

’

Alembert to the Emyelope’dtein the last century.

Descartes, by his analytical geometry, and Fermat, withthe first elements of the infinitesimal calculus, which wasafterwards perfected by Leibniz

,prepared the way for

Newton. Newton sketched out the sidereal motions ; andit required the combined powers of great mathematicians

SCIENCE . 209

and astronomers , including Euler, Clairaut, D’

Alembert ,Lagrange, Laplace, and Cassini, that thesketch mightbecome

'

a picture.The renovation of astronomy was followed by that of

physics,which was begun by Galileo

,and carried on by

Volta, O ersted, Ampere, and Melloni. The eighteenth

century did not remain behind the seventeenth century inchemistry

,which it created through Lavoisier

,and which

at present threatens to absorb all the o ther sciences . Infact

,as chemistry deals with the combinations which

arise among substances,it j oins hands with the sciences of

life,which is a composition of substances that enter

,and a

decomposition of substances that are thrown out of thebody. Biology, says Littré, was introduced into the worldby medicine

,and it lived a long time under the protection

of the salutary art which undertakes to cure human sufferings but the time has now come for its serving as a guideto medicine

,and especially to pathology. The studies of

the Renaissance were directed after the leading of antiquityto discover the anatomical mechanism of the l iving body.

And thus the general circulation of the blood was discovered

,as i t constantly obtains air in the cap illary

vessels o f the lungs,and loses it in the capillary vessels o f

the rest of the body. Thus too were the ways recognisedby which the chyle passes from the intestines into thecurrent of the circulation. And finally, in our day, therewas also thus discovered the capital distinction among thenerves

,some of which are destined for motion and others

for sensibility,as well as that between the nerves and the

brain,to which they transmit through the Spinal marrow

all their impressions,which the brain returns by the same

channel through the motor nerves to the muscles . Bichat,at the end of the past century

,thought of studying the

action of remedies not directly upon diseases,which are

complex phenomena,but on the tissues but death carried

him off in his thirty-first year. H is work was taken upagain after half a century by Claude Bernard.VO L . 1 .

2 10 PH I L O S O PH Y O F R I G H T .

From the earliest times, observers had noticed that plantsobtain their nourishment from theair and from the earth

,

and that animals are nourished by vegetable substances ,so that

,in their ultimate constituents , organised bodies

are composed of inorganic elements . What substancesdo vegetable bodies obtain from thesoil ? What agentis furnished by the a tmospheric air to living beings ?

What combination do elements undergo by entering intoanimated bodies ? What affini ties are developed in thesebodies ? H ow does the juice o f plants produce gumsand sugars

,and how does the blood of animals produce

bile,saliva

,and tears ? All these questions remained

without reply because they required a science to answerthem which was not yet constituted

,as the ancients had

a glimpse of physiology only on the side accessible tothem in anatomy. Bu t when chemistry was created, anddiscovery was made in living bodies of oxygen , hydrogen

,nitrogen

,and carbon

,which play so great a part in

inorganic nature,physiology became master of the field.

It is thus younger than chemistry,whi ch arose after

physics,which again had followed astronomy

,which was

preceded by mathematics.1 But living beings presenta sort of hierarchy, which begins with vegetables endowedonly with apparatuses for composition and decomposition

,

rises to the lower animals that have in addition the gan

glionic nervous system, and reaches the higher animalswhere these apparatuses and this system are found withthe addition of the cerebro-spinal axis and its centripetaland centrifugal nerves. Sein like manner

,says Auguste

Comte,the gradual development of humanity tends con

stantly to determine, and in fact produces an increasing preponderance of the noblest instincts of our nature .The pernicious instincts will be neutralised by the powers

1 SeeLa scienceau point deweof our aesthetic, moral, and intelphdosophique, p. 247- 8 . Paris, 1 873. lectual faculties in t hedomain of

L ittré would add a seventh science, history, and which wouldembraceextracting it from S ociology, which aesthetics,ethics, and ideo logy.

wouldgatherup theexternal results

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2 1 2 PHILOSOPHY O F RIGHT.

ledge it depends on the order which reigns in the phenomena which surround us

,and it is not developed in series

,

but on the contrary gives life to interdependent scienceswhich spring up and advance together. The differencebetween Comte and Spencer, says Littré, is this, that Comteregards the sciences obj ectively

,and hence their generality

decreases in proportion as they embrace a greater numbero f obj ects

,whereas Spencer looks at them subjectively, or

as they arise in our mindBefore the rise of the positive philosophy

,there was

another classification of the sciences by Ampere whichdeserves to be mentioned. Ampere observes that humancognitions take two special directions

,towards matter or

t owards thought and therefore he divides the sciencesinto cosmological and noological . The first class he subdivides into the cosmological sciences properly so call ed

,

or the sciences of inorganic matter,and into physiological

sciences,or sciences of organised and living matter. The

second class he subdivides into noological sciences properly so called

,and into social sciences .

Ernest Renan,starting from the principle first pro

claimed by H eraclitus that Nothing is,everything becomes,connects all the sciences wi th the fact of the becoming.

In the order o f reality, he recognises : 1 . An atomisticperiod

,at least one virtually se

,during which pure

mechanism reigns,but which contains the whole universe

in germ ; 2 . A molecular period,during which chemistry

begins and matter already forms distinct groups ; 3. Asolar period

,during which matter is agglomerated in space

in colossal masses,separated by enormous distances 4. A

planetary period,during which in every system there

separate from the central mass distinct bodies whichpossess an individual development

,and during which the

Earth in particular begins to exist as a planet 5. A periodof individual development in every planet

,during which

the Earth in particul ar passes through the evolutions revealed to us by geology

,and in which life appears

,so th at

SCIENCE . 2 13

botany, zoology, and physiology begin to have an object ;6 . The period o f unconscious humanity, revealed to us bycomparative philology and mythology

,and which extends

from the day in which there were beings on the earththat deserved the name of men down to the historicaltimes ; 7 . The historical period , which begins in Egypt,and embraces about 5000 years, of which 2500 are wellknown

,and 300 or 400 of which has given as the

full knowledge of the whole of our planet,and of all

humanity.

1

This system differs from that of Comte and his followers,

because it puts chemistry before astronomy,and makes

no mention of physics. It agree s with Comte’s systemregarding the uselessness of metaphysics

,a science which

can only gather together the manifestations alreadyreached. God is here synonymous with the total o fexis tence ; Heis even more than the whole of existence ,because Hei s the absolute which seeks H imself. H enceit appears that the system of Renan i s only that of H egelturned up side down .

According to H egel,the general exists before the

particular,of which it i s the foundation

,or rather i ts

substance. Science is only the deduction clprimal of allthat is contained in the idea of being. The only scientificmethod is the specul ative method

,which transports us

with a bound into the absolute, and which , starting froma first induction

,descends by a series o f antinomies and

syntheses from the general t o the particular, or fromthe abstract to the concrete

,according to necessary laws .

The Idea is the universal principle,of which things are

manifestations ; and hence, in order to study these intheir source

,it is necessary to consider the idea in itsel f,

which gives the science of logic ; out of itself in nature,which gives the philosophy of nature ; and when itreturns into itself in the spirit

,which is the obj ect o f

1 SeeDela mékzphysiquecteon avenir, Revuedes Deux Mendes, 15thJan. 1 860.

PH I L O S O PH Y O F RIGHT.

the philosophy of spirit : a tripartite division whichcomprehends the whole of knowledge. Logic, accordingto H egel

,is the system of pure reason

,of the truth in

itsel f,the science o f God considered in H is eternal essence,

and independently of H is physical or moral realisation .

It is divided into three parts : the science o f being, thescience of essence, and the science of the idea. Thephilosophy of nature is also divided

,into three parts

mechanics,physics

,and organics

,which are each sub

divided into three sections . This i s the weakest partof H egel’s work, because it is the most arbitrary. Thephilosophy of the sp irit i s also tripartite. The first part

,

entitled subjectivespirit, is subdivided into anthropology,phenomenology

,and psychology ; the second part, which

has for its object objectivespirit, is divided into threesections right

,morality

,and customary practice. Finally,

the third part,whose object is absolutespirit, leads us

to the ultimate developments of the sp irit in art,in

religion,natural or revealed

,and in philosophy. The

history of philosophy and the philosophy of history formthe complement and conclusion of this gigantic work .

Gioberti deduces the whole encyclopedia from theideal formul a. The subject, the idea of Being, givesorigin to the ideal science, that is, to philosophy, whichis conversant with the intelligible, and to theology, whichstudies the superl-intelligible made known by revelation.

The predicate furnishes the physical or natural sciences,

and the miked sciences,such as aesthetics and politics .

The copula which expresses the conception of creationfurnishes the matter of mathematics

,logic

,and ethics

,

which express a mediate synthesis between Being andthe existent

,the intelligible and the sensible ; that is to

say, it furnishes matter to mathematics when we descendfrom being to the existent

,and take in time and pure

space ; and it furnishes matter to logic and ethics whenwe remount from the existent to Being by finding theconceptions of science and of virtue.

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2 16 PHILOSOPHY O F RIGHT.

always more patent,till it was definitely pronounced bv

the Renaissance . I t is marvellous how the popes themselves

,dazzled by the splendour of the restoration of

antiquity,took part in the movement. But it was not

long till men of great genius like Descartes,Pascal

,

Leibniz,and Vico began to show the agreement between

science and religion and this was confirmed by Galil eo,

Bacon,and Newton. In the eighteenth century the

s truggle recommenced,and religion appeared extinguished

for ever ; but we see it rising again from its ashes in thebeginning of the n ineteenth century . The French Convention closed all the universities in France, and then bythe law of the year 2, it renounced all interference on thepart of the State with education, putting teachers, maleand female, under the immediate surveillance of themunicipality

,of parents, legal tutors or curators, and all

the citizens. Then studies began to perish from want o faliment, until a decree of the year 4 established the centralschools : that is to say, in every canton of the republicthere was established one or more primary schools

,whose

directors were to be examined by a jury of instruction ;and in every department there was instituted a centralschool

,whose masters were to be examined and nominated

by a jury of instruction under the approbation of thedepartmental administration . Those cities whi ch alreadypossessed colleges had the power given to them to foundat their expense supplementary central schools and specialschools for the sciences , antiquities, and arts, the arrangement of which was to be regulated by particular laws .And

,finally, the National Institute o f the Sciences and

Arts was es tablished at Paris, and it belonged to the wholeRepublic.This arrangement was found insufficient, and under the

Empire there was created the monopoly of the University,

which substituted the Spirit o f government for the principleof incorporation . The academies which succeededthe provincial universities, and whose limits of jurisdic

SCIENCE . 2 1 7

t ion were concurrent with the courts of appeal,were only

sections of a great administration . Laferriere says thatNapoleon created the University of France from thethought that in our modern society, so sharply separatedfrom the religious corporations

,there was needed a teach

ing body of a lay kind,which should cover with its great

ness and dignity the obscure existences consecrated tothe laborious duties of teach ing. Hewished this body

,

to which he conceded all the guarantees of existence andof jurisdiction

,to be under the immediate action of the

head of the State ; and in consequence he created a GrandMaster

, who was his delegate and his representative, anda council of the University

,which had as its superior in

matters of regulations and of high jurisdiction the Councilof State

,which was often presided over by the Emperor .

This Grand Master was responsible only to the head ofthe State. Napoleon had made the University a branchof the public administration, and at the same time acorporation that was large and strong from its unity ;but in order to give to this his creature a powerful andvigorous life

,he restricted the legal right of families

,and

the right o f religious beliefs and of liber ty. Hemadethe Catholic dogma the basis of the teaching ; and theUniversity

,a glorious monopoly placed under the action

of the government, absorbed in i ts bosom all the privateinstitutions. H is thought is clearly expressed in thesewords which he addressed to the first Grand Master

,De

Fontanes : I wish a teaching body,because a body never

dies,but transmits its Spirit and its organisation. I wish

a body whose doctrine may ’ be safe from the little feverso f the time

,which shall always march although the

government falls asleep,and the administration and

institutions of which shall become s o national that theyshall not be able to be lightly changed .

” 1 By the ordinance of net February 1 8 15, the government of theUniversity was assigned to the University ; but there

1 SeeCour: dedroit publ icet administratif, 4th cd. 1 854.

2 1 8 PH I L O S O PH Y O F R I GH T .

was a long way yet to go before reaching the law of theliberty of the higher teaching, which was passed withdifficul ty on 1 2th July 1 875.

The German universities were founded on the model o fthe ancient University of Paris

,which had been cop ied

from the Italian universities . They are corporations inwhich the State i s represented by a curator

,who supplies

their wants when their special revenues do not suffice.O n account of this aid, the minister of public instructionnominates the professors out of three candidate s proposedby the academic senate

,which is composed of the rector

for the time,the rec tor of the preceding year

,and a certain

number of ordinary professors chosen by their colleagues,

and by the university judge . The university maintain sa correctional jurisdi ction and a police over the s tudents,and this jurisdiction is exercised by the said academicjudge . The faculties regulate their instruction accordingto the best of their judgment

,assigning to their con

stituent members the courses o f lectures that have to bedelivered in accordance with the latest advance of science.The P rivat-docents may choose the subject of their prelections from among the matters belonging to the facultywith which they are connected. The faculties alone h avethe right o f conferring the university degrees

,although

they do it in name of the university as such . The Statein Prussia reserves to itself a special examination calledthe S taatspm

‘

lfung, to which it subjects those who asp ire atexercising a liberal profession. The students are free t oattend the lectures of any professor, and to arrange theorder of their own studies, on the condition of paying theprofessors .A German university embraces many branches of edu

cation which in other countries are relegated to specialschools

,such as engineering in bridges and roads , forestry ,

polytechnic instruction,&c. ; and it possesses also a part

of the normal schools in the se-called seminaries forfuture professors. The Leipsic Senatus states that the

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220 PH I L O S O PH Y O F R I G H T .

tual process . Whatever may be afterwards his profession ,the student in his youth should be the disciple of scienceand nothing else : for the acquisition of a certain scientificmaturity and elasticity of mind is the best preparationfor any profession.

” 1 That is how the question has beenresolved in Germany as to whether the university shouldbe scientific or professional.In Italy the question is still being studied. Some wish

to reduce the universities to provincial institutions forgeneral culture and to professional schools. Thus theywould concentrate into a few institutions of a finishingkind the high culture

,and such institutions should also

have to serve as normal schools . According to this systemthe monopoly of the State would remain in the sphereof the higher instruction which requires large resourcesand exceptional capacities . O thers again would preferto form the universities into corporations, with propertyand statutes of their own

,and with full authority over

the higher studies . In the view of the former, liberty ofteaching consists in the conditions of impartiality grantedby the State to all scient ific O p inion s

,while the latter regard

it as consisting in the absolute independence of the teaching corporations . In the United States of America thelatter system prevails, and it presents no inconvenience,as the State is able to take away from these corporationstheir civil personality whenever they do not fulfil satisfactorily their proper office. In such a system the Stateexamination would be in place as a constant test of theexcellence and efficiency of the teaching .

Besides the universit ies there are other scientific bodies,such as academies, which aim at the advancement of thesciences, which deserve to have a recognised personalityin the State .Posit ivism has tried in our time to make the relations

between science and society closer. Moved by the inconveniences of too great a division of material and scientific

1 F rom his I naugural D iscourseto theU niversity of Bonn in 1 868.

SCIENCE . 22 1

l abour, Auguste Comte, advancing on the footsteps of hismaster Saint-Simon, has sought for the basis '

of a tru espiritual power which only science can lay . A large andliberal education of the youth which should prepare themfor all the professions, arts, or crafts, i s a remedy, but it isnot sufficient . H ence Comte demands the institution ofa distinct power which would impose on all classes

,and

in the whole course of their life,respect for the supreme

rights of general interest. In other words he demands amoral and intellectual authority which might serve as aguide to the opinions of men and enlighten their consciencea spiritual power whose decisions in all questions of greatimportance would be received with the same respect anddeference as the judgment of the astronomers in a matterof astronomy . The conception of such an authority inmoral and pol itical matters would seem to imply thatthinkers have arrived

,or are about to arrive

,at a certain

unanimity, at least on essential points, as in the othersciences . To this the methods of positive science aret ending ; and the uncontested authority which the astronomers enjoy in astronomical matters would in greatsocial questions be common to the positive philosophers

,

who would possess the government of minds under thesetwo conditions : that they should be in their sphereswholly independent of the temporal government

,and that

they should be peremptorily excluded from that government in order to be able to give themselves solely to theguidance of public education.

In no system, however, i s the interference or surveill ance of the State restricted to the higher instruction .

We have already seen how the colleges,which were in

stituted to provide an asylum for poor students,gradually

took on the teaching of the universities,making use of

their professors. During the religious wars,they had

much to suffer, and then they had to bear the competition of the Jesuits. In France

,after the expulsion of

the order in 1762, the University o f Paris again took

222 PHILOSOPHY O F R I G H T .

possession of the colleges, which it opened only afterthe Revolution.

The instruction given in the colleges was not adaptedfor all the citizens

,as is shown by the following words

of Saint-Marc de Girardin . Every time that the courseo f events has given origin to a new society

,occasion is

given for a new education to arise ; for education alwaysforms the social state . H ave you in the Middle Ages asociety that is wholly religious Then the education willbe theological . In the fifteenth century

,society eman

cipates itself, and it becomes secul ar and temporal. Afterthe French Revolution, there is born a new society, acommercial and industrial society, !which demands anappropriate education. O ur education has the defectof being too special

,too exclusive ; it is good for forming

learned men,l iterati and professors who are no longer

theologians,as was the case in the fifteenth and sixteenth

centuries. To-day, weneed merchants , industrialists,agriculturists

,and our education is not fitted to form

them.

” 1

In the course of the eighteenth century variousattempts were made to found school s in which theteaching of things (realities) should be substituted forthe teaching of words. The first of these was institutedby Councillor H ecker at Berlin in 1 747 ; but it failed .

The creation of the Realschulen or Burgersehulen was reserved for our century. In 1 829 Spil lekereorganised theschool of H ecker, givmg it the character which stillforms at present the basis of technical instruction . Hewas the first to understand that such institutions oughtto preserve a scient ific character

,and not to be merely

mechanical and emp irical, and that they should serveas a preparation for the purpose of practical life as thegymnasia do for the se-called liberal professions. England

,

which holds so tenaciously by it s traditions , has had to

1 Del mstruction intermédiareet deson état dans temidi del’Allemagne.Paris

,1 835.

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224 PHILOSOPHY O F RIGHT.

in humanity and rhetoric, and the bachelor’s degree is

conferred.

1

At the basis of the educational pyramid both in Europ eand in America is the primary instruction. Luther wrotea celebrated letter on this subj ect to the municipal counoils of the cities of Germany, which runs as followsDEAR S I Rs

,— Since we daily spend so much on guns

,

streets,highways, &c. , in order to procure peace and

worldly prosperity for a city,we ought for far better

reasons to spend something for the poor you th by keep ingone or two schoolmasters for them. The whole power andstrength of Christianity lies in posterity

,and i f the you th

are neglected it will go with the Christian Churches aswith an uncultivated garden in thespring. There arepeople who serve God with the strangest practices

,by

fasting,wearing a penitent’s shirt, and doing a thousand

other things from piety but they are lacking in truereligion which consis ts also in training the children well.They do lik e the Jews who left their temple to sacrificeon the summits o f mountains . But believe me, it i s muchmore necessary to instruct our own children than to getabsolution

,or to pray and make pilgrimages and fulfil

vows . In my O pinion the authorities should take steps tocompel the subjects to send the children to school .If they can compel heal thy subjects to carry lance andmusket

,to mount theramparts and to perform all sorts

o f military services,how much more ought they to impose

the duties on the subjects of sending their children toschool

,because there is a worse war with Satan to be car

ried on. And if I could or were compelled to give upmy othee of preaching and my other occupations, I wouldtake up no vocation rather than that of a schoolmasteror teacher

,because I believe that next to preaching this

is the most useful , the greatest, and the best callingand indeed I don’t know to whi ch I should give thepreference.1 Cf. H ippeau, L ’

imtructionpubl z’

queaux Etats-Unis, 2nd cd. Paris, 1 872 .

SCIENCE . 2 2 5

We do not wish to take the position of maintainingthat Catholicism i s hostile to the school ; yet it is certain that after the Reformat ion

,and especially since the

French Revolution,it has regarded it with a certain dis

trust ; and whereas in the Protestant schools the masteri s a hal f-pastor

,the teacher in Catholic countries always

assumes more of the lay character.O ught the State to follow the opinion of Luther and

make elementary instruction obligatory ? The Frenchphilosopher Cousin gave his judgment for the affirma

tive in his report to the Chamber of Peers on the lawof primary instruction of 1 833.

“ A law which wouldmake primary instruction a legal obligation has not appeered to us more above the powers of the legislatorthan the law in reference to the national guard

,or

the one which you have just passed with regard toforced expropriation for the sake of public util ity. Ifthe reason of public utility is sufficient to enti tle thelegislator to lay his hands on property, why should notthe reason of a much higher u tility suffice to entitlehim to do less

,namely

,t o require that the children

shall receive the instruct ion indispensable to all humancreatures in order that they may not become hurtful tothemselves and to the whole o f society .

”An absolute

necessity would excuse the legislator for having recourseto coercive measures when he had exhausted all the meansof persuasion

,as would besubsidies to municipali ties for

the founding of numerous schools and prizes for thepoorchildren who attended them . This is the system followedin England

,while in many States on the Continent re

course is taken by preference to penalties . The Articles326

-329 o f the I talian law of 1 3th November 1 859 already

referred to,declared that primary instruction was obliga

tory ; and if fathers , or those who exercise the paternalauthority

,neglected to send their sons to the communal

school,without providing effectively in another manner for

their instruction,they were threatened with being punished

von 1. P

PH I L O S O PH Y O F R I G H T .

according to the penal laws, which , however, had assignedno penalty in particular for this offence. But this isprovided for by the Articles 3 and 4 of 15th July 1 877 ,regarding the obligation of elementary instruction. Thefirst article authorises the syndic to exhort, and thento admonish negligent parents ; and thesecond articl esubjects them to a fineranging from 50 centimes to 10

francs,which may gradually be applied in consecutive

years.

What are the relations which the State ought to maintain between religion and science ? We

,

answer,their

complete independence,but without this degenerating

into hostility. In the preceding chapter wehave seenthat it is impossible to confinereligion within the precinctsof the Church

,and it is equally impossible to exclude it

from the school . Religious instruction ought to be givenin the schools and colleges by the ministers of the Churchof the majority

,the right of keeping away from it being

reserved for dissenting pup il s . In the universities, faculties of theology ought to be maintained with the consentof the ecclesiastical authority

,and chairs ought to be

founded for the principal cults in the S tate . Under asystem of liber ty of teaching

,where instruction is given

at all stages, whether supplied by private individuals or bycorporations, the State should maintain its part as supervisor and custodian of the law,

in order that religion andscience may not commit usurpations.

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2 28 PH I L O S O PH Y O F R I G H T .

of this theory, however, H erbert S pencer does not fail tonote what is special to the beautiful, as he wishes toexcludefrom it all that is necessary or even useful to life,as well as every interested desire . Then returning to hisfixed idea of play, he foresees the abdication o f art infavour of science

,that humble Cinderella hitherto hidden

by the domest ic hearth , but destined yet t o eclipse herproud sisters and to reign as a queen. S trauss, on theother hand

,shows himself l ess severe , asserting that

poetry and music will be able to co-exist with science ,occupying

,however

,the place of religion.

H ow did the beautiful arts arise? Were they animitation

,or a creation ? A poetical writer says that the

forms of the mountains are the architecture of nature ;the peaks

,furrowed by the lightning, are her statuary

the shadows and the light are her painting ; the murmuro f the wind and the waves

,her harmony and the whole

together,her poetry. Art sou

ght to imitate inanimate

nature by architecture , and animated nature by sculptureand painting. Music served as a passage to the arts ofspeech. The end of art is not imitation

,but the repre

sentation of the beautiiul,the revelation of the universal

harmony. Art arouses in us feelings that are calm and

pure,and incompatible with the gross pleasures of the

senses . It elevates themind above the common life,and

predisposes it for generous act ions by the affinity whichreigns between the ideas of the divine

,the true

,and the

beautiful , from which its social influencearises.

Art begins as theinterpreter of thereligious ideas, andexpresses through symbols the relations of theinvisibleprinciple with the objects of nature . The symbol is animage which represents an idea

,and is di stinguished from

the signs of language in that there is a natural and no tan arbitrary or conventional relation between its imageand the representative idea. Thus the lion is the symbolof courage ; the circle, of eterni ty ; thetriangle, of theTrinity. But the symbol represents theidea only on one

ART. 229

side,and is ambiguous in its nature ; nor can it express

that equilibrium between the idea and theform which isthe characteristic note of the beaut iful. Much has beensaid of oriental art as being symbolical by its nature ; butthis was done in the ardour of discovery ; and thereafterit was reduced to its just value.In oriental art H egel sees imagination in the state offerment, or thought which is vague , and confused. Theprinciple of things is not yet grasped in its spir itualnature ; the ideas as to God are empty abstractions, andthe forms which represent H im bear a character that i sexclusively sensible and material. Still immersed in thecontemplation of the sensible world

,and having neither

measure nor fixed rules wherewith to value the reality,

the oriental imagination is lost in vain endeavours topenetrate into the general meaning of the universe

,and

it is not able to use for the expression of its profoundestthoughts anything but gross images and representations

,

in which is manifested the crudest opposition betweenthe idea and the form. The imagination thus passes fromone extreme to another without guide and without purpose

,

and it presents us at the same time with combinations themost grand , the most whimsical , and the most grotesque.H egel likewise finds in the Indian poetry scene s of humanlife that are full of sweetness

,of graceful images and

tender feelings of nature ; but as regards its fundamentalconceptions, the spiritual i s overwhelmed by the sensible .Thus in i t we often find the lowest triviality alongsideof the noblest situations, and an absolute lack of proportionand precision. The sublime is only the unmeasured ; andas regards the basis of the myth

,the imagination , seized

by vertigo,and incapable of regulating the movement o f

thought,loses itsel f in the fantastic , and produces only

enigmas that are void of any element of reason .

H egel shows more severity towards the Chinese art,which he excludes from his E sthetz’cs, for reasons whichwetranscribe from his P hilosophy of H istory.

“Generally,

239 PH I L O S O PH Y O F RIGHT.

he says,this people have a great aptitude for imitation ,

which they have applied not only to the common things oflife

,but also to art. Yet they have not succeeded in reach

ing the beautiful“ Their painting lacks perspective andshading

,and they even reproduce European pictures accord

ing to this method. A Chinese painter knows well howmany scales there are on the back of a carp, and how manyindentations are found on a leaf he knows the variousforms of the trees and the bending of their branches ; buthis dexterity is not founded on the sublime

,the ideal, and

the beautiful.”

Indiahas left us not only her interminable poems,but

also her temples,many of which are hollowed out in the

sides of mountains,and are supplied with art ificial pillars of

wood which imitate the trunks of trees with their branches.Works in beams of wood di stinguish the Aryan peoples.The Semites

,not having forests nor trees fitted for con

s truction,erected monuments with stones well or ill joined

together,and without any cement. The Turanian races

used smaller stones, and sometimes bricks, and they invented cement in order to hold them together.Tradition points to the tower of Babel as the first

monument,and the latest erudition is showing us Turanian

and Semitic races prior t o their division in possessionof those regions which afterwards became Chaldea andAssyria. We may cast a glance on the remaining monuments o f those races in order to follow the progress ofart . In the level plains of India, the temples consist ofsmalledifices which are identical in structure

,and which

are heaped on oneanother in order to attain the desiredmass. Through all the East

,architecture is the art par

excellence; and sculpture is only a vast hieroglyph whichrecalls the at tributes of the divinity. The gods andheroes are represented large

,and the secondary spirits

smaller ; the divinities possess as many heads as theyhave qualities , and as many arms as they have functions.Painting consists solely in coloration

,and is symbolical.

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232 PH I L O S O PH Y O F R I G H T .

aqueducts,and cloacaz, and they invented special kinds o f

edifices, such as baths and amphitheatres .In the Greco-Roman art

,the lines are straight and

sometimes monotonous in their simplicity ; they do notr ise to any great distance from the soil, but constitute asort of horizontal architecture

,or a style in length. O n

the contrary,in Persia the ancient Assyrian architecture

made progress ; its lines preferred to run in curves andshot upwards towards the heaven , forming a sort ofperpendicular architecture

,or a style in height. Some

distinguished authors maintain that the Byzantine artwas descended from the Persian art. The foundation ofConstantinople was a reconquest of the East which hadalready made its influencefelt through Christianity. Theconical form predominated in the Byzantine architecture,and was adopted by the Mussulmans .In the West

,the Churches continued to be bad imitations

of the basilicas of the first Chris tian emperors . The roofwas supported by a framework visible in the interior ;but towards the year 1000

,the model began to be altered .

F or the framework the arch was substituted ; buttresseswere added to the walls to support them

,and the relations

between the elevation and divisions were changed . Theformo f the church was modified into a Latin cross witha large nave

,flanked by two smaller ones . The new

style was called the R omanesque, and it was generallyused in the south down to the fourteenth century. Thenorth was not satisfied with it , and it added to it theogive form and the thousand arrows that seem to dart toheaven. The style of architecture which is improperlycalled the Gothic arose in France in the eleventh andtwelfth centuries along with the Chansons degeste, scholasticism,

and the communes. It was a product of theRoman style as the Arabic architecture was of theByzantine style. The two styles were closely allied .

The ogival had remained a long time in the East in asporadic state, and certainly the great builders of the

A RT. 233

twelfth century did not go thither to get it . The Gothicarchitecture

,however, was an effort of abstraction, and

the archi tects,enamoured of their designs

,weakened the

mass of their buildings.The Renaissance of the ancient literature recalled atten

tion to the still existing monuments of antiquity, andItaly produced a band of great artists who adapted purityof design to mass ive greatness . Society enlarged its basismore and more ; and architecture los t its huetaste, sacrihoing beauty to utility. In sculpture, Greece remainedincomparable

,having reproduced the human form with

greatest perfe ction . It is enough to cast a glance on thesarcophagi of S t . Constance and S t. H elena, discoveredin the excavations of the N omentan and Labican ways,and transported into theMuseum of the Vatican

,to be

convinced of how much Christianity had caused sculpturet o retrograde. These two sarcophagi are in porphyry,and of ros e colour. O n the first genii and angels arerepresented as gathering and pressing the grape ; and onthe o ther horsemen are triumphing over their enemies .The vine and Bacchus serve as a transition to the newmysteries

,whose characteristics are completed by the

representation of corn,sheaves

,and bread. But how

clumsy are these angels and genii when compared wi ththe Dionysuses of the beautiful days of the ancient art,and wha t decline is not marked by these cavaliers oi theage of Constantine ! In the Middle Ages more attentionwas given to expression than to execution

,but this was

corrected by the tenaissance,although in the last works

o f Michael Angelo there i s seen a strong developmento f muscle, which has been fur ther exaggerated by themodern realistic school .

The Greeks began to make use of painting in order togive greater relief to the forms of architecture

,but it was

not long till they also used it to imitate nature, and alsoto reproduce human facts . Coming down the course of

234 PHILOSOPHY O F RIGHT.

ages and arriving at H erculaneum and Pompeu,we find

two distinct elements in painting. O neof these is purelvconventional and decorative, and it is represented by asingle colour and a combination of tones in order toplease the eye ; and the other, which we . shall call naturalistic

,aims at reproducing animated s cenes and complete

landscapes. These two elements seem to be mixed up inthat kind of painting which is called Arabesque, andwhich Vitruvius considered a corruption of art. In thepictures of H erculaneum and Pompeii

,we find perspective

,

well-modelled figures, and a dramati c effect carried evento exaggeration in the mosaics . Visiting the catacombs

,

we find no longer perspective , difference of planes, orwell~modelled figures ; and composition itsel f seems to bewanting. O n the contrary, weobserve an immovablehieratic form

,a tendency to suppress the effects obtained

from the Greeks and from the Gre‘

co-Romans,in order to

attain to naturalism and to painting on the large scale .

This return to the past commenced among the Greeks of theEast

,where it still subsists

,and it also laid hold of those

in the West,where it lasted till the fourteenth century.

All the traditions of ancient art,however

,were not

then extinguished. Duccio of Sienna and Cimabue ofFlorence fixed the ir attention on the ancient designs

,

studying them from the side o f perspective and of anatomy.

R humor says they understood the value of these,and

applied themselves to soften the leanness of those bonyfigures which had been drawn with all possible geometrical rigidity. Giotto

,in order to imi tate nature better

,no

longer varnished his colours with wax,like the Byzantines

and he thus preserved their brilliancy and truthfulness,s o

as,according to Boccaccio

,even to produce illusion by them.

Masaccio gave greater roundness to his figures, and BeatoAngelico of Fiesole gave them more feeling. Leonardoda Vinci acquired the secret of the forms of the humanbody, and he attained that serenity of expression which

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236 PH IL O S O PH Y O F RIGHT.

side of existence in the sense that the action takes theform of an event entirely extraneous to the poet

,and is

completed independently of the human will by an externalfatality. Many of the lower kinds of poetry, such as theepigram

,the ancient elegy

,the gnomic poetry

,the cos

mogonic and philosophical poems, may be considered as

belonging to epic poetry,inasmuch as the idea which

informs them is ‘ expounded in itsel f without the poetunit ing to it his own reflections and personal feelings.Thus we have the expression of a complete fact in theepigram

,or a succession of maxims and sentences in

gnomic poetry having the obj ect of setting clearly fortha moral truth

,or again a description of the great scenes of

nature,a narration of the genesis of beings and of the

cosmic revolutions,and a poe tical exposition of the laws

of the universe and of the first discoveries of science.Lyrical poetry, on the contrary

,has a personal and sub

jectivecharacter. The poet does not relate, but he enj oys,suffers

,and often rebels against the external reality. And

when the struggle is no t limited to complaints; but ischanged into action

,which the various actors carry on

under our eyes,then arises dramatic poetry,which describes

the conflict of human liberty with fate,as in the ancient

dramas,or with the passions

,as in the dramas o f modern

times. O r lastly,it shows us the contrast between the

will and the petty accidents of life which produce no evilbut beget laughter.In order to express its proper conceptions in words

,art

does not always require metre and rhyme,but may even

use the manner of common language. Thus we havethe various kinds of narrative

,descriptive

,oratorical

,and

didactic. The first two are on the confines of poetrywhen they trace out the vicissitudes of the human heart,as in the novel and the romance ; or they depict battlesand other great events

,as in history

,when treated artisti

cally or they describe the various beauties of nature,as

.in travels . Eloquence is excluded by many from the

A RT. 237

beautiful arts,because it has a purpose of utility ; but in

order to attain it,it is often obliged to move the affections

,

and always to connect its ideas in such a way as to inducepersuasion in the minds to which it i s directed

,and this

persuasion cannot be obtained without artistic dexterity.

The same may be said of the didactic kind of composition,

of which we have also essays in verse which both delightand instruct .Summing up, we may say that, in thefiguratearts, the

East distinguished itself in architecture,Greece in sculp

ture,and Italy and the Netherlands in painting. The

ideal of the peoples of the East was supernatural andoverwhelming force

,as revealed in the great phenomena

o f nature the ideal of Greece was man contemplated inall his physical and moral vigour

,as the hero ; and the

ideal of modern times has been the soul , which , withoutdesp ising its terrestrial limits, aspires to heaven . Thusin poetry

,the East has given us the Ramayana

,Maha

bharata,Shahnameh , the poems of Antar, and the Book

of Joh , which all belong to the epopee , and , exceptionally,the Psalms of David, the Indian Sakuntala, and certainChinese dramas. Greece began wi th H e siod and H omer

,

and then produced Pindar and Anacreon,Aeschylus

,

S ophocles , Euripides, and Aristophanes . The moderntimes start with Dante and Petrarca, but find their com

pleteexpression in Shakespeare , Moliere , Arios to , Cervantes, Schiller, Goethe, Lamartine, Victor H ugo, Manzoni ,and Leopardi.

Sounds variously combined were also adopted to express

thevarious affections of the soul . Thus we find amongall peoples musical instruments employed to give thesignal of battle

,to excite the courage of the combatants

,

and to animate all kinds of religious and civil assemblies .Among the Greeks, music was of peculiar importance .Pythagoras invented the three-footed lyre in imitationof the tripod of Delphi. It consisted of three lyre s

238 PH I L O S O PH Y O F RIGHT.

harmonised,the one according to the Dorian measure

,

the other according to the Phrygian measure,and the

third according to the Lydian measure ; and they wereheld together upon a movable base which the playermade to turn with his foot, thereby substituting one lyrefor the other wi thout any one perceiving it .

1 To Pythagoras is also attributed the discovery of the musical proportions

,and the mode of determining the depth or height

of tones by the greater or less rapidity of the vibrationsof chords

,as well as the invention of notes

,although this

seems to belong to Terpander. Music and poetry wereinseparable companions in Greece. Archilochus of Parosis regarded as the inventor of lyrical poetry

,only the

heroic hexameter having been used before him. Heihtroduced the accompanying recitative , which was adoptedby the tragic and dithyrambic poets. The Greek dramawas composed of monologues

,dialogues

,and choruses.

The first two were declaimed , and the chorus was chantedin a measured rhythm. In the time of Aeschylus

,there

were as many as twenty in the chorus,but they were re

duced by a law to fifteen. Every ode was divided intostrophe

,antistrophe

,and epode . The first was chan ted

when the chorus turned to the right ; the antistrophewhen it turned ' back to the left ; and the epode when itstood stil l. The odes of Pindar were chanted in the samemanner ; and all the poets understood music and themselves regulated the chanting of their verses. The Greekswere not acquainted with harmony in the sense given tothis word now

,but they knew how to direct and lead

vocal and instrumental masses.The music o f the Romans was simil ar to that of theGreeks

,and Vitruvius says expressly that musical science

being obscure in itself, remained entirely unintelligibleto those who did not know the Greek language . H orace

1 TheG reeks had besides thetween thePhrygian and theLydian.

I onian measure, intermediatebeT heL ydian measurewas special lytween theDorianand thePhrygian, sweet and voluptuous, and theI onianas also theE o lian, intermediatebewas also pathetic and soft.

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240 PH I L O S O PH Y O F R I GH T .

hundred,such as Miletu s , which spread its colonies over

all the shores of the Black Sea. Taine has put the question : “H ow did they live in such a city ? ” And heanswers it thus : “A citizen worked very little

,as he

usually received his support from subjects or tributaries,

and he was always served by slaves,the poorest of them

possessing a t least one of these domestic servants . Athenscounted four of them for every citizen ; and other cities ,l ike ZEginaand Corinth , possessed some four or hyehundredthousand of them ! O n the other hand the citizen had nogreat need o f being served. Hewas sober

,like all the

refined races of the sou th , and he could l ive on three olives ,a morsel of garlic

,and the head of an anchovy. H is

clothing consis ted of a half shirt,a large cloak lik e that

worn by shepherds,and a pair of sandals. H is house

was a narrow building, badly constructed,and far from

solid. Robbers penetrated into it by making a hole inthewall. It was, however, sufficient to sleep in ; and abed and two or three elegant j ars were its principalfurnishings. The citizen , having few wants, passed hist ime in the open air. As he had neither to serve king norpriests

,he was sovereign in his own city. Hechose h is

own magistrates and pontiffs , and was also capable ofbeing raised to these offices and although but a tanneror a blacksmith, he judged in the courts the gravestpolitical causes, and deliberated in the assemblies on thegreate st affairs of the State. Hespent his life in thepublic square s discussing the best means of preservingand aggrandising his city

,in reviewing its all iances

,treaties

,

constitution , and laws, in listening to the orators, and inperorating himself, up to the moment when he had to goon board to start for the conflict. The young men passedthegreatest part of the day in the gymnasiums

, exercising themselve s in wrestling

,boxing

,leaping

,running

,

throwing the discus, and strengthening their muscles andmaking them supple. They wished to have the body asrobust, as well developed, and as beautiful as possible, and

A RT. 241

no other education has better attained this end . Fromthese habits of the Greeks

,there Sprang quite special

ideas . The ideal personage in their eyes was not t hethinking mind

,or the delicately sensitive soul

,but the

naked body, sprung from a good race, and of beautifulgrowth , well-pmportioned, active, and dexterous. Thismode of thinking was manifested in a thousand ways .In thefirst place

,while the Carians

,the Lydians

,and

their other barbarous neighbours were ashamed to showthemselves naked

,the Greeks threw off their clothes

without hesitation,in order to wrestle or to run . In the

second place,in their great national festivals

,the O lympian,

Pythian,and Nemean games

,i t was the nude man who

triumphed. The youth o f the first familie s gathered atthese games from all points of Greece and from the mostdistant colonies

,prepared by long exercise according to a

particular rule of life and by constant labour for engagingin them ; and there, under the eyes and amid the applauseo f the whole nat ion

,being divested of their garments

,

they wrestled,engaged in boxing

,hurled the discus

,and

competed in races on foot or in chariots. The victoriousathlete in the foot-race gave his name to the O lympiad ;and the greatest poets celebrated it. Pindar, the mostil lustrious lyric poet of antiquity

,has sung only of the

chariot races. When the victorious athlete returned tohis home

,he was carried aloft in triumph ,

'

and his'

strengthand agility became the pride of his country.

” 1

Sculpture was the Greek art parexcellence, architectureand painting serving only as its accompaniments. Thetemple awaited the god who was to inhabit it, and sculpture created for i t the most beautiful form of livingbeings . Painting, so long as it did not acquire an existence by itself

,was reduced to a simple colouring of the

statue or of the materials of architecture . The arts of

articulate or inarticulate speech were developed parallel

1 Philosophiesdc l ’Art , p. 1 02. Paris, 1 865.

VOL. I .

242 PHILOSOPHY O F RIGHT.

to the arts of design and in the great national festivals ofGreece

,athletes

,sculptors

,painters

,musicians

,poets, and

historians were crowned .

The Dorians,the founders of the O lympian games , ex

cluded the contests in music and poetry which took placeat the beginning at the Delian festival and at the O lympiangames . Lycurgus, following the rigorous prescriptions ofthe Dorian genius

,prohibited the beautiful arts

,excepting

music,dancing

,and a s evere poetry. In like manner

,Pytha

goras founded his school on meditation and silence,with

out prohibiting poetry,and leaving a large field for music .

Plato exaggerated the Doric tendency when hebanishedthe poets from his State. This i s how he wrote in this connection in Book III. of his Republic If ever there shouldarrive in our State a man skilled to represent many parts

,

and capable of all kinds of imitation,and should wish to

recite to us his poems,we would pay him homage as we

would to a sacred being who is marvellous and enchanting ;we would say to him that in our State we have no onelike him

,and after having sprinkl ed his hair with per

fumes and adorned his head with fillets, we should sendhim away. In Book X . , he gives his reasons for suchexclusion as follows : We say of all the poets beginningfrom H omer that their fictions

,whether they have virtue

or any other thing as their object,only imitate phantasms

,

and never reach reality . When a painter draws a shoemaker, he understands nothing of his art, and yet whenthe people look at his colour and sketching

,they believe

they see a real shoemaker. Furthermore, in order not tobe accused of hardness and coarseness towards poetry

,we

may say that this accusation about it,is of ancient date

(and here he quotes various passages) . Nevertheless,if imitative poetry (for he admits lyrical

'

poetry) couldprove to us by good reasons that it ought not to beexcluded from a well-governed State

,we should receive

it with Open arms .” With the same rigour,he ex

eludes the Lydian and Ionian measures in music,and

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244 PHILOSOPHY O F R I G H T .

Scipio Afi icanus had as a client and panegyrist, thefamous Ennius

,who was born in Magna G raecia

,and who

imitated the Greeks with some originality. The nationalpoet of old Italy was Naev ius of Campania, who preferredthe Saturnine verse to the Greek hexameter

,and wrote

many popular satires against the patricians , by whom hewas persecuted.

But men like Paulus E milius and the Scipios wereexceptions ; for when Mummius took Corinth , and theking of Pergamos offered him a hundred talents for apicture

,he said : “ There mus t be some thing magical in

that canvas,” and hesent it to Rome . To those who had

assigned t o them the task of transporting the p icturesand statues he had seized

,he said : “ Take care not to

damage them,for if you do y ou shall be condemned to

make them againFashion introduced into Homethe luxury of the huearts

,and wefind in the Theodosian Code that the

emperors were wont to assign rooms in the publicbuildings to painters and sculptors

,both to work in

,and

to exhibit their productions .Christianity radically changed the conception of life by

sanctifying pain,poverty

,humility

,and ugliness . The

artistic opposition between paganism and Christianity isbeautifully expressed in Goethe’s poem

,The Bride of

Corinth .

” Christianity enlarged the basis of society andthe little cell in which the statue of the Greek god wasenclosed, and the portico under whi ch the procession ofthe free citizens wound

,were n o longer sufficient . The

multitude needed an enormous building which they alsoused for civil purposes

,and it was provided with immense

arches and colossal pil lars,which were constructed by

several generations of workmen who believed they werelabouring for the salvation of their souls . With the Renaissance came the alliance of Christianity with ancientart , and it produced}l marvellous masterpieces. Aftert heFrench Revolution the basis of society was enlarged

ART.

anew. a thing unknown in the ancient world,

rendered our habits prosaic ; scepticism made inspiration more difficult ; and the governments, by foundingmuseums

,schools of hueart

,and periodical exhibitions,

undertook to further the arts of design,while those o f

speech were maintained and advanced by the industry ofthe publisher.

C H A P T E R I V

IND USTR Y.

H ITHERT O we have looked at the mental development ofman without taking account of the necessities that surround him. But he cannot apply his mind to worship, toscience

,or to art

,without sustaining his body. The earth

only brings forth when it i s bathed with the sweat of hisbrow. Labour, however, was not a malediction but a rehabilitation . The earth was really cursed only to G ain,

to whom God said : “When thou tillest the ground,it

shall not henceforth yield unto thee her strength.

” Nevertheless the Lord permitted him to build a city

,to which

he gave the name of Enoch,from whom was born Tubal

Cain in the six th generation, who was the instructor ofevery artificer in brass and iron.

”

Leaving the Semitic traditions for th e Aryan traditions,

we hnd that the cultivators and the art isans sprang fromthe thighs of Brahma

,while the priests were brought forth

from his mouth,and the warriors from his arms . Many

centuries before our era,history “ shows us the Pelasgi

spread over all the shore s of the Mediterranean fromE truria to the Bosphorus

,in Arcadia

,Argolis, Attica ,

Latium,and perhaps also in Spain

,where they left every

where indestructible monuments in walls formed of enormous blocks of stone without any cement. We areastonished

,says Michelet

,to see a race that was spread

through so many countries disappearing in history. Itsvarious tribes perish ; thev are absorbed among foreign

246

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248 PH I L O S O PH Y O F RIGHT.

Sicily,who

,with a lamf) fixed on their forehead, penetrated

into the depths of the earth.” 1

Max Miiller expresses the Op inion that the Turanianor Tartaro-Finnic race had preceded the Semitic andAryan races . Wherever these two races penetrated ,they found savage peeples which they exterminated ,but whose memory survived under the representation ofgiants

,of magicians

,or of animals. Some o f these peoples

attained to civilisation ; as the Cushites and the H amitesin Western Asia and in Africa

,and the Chinese in Eastern

Asia. This primitive civili sation had a materialisticcharacter

,with a religious and poetic instinct that was

little developed,a feeble sentiment of art

,a tendency

to elegance and to refinement , a great ap titude for themanual arts and for the applied sciences

,a positive spirit

inclined to commerce,to comfort

,and to amusement. I t

had no political life,but instead of it an administration

so complicated that it has not been equalled in Europe ,excep t in the Roman Empire and in modern times . Thetraces of the Cushite and H amite civilisation disappearedat the contact of the Aryan civilisation

,but the Chinese

form of it still subsists in our day.

Labour supposes property : ( 1 ) in our own facul ties ,and (2) in the matter to which they are applied. This isevident in the case of material labour ; but all doubtwill also cease in regard to intell ectual labour

,whenever

it is considered that the artist is master of the marblewhich he sculptures

,and the writer of the pages to

which he entrusts his ideas,as in like manner the pro

fessor and the physician are masters (at least for themoment) of the attention of the scholar and the body ofthe inval id.

Property, l ike society, i s natural to man as endowedwith liberty . Liberty consists in the full possessionof oneself, in the capability of develop ing the properactivity of one’s own talent

,and enjoying its fruits.

1 s toirc dela republ iqueromaine, c. iii. p. 283.

IND U STR Y. 249

The free man labours,and then possesses. Property

involves the right to labour, to form capital , to exchange,and to donate. As property is not extinguished wi thdeath

,so when a person has not disponed, the positive

law dispones for him according to his presumed will . Inprin ciple

,then

,all men have implicitly the right to use

external things for the rational ends of life . But asthese are not separate external things sufficient for all,society has established rules according to which theindividual may acquire, preserve, or lose the immediatepower over them. The State

,which represents society,

has not dives ted itself on this account of all right of interference, but has always a supreme dominion (dominiumeminens) over property, which it exercises by means ofthe protection

,the guarantee

,and the rule s which regulate

the use of it , as i s specially the case with fores ts andmines. By i ts imposts, it assigns to itself a part ofproperty

,and reserves the right to dispose o f it by

means of expropriation for the public utility. Accordingly the S tate, with its eminent dominion, represents thesocial side of property, and establishes the organic bondthat binds it to the various generations when it determinesthe modes of transmission and of succession .

It was only slowly that this comparatively perfectform of property was reached. The inves tigators ofpositive Law have explored all the corners of the earthin order to find the transitions from one form of i t toanother. It may sufficeto refer to Sir H enry SumnerMaine (Ancient L aw ; Lectures on theEarly H istory ofI nsti tutions ; T heVillageCommunities of theEast and

West) and M. Emile Laveleye(Dela propriété et desesformes primitives) , and to indicate their conclusions .Sir H enry Sumner Maine

,in the works referred to,

shows that the family and ownership of property wereorganised in an identical manner among the old Aryanpeoples from Ireland to India— The population was

divided into clans or tribes whose members behaved

250 PH IL O S O PH Y O F R I G H T .

themselves to be connected by a family bond as thedescendants of a common ancestor. At the head of theclan there were found chiefs

,whom the Irish traditions

called “ kings.” When the clan was numerous,it was

subdivided into groups,whose members were united with

each o ther by a bond of kinsmanship,and subject to a

chie f whom the Anglo-Irish legists designate under thename of capitaeognattonts. These groups correspondedto the Roman gene, to the Greek «

ye’

vog, and to the gentesor eognationes hominum of Germany, among whom,

asCaesar relates

,the soil was divided every year. The

juridical and political unit in the social order was not, asin the present day

,the isolated individual

,but the family

group,denominated Sept, which corresponds exactly to the

Z aclruga, a family community which the Germans moreproperly designate house-eommum’

on. The Sept resembledthose family groups

,societies of companions or frarescheux ,

the confraternities which in the Middle Ages assembledin France in one large house (the Sella) , and whichcultivated the soil in common, and divided its productsamong each o ther. India, even in our day, offers us inthe joint-family, as the English call it, the exact imageof the Cel tic Sept of Ancient Ireland. The joint—familyforms a moral person which acquires property, and hasa perpetual duration like all corporations of mortmain ;and it offers the perfect type of that archaic mode ofundivided enjoyment which is found in all primitiveagricul tural societies. It embraces all those persons whomight have participated in the funeral sacrifices of thecommon ancestor. It resembles the agnat ic family of theRomans

,which comprehended all those who might have

been subject to the authority o f the common progenitor,i f he had been still alive . According to the decisions ofthe courts of justice in India

,no member of the family

has a separate right to any part of the common property,but its products ought to be put in charge , and thendivided according to the rules of an undivided enj oyment. ‘

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252 PHILOSOPHY O F RIGHT.

fruits,he does not think of appropriating the land, and he

,

considers as his own only the objects he has captured orfashioned by his hand. Under the pastoral regime, thenotion of territorial proper ty begins to dawn . It isattached

,however

,only to the space which the herds o f

each tribe habitually range over ; and frequent quarrelsbreak out on the subj ect of the limits of these ranges.The idea that an isolated individual could claim a part ofthe soil as exclusively belonging to himself

,does not yet

occur to any one ; the conditions of the pastoral life areabsolutely opposed to it . At the moment at which theRomans and the Greeks appear in history, they hadarrived at a state of civilisation which is more advancedandmore modern than that of the Germans of Tacitus .They had already passed for a long time from the pastoralrégimethey cultivated corn and the V ine, and nourishedthemselves less on flesh . It was agriculture which furnishedthem with the greatest part of their subsistence. Nevertheless there still remained very recognisable traces of theprimitive regimeof the community. Thus cattle wouldnot have been able to serve as a means of exchange

,had

not the greatest part o f the land been a common pasturage,

to which every one had the right to send his herds andflocks. The two customs are so closely connected, thatthe one cannot be conceived without the other. Withindividual and limited proprietorship I cannot receiveoxen in payment ; for how shall I nourish them ? Ifcattle are used as instruments of exchange

,it may be

inferred from the fact that a great part o f the soil i scollective property.

” 1

Leaving the Greeks aside,we shal l accompany Mommsen

in his exposition of the origin of property in the soilamong the Romans . “Among the Romans the land wasfor a long time common good

,and the ownership of

immovable property is very recent. At first the ownership o f property was limited to the possession of slaves

1 Dela propriétéet do seeformeaprimit ives, p. 4, 151 . Paris, 1882.

IND U S T R Y. 253

and cattle (familiapeeuniague) . Jlfancipatio, the firstand universal form of sale, springs from the ancient periodin which ownership did not yet extend to the earth

,

because it took place only in reference to those objectswhich the hand of the acquirer could seize. The possessionof lands was originally a common possession

,and it was

undoubtedly divided among the different family unions ;only the products were divided according to households.In fact the agrarian community and the city

,constituted

by family unions,were connected by close relations wi th

each other ; and long after the founding of Rome , we stillmeet true communists who lived together and cultivatedthe soil . The language of the old laws shows that richesat first consisted in herds and real rights, and that it wasonly much later that the soil was divided as private property among the citizens. The original land estate wascalled heredium

,from heres, and it contained only two

jugera (about one acre and a third) , a space l ike the extentof a garden

,and little greater than the small field enclosed

by hedges among the Germans. If the two jugera didnot sufficeto support a family, i t received a part of thatcommon land of the tribe or State

,which was the original

agerpublicus, and which gradually grew through the conquests of the kings and of the republic, and which wasvery soon usurped by the patricians . This -usurpationwas the occasion of the struggle of centuries between thepatricians and the plebeians

,till the time of the emperors ;

and to the plebeians it was a ques tion of life. A group offamilies which formed a clan inhabited a village (views orpagus) , the union of clans constituted the nation (populus)or the State (civitas) ; and the State had, as its centre, a

fortified place or a citadel, which was always situatedupon a height.In its development property followed the status of the

persons connected with it . At first th e only proprietorswere the aims optima jure. Their property was called

domin'ium qutritam'

um,and they were able to vindicate

PH I L O S O PH Y O F R I G H T .

i t from any one. The necessities of life compelled therecognition of another species o f property

,called that in

boats, or dommium bonitartum sew naturale,to which the

ancient law did not concede any right of action. Theprae tor supplied this by the actio P ubliciana

,which took

the place in this connection of vindicatio. The citizens nosooner became all equal under the empire, than these olddistinctions disappeared , and the right of property consisted of these three elements : ( 1 ) The right to use thething without otherwise appropriating its fruits , that is,to apply it simply to one’s own use

,advantage

,and enjoy

ment (Jaeutendt) ; (2) the right to gather the fruits produced by the thing (Jaefruendi) (3) the right to drawfrom the thing a utility by changing it , transforming it ,and even destroying it (Jus abutendi) , which , in thejuridical language of the Romans, did not mean to makea bad use of it

,as it is written in the Institutes : expedit

retpublteaenesua reguts maleutetur.

Under these free proprietors lived the cultivators orfarmers and the slaves . The former were also calledrustflct, originarti adsertptit'l t, tngul ltnt , tributarit,eensitz

’

,

words which all 1ndicated a class of men who lived onthe land and were engaged in agricultural labours. Theywere no t slaves they were able to marry at will

,and to

have recourse to magistrates on occasion of grave injuriesto their persons, or in reference to exactions that wentbeyond use and wont. They constituted a part of theestate like the cattle (semi terraeglebaetnhaeaentes) , andthey were not entitled to abandon it under any pretext

,

th e proprietor having a right to reclaim them even fromamong the ranks of the clergy. The fruits of the landbelonged to them

,and they owed to the proprietor only

an unal terable proportion in commodities (redditus annuaefunctionts) fixed by custom. The slaves possessed a

peculium,but it was always at the disposal of their

master.The Germans— as we are told by Caesar, Tacitus, and

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236 PHILOSOPHY O F RIGHT.

come from Germany. Guizot accordingly says : “ H ow

was it possible for those who were living beside a chief whohad become a great proprietor possessed of a thousandmeans of influence, and whose superiority increased everyday

,to preserve long that equality and that independence

which the companions o f the same band formerly enj oyed ?Evidently this could not be. These free men who, afterthe invasion

,still l ived for some time around their chie f

,

were not long in becoming divided into two classes somereceived benefices, and , having become proprietors in theirturn

,they entered into the feudal association ; others,

alway s fixed in the interior of the domains of their ancientchief

,fell ei ther into a condition entirely servile

,or into

that of cultivators work ing a part of the land under obli

gation to discharge certain services or performances .” 1

Three'

centuries had passed from the time of Tacitus,

and temporary possession had become converted intoproprietorship . The first act by which the barbarianinvaders affirmed their power over the conquered Romanswas the part ition of the lands. Thus arose the feudalsystem (feodum, from feor fee, wage, and 0d

,possession) ,

which ruled property during the Middle Ages . H owever,

by degrees, the kings from grands fiefieua: became reallyheads of the nation

,and claimed for themselves all the

sovereign prerogatives. Nevertheless, those thousandabuses did not cease which had confused the persons withthe land

,to the shame o f all the powers of the legists

,

who strove to bring about the triumph of the conceptionof the Roman proprietorship and of absolute monarchy

,

which attributed to the king not the dominiumeminens,

but full proprietorship in the goods of their subjects. I tso appears in this passage in the Instructions writtenby Louis X IV . for the Dauphin : “Everything that isfound throughout the whole of our States, of whatevernature it he, belongs to us by the same title . Y ou oughtto be persuaded that kings are absolute lords

,and have

1 H istoirede’ la Civilisationen France, Lecon xxxiii.

IND USTRY. 257

full right of disposal over all the goods possessed byecclesiastics and laymen so as to use them at any time .” 1

The French Revolution o f 1 7 89 l imited the powers ofthe king

,and removed all confusion between persons and

possessions . In the celebrated night of the 4th August,Feudalism was abolished

,all personal servitude being

made to cease without any compensation,and facility being

given for redeeming every real servitude . By personal serv itude

,says the Instructions of 1sth June 1 79 1 , is mean t

a subj ection imposed on the person,and which he has to

bear only because he exists or dwells in a particular place .The report of Merlin adds : There are abolished withoutpossibility of restoration personal servitudes and the rightswhich are derived from them or which represent them ;that is to say

,such as are not Sprung from contracts of

infeudation or from taxation , and which are due only frompersons independently of all possession of the soil

,and

which have as their basis only the bold usurpations o ffeudalism maintained by the power of the lords of the soil,l egitimated by the law of thestrongest.” 2 These wiserestrictions were set aside by the Legislative Assembly

,

which respected only the rights resulting from a primitiveconcession of the soil

,rights which

,however

,were not

respected by the Convention.

After a long course of centuries , thenotion of propertyreturned to what it was in the Roman Law,

to whichcorresponds

,in the main

,Article 544 of the French Civil

Code,which became Article 436 of the Italian Code, and

which runs as follows : “ Property is the right to enj oyand to dispose of things in the most absolute manner,provided that there is no use made of it which is forbiddenby the laws and the regula tions .Among the other non-Aryan races property passedthrough nearly the same changes . The Mosaic law for

1 HenriMart in,H istoiredeFrancc, droitfrangais, vol. 11. p. 94. Parist . xiii. p. 259, 4thed. Paris, 1854. 1 859.

1 L aferriere,Esaai sur l

’

hiatoiredaVO L . I .

PHILOSOPHY O F R I G H T .

maintaining property in thesame tribes and in the samefamili es

,cancelled debts every seven years

,and com

mended the restitution of alienated lands every fortynine years at the great Jubilee. Among the Arabians ,property consisted in movable objects and in cattle ; andeven in the present day the land in Algeria belongs incommon to the members of the douar or v illage, to whomi t i s distributed by the Cadi. After the MohammedanConquest the lands abandoned by the infidels

,and divided

among the believers, constituted a real individual propertywhich was transmissible by sale, donation , and succession .

The Koran and the Sunna acknowledge full proprietorshipin desert lands that have been rendered fruitful by labour.If any one gives life to a dead land

,

” says Mohammed,

i t belongs to him. Nevertheless,the free proprietor

ship,called mulls

,is an-exception in Mussulman countries.

Fabrics and trees form objects of property,but not the

land that supports them— called emem’

é— which belongst o the S tate

,and is given in simple enj oyment to private

individuals. The Christians are simple tributaries, thehereditary possession of the land belonging to them oncondition of labour and of tribute. O riginally such tributewas assigned to the Arab chiefs in certain given t erritorialcircumscriptions

,which have been erroneously compared

by writers to feus, although , as Renan points out, themost essential element in the feudal system

,the land

,

was want ing in the arrangement.O i the'

nations belonging to the Turanian race,China

has practised all the systems of ownership in propertyfrom complete community to equal division of the soil ;and thi s lat ter arrangement has been carried so far as todemand that every possessor should cultivate his sharewith his own hands, a refinement not yet reached by themodern socialis ts . Nevertheless

,according to Eugene

Simon , formerly French consul in China, a portion of theproperty is inalienable in the case of every family. At

the beginning, this inalienable part ex tended to thirty

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260 PHILOSOPHY O F RIGHT.

was deposited in a common storehouse, and divided amongthem according to their respective exigencies.” 1

Facts,the sons of the free will, had an influenceupon

ideas,the daughters of reflection. Minos and Lycurgus

reduced to laws the Dorian customs that prevailed in theisland of Crete and at Sparta. Pythagoras raised themto a doctrine in the maxim :

“ Everything is commonamong friends .” It is still disputed as to whetherPythagoras wished to found an institute of education forwise men and statesmen

,or set fort h a social ideal. The

first hypothesis is the most probable ; and thus his communion would only have been voluntary

,and limited

to a certain period of life .Plato

,in the Republic, set himself to formulate this

ideal by abolishing individual property and the family.

Hewas not l ong in perceiving that he had gone much '

beyond the mark ; and , wishing to take account of theprejudices and of th e weakness of his c ompatriots

,he

delineated in the L aws the plan of a society less perfectbut more adequate to the ideas of hi s time . H owever,the dream of community of possession always followedhim . H ere is how he expresses it in Book ix . : I declare ,in my quality of legislator, that I do not regard either

yourselves or your goods as your own , but as belongingto all your family

,which with all its goods belongs to th e

S tate. Under the guidance of these principles,he divides

the territory into portions , a number equal to that ofthe active citizens

,that is, of those who have the right to

participate in the administration of the State and to carryarms. Each of these portions is inalienable and indiv isible and they aredistributed by means of the lot. Theuse of the precious metals and borrowing at interest

,as

well as the industrial and commercial professions, areseverely interdicted from the active citizens . The tradesare exercised by slaves under the direction of free artisans

,

1 TheH istory of America, Book vu.

IND USTRY. 6 1

who are devoid of political right ; and commerce is leftto strangers

,choosing out the least corrupt among them.

Every active citizen is to be entitled to transmit at hisdeath to one of his sons the portion of land possessed byhim but the laws are formal ly opposed to allowing morethan one portion to fall into the same hands . The citizensmight possess movable riches up to four times the valueof their lands ; but how were they ever to acquire them,

not being able either to work,or to use monie s in gold

or silver,or to borrow on interest

,or to carry on trade ?

Perhaps by boo ty acquired in war. All the citizens wereto be fed at one table, at the expense o f the State. Inorder to maintain the balance between the number ofcitizens and the portions of the land

,the magistrates were

from time to time to interdict generation ; and if thisremedy turned out insufficient they were to think offounding a colony abroad . As to women

,they are not to

be common as in the Republic but they are to take partin the labours o f the men, as also in the dangers of war.Aristo tle observes that property is an essential partof the Family and also of the State

,because men have

wants,and ought to have wherewith to satisfy them. He

maintains against Plato the utility and the legitimacy ofproperty ; considering it , however, as a fact, the origin ofwhich i t is idle to investigate . The law, agriculture, andbooty appear to h im three modes of acquisition

,equally

legitimate. O ccupancy, even by means of force, seems tohim the useful beginning and principle of property. Andindeed in an tiqui ty

,property could not appear but as a

v iolent fact, protected afterwards by the law,which modi

fied it arbitrarily every day. Nothing was more commonamong the ancients than the interven tion of the Government in the distribution of properties, division of lands,abolition of debts , and the prohibition of any abandonmen to f one’s patrimony. All these provisions which weregardas contrary to right

,were very frequent in the republics

of Greece ; and Aristotle cites various examples o f them .

262 PHILOSOPHY O F RIGHT.

Christianity tempered the rigour of property by charity.

We bring all that we possess, says Justin Martyr, anddivide it with the needy. Everything is common amongus except the women , says Tertullian.

.S t . Peter had

expressly acknowledged the right of property ; for, in thepassage of the Book of Acts

,in which Ananias and his

wife are shown to be punished with death for havingconcealed a part of their possessions

,weread these words

“Whiles it remained, was it not thine own ? and after it

was sold , was it not in thine own power 2The community o f goods was, therefore , entirely yelun

tary,and the Fathers of the Church explain to us how

that riches and poverty exist in order to furnish the richwith occasion for their liberality, and thepoor withoccasion for patience . It will sufficeto cite the passageof th e letter of S t . Augustine to H ilary

,in which he

recalls the fac t that Jesus Christ,in H is answer to the

rich man who asked H im what he should do in order tobe saved

,did not say

,

“ G o and sell all that you have,

”

but only “Keep thecommandments. And he adds thatthe Redeemer

,when Hes ay s that it i s very difficul t for a

rich man to enter into the kingdom of heaven,does not

condemn riches,but the immoderate love of them. Then

,

coming to the text in the Gospel which says,If yewould

be perfect, go and sell all that you have , and give tothe poor

,

”S t. Augustine proves that these words con tain

an advice, and not a precept. Jesus Christ, he says,“ distinguishes precisely between the observance of theprecepts of the law and a more elevated perfection ;b ecause , on the one hand, Heteache s if yewould attainto e ternal life

,keep the commandments ; and, on the

other hand,if yewould be perfect, go and sell all that

y ou have .” Why then

,exclaims thesainted doctor

,

should the rich who do not at tain that degree of perfection, not be able to be saved if they keep the com

mandments ; if they give that it may be given to them,

if they pardon that they may be pardoned ? This attitude

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264 PHILOSOPHY O F RIGHT.

2. Every citizen shall be considered a public man , andmaintained at the expense of the State ;

3. Every citizen shall contribute to the public utilityaccording to his powers

,his talent, and his age ; and by

this standard his duties shall be regulated conformableto the laws of distribution .

”

Rousseau a few years be fore had said that Society isthe universal and sovereign proprietor of all that ispossessed by its members ; and elsewhere he saysagain that the fruits belong to all, and the land tonobody }

Whatever mayhave been the influenceon the French Revolution of Rousseau and the other wri ters of the eighteenthcentury

,such as Diderot

,Mablay, Linguet, and Bissot de

\Varville,who were all opposed to individual property,

yet the Convention put the declaration at the head of theConstitution of 1 793 that property is the right whichbelongs to every citizen to enj oy and dispose of his goods,his revenues

,and the fruit of his labour

,or of his in

dustry.

” Nevertheless,in 1 797 , after the fall ofRobesp ierre,

Babeui founded the Sect of Equals, whose conspiracy wasdiscovered just at the moment when it was about to takeact ion . In their manifesto to the French people i t waswritten that if the Constitution of 1 793 was a step towards equality in fact

,there was needed another revolu

tion,and the last in order t o make all social difference

disappear. May all the arts perish if need be, if only weattain to actual equality. Various projects o f decrees hadbeen designed to bring this desire to effect. We may notethat which instituted national workshops.The unsuccessful attempt of Babeuf was taken up

again by Louis Blane in 1 848. Hehad been precededby Fourier and Saint-Simon

,the first of whom had

developed the idea of attractive labour sketched by SirThomas More

,all the inhabitants o f a State being divided

into so many group s of persons each , which would1 Contrat social, Discours sur l’origlnedel’inégalité. Dijon, 1 751 .

I ND U S TR Y. 265

have to absorb all capital and industries ; and the latterhad taken from Campanella the idea of a supreme head

,

the distributor of labour and of its reward according tothe work done.The last and most violent adversary of property was

Proudhon,who wished to reduce it to an indefinitepos

session . Property,he said

,has a just foundation

,which

is the l iberty of the labourer to posses s thefruit of hislabour ; but property became unjust by becoming capital.O u the other hand

,community

,although i t springs from

a just idea, is the most odious of the forms of injustice ,because it ignores personality. H ow is this antithesisto be reconciled ? The syn thesis is furnished to us bythe idea of mutuality. The ideal society is an associationof free workers who are independent

,who live in families

wi thout any other capital than their instruments oflabour

,and who exchange their products according to

the principl e o f mutual ity,which is thus formulated

“ Equal wages for an equal time of work.

” The Statewill bemadeup of these associations of workers ; andthere will be no idle consumers

,no political government

,

almost no magistrateship or police,except such as shall

be spontaneous,special

,and local . H ence P roudhon’

s

system has taken the name of Mutualism and Anarchism.

There is stil l another system called Colleetivism,which

consists in taking possession (according to some, by meansof purchase

,or

,according to others

,by force) of the

material instruments o f production, in order to put themat the disposal o f the manual labourers .

Let us new cast a glance at the views of those whomain tain individual property. Thomas Aquinas repro~

duced the theory of Aristotle, explaining that property,if not a natural right, i s not contrary to natural right,to which he adds “ per adinventionem rationis humanae,”or by law. Grotius could not rise in regard to propertyabove what was taught by the Roman jurisconsults . He

PHILOSOPHY O F R I G H T .

sees th e origin of it in occupation, and heacknowledgesthe part belonging to work in mobiliary and indus trialaccession.

Locke was the first to find the origin of property inlabour . What is the principle

,he asks

,by which

,

without convention and wi thout the in tervention o fauthority or law

,man becomes proprietor in the universal

communi ty ? This principle, he answers , is labour ; foralthough the land and the lower creatures are common

,

yet every onehas a particular right to his own person .

The labour of his body and the work o f h is hands areundoubtedly his own property : whatever he has removed ou t of the state of nature by means of his toiland his industry belongs to him, for as this to il andindustry are his own exertion , no other ought to appro

priatethe fruits of it , and all the more when thereremain for others similar common things . Headds

,

treating specially of property in land : “ But the chiefmatter of property being now not the fruits of the earthand the beasts that subsist on it

,but theearth itself, as that

which takes in and carries with it all the rest : I thinkit is plain that property in that too i s acquired as theformer. As much land as a man t ills, plants, improves,cultivates

,and can use the product o i

,so much is his

property. Heby his labour does,as it were

,enclose

it from the common . Nor wil l it invalidate his rightto say everybody else has an equal title t o it ; andtherefore he cannot appropriate

,he cannot enclose , with

out the consent of all his fellow-commoners, all mankind.

God,when Hegave the world in common to all mankind,

commanded man also to labour, and the penury o f his

condition required it o f him. God and his reason commended him to subdue the earth

,t . .e

,improve it for the

benefit of life, and therein lay out something upon i tthat was his own

,his labour . Hethat in obedience to

this command of God,subdued

,t illed

,and sowed any

part of it,thereby annexed to it something that was his

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PHILOSOPHY O F R I G H T .

The philosophers also have been inspired by the wordsof Locke already indicated

,namely

,that the labour of his

body and the work of his hands are man’s patrimony.

Labour,says Cousin

,is only a continuous and regular

application of human liberty,or of the active and v olun

tary force which constitutes ourego it is only aprolongedoccupation. Labour makes property sacred, but it is therespect due to the person which renders labour itselfsacred.

1

Kant had already maintained that specification gaverise to a sort of provisory property

,which, in order to

become definite, needed the consent of all the members ofsociety. Accordingly contract, not the respect due to thehuman person , was the origin of the right of property,according to Kant.Fichte held by the doctrine of natural right

,declaring

it to be a personal right of man in relation to nature thathe ought to possess a sufficient sphere o f action in orderto draw from it his means of subsistence. This physicalsphere ought to be guaranteed by the social activity inorder that it may be made profitableby labour. Thusall ought to labour

,and all ought to have wherewi thal to

labour. The younger Fichte, in his System of E thics, sayst hat the right to possess is an immediate and inalienableright which precedes all law . Property is possession conformable to the right guaranteed by the State

,and it is

instituted for the general good . Whence it follows thatthe proprietor is bound juridically to use his propertywell. We shall yet come

,

” he says,to a social organi

sation of property which will lose its exclusively privatecharacter by becoming a true public institu tion. Then itwill no longer be sufficient to guarantee to every one property legitimately acquired

,but it will also be necessary

t o enable him to obtain the property which comes to himas the result of his legitimate labour. Labour is aduty towards oneself and others

,and he who does not

1 H istoiredelaphilosophicmoralecm X VI I ImeS iéele. Lecon v ii.

IND USTRY. 269

l abour does injury to others,and therefore deserves to be

punished .

”

Ahrens, in his Cours dedroit natural, adds that propertyis the realisation of the means and conditions necessaryfor the.development , physical or spiritual , of every individual, in the quali ty and quanti ty conformable to hisrational needs . For every man property is the condition of his l ife and of his development. It is based

.on

the very nature of man,and ought therefore to be con

sidered as a primitive and absolute right,not resulting

from any external act,such as occupation

,labour

,or

contract. As the right i s directly derived from humannature , it is enough to be a man to have a right to aproperty.

It is evident that the three last mentioned authors haveconfounded potentiality with actuality

,and right with its

realisation ; and we reserve for the second part of ourwork on the Subjects o f Right

,th e determination of the

exact limits between the individual and society.

The limitation of the right of property has greatlyexercised the mind of the philosophical political economistJohn Stuart Mill. It is no hardship to any one

,

” hesays

,to be excluded from what others have produced

they are not bound to produce it for his use , and he losesnothing by not sharing in what otherwise would no t haveexisted at all . Mill thus acknowledges a free activityanterior to labour

,and he respects its effects . But his

ideas become less precise when he treats of property inland. T heland he represents as theoriginal inheritanceof all mankind.

“When the ‘sacredness of property ’ istalked oi

,it should always be' remembered, that any such

sacredness does not belong in the same degree to landedproperty

.No man made the land . It is the original

inheritance'

of the whole species. Its‘

appropriation iswholly a question of general expediency . When priva teproperty in land i s not expedient, it is unjust.

”

There are certain things , Mill says , which cannot enter

27o PHILOS OPHY O F RIGHT.

into commerce without necessarily becoming a monopoly,among which is the land , which gives a revenue to theproprietor as the price of his monopoly. Mill would leaveintact theproduce of labour and of capital, but he is ofopinion that the State may and ought to put a special taxon the rental

,which would re store to society the part

which belongs to i t in the individual property . Hewouldgive the proprietors the choice of giving up their land tothe S tate at the current market price

,supposing they were

no t willing to submit to the special tax .

1

O thers again propose the legal redemption of all immovable preperty.

2

It is not surprising if this theory,known as the Nation

alisation of theL and, has been proposed only in England ,where from many historical reasons which we cannot hereenter upon

,the land is found in a few hands

,and where

i t has become almost impossible to acquire it . But theInternat ional

,an associat ion of workmen

,has wished to

extend this operation also to the Continent,where th e

land circulates in the market like any other ware, and iso ftener offered than asked.The conclusion Laveleyecomes to in the work already

referred to,i s more logical . Hewould restore gradually

the primitive village community,which stil l exists in

some of the cantons of Switzerland under the name o fA llmenden. Such property woul d be divided into severalcategories according to the nature of the land

,and would

thus give forest,meadow

,and arable l ands. Every family

would have the use of the“ forest,of the meadow

,and of

a portion of the o ther lands,under the obligation of culti

vat ing it so as to draw from it its greatest possible produce.The partition would be revised from time to time in orderto preserve the l imits of equity

,and to make room for

new famil ies. Thus the potentiality of proprietorship

1 J S .Mill,P ri/ncibles of Polit ical applying such a project to England

Economy, Book ii. 0. ii. in hi s Manual of Pol it ical Economy.

1 SeeF awcet t on thedifficul ty of L ondon, 1 874.

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272 PHILOSOPHY O F R I G H T .

respect due to the human personality,its origin in occu

petion or labour sanc tioned by conventional law,and its

collective or individual form according to the differentstages of civilisation . It now remains for us to considerit under the aspect of quantity and quality. Viewedin reference to quantity, wehave exclusive property, orco-proprietorship (condominium) , according as a physicalor moral person possesses the rights of ownership over thewhole thing

,or over an ideal part of it

,as for instance

a six th,a third, &c. The co-proprietor has all the rights

included in ownership , but he cannot exercise themisolatedly: Under the point of view of quality, proprietorship may be full and whole

,or incomplete and divided.

O wnership is full when all the rights are exercised bya physical or moral person. It is divided when one hasthe right to dispose of the thing and the other to enjoyit

,provided

,however, that it be possible to obtain a

consolidation of such rights,as occurs between the pro

prietor, the usufructuary, and the user, as well as betweenthe dominium utileand the dominium directum inemphyteusis. The Roman laws also admi tted the right ofsurface

,which consisted in the buildings constructed on

the soil, or on the area of a lower story, or in plantingsmade on the soil of another. The right of surface is notfound in the French Code

,nor has it an equivalent in

the Italian Code ; but theory and jurisprudence have retained it and qualified it as a species of dominium utile.In practice

,we hnd that public administrative bodies grant

building areas under the obligation of their restitutionafter an assigned p eriod of enjoyment. The permissionobtained to build on the foundation of another is no longerconsidered as a right of surface. O wnership in propertymay undergo dismembermen ts by necessary or convent ional servitudes, and it may obtain increments bymeans of accession immovable, or movable and industrial.The first arises from alluvion , or by a pie ce of land removed by instantaneous force . The rule of alluvion is

IND USTRY. 273

contiguity, and that of insular accession is proximity,except when this happens by instantaneous force

,in which

case the proprietor of the ground removed preserves hisownership. Movable accession arises from conjunctionor union

,specification,

and mixture or confusion . Whentwo movable things belonging to different owners cometo be united in such a way as to produce a single whole,to which of the two do they belong ? If they can beseparated without perceivable deterioration of the one orthe other

,wi th the right of separation each one regains

his own thing. But it they cannot be separated withoutdeteriorating ei ther the one or the other

,the accessory

follows the principal . But if the accessory thing is muchmore precious than the principal

,the latter follows the

former . Such is the general rule .Industrial property is guaranteed in Italy by the Law

of 3o th August 1 86 8 , which secured the exclusive use incommerce o f distinctive trade-marks and signs. I t isencouraged by the exclusive right which is wont to begranted to discoverers and inventors . The oldest law ofthis kind is the English Statute of 1 623, suggested byLord Bacon . The American colonies imitated the example.The French Law of January 1 7 9 1 followed. It wasadopted in the law now in force of 5th July 1 844 , whichserved as a model for the legislat ive decree of 3o thO ctober 1 859, regarding industrial patents , and it wasextended to the whole kingdom by another law of 13thFebruary 1 864.

Movable property was the first to arise and the lastto be developed . It has been developed by means ofindustry

,man beginning to employ his muscular energy,

then using that o f the animals, and finally directly adop ting natural agents. What a difference there is betweenthe sharpened stake of the savage and the perfectedplough

,between the hollowed trunk of a tree and the

s teamboat,between the spindle and the domestic loom

,

and between the spinning-wheel and the power-loom !VOL . 1. s

274 PH I L O S O PH Y O F RIGHT.

Society feels the benefit of all indus trial progress, andmechanical contrivance promises to reduce man to thesimple director of material labour, making the force s o fnature to labour for him. This beneficent influenceisn ot restricted to the mode of production, but it extendsalso to the consumpt ion of the products

,because as the

products cost l ess,a greater number wil l be able to use

them,and thus industry will not only have abolished

slavery,but it will also abolish misery. Thus the

economist,F . Passy, exclaims :

“ Industrial proper ty,in

stead of taking anything from the fund of the community ,

is just the constant agent which forms this fund ; andthe price when it is freely agreed to

,is not an obstacle

to the exchange of the gifts o f nature, but facilitates itby rendering them accessible to all .”

What are the relations of industry with religion,science

,

and art ? I f in the past religion assigned it a very subordinate place

,yet it did give it a place in the social

organisation in Italy and in Egypt . The collegia opzficumof the Romans resembled the confraternities of the MiddleAges

,when industry put itsel f under the protection of a

Saint. Now that the great factories are substituted fordomestic industry, the intervention of religion becomesalways more necessary . Who knows whether we shall notsee the religious corporations rising again under an industrial form ? Day-nurseries and infant asylums

'

taketheplace of th e domestic hear th in the absence of the mother ;but by what shall these be animated

,if not by the spirit

of religion ? Science,again

,is often occupied with the

interests of industry ; for it woul d return to its rudimentary state without the aid o f mechanics

,physics,

and chemistry . Art adds taste to industry,that special

quality which renders the commonest objects of li fe s ovaluable.The State cannot deny to industry those guarantees

which it concedes to religion,science

,and art

,as it also

c onstitutes a legitimate end of human activity.

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276 PHILOSOPHY O F RIGHT.

not have taken any account of the obligations whichmight have been imposed upon them. The b eads of thefamily were able to undertake obligation for it ; but ithappened very rarely

,and with such formalities, that the

slightest inobservance of them produced the nullity ofthe obligation . Examples are to be found in the history ofthe Roman Law,

which show us how the Romans beganto dispense with onepart of th e ceremonial, and how theother parts were simplified, and how it was allowable topass entirely from them under certain conditions . Thusit came about that certain contracts could be made without any ceremony, and they were properly those onwhich the activity and energy of the social relationsdepended.

The Roman scholars defined the “ nexum as omneguod gerl turper aeset libram.

1 The first useof the nexumwas to give solemnity to the alienation of goods

,and it

then came to be applied to the contract,which was con

sidered as an incompleted sale . When the subject o f thecontract was not to beforthwi th executed , the nexum wasregarded as artificial ly prolonged in order to give time tothe debtor. From the neamm four forms of contracts tookorigin : Verbal Contracts , Written Contracts, Real Cont racts

,and Consensual Contracts. It was only to these

four classes of contracts that obligatory force was given,

and in the case of any of the first three it was necessaryto observe certain formalities , as the simple consent of thecontracting parties did not suffice. In the verbal contracttheetneulumjum

'

s was established by means of a stipulat ion

,that is

,a demand and a reply ; the demand came

from him who received the promise,and the reply came

from him who promised . In the contract by writing aninscription was entered in the account-books of the families

1 NexumManilius scribit omnedentur. H oeveriusesse, ipsum verquod per l 1bramet aes geritur, in bum ostendit , dequo quaeritur.

quo sintmancipi ; Mucius S caev ola, N am idem quod obligatur per libquaeper aeset libram fiant , ut obli ram,

nequesuum sit, indenexum

gentur, praeterquam quaemancipio dictum.

”-VABR.

COMMERCE..

7 7

and on tablets , and in the real contract it was necessarythat the delivery of the thing should be a subject of preliminary agreement.In the course of time Real Contracts were distinguished

into Nominate, as mutuum, commodatum, depositum,pignus,

and I nnominate, according to the formulae , do at dos, do atfactas,facto ut ales, faeio ut facias : many contracts of thiskind receiving such special names aspermutatlo,precarium,

the contracti leaesttmatort'us, which consisted in a commission to sell a subject

,and the contracti lesufiragit, the pur

pose of which was to obtain some favour from the princeby means o f remuneration given to a courtier or to anotherperson of high position who was not obliged by his otheeto perform the act in request.Four Nominate Contracts— mandatum, societas,emptio

fvendz' tz'o,locatio-eonduetto— belong to the class of consensual

contracts,the consent of the parties being sufficient to

render them complete without the need of any formalityand on this account they were derived from the right ofnations (fits gentium) .Besides Contracts there were also P acts in use, which

did not induce civil action . Many of these, however, ohtained civil authority from the Praetors (paetapraetoria) ,from the Imperial Constitutions (paeta legitima) , or somet imes they were immediately adj oined to contracts of goodfaith (pacta adjecta) .The Roman Law has always distinguished O bligation

from Convention . It defined the former thus : Obligatiocst vinculum juris guo necessitateastringz

'

mur ad aliquid

dandum vel praestandum fvelfaciendum vel nonfaciendum ;and it defined the second : Conventz'o est duorum plum:

umguetn idemplacitum consensus. Looking to the origino f O bligations , they were divided into three classes, according as they arose ex eontraetu

,ea: delicto, orex vartis

causarumfigurts.

‘ The last class was subdivided according to the analogy which they have with a contract or adelict into obligations quasi cazeontraetu cl quasiea: delicto.

27 8 PHILOSOPHY O F RIGHT.

They arose from a reason of natural equity acknowledgedby the law

,as when the captain of a vessel binds the

owner,the agent

,the merchant

,&c. The Quasi-contracts

comprehend the carrying on of the affairs of others

(negottorum gestio) , tutory (tutela) , curatory (curatela) , th eacceptance of a succession (addttto hereditatfls) , the ad

ministration of a thing which has accidentally becomecommon or of a succession still undivided , and the payment of a debt not yet due. The Quasi-delicts are actsof negligence which result in harm to others.Some more recent Jurisconsul tsmake obligations springea: facto

,ea; leje, sew caz aequitate, and they include the

contract,as also being a fact

,in the first class .

Among the interpreters of the Roman Law,it will be

enough to refer to Domat and Pothier, who have freedthis part of the Roman Law from the rubbish oi

‘

the past,

and have introduced into it as much of Customary Law aswas necessary. The compilers of the French Civil Codeonly reduced their treatises to Articles.1

According to the French Civil Code,conventions are

obligatory by the simple consent of the parties,without

its being necessary that there be delivery of the thing orthe execution of the act on the part of one of the contractors

,or any extrinsic formality .

2 In principle this iscontrary to the Roman Law

,according to which

,as a

general rule,the consent of the parties is not sufficient to

render a convention civilly obligatory 2,I nst. deObltg .

3,

Contracts are divided in the Civil Code into unilateraland synallagmatte(sensw lato) , according as one of theparties is bound by obligation to the other wi thout that

1 Seein L ocré’

s Législat ion civile, thee, and surrogation without thecommercials et criminel le, thedis consent of thecreditor. T heI tal iancourses o f Bigot, P réameneau, C ivil Code- wholly l 1ketheF renchF avard, Joubert, and Moricault . Codeas regards thematter o f con

V ol. v i. Bruxelles, 1 836. trac ts — requires thenotarial act1 T heF rench Coderequires a only forggdonat ions_ and nuptial

notarial act for donations, contracts deeds.

of marriage, constitutions of hypo

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280 PHILOSOPHY O F R I GH T .

performs them,or certain reciprocal obligations towards

those to whom such facts have brought damage or ad

vantage . The Civil Code in respec t of quasi-contractsspeaks only of the gestio negotiorum, or the receipt o f indebttum. Nevertheless the administrat ion of a particularthing still undivided among several persons who are notuni ted by a social relationship o f contract, when it istaken up without mandate by one of the beneficiaries,presents all themarks of a quasi-contract. The other quasicontracts found in the Roman law are embraced , according to the classification of the French and the ItalianCivil Codes

,in the category of Legal O bligations.

Every human activity may be the subject of contract,as

a prestation may consist either in the prestation of a thingor in the accompl ishment of an act. A contract whichis without a subject

,or which has in view a prestation

that is physically impossible,i s considered as non-existent.

The subject ought to be determined at least in its species,

and it ought to offer some pecuniary advantage to one o fthe two contractors

,without which the execution could

not be demanded in court,as all questions of doing re

solve themselves into questions of giving. Finally,the

subject ought to be licitons,or

,in other words

,it ought

not to be contrary either to moral custom or to publicorder. The cause ought to be true and licitons. Theexistence of the contract is proved by testimonies or bytitles

,according to the amount of the sum and the cir

cumstances in which it was instituted . All the subjectiveconditions requisite for the validity of contracts

,wil l be

treated in the sequel .Almost contemporaneous with the compilation of theFrench Civil Code, Kant was occupied with the classificat ion of contracts from the purely philosophical point ofview “ All Contracts, say s Kant , are founded upona purpose of acquisition

,and are either— A. Gratuitous

Contracts, with unilateral acquisition ; or B. O nerousContrac ts, with reciprocal acquisition ; or C . Cautionary

COMMERCE. 28 1

Contracts,with guarantee of what has been already ac

quired. A . The Gratuitous Contracts are— I . Depositation ; 2. Commodate ; 3. Donation . B. The O nerousContracts are— I . Contracts o f Permutation or ReciprocalExchange

,including— I . Barter ; 2 . Purchase and Sale ;

3. Loan . II. Contracts of Letting and H iring. C. TheCautionary Contracts are— I . Pledge ; 2. Suretyship ;3. Personal Security.

1

Kant’s classification has been retained by H egel,by

Ahrens,and by Gans

,but Gans observes that it does not

contain the contract of Association. Trendelenburg,in his

Naturrecht,has tried to give another simpler Classifica

tion of Contrac ts as follows : In relation to their obj ectsContracts have principally in view either a donation (wherethere is an advantage without a counter-exchange) , or asimple exchange (permutation by prestation and counterprestation) , or an agreement with regard to a commonafi

‘

air (association) . These three Species of Contracts havethis in common

,that they represent originally an agree

ment of different wills. In contrast to these there is aspecies of contract which aims at resolving a pluralityof claims which have already arisen in a commercialrelation , and which consequently tends to a division

2

H itherto wehave used the word Commercein its widestjuridical signification. But it is also employed in a morelimited acceptation

,to indicate the relations which arise

from the Exchange of present or future values,— relations

1 SeeKant’s Classificat ion morefully in t heEnglish translation of

h is Philosophy of Law, p. 1 22.

obligat ionibus repetissecernuntur,et raro quid sanedocent, ub i ab 1llo

jurerecedunt . Nequehoemir

(T . T . C lark, Exceptingt helast contract, which belongs tointernational law,

thesearetheN ominateContracts o f theC ivilL aw. Wamkonig truly remarks :I lli ipsi scriptores si quis eorumdoctrines examinaverit , N IL F EREKrer 1 031s 110114 11 1 R EG ULA S de

andum : 11am sublato certo obliga

t ionum fundamento, quod ipso rum

nego tiorum natura ex juris civilis

sanct ionibus const ituitur, fragmentstantumet inanes definit iones tradinecesseest . Doctrinejuris philos.,

p. 158.

1 Naturrecht , T h. 1 1. c. 1 .

282 PHILOSOPHY O F RIGHT.

which constitute the object of Commercial Law,properly

so called . Such Exchange forms the habitual occupationof certain individuals who buy in order to sell again

,and

it requires to be regulated in a special manner. Thepositive laws

,following the guidance of reason , have

modified in behoof of thesep ersons the rules of certaincontracts

,such as Sale, Location, Mandate, Security, and

As sociation ; and they have created certain special contracts in this connection

,such as the Letter of Exchange

,

Bottomry.and Maritime Insurance. Commercial Sale i s

dis t inguished by the special ity that it can be carried ou tin regard to a thing of Whi ch the seller is not the owner

,

and that the purchaser can obtain compensation at theexpense of the seller when he is not punctual in th eexecution o f delivery. The hire of work in the matterof Commercial Contracts is called Commission

,and has

special rights and duties,as when i t i s applicable to

transports . Mandate is often transformed into a contractof commission

,and the commissioner does not bind the

commi tter,bu t only himsel f

,towards third parties. Com

mercial guarantee necessarily requires a wri tten act afteri t amounts to a certain sum ; and the permission of thejudge is required for the sale

,which has to be carried out

by public auction,except in the case of Banks authorised

by their statutes to rece ive deposits and to give advances .The subject may not remain after valuation in the powerof the creditor

,as is the case with the civil pledge .

The contract of association or society in CommercialLaw has undergone the greatest modifications. In theCivil Law

,certain persons assomated themselves together

without a bond of copartnery,for a particular matter o f

business,— mostly in relations of patrimony

,— and third

parties Were obliged to call them severally before thecompetent tribunal. In Commercial Law

,on the contrary

,

such persons are bound altogether (conjunctim) and forall their goods in such a way that they form a juridicalbeing with a fixed domicile, and the act constituting its

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284 PH I L O S O PH Y O F RIGHT.

the EquitableP ioneers— entered into combination , in orderto obtain the means of living at a cheaper rate. Their planwas to purchase sugar and tea in bulk, in order to sellthem retail to themselves and others at the current prices

,

then dividing the profits among all the members of theassociation at the end of the year. The same principle waslikewise applied to production

,by giving the workmen an

interest in the success o f an undertaking,from a certain

part of their wages being invested in shares. Germanymade a happy application of the co-operative principle tocredit by means of Advance Societies (Vorschuss-vereine) .They soon became People’s Banks ( Volksbanken) , thefounder of which was Schulze-Delitsch

,in 1 851 . He

united industrious operatives into societies,s o that by

paying a trifling sum at entry, and with a small monthlycontribution

,they accumulated reserve funds . The society

then borrowed money at interest under the collectiveguarantee of all its members

,and distributed it among

those who applied for it . In this way every industriousoperative who obtained admission into one of thesesocieties was sure to find the sum which berequired tocarry on his little industry.

The new Italian Code of 1 8 82 allows every kind ofsociety or association to take the co-operative form. But,in order to render these associations accessible to all

,i t

i s enacted that the share shall not exceed one hundredfrancs . To hinder any one who has subscribed for a largenumber of shares from impos ing his own will upon theother members

,the Code interdicts th e holding of shares

to more than fivethousand francs,and it prescribes that

in the meeting of shareholders a vote shall be given toevery person without taking account of the number ofshares held . Finally

,in order to avoid speculations on

’Change,it is laid down that the share s shall be nominated

,

and that it shall not be allowable to cede them withoutthe consent of the council of managers or the meeting ofshareholders, according to the conditions provided in the

COMMERCE. 285

statute. The voluntary withdrawal of members is perw itted, but they remain bound to third parties for aperiod of two years for the operations current

,and up to

the amount of the shares held .

We come now to Contracts of a purely Commercialorigin

,namely, the Bill of Exchange and Maritime Ex

change or Bottomry. In Athens the idea was alreadyformed of a Bill payable to order, and the Le tter of Exchange was not entirely unknown . In a harangue ofIsocrates against Pasion

,we find that a certain S tratocles,

when about to set out for Pontus,preferred to leave a

sum with a young man of that country then residing inAthens

,receiving a letter to his father that he should

pay him it in Pontus,and the banker Pasion guaranteed

the contract. Cicero,writing to Atticus

,asked him if

he should convey a sum to his son in Athens by way ofexchange or in kind . In ancient times

,transference by

endorsement was unknown, so that it is rightly held thatthe Bill of Exchange was invented in the Middle Ages

,

and probably by the Jews . The G erman Law of Exchangedoes not recognise any difference in the legal effects of aBill of Exchange and of a Note payable to order, regarding them both as by their nature ac ts of commerce. Thisprinciple is adopted in the new Commercial Code of thekingdom of Italy of 1 8 82. The Letter or Bill of Exchangeis defined as a commercial obligation to make paymentat a definiteplace and time of a sum to the order, mediateor immediate

,of the possessor of this obligation. O u the

other hand,the Note payable to order is an obligation

to pay at a determinate time a certain sum to the legitimate possessor of the claim . Both are transferred by

endorsation.

Transactions in Bottomry or Maritime Exchange (foenusnauticum) were known to the Romans , and Cato was ableto make large profits by them. In the Contract ofBottomry

,the debtor is discharged from repaying the

286 PH I L O S O PH Y O F R I G H T .

capital and interest if the ship perishes in the course ofthe voyage . O n the contrary, i f fortune favours it, hehas to restore the sum borrowed at “ nautical interest

,

”

which is much higher than the ordinary rate. After theinvention of the compass and of navigation by steam

,the

dangers at sea were greatly diminished, and this contractbegan to fall into disuse.The last of the Commercial Contracts is that of MarineInsurance

,which consists in undertaking the risks that

may be run by a vessel and its cargo during the voyage .By paying a small premium ,

security is given against allaccidents at sea . Marine Insurance has served as a typeto all other kinds of insurance.The merchant is favoured by special privileges in regardto the means of proof at law. Hei s entitled to establishhis proof by the commercial books in which all his obligations are regularly entered, and thes e are valid againsthim as evidence

,and may be used as valid evidence

against third persons,provided they are merchants having

t ransactions with him ; he can also establish his proof bythe books o f public officers regularly kept ; and finally,by the oral testimony of witnesses, without limit as to theamount, whenever the judicial authority believes it con

venient . By making a declaration of his bankruptcy

(which , however, must neither be fraudulent nor culpable) ,a merchant may be released from all obligations to hiscredit ors f Moreover, a majority of the creditors , whorepresent three- fourths of the claims , by drawing up anagreement

,are able to compel opposing creditors to accept

it,and to avert the bankruptcy. A special jurisdiction

,

with adequate knowledge of the commercial usages,will

have to decide all differences that may arise.

It may be asked,What have the other branches of

human activity done for commerce — Even from the mostremote times religion . came to the aid of commerce.Commerce took its start in the wallet of the pilgrim and

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288 PH I L O S O PH Y O F R I GH T .

degrees the ancient Roman cities rose again, first in Italy,

then in Germany along the Rhine,and others were

founded in Flanders and on the Baltic, which were boundin league among themselves. This great movement hadbeen aided by the Crusades, which poured the West uponthe East

,erected a Latin empire at Constantinople which

lasted fifty-four years, and a kingdom at Jerusalem whichlasted eighty-six years. The North carried into I taly itsproducts in wool

,hemp

,flax

, and building timber, in orderto exchange them for the products o f the East . Silk wasraised by means of the few silkworms which two monksbrought in their staffs to Justinian ; and the cultivationof it spread into Greece

,Italy

,and France. N avigation

was rendered more secure by the use of the compas s andthe astrolabe.The course of commerce was disturbed by the foundingo f the O ttoman Empire in the thirteenth century

,and

more than ever by the conquest of Constantinople andof Egypt. The need was then felt to find a new way toIndia and China. The Portuguese succeeded in findingi t by sailing round Africa, and discovering the passageof the Cape of Good H ope

,and they made Lisbon the

emporium of the Eastern commerce. Voyages of di scovery were then multiplied, and Christopher Columbus ,going in search of the Indies by the western ocean , founda new world . Science likewise came to the aid of com

merce. Doria taugh t how to take advantage even of con

trary winds ; and Gal ileo having discovered the satellite sof Jupiter by means of observations on their eclipses

,

showed the way to determine the latitude of any particularplace . Railways and the electric telegraph have nowturned the whole earth into a common market—place.Art did not advance commerce

,but it was greatly aided

by commerce. The Medicis at Florence co-operated bytheir riches in creating many masterp ieces and theFlemish and Dutch schools were really born in thebosomof trade.

COMMERCE. 289

Industry thus furnishes the material of commerce,and

if its first development took place in the East,this arose

from the fact that production,both natural and artificial

,

had its cradle in that favoured land of the sun . Andnow that iron and coal play the principal part in industrial production

,commerce shows its predilection for the

North .

In ancient times the State did not show itself in anyway particularly favourable to commerce any more thanto industry ; but neither did it oppress it with specialburdens

,as it has been shown superabundantly that

customs tariffs were then mere fiscal imposts , The errorsof the mercantile system

,which made wealth consist

principally in the precious metals,generated the probi

bitivesystem,and thereafter the colonial system, which ,

instead of aiding commerce, injured it , as it did notsupply the consumers with all that they desired. Mencame to understand that wealth consisted in all kinds ofproducts and was born of labour ; yet prohibition did nottherefore cease

,but was transformed into protection. It

is only since the first quarter of the present century thatthe State has restricted itself to its mission of guardianship in relation to commerce

,and has been gradually

reducing the customs tariffs to simple fiscal dues.

VO L I .

C H A P T E R V I.

MO RAL I T Y.

IN distinguishing ethics from jurisprudence and moralityfrom right

, weexplained that the former considers theinternal forum

,and the latter the external forum. H ow

ever,we added that the internal ends of morality are the

moving forces of right .” 1 S ociety cannot leave to thecaprice o f individuals the whole o f morality

,although

it i s now accurately distinguished from legal right .H istory shows us public power rising from the house

hold,and in the ancient States various institutions safe

guarded private morality. At Sparta,it may be said that

private life in a manner did not exis t,as the whole time

of the citizens was there regulated. At Athens there wasentire liberty

,but the Areopagus watched over the habits

o f the people,and jealously scrutinised the conduct of

all candidates for public ofiices. At Rome two magistrate s were appointed in the year 444 B.C ., to whomwere entrusted the material and moral supervision andcensorship o f the republic. They watched thepublicrevenues

,drew up the list of the senators and knights

,

marking with disgrace whoever had in any degree forfeitedthe public esteem. Under the Emp ire

,they became in

struments of the rancour of the emperors . By degreesthe Church appropriated the censorship of morals

,and

the ecclesiastical decisions became also of civ il authority .

After the French Revolution,the State became secular

,

and certain great moral principles were formulated into

1 Prolegomena , p. In .

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292 PH I L O S O PH Y O F R I GH T .

were to count on anything else than their own labour.But in the case of sudden and immediate misfortunes agerm o f love has been placed by God in every breast, andin all civilised countries there are not wanting benevolentfoundations supported by common contributions or endowed by rich benefactors

,to which the State has been

ready to grant a civil personality.

The Constitution of the French Republic of 4thNovember 1 848 sought to determine in its preamble therelations of the citizens and of the State in the matter ofbeneficenceas foll ows : The French Republic is democratic

,one

,and indivisible . It recognises rights and

duties,anterior and superior to positive laws. It has as

its principles liberty,equality

,and fraternity and as its

basis the family,labour

,property

,and public order.

Reciprocal duties are binding on the citizens towards theRepublic, and on the Republi c towards the citizens. Thecitizens ought to love their country

,to serve the Republic

,

to defend it at the cost of their l ives,and to share in the

burdens of the State in proportion to their fortune theyought to secure the means of existence by labour

,and in

foresight to provide resources for the future they oughtto cc-0p erate for the common well-being by aiding eachother fraternally

,and promote the general order by observ

ing the moral laws and the written laws which regulatesociety

,the family

,and the individual . TheRepublic

ought to protect the citizen in his person,his family

,his

religion: his property, and his work, and to put withinthe reach of every one the instruction indispensable to allmen . It ought by fraternal assistance to secure the existence of the necessitous citizens

,either by procuring for

them work within the limits of its resources ; or in defaultof the family to which they belong

,by giving aid to those

who are not in a state to work.

”

The commentary on this somewhat too elastic deolaration is found in the General Report presented to theAssembly by Thiers in thesitting of 24th January 1 850 ,

MO RAL I T Y. 293

in the name of the Commission of Beneficenceand PublicProvision. The reporter lays it down as a principle thatthe State is not an abstract and insensible being

,that

there are isolated and accidental ev il s for which privatebeneficenceis sufficient

,but that there are also general

evils which afflict whole classes of citizens which requirecollective and social beneficence. Hemaintains

,how

ever,in several places the spontaneity of such acts of

beneficencc, whether public or private, wishing them tobe free, but co-ordinated as far as possible . In thefirst period of life

,he says

,it is necessary to take up

and nourish the child which the mother abandons fromshame or insensibility

,to succour the mother who has the

courage not to abandon it , to watch over day-nurseriesor in fant homes, to prevent the tender powers of youthsfrom being abused by labour

,to take care if they fall into

crime that the correction shall not become the occasion ofgreater perversion

,and in fine, to protect them in the first

stages o f their l ife. In the adult age, the man is responsible for himself

,and the State can only reserve a good

part o f the public works for times o f crisis,keeping ready

the plans of such works and the means of executing them.

Societies for mutual help are the most appropriate meansof avoiding disasters

,and poorhouses should serve only

for temporary reception of strong men till there is foundwork to employ them. For cases coming under diseaseand old age, provision should be made by hosp itals andhospices

,and especially by banks of deposit in which a

small annual contribution is applied to provide a pension for old age . The reporter wished to see such banksadministered by the Government and constituted on thetontine principle

,that is to say

,that the share of the one

who dies first should go to the benefit of the survivors.Let us see how such ingenious institutions are consti

tuted.Chateaubriand asks : H ow did the ancients do

without hospitals ? And he answers that they had twomeans of getting rid of the poor and of the unfortunate ,

294 P H IL O S O PH Y O F R I G H T .

which the Christians no longer possess, namely, infanticideand slavery. This statement has been found too absoluteby recent writers

,who have remarked that the Mosaic

legislation,with its Sabbatic year and its jubil ee

,was

all inclined in favour of the poor. In pagan antiquity welikewise find consoling maxims, as in H omer

’s verse intheO dyssey, which says that “ guests and the poor areunder the protection of Jove

,

”and in the passage of Cicero

,

beginning hominum caritaset amicitia gratuita,” &c. Theinstitutions of the patronate and of hospitality, the legesagrariae, the leges anonariae, the largitz'ones or congiamla,theepulaeand sportula,

.weredirected to relieve the peoplefrom the ir distress. There were not wanting societies ofmutual help

,such as the ¢pa

'

rpla t at Athens, and the sodalitates at Rome . In the time of H ippocrates the Greekscaused the sick to be carried into the temples of E sculapius

in order to invoke the favours of the divinity and the aid ofhis ministers. At Homethe temples likewise served toreceive strangers who fell sick, and slaves who had beenabandoned by their masters. At Athens , the Cynosarges,an ancient temple dedicated to H ercules, was destined forthe reception of illegitimate children

,who were reared at

the expense of the republic . Augustus granted help toparents with a numerous offspring ; and Nerva wishedthat in all Italy

,orphans should be nourished at the public

expense. In many Greek cities there arose public edifices, named f

yepow oxoyel'

a,devoted to keeping old men

who deserved well of the country ; and at Sardis, the houseof Croesus served as an asylum for old men who hadbecome unable to work . Various laws in the Digestimposed on the cities the duty of consecrating the surplus of their revenues to the support of children and ofindigent old men .

With all this, paganism cannot be called charitable .It deified force, beauty, and pleasure, and held that theunhappy had somehow merited the wrath of the gods.The institutions above enumerated had almost all a

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296 PH I L O S O PH Y O F R I G H T .

attached to the land,cultivated it and fattened it with

their bones,and others

,crowded in the cities, ministered

to the vices o f their masters . The emancipated slavesand their offspring ended by forming the Roman people

,

and in the time of the Gracchi they almost alone filledthe forum. O neday, Scipio ZEmilianus, exasperated bytheir interrogations

,uttered these memorable words :

“ Taceant, quibus Italia noverca est ; non efficietis ut

solutos verear, Quos al ligatos adduxi.

”

Appian describes to us the remedies that werevainl ytried to save the middle class. The following are almosthis words : In the successive conquests of the variouscountries of Italy

,the Romans used one part of the

territory for building cities,or founding in the already

existing cities,colonies of Roman citizens . The part of

the territory of which the right of war had made themproprietors was distributed to the colonists i f it was alreadycultivated

,or sold

,or farmed. But if, on the contrary, it

had been devastated by war,as often happened

,they put

it up to auction in the state in which it was found for anannual return in kind

,that is to say

,for thetenth of

the produce if it was adapted for being tilled,and for a

fifth if covered with trees. The pasture lands were subjectto a tribute in great and small cattle . It was the designof the Romans to increase the Italian race

,which had now

been broken by all kinds of labour,and to procure for

themselves national auxiliarie s . It turned out quite thecontrary

,because all its citizens adjudged to themselves

the greater part of these uncultivated lands,and in the

course of years they were declared immovable proprietorsof them. They acquired often by main force the neighbouring estates , and entrusted their lands

.

and herds tothe management of slaves, the freemen having been oftensummoned to military service. H ence it came about thatthe large proprietors became very rich

,that the rural

districts were populated with slaves,while the freemen

diminished,in consequence of their misery

,the imposts

,

MO RAL I T Y. 297

and the military service,and more than -all

,from the

preference given to the slaves . This state of thingsexcited the discontent of the Roman people

,who saw the

Italian auxil iaries diminishing and their power compromised in consequence of the great multitude of slaves

.

The remedy for so great evils was not easy,since it was

not absolutely just to strip the citizens of their possessionswhich they had aggrandised, improved , and covered withbuildings, seeing that they had enjoyed them for longyears. The tribunes of the people had with very greattrouble got a law adopted which prohibited the possessionof more than 500 jugera of land, and a herd of more thanone hundred in large animals

,and fifty small ones . The

same law had enjoined the proprietors to employ a certainnumber of freemen as overseers and inspectors of theirestates. This law was accepted under the religious obli

gation of an oath , a finehaving been fixed for those whocontravened it . The surplus of the 500 jugera was to besold at a low price to the poor citizens ; but neither thelaw nor the oath was observed. Some citizens to preserve appearances transferred the lands under fraudulentcontracts to their friends

,but the greater number defied

the law.

From the year 260 from the foundation of Rome, theconsul s had begun to buy corn in Etruria and Sicily inorder tosell it at a lower price to the poor citizens. Intime

,Sicily did not suffice, and Sardinia and Africa became

the granaries of the empire . In the time of Caesar, thelegally entitled poor who rece ived tessam frumentam

’

a

were To celebrate his triumph , tableswere spread in Rome

,each with three couches, on which

reclined guests from among the populace and thesoldiers . The Falernian wine was distributed in jars, andthe Chian wine in profusion . Augustus made frequentdistributions of money after the death of Caesar, giving atone time 600 sesterces a head, 400 after the victory ofActium

,and later even 800 . Caesar had reduced the

298 PH IL O S O PH Y O F R I GH T .

tessamafrunwntam’

oeto but under Augustus theyreached the earlier number. The clients under the empirelost their moral character. This is how the Count deChampigny describes them : It is still dark , and the poorman is busy brushing his old toga in order to hasten tothe heights of the Carinae and of Coelius. As the clientof everybody

,he goes to knock at every gate ; he crowds

in the street before the threshold of every rich man,

elbows and reviles his companions in servitude, feelshimself threatened by the rod of the ostiarius, strugglesinto the courtyard

,and by bribing the slaves penetrates

into the atrium, sees passing before him friends of thesecond or third class

,whispers to the nomenclator a name

which that slave mangles,obtains a languid smil e from

the patron, a sleepy glance, a disdainful salute whi ch lookslike a yawn , and as the reward of so much trouble putsinto his basket a little sausage, or the magnificent largesso f twenty-four solidi.

” 1

The true and real beneficencedid not arise till later inthe time of the Antonines

,under the influenceof the Stoic

philosophy, which was in this respect the precursor ofChristianity.

When Jcsus Christ appeared on the earth,the H ebrews

were no longer called Israelites,but Jews ; the kingdom

of Israel had become Judea,and the twelve tribes of the

Promised Land'

werereduced to the single kingdom ofJudah, which was fivetimes conquered, and had becomein the end a Roman tetrarchy. After the Babyloniancaptivity

,the law of the Jubileeand the other Mosaic

institutions which protected the poor were no longer ohserved . Jcsus Christ found the problem of human miseryintact, and Hesought to resolve it by voluntary povertyand the rehabilitation of labour. Voluntary povertywas exercised by giving all

,or part of one’s own goods

to the poor,and by making them common to all the faith

ful by gratuitous loans and by hospitality. The rehabili1 Les Césars

,t . iv. 4th cd. Paris, 1868 .

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300 PH I L O S O PH Y O F R I G H T .

and when at last the great ones of the earth had embracedthe faith of the poor

,then the faith became aristocratic

,

and the riches which had been transformed into povertybecame riches again ; the diaconate was dissolved , and theindividual charity of the first Christians became petrifiedinto the hospital.1 This happened in 325at the Councilof Nicea

,when the Church universal assembled for the

first t ime in all its splendour under the presidency of theEmperor Constantine . The construction of the churcheswas changed in many of their parts

,and the dwelling

house o f the bishop became the episcopal palace. Andthen there arose an infirmary, a leper-house, a hospi tiumseparated from the palace

,under the special direction of a

clerical head .

An asylum,opened at first for strangers

,came to be

destined for the Christian poor, who were aided in it lik ethe strangers

,and no longer succoured at home . The

Council of Nicea in its 90th Article had ordered thebuilding in every city of a public asylum under the nameof Xenodochium. Designed at first only for pilgrims andstrangers

,these Xenodochia were opened at length to all

sufferers,and when they became insufficient for their

purpose, it became necessary to create special hospitiaand thus alongside of the Xenodochia destined forhospitality

,there arose Nosocomia for all who suffered from

disease, P tochotmphig for the poor, Argino m

'

a for incurables

,Brephotrophia for foundlings, Orphanotrophia for

orphans,Gerantocomia for the aged

,P aramonam

’

a forinvalid workmen

,&c.,

&c. A law of Justinian containsthe nomenclature and the regulations of these charitableinstitutions .Justinian recognised the bond which unites beneficence

with religion ; and he placed all the dispositions of thedying under the Special surveillance of the bishops andarchbishops in order that they might see to their beingexecuted. The Canon Law assimilated thegoods of pious

1 SeeMoreau-Christophle, Du problem delamisére. Paris, 1851 .

MOR A L I T Y.

30 ,

institutions with the goods of the Church,so much so

that some writers even came to maintain that they belonged to the Church , thus denying a separate individualityto institutions of beneficence. H ence these institutionsstood for a long time under the jurisdiction of the bishops

,

both on their spiritual side and in the administration oftheir patrimony ; and when any one attempted to withdraw himself from it

, the councils were solicited toconfirm their subj ection . This, however, did not go 011

permanently . The State claimed its share of supervisionin the time which preceded the French Revolution

.We

may refer for an instance to the administration of theT anucci at Naples. After the Concordat

,however

,coun

cils of hospitals were established ; bishops were calledto take part in them ; and they intervened speciallyin the settling of the budgets when they were discussed .

A decree of the lieutenancy of Naples of 1 7 th February1 86 1 , regarding the administration of pious works, abrogated every preceding disposition which excluded thefre e action of the civil authority

,or which prescribed the

obligatory interposition or interference of the bishops .The lawof grd August 1 862 assigned to the provincialcommittees the guardianship of pious works under thehigher supervision of the Minister of the Interior. Inthe most absolute manner

,it re spects their individuality,

leaving every one of these institutions to be administeredaccord ing to the rules established by

.

their founders,or

by old customs.Things have gone quite otherwise in England. In the

time of the Saxons,the island was popul ated by freemen,

proprietors,and soldiers and almost all these were reduced

by the Norman conquest to a state of servitude or nearlyso. But they rose again and succeeded in getting theirprestations in labour and natural things determined ;and then in getting them converted into fixed burdenswhich were not subject to augmentation . H owever, whenpersonal services weretransformed into land burdens, the

302 PH I L O S O PH Y O F R I GH T .

L ord of themanor began to make war on the small proprietors. H aving no longer a right to their services

,he

had no interest in keeping up many vass als ; and thus hefound it more advantageous to have to do with a singlefarmer

,and to limit thenumber of the co-participants

in the pasturage and forests. The high price of wools inthe fifteenth century contributed to increase the pasturelands ; and the breaking up of the small properties hascontinued till our day by means of the EnclosureActs

successively passed from 1 7 10 to 1 843. These lawspermitted the Lord of the manor to appropriate undervarious pretexts the communal property up to more than

acres . Whereas in the Middle Ages and in thesixteenth century the Copy-holders had been despoiledbecause their proprietory titles were in the custody of thefeudal archives

,we see to-day the small powers disappear

ing,not from usurpation

,but by purchase . When a small

holding is exposed for sale,it is almost always acquired

by a rich capitalist,because the expense of examining into

the titles of origin is considerable . Thus the large holdings became compacted , and then they fell into mortmainfrom the law of primogeniture and substitutions. In thefifteenth century , according to Chancell or Fortescue, England was cited as an example to Europe on account ofthe number of its proprietors and the property of its inhabitants. In 1 6 88 , G . King estimated the number o fproprietors at without counting nobleproprietors. In 1 7 86 there were still in Englandproprietors ; but the most recent statistics give only

This number is not to be taken literally,but

it is certain that in England there are whole provincesin the hands of some fiveor six persons . “Do youknow

,

” said John Bright, in a speech delivered atBirmingham on the 27 th August 1 866 , that the halfof the soil of England is possessed by 1 50 individuals, andthe half of the soil o f Scotland belongs to ten or twelvepersons ? Are you aware that the monopoly of property

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304 PH IL O S O PH Y O F R I GH T .

from the bonds which bind it , namely, primogeniture,entails, and substitutions of every kind The law ofprimogeniture is the rul e in successions of immovablegoods, but the will of the testator may change it . It iscommon both to the nobility and to the common citizens .Substitutions now render the title uncertain

,and cause

heavy expense for legal inquiries in cases of purchase .By adopting the principles of the French legislation inmatters of succession, testament, and contracts, propertywould be made divisible

,and the old yeomanry would

rise again without any impediment being caused to it bythe newmethods of cultivation.

1 The peasant proprietoris the true remedy against the proletariate ; and wherethe lands are arable

,association may harmonise the

holding of small properties with cultivation on the largescale.Between the English system of legal charity and thecontinental system of free charity, the choice is notdoubtful . The first is the offspring of special circumstances

,and with these it will cease ; the second; as

embodied in our Italian Law of the 3rd August 1 862,

will gradually resolve the problem of poverty. Is thisindeed possible ? In view of facts wemay at least say thatmechanical invention is promising to reduce man to thesimple director of material labour by making the forcesof nature work for him

,and that if the progress of industry

has abolished slavery, it may also abolish poverty. O n theother hand , instruction will make labour more efficacious,and education will promote economy. Societies for insurance will always tend to confinewithin narrower limi tsthe function of hospital s and other charitable establishments ; and physical misery will cease at the same timeas moral misery.

1 T hebest English jurists advo Amos : An English Code, its dificatecodificat ion, as may beseen by caltées and themodeof overcomingt hetreatiseof Professor S heldon them. L ondon, 1 873.

C H A P T E R V I I .

yusn cs .

THU S far wehave indicated the rules for the attainmentof the principal ends in which the good specialises itself.In so doing, we have objectively determined the at tributions of the individual and of the State

,reserv ing the

consideration of them as Subjects of Right for the SecondPart o f our work. But what would be the use of excogitating those rules without providing in the least for theirexecution

,unless it were only to exclaim with the poet

The laws are there,but who put hands to them

The State provides in three ways for the realisation ofRight : by preventive means

,by commands

,and by punish

ment . It provides against it b y the preventive institutionsof morality, and especially by the police ; it commandsreparation of injuries and indemnities for every obligationthat has not been carried out

,or for culpable negligence

and it punishes every infraction of the social order.The first conceptions o f a rule of right were indicated

in the H omeric poems by the words themis, thcmz’

stes ;themis signifying an assistant of Jupiter. When a kingjudged a cause

,his sentence was regarded as theefl'ect of a

divine inspiration. Grote says that Jupiter himself wasnot a legislator but a judge .Procedure therefore arose contemporaneously with Right,

and it was thus furnished with all the apparatus necessaryto impress the imagination of the people. The judgeformulated in a sentence the juridical rul e which sprangfrom customary Observances

,and he was often assisted in

von. 1. 305U

306 PHILO SOPHY O F R I G H T .

h is function s by,a number o f persons who accompanied

the one who was to be judged in thequality of witnessesor conjuratores. It is disputed as to whether the civil orcriminal tribunals arose first . But the most recent writershave proved that delicts were at first considered as wrongs

,

or as violations of individual rights ; and that i t was onlygradually that the community felt itsel f injured as theprotectress of the social order

,and that it intervened at

first by single acts, and then with general laws . Theprinciple remained intact that in civil questions theinitiative belongs to the individual

,but that the penal

action is essentially public, although in certain cases ofminor importance

,action at the instance of the injured or

damaged party is rendered necessary to set the case inmotion .

1 The consequence is that when this party hasselected the civil tribunal, it is held that he has renouncedthe penal process .Both the civil and penal procedures have as theirobject the reintegration o f Right and therefore they require to investigate facts, to examine evidence, and topronounce a sentence of judgment. H ence the positiveinstitution of justice has established the profession o fadvocates, who assist the parties in presen t ing theirreasons

,and the judges .who pronounce the sentences

.

And as human judgment i s fallible,the decisions pro

nounced may thus be submitted to the re-examina tiono f higher judges, both in regard to the facts in question ,and as to the legal right at issue. There the points ofresemblance between the two procedures take an end

.

In the civil procedure, the subject of dispute turns ona right, or the contesting of a fact which it i s believedmay bring damage. H ence the actio (from agerc injure)raises the question which is developed ciendo fin judiciowhoever opposes the right (reus fin judicio contentas) ;1 T his applies t o sligh twounds, in property, ifcommitted by collateralsjuries, defamations, offences against who do not livetogether.

t hemoral order of families oragainst

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308 PH I L O S O PH Y O F R I G H T .

being divided into classes,the merchants wished also to

have their own special tribunal . And as their demandwas founded on the nature of things, this special tribunalsurvived the Middle Ages . “ There arose two species ofjurisdictions

,

” says S clopis : that of the consuls sent byone State to another foreign S tate

,who had the double

officeof inspectors over all the acts of the nationalcommerce

,and of judges of the merchants their fellow

countrymen who were located in the country where theyresided and the other

,which was also generallv called a

consular jurisdiction,was exercised in the country itsel f

by judges appointed over all causes relating to merchandise. These privil eged jurisdictions were a consequenceof the corporations o f arts and trades which existedfrom ancient times among the Italians.” 1 In F rance

,the

edict of 1 653 already contained d ispositions relating tothe institution

,competency

,and procedure of the consular

jurisdictions. The ordinance of 1 663 added to them thep ower of judging causes rela ting to insurances

,maritime

exchange,and o ther obligations regarding commerce by

sea,which functions were afterwards assigned to the

courts of the admiralty. The decre e of the 24th August1 790 ,

created tribunal s of commerce which judged of allcontroversies relating to commerce both by land and bysea. The judges of the tribunals of commerce, as theconsular judges once were

,are elective both in France

and in Italy. In France,they are elected by all the

merchan tswith letters patent by an absolute majority,

with the intervention of three-fourths of the inscribedelectors . In Italy

,the Chambers of Commerce propose

to the king certain names in the form of a list,and their

number has to be thrice the number appointed . Inappeal

,commercial causes which are supposed to be

already sufficient ly exp iscated, follow the course of civilcauses.The system of proof in civil causes in Italy consists

1 SeeS toria della legislaz ioneitaliana, vol. i. T orino, 1857 .

j U S T I CE . 09

1 . O i written documents. 2. O i oral witnesses in suitsinvolving value to the extent of 500 francs, or in anycase in which there is any beginning made with writtenproof, or where it has become impossible to procure it ;or lastly, where a document has been lost by some graveaccident . 3. O i presumptions or the consequences whichthe law or the magistrate draw from a known fact toan unknown fact . 4. O i the confession of parties. 5. Inthe supplementary oath ordained by the magistrate

,or

the decisory oath offered or referred to by the parties .In commercial causes

,the means o f proof are enlarged

,

the account-books of the merchants,which have been

regularly kept, being admitted to serve as evidence incauses between the merchants

,as well as books of public

brokers,or their s imple notes . But proof by testimony

may be always employed when the judicial authoritybelieves it even against what is written (Art. 44, Comm.

In order to give authenticity to contracts and tojudicial acts

,the Romans introduced the tabelliones and

executores, who were in many respects similar to ourmodern notaries and bailiffs.The subject of penal justice is of a different nature, as

it has for its principal object not the damage or injury,but the discovery and punishment of the one who hasbeen guilty of a wrong act. It is divided into two periods :the first consis ts in the investigation of the proof (t

'

ositio) , and the second in the discussion of itIn the first

,the process is treated according to the inquisi

t orial system ; in the second , the judicial procedure isdeveloped under the form of accusation. The judicialprocedure cannot have place without a preparatory in

quisition ; but the effect o f the latter is limited, as it is

not able to decide anything definitively to the prejudiceof the party under process on its own bas is . H ence themaxim that no one can be subjec ted to a penal condemnation,

except in vir tue of a sentence emanating after asolemn trial in accusatory form. The penal system did

310 PH I L O S O PH Y O F R I G H T .

not reach this perfect form until after a long course o fages

,and until the accusatory and inquisitorial systems

were fused together. The first to appear in history wasthe accusatory system

,which lasted down to the times of

the Roman Empire The principles which it consecratedarethe following — 1 . Every one is free to accuse , but thereis no judgment wi thou t an accusation

,so that

,this fail ing

,

the State cannot proceed . 2. The judge must be freelyaccepted

,and consequently the best judge is the popular

tribunal formed by lot with the right of free challenge.

3. The judge cannot make i nvestigation of himself,bu t

he ought to confinehimself to pronounce judgment onthe proofs advanced by the parties to whom i s assignedthe function of inves tigating and preparing the matter forthe trial .In such a system, the examination of the proofs ought

to be made on the triple foundation of the contradictionof the parties

,whose presence in court is therefore indis

pensable,of the oral or immediate examination of docu

ments and testimonies on the part of the judge whohas to pronounce sentence

,and of the publici ty of the

discussion.

The germs of the inquisitorial system are found in th elast determinations o f the Roman Law. They were developed in the Canon Law by the institu t ion of theinguisitio ex oficio, which , through the medium of theItalian practitioners and the statutory laws

,passed over

into the lay tribunals,and became dominant in the whole

of Europe,except England

,up to the end of the eighteenth

century. The principles by which the inquisitorial systemwas regulated were the following — 1 . There is no need ofan accuser, because the State in name of the social interes tproceeds ea: oficio to the prosecution

,investigat ion, pro

bation, and punishment of the crime . 2. The judge isappointed by the Sovereign of the State with permanentpower, and i s chosen from among the jurists , as he hasto apply the law to the established facts . 3. The judge

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PH IL O S O PH Y O F R I G H T .

give a guarantee of sufficient aptitude for judging inmatters of fact . 3. The written inquisition, being secretand without contradiction

,was adopted as a necessary

preparation for the proofs, as well as the first stage of thepenal procedure ; and the. contradictory, oral, and publicdiscussion

,was recognised as necessary in the case of

sentences of condemnation . 4. The system of legal proofswas abandoned, and the criterion o f free moral judgmentsubstituted for it ; but the liberty of conviction wasl imited within the circle of the proofs taken in legalform.

For the sake of economy,and in order not to lay too

heavy a burden on private citizens,juries are empanelled

only in the case of greater accusations (and in cases o foffences by the press) , and after the sentence of accusationhas been formulated . For the slighter ofi

'ences procedure ist aken without the preliminary adjudicat ion of an accusation

,

and in such cases the same judges pronounce bo th on factand on law. There is , however, a remedy in the way ofappeal

,except in cases of thefslightest offences, which are

punished by a pecuniary penalty.

In all sentences of condemnation there is the supremeremedy of the Court of Appeal

,where the law or the form

o f procedure has been violated . As regards the proof,writings play but a small part in penal case s ; for thedelinquents are interested in not leaving writings to foundupon

,or in destroying them. Accordingly, there i s only

the testimony of circumstances in criminal cases as mattersof fact (generic proof) , or of men regarding the doer o fthe deli ct (specific proof) . The confession of the accusedresolves itsel f into a testimony against himself

,and does

not form a full proof as in civil cases.H itherto we have supposed both parties present at thetrial in court ; but it may happen that the person citeddoes not appear

,and then judgment goes by default

,or

on the contumacy of the said party. The effects of thisare different in civil and penal cases. In a civil case

,the

7 1151 1013. 3 3

defendant may render himself contumacious either by notappointing a legal procurator within the term laid downby the law, or by the procurator he has constituted notpresenting himself at the appointed day to conduct thecause. Judgment will then be given, and the defendantwill always be condemned

,provided the demand of

the pursuer is found according to justice. Nevertheless,

in the first case, which is called contumacy of the party,when it appears that from unavoidable circumstances theparty had not received the citation

,he is granted a longer

time to give in defences on the issues of the case. Thiswill be intimated to him by an officer of court

,and that

he may cause the sentence to be quashed by the tribunalfor reasons which will have to be expounded . In thesecond case

,which is called the contumacy of the pro

curator, it i s supposed that he had no valid reasons tooppose to the pleas in law

,and he will undoubtedly be

allowed to show opposition to the sentence,but in a shorter

term and in a determinate form.

1

The effects of contumacy, under the penal tribunal , aredifferent z— I . This contumacy does not give occasion toopposition in appealable sentences

,because they may be

altered by means of appeal 2. O pposition finds place in

sentences not capable of being appealed in order to getthe cause to be re-examined under a contradictory form, buta second contumacy makes the opposition produced voidand renders the sentence definitive. 3. Condemnation toa criminal penalty is a condemnation pro forma, and itis only civilly effective under certain conditions, but isunproductive of effect as regards the penalty in its

material contents,and falls with the presence of the

accused,either by spontaneous presentation, or as the

effect of his arrest. 4 . Sentences of absolution are val ideven when pronounced in contumacia or in absence .2

1 T hereis no need of a legal pro 9 SeeErrico Pessina, S inopn'

delcurator beforepraetors and tribunals proccdtmmto pmalc. Napoh , 1876 .

o f commerce.

314 PHILOSOPHY O F R I G H T .

Civil sentences are executed on the patrimony oi theunsuccessful litigant, and penal sentences are principallyexecuted on the person of the condemned .

1 This is s obecause the former aim at the reparation of the damageor loss

,and the second punish the offence. This brings

us to investigate the nature o f a criminal act and itspenalty

,and what is the origin of the right to punish .

In the Prolegomena we said that the internal ends ofmorality are the moving forces o f right

,and from this

arises the necessity of their conservation and development. This is not attained by simple precepts, but bymenace or the application of a castigation . The moralorder embraces the totality of our duties towards God

,

towards ourselves,and towards our neighbours . But

ought every violation of duty,or every reprehensibl e

act,to be subj ected to human justice ? H uman justice

,

answers Rossi, can only intervene when theduty violatedconcerns the social order. Now it is evident that theviolation of duties towards our neighbours (including theState

,which

,as a moral person

,represents them) , is the

only one which can injure the social order in one of itsessential elements, namely, the protection of the rights ofsociety as a moral body and of its members. A crime isthus defined as the violation of a du ty to the detrimentof society and of individuals. This definition,

adds Rossi,

errs by being too extensive for the State in order to protect the free development of man can demand onl y thefulfilment of the dutie s which are cc-relative to thoserights for the protection of which it can employ force,that is to say

,of exigible duties . H ence legal crime is

properly the violation of an exigible duty committed tothe prejudice of society and of individuals

,and the

observance of which is advantageous or useful to thepolitical order, which may be secured by a p enal sanction,and the infraction of which may be ascertained by a court

1 Personal arrest in a commercial matter was a penal sanction underciv il form.

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“

315 PH IL O S O PH Y O F R I G H T .

t ion . As to the quantity and measure of thepunishment

,it ought to be proportioned to the evil of the

crime,that is to say

,to the offence and injury it involves .

It has not to be equalised with it , otherwise this wouldbe falling again back into the led: talionis ; and suchpropor tion ought to proceed in a ratio compounded ofmorality and utility. Such a proportion is what hasbeen appositely called by Vico the geometric measureproper to rectoral justice

,that is

,a measure conformable

to the merit or demerit of the persons to whom it is shownthat the punishment pertains

,and not thearithmetical

measure which is proper to equalising or commutativejustice

,which renders to every oneequally his due .

In order to attain this end,the punishment ought to

be moral,personal

,divisible

,easily capable of estimation

,

reparable or remissible,equitable or satisfying

, exemplary, reformative, and sufficient . The relationship o fthe punishment to the crime is thus wholly a truth ofintuition which awakens an echo in the conscience . Thefaculty of reflection ought therefore to lend an ear tothe revelations of the conscience

,to compare them with

each other,while eliminating the disturbance produced

by the too excited passions,and then to giveconsiderat ion

to the social danger in order to determine what oughtto be the degree of severity. Beginning from the gravestcrime, it will be easy to descend gradually to the lightestcrimes . It follows that death cannot enter into thecatalogue of punishments

,as it is neither reparable nor

reformative,and as it extinguishes instead o f diminishing

the human personality .

Before applying the punishment,it is incumbent to

consider the degree of imputability in the doer,and the

objective evil . If he acted in defence or under theimpulse of an irresistible force

,beis exempt from any

punishment,as he has a justification for what he did .

If he was infected by mental disease,frenzy

,lunacy

,or

intoxication,his responsibility vanishes ; and if he yields

yusrzcs .

to provocation it diminishes ; and hence arises the theoryof excuses. O ur positive law is not satisfied with thisgeneral estimation of imputability, but admits an estimation quite special to the individual doer under the designation of extenuating circumstances , which have theeil’ectof lowering the punishment by certain degrees .With regard to the objec t ive evil , the crime may be

attempted, frustrated , or consummated , and the punishment increases in proportion unless the party desistsvoluntarily from the criminal act . O u these considerations

,there is founded the theory of tentative crime and

its various degrees.Sometimes several wills are united with the object of

committing a crime. This wrong association aggravatesthe moral evil and often also the objective evil

,the first

being produced not in one, but in several will s , and thesecond becoming more easy, more inevitable, and often ofmore gravity

,from the concurring of many forces directed

to a guilty end . Finally, the falling again into crime isan indication of a depraved mind , and threatens greatersocial danger and hence repetition and relapse into crimeare more severely punished.Such are the principles to which criminal law has

attained. The question now arises as to whence criminalright takes its origin . We have already said that at firstcrimes were considered as private affairs, which weretreated mostly as the subject o f composition. But itwas not long till society felt itself injured in each of itsmembers by such deeds

,and hence arose the judiciapopul z

'

and guaestt'

ones perpetuate. Punishment was establishedaccording to the crime, and it was avoided by the accusedbefore it was pronounced if he preferred to go away in tobanishment or, in other words, to renounce the benefits ofthe civil association. At the beginning, therefore, socie tyestablished a compensation with the view of turning asideprivatev engeance ; and later, it used punishment in i tsown defence

,that is to say, with the view of preventing

318 PH I L O S O PH Y O F R I G H T .

crimes,obliging the criminal to expatriate himself

,if he

was not willing to submit to it and finally, it looked tohis inward amelioration . The penal doctrines were developed in consequence and there were some who derivedthe right of punishing from vengeance, such as MarioPagano

,and o thers from the need of social defence

,as

Beccaria. R omagnosi holds that punishment has not asits object to take away an evil that has been already com

mitted or to re-establish morality,or to exact a useless

vengeance,which would be a second crime

,but that its

aim is to repress the criminal impulse by means ofexample , and that the punishment ought to berelated toi t in its quality and its measured quantity. The BavarianFeuerbach

,exaggerating the doctrine of impulse and

counter-impulse maintained by R omagnosi, supposes thatall crimes result from deliberation or calculation and heproportionates the punishment no t by reference to theevil deed committed, but to future and probable deeds .Bentham maintains without ambiguity that virtue is agood on account of the pleasures which it procures ; thatvice is an evil on account of the pains which follow from

it ; and that right properly so called, is the creation oflaw properly so called. As to the actions which lawabstains from ordering or prohibiting, i t confers the positive right to do them or not to do them

,thus entitling us

to remain standing or seated , to eat or to fast, &c. ; never

theless we have the exercise of these rights fromthe lawwhich raises to a crime any interference which wouldhinder us from doing them as we please . In order to

find the real origin of the right of punishing it is necessary to go a considerable way back.

Plato was the first to recognise the expiatory elementof punishment. If justice ,

” he says in as many words,

i s the good and the heal th of the soul,as injustice is its

disease and shame , chastisement i s their remedy. Chast isement is n ot a greater evil, which is added to injustice,and heaps up its measure ; it is a good, painful it is true,

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320 PH I L O S O PH Y O F R I G H T .

chastisement,which had been till then the only end of

the law,there was now found repentance for the evil deed

and the means of no longer falling into it again. Thisbeautiful idea

,after much time and many attempts

,was

thus changing into a vast system under the name ofpenitentiary reform. It tended to make crimes be treatedas infirmities , and the culpable ones as di seased subjectswhose fury might be subdued in solitude

,i f they had been

impelled to the evil deed by the violence of their pas sions ;and i t aimed at correcting their vicious habits by the aidof labour

,if they had come to them through idleness and

to enlighten their minds by means of instruction,if ignor

ance had led them astray. By this last improvement,the law from being vindictive had become just

,and from

being just it became charitable and it completed the artof punishing by the art of healing.” 1

The penal system thus became a penitentiary system,of

which Livingston in America was one of the principallegislators . Hesought an intermediate way between theregime followed in the prison of Auburn

,which isolated

the prisoners during the night and made them labourtogether but in silence during the day

,and the regime

adopted in the prison of Philadelphia,which isolated the

condemned day and night, obliging them to labour intheir cell s. Livingston proposed special prisons for thoseunder trial , o ther prisons as houses of correction for thecondemned who have not yet attained the age of eighteenyears

,penitentiary prisons for the condemned who were

older,and lastly houses of refuge and labour for those

who have been liberated. There would thus be places ofcustody before being judged, penal hospices where curewould be reached

,and houses of convalescence to be used

for passing from the regime of the moral disease (in theprison) to the regime of cure (in society) . For those whohave relapsed into crime, he proposes in every case per

petual imprisonment.1 Mignet , N oticesur L ivingstone. Paris, 1 8 72.

? US T I GE .

3“

Experience having demonstrated that prolonged isolationi s injurious to the body and mind of the condemned

,

other modifications have been sought in the Croftonregime , which has been also called the progressivesystem . Professor Prins describes it in the followingterms The Crofton regime , as practised in England ,includes successive stages . The first stage is the cellregime, and it lasts nine months . At theend of this time

,

the second period commences. The cell regime continuesduring the night and during meals

,but work is done in

common. This stage i s characterised by the system ofmarks. Good conduct, zeal in work, and activity in theschool are valued at so many good points

,which by degrees

may bring the prisoner on to the third stage,or to the

intermediate house, of which the type is Smithfield andLusk in Ireland . The prisoners there sleep in cells

,but

in the day they go by detachments of fifty men to workin the open air

,and particularly under the supervision of

overseers,they apply themselves to the work of clearin

g

lands. At the end of this period they receive their ticketof—leave as a ticket of conditional liberation . The pivoto f the system is the appreciation o f the conduct of thecondemned by the number of marks obtained . In proportion as he receives more points

,his situation is ameliorated.

It is therefore a regime of encouragement which stimulatesthe initiative action of the condemned, and puts their futureinto their own hands

,by allowing them to abridge their

punishment by labour and good conduct.” 1

The small resul ts obtained by thepenitentiary systemhave attracted the attention of certain other criminalists ,and this has given origin to a new school. Emile deGirardin

, O dilon Barrot, and Alfred F ouilléein France,Cesare Lombroso

,Enrico Ferri

,RafiaeleGarofalo, and

Alessandro L ioy in Italy, have taken account rather o fthe delinquent than the crime. By means of anthropology,they believe that they have found physiological characters

1 Criminal ité ci réprcsaiomp. 152. Brnxelles, 1886.

VOL. L .

X

322 PH I L O S O PH Y O F R I G H T .

corresponding to the criminal inclinations. Invoking theDarwinian doctrines of heredity and evolution, they havedefined the criminal as a contemporary savage. The incorrigibility of the criminal ,

” writes Alessandro L ioy, isone of the postul ates of the new school. When the crimeis no longer the absolute effect of the will

,but the result

of an abnormal organism, what wonder is there if sometimes the crime turns out to be incorrigible just as certaindiseases are incurable

” 1

After having destroyed the criterion of imputability,there remains to the new school only that of liability tofear

,the responsibility increasing with the power of hurt

ing. Punishment is reduced to the elimination of theculprit by death , imprisonment, or deportation . Garofaloexclaims : “Examine the precedents o f the criminal

,his

hereditary and acquired sentiments together with thedamage done by h im, and you will know to what degreeyou will be able to eliminate it .

” It is true that thenew school d ivides delinquents into two classes : habitualcriminals and occasional criminals . It shows itself inflexibletowards the former, whom it calls born criminals,”and it goes so far as to declare in the words of Garofalothat no thing hinders the treatment of the insane as instinctivedelinquents. It shows itself more mild towardsoccasional delinquents, whom it still believes susceptibleof adaptation to the social environment . These ideas werenot foreign to the voting of the French law of 27 th May1 8 85, on habitual criminals, and the law of 14th Augustof the same year, on the means of preventing the repetition of crime.Justicehas great efficacy in promoting the attainmentof human ends . It is both an end and a means at thesame time : it i s an end in so far as it pursues the equalpartition of th e good ; and it is a means in so far as -itsecures it by force. Those authors who dehne right asthe totality of the conditions necessary for complete human

1 La nuova scuola penale, p. 26, z ud cd. T orino, 1 886.

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324 PHILOSO PHY O F R I GH T .

livel iest Splendour ; they were almost a national institution . Nevertheless, Greece owed her independence onlyto the rivalry of the peoples who surrounded her. Nosooner had Rome absorbed them than Greece became theprey of the conqueror .

“Rome is considered as the fatherland of morality and

of right . So we have the juridical maxim ° H onestevivere

,neminem laedere, suum cniquetribuere. The

Roman legislation has been adopted by all peoples, andit has deserved the epithet of “written reason.

”

By the cradle o f modern Europe, we find the Churchconverting the barbarians in order to initiate them intocivil life. In the universal disorder

,the Church acquired

great power ' but when,at the end of the eleventh century,

she tried to subject society to the clergy,the clergy to the

papacy, and Europe to a vast theocracy , her attemptsproved vain . The modern world is composed of hetero

geneous elements which need to be harmonised by eachonebeing accorded its own legitimate sphere of action .

We have endeavoured to determine that sphere of actionin this first part of our work.

And now that'

weknow the goal,we are able to seek

out the way to attain it and this will formthe subjecto f the second part of this work.

S UMMAR Y O F TH E F I R S T VO L UME .

P R OLEG OMENA.

H ow human knowledgeis attained. T heAbsolutemust besought under the relative, and the Divineor human Ideasunder thefacts generated by them. The ancients regardedthings from this doublepoint of view,

from the ideal andreal aspects, as is seen by Plato andAristotle. Christianitytook

.

up the point of view of Plato ; but it understoodhumannature better, and subordinated the real to theidealwithout suppressing it . The modern period began with acertain disgust at themoral sciences ; attention, however,did not continue to bevery long absorbed byexternalnature. After themoral sciences were awakened BossuetandVico 011 the onehand

,andAntonio Serra on theother

,

determined the principal directions of human activity.

Till then,practice and specul ation wereisolated from each

other, but therelations among thepeoples becomingextended

,theinfluences which ideas had exercised on facts

by means of revolutions werebetter valued. Both inpublic and private right, theory has beenelevated according as history has presented a new sideof thehumanrelations. A scientific treatment of right cannot becarriedout without investigating thefirst principleonwhich themoral and juridicaledificeis based, and this investigationforms the subject of theP rolegomena or Introduction, whichis naturally divided into threeparts : Metaphysical Speenlation ; Ethics or Moral Philosophy ; and Jurisprudenceas the philosophy of right 1 - 8

326 SUMMARY.

Mnmrnrsrcar. SP ECU LATIO N.

The principal difficul ty which phi losophy encounters lies in itspoint of departure and its method. H ardly had manfixed his look on theexternal world and upon himselfthan sensation and ideas captivated his attention. Amoment of discomfort produced scepticism,

and theneedof faith led to mysticism. We find in thehistory of

ph ilosophy the names of o ther systems than Sensualism,

Idealism,Scepticism

,and Mysticism

,such as Material ism

,

which is a simplemodification of Sensualism,andPantheism,

wh ich admits theunity of substance, but which it iseasyto reduce to I deal ism if the sole substanceis conceived as

I dea,or to Materialism if it is conceived as matter. The

same may be said of the Positivism now in vogue, whichis only a maskedmaterialism 9

— 1 0

A considerable part of theEast did not advance beyondsymbolism and a species of theology. Philosophy beganin China and India. China believed from theoutset inspirits wh ich symbolised thevarious forms of nature, andthen in the heaven (T ien) , theorigin of all things. In

thesixth century B. C .,Confucius extracted a sort of

practical philosophy from the ancient sacred book s calledKing. Mencius

,his disciple, formulated a sort of mystical

pantheism which savours oi theinfluenceof theIndianphilosophy. Lao-tseu

,a rival of Confucius, sets out from

a v oid unity,theT ao , from which all beings have their

origin, and it seems to havenumerous relations with thePythagorean and Platonic Ideas as they were understoodin theSchool of Al exandria. In India philosophy beganwith the simpleinterpretation of theVedas. Pantheisticidealism predominated

,but it was not unaccompaniedwith

Sensualism,Scepticism, andMysticism 9

— 1 2

In Greece, thought roseto a great height. Sensual ism was

represented in theI onic School,and I dealism in the

Pythagorean and I tal ic School. T hedialectic of theSchool of Elea ceases to bea logical instrument, and becomes in Plato thevery law of themovement of I deas.Aristotle explains theformation of ideas by means of two

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328 SUMMARY.

Bacon are connected H obbes, Gassendi, and Locke thefirst applies theexperimental method to politics

,the second

to erudition, and the‘

third to metaphysics. FromDescartesdescendMalebranche, Spinoz a, and Leibni z . Vico was thetruerenovator of ph ilosophy. T hehuman mind sees allideas in G od, who generates ad intra and creates adextra.

This is a new step taken by thePlatonic doctrinebymeansof theprincipleof creation, which unites the divine tothehuman 31

—39

T hemovement, initiated by Bacon and‘

Descartes, was carried

T he

out in theeigh teenth century by thematerialism of H olbachand Lamettriein F rance

,and by thescepticism of H ume

in England. T heS cottish School sough t in vain to overcomethem by thedoctrine of common sense. Kant sawacutely that on theonehand thecontingent concretecannot bethough t without thegeneric, and that on theo therhand thesubjectivity of thejudgment canno t be harmonisedwith theobjectivity of theidea. But instead of conjoiningthegeneric and concrete absolutewith theperception and

objectivising thejudgment, hesubjectivised theidea,denied perception thepower of grasping thecontingentconcrete

,and reduced all cognition to thegeneric element

alone,which

,when theconcrete is subtracted

,could have

no o ther than a subjective value. Fichteheld that sinceweknow only what is produced by our thought, only theEgoexists, and it ought to be conceived as absolute

,and in

v irtue of its unlimited energy it begins to determineitselfand posits thenon-Ego 39

—44

nineteenth century enters on thework of restoration.

Schell ing thinks that theEgo can producethe sphereof thepractical life, but that it does not generate physical nature.H egel added thedialectic to thesystem of Schelling. T heuniverse is theproduct of theev olution of theabsoluteIdea .

T hedetractors of Hegel (oncehis adorers) nowmaintain thatheonly substituted theword Idea for theword G od, and thebecoming for thecreation, and they regard his system as alastecho of theology. T heabsoluteidealismhas been suc

ceeded inGermany by a species of physiological materialismin Moleschott and Biichner

,and by a most desolating

pessimism in Schopenhauer and H artmann 44—

51

SUMMARY.

Italy reacted against the French sensualism and theGermanpantheism. Pasquale Galuppi illustrated thedirect relation of sensibleperception which necessarily supposes thereality of the object, and hence sensibleperception is theintuition of theobject

,by which view hetook a step

beyondReid. Antonio Rosmini distinguishes two k inds of

perception,thesensitive and the intellectiveand hecalls

body theco-subject of themind. Theidea of being,although a mere logical and universal possibility, yet contains all theideas with theindeterminable series of thegenera and species and their perfect types, and it appearsin the conjunctionwhich arises in the intellective perception between sensat ion and intelligibletruth . Vincenz oGioberti has shown that rational cognition cannot dependon the intuition of a possiblebeing, but on therelationof intelligence to an infinitereality

,an inseparable con

dition of all though t and of all ex istence. T hetheory ofcognition is embraced by Gioberti in theideal formulaBeing creates theex istent , which reflection decomposesand languageexpresses. In theideal formula

,wesee

theinfinite, the intelligible finite,and not thesensible

or phenomenal finite, wh ich in theposthumous works of

Gioberti is presented to us as theimplicit intelligiblewhichby degrees is explicated. Being is perceived by us onlyinexistence by successive though t, but it is contemplatedin itself as creating by immanent thought. In thedoublestate of thought is found the doublestate of nature, andit is not wonderful for spirit and natureto constitute theexistent

,wh ich , in so far as it is created by Being, should

resemble it . Now Being is oneand infinite, and theexistent ought likewiseto beone, but its unity being finite,it ought to include mul tiplicity. T o G ioberti dialectic isan art

,and not theabsolutemethod, nor theperfect

science . Mamiani takes a position intermediatebetweenRosmini and Gioberti, but he maintains it vaguely 51

- 6 1

Laromiguiéreand R oyer Collard 111 France, combated sensualismand themate1 ialism of thepast century. MainedeBiranstudied thevoluntary and freeactivity of theEgo . Consi11

endeavoured to wed thepantheistic idealism of Germanywith the Scottish philosophy by means of a temperate

SUMMARY.

eclecticism. AugusteComte, admitting with Kant thatwecannot know things in themselves, confines himsel f toinvestigatethelaws of phenomena, that is to say, theirrelations of succession and likeness, theirpositiveand realstate. According to Comte, ph ilosophy registers and co

ordinates theresults of thesix fundamental sciencesmathematics, astronomy, physics, chemistry

,biology, and

sociology, which follow and completeeach o ther in turns,

and giveus thesystematic conception of theworld 6 1 — 63

John Stuart Mill,Alexander Bain, and Herbert Spencer, have

introduced and developed positiv ism inEngland. HerbertSpencer is not satisfied with theexternal study of facts ;hewishes to penetrate into their cause, and hefinds thattheinfinitevariety of phenomena depends on themetamorphosis of force

,and that all movements obey thelaws

of evolution,that is

,equivalence, rhythm,

and cohesion,which arecorollaries of thesameprinciple, of thepersistenceof force. Matter and mo tion aremanifestations offorce variously conditioned. I n order to explain nature

,

recourseis had to o ther hypotheses. Charles Darwinfertilised theideas of Lamark

,who said that vital force

wasexcited by want and strengthened byexercise. Plantsand animals arederived from some ten primordial speciesby means of theperfecting transmission and the v italstruggle. Acquired qualities areperpetuated by heredityand by adaptation to thevarious conditions in which

plants and animals are called to live 63— 69

InGermany, thesystem of Darwinwas receivedwith open arms,

and H aeckel began forthwith to show that all organicbeings arederived from oneprimordial form

,that is, from

thecell or theovular vesicle formed by spontaneousgeneration at thefirst cooling of the earth. But theFrench chemist Pasteur has advanced a decisiveargumentagainst spontaneous generation by showing that theaircontains millions of corpuscles organised likegerms whichdiminish as werise in theatmosphere

,and which being

eliminated,we no longer obtain theproduction of in

fusoria 69—7 1

Summing up this review of metaphysical speculation,_weseethat speculation reached

,thehighest point in Greece that

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Ermcs.

Ethics cameforth full armed from the head of Plato,who

summed up Pythagoras, the ancient sages, and speciallyhis master S ocrates. Hedistinguishes theabsolutegood,which heidentifies with G od, and which weought toseek to imitate. The good in everything is order, and thesoul in order to be happy ought to bewell ordered T hesoulefi’ectuates thegood by means of virtue, while evil iscommitted through ignorance. Aristotle attributes greatervalue to thehuman individuality. In metaphysics, hehad distinguished potentiality and actuality : inethics,he explains that actuality is identical with the end, anddesignates as desiretheaspirationnourished by every beingto pass from potentiality to actual ity. T heend of a beingcan only bethegood, and theperfect being will beoneinwhi ch therewil l not bepotentiality

,but everything will

be actual ity. Man loves action,and

'

is thecomplement ofactivity

,as beauty is that of youth. Zeno combats plea

sure as unstableand deceitful , and places happiness inthefulfilment of duty or in theobservance of thelawsof nature 8 9- 9 1

Christianity considers morality as a resurrection. The soul

T he

has lost its purity by original sin,and thesacrificeof a

G od was necessary in order to redeem it. T hefundamental precept of Christian morality is this : loveG odabove all th ings, and thy neighbour as thyself. Trueperfection consists in the contemplative life, in prayer,and in ecstasy. Platoestablished a sort of natural societybetween man and G od. Christianity proclaimed man’

s

absolutedependence. H uman liberty is not annihilated,but is sustained by divine grace, wh ich is granted to whoever does not reject it 9 1

—92

Renaissanceattacked theChristian morality, and Bacondenied thesuperiority of thecontemplativelifewhen it

does not tend to perfect theactivelife . Hedesideratesthestudy and description of thepassions and affections,and this is carried out by Descartes in a treatisewhichanalyses them from the physiological and psychological

SUMMARY. 333

side,and in which he teaches how to moderatethem.

Cartesianism was not favourable to ethics on account ofits having failed to recognisetheactivity of second causes

,

which exist only in so far as they arecreated at everymoment by G od. T o Spinoz a, good and ev il areonlyrelative ideas virtue is thepower of having adequateideas

,for in inadequate and confused ideas themind is

passive and enslaved. Leibniz vainly substituted con

t inuous participation for creation,and for theabsolute

passivity of thecreatures essential activity regulated bythepre-established harmony. While Germany proceededto temper the theories of Leibniz, England exaggeratedthose of Bacon. English utilitarianism is developed inthree periods : in the first, ethics is founded by H obbeson individual interest in the second

, it is based by Bentham on theharmony between indiv idual interests and

the general interest and in thethird,John Stuart Mill ,

Darwin, Bain, and Herbert S pencer, baseit on thegeneral

interest 93 95

The Scottish School has corrected theexaggerations of theEnglish utilitarians ln founding ethics on sentiment 95

Kant Went astray in thelabyrinth of his psychology, and inorder to escapefrom it reconstructed in his CritiqueoftheP ractical Reason what hehad overthrown in his

Critiqueof thePweReason 96

Fichte exaggerated the system of Kant 1n hisethics as well asinhis metaphysics. T heGerman ph ilosophy, after havingunfolded theconception of liberty in Kant and F ichte,absorbed it in the notion of necessity in Schelling and

H egel. T hesuccessors of Hegel have fallen into physiological materialism in spiteof theprotests of theyoungerFichte, Wirth, and U lrici 97

In the eighteenth century France was theecho of theEngl ishdoctrines

,but in thenineteenth century it all ied itself with

theS cottish School, determined thefunctions of thewil lbetter inMainedeBiran, and gavean objective basis toethics in Joufi

'

roy. I t was not long, however, till AugusteComteresuscitated materialism under thespecious nameof positivism 98

-99

Italy proceeded to restoreethics at thesametimeasmetaphysics.

SUMMARY.

Vico declared that man has a reason capableof knowingtheAbsolute

,and hehas freewill

,wh ich is moved on the

onesideby reason and on theother by thesenses he hasfurther a free activ ity such as can be directed on bothsides. Gioberti defined thegood moreelegantly as adivine participation, which is imperfectly participableinby therational and free creatures by means of theknowledgeof theabsolutelaw and theelective conformity ofthefree-will with that law 1 0 0

T hecorners toneof ethics is the qnestion of the freedom of thewill

,and upon it areconcentrated the forces of theposi

tivists. H erzen maintains that volitions areproduced bythestateof thenervous system at themoment it receivestheimpression

,and by thecomplex of the impressions

derived fromwithout,and that these volitions are awakened

by reflex action or association in theinternal structureofthenerve centres 1 0 1 — 1 0 6

Thefree-wil l consists in the power of doing the contrary ofwhat themoral law enjoins upon us, and in subjecting thereason to inclination : video meliora proboquedeteriorasequor 1 0 7

- 1 1 1

T H E a osornr or RIGHT .

truebecomes the good in ethics, and justice in thesphereof right. Man does not always act for a disinterestedend

,

nor in view of an absolutegood, but most frequently inorder to obtain what is useful to himsel f and to others.Plato says that justicemakes man into a proportionatewholefull of harmony it has its realisation in theState

,

wh ich is man on thelarge scale, andwhi ch has to actualisethewholeof thegood. Plato thus confounds justice with

goodness, and right with morals. O n the o ther hand,Aristotle‘l ays down a principleof distinction, maintainingthat justiceis virtue in relation to o thers

,and that the

S tate ough t not to absorb the wholecitiz en. S to icism gave

greater prominence to theinner man, and proposed -toemancipatetheindividual from the S tate, recognising theunity of thehuman race, and the harmony of all the partsof the universe I 1 2

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M SUMMARY.

T hecontemporary English School labours to explain right asspringing from utility. John Stuart Mil l seeks to provethat by means of theprincipleof solidarity theindiv idualinterest is identical with that of thegreatest number, andthat justice is theprincipal part of social utility, whencehedehues righ t as a power conceded by society to theindividual in theinterest of all. Alexander Bain declarestherules of justice themost essential conditions of thesocial existence. In theview of H erbert Spencer

,society

is an organism l ike thehuman body, whose progress consistsin an increasing complication with harmony of functions.G overnment is a necessary ev il, a provisory function, andit ought to l imit its own attributes always more by determining theconditions underwhich individuals will be ableto be developed by means of free associations 1 25

— 1 2 7I taly having known how to derive eth ics from metaphysics

,

has also known how to makeright spring from ethics.

Vico taught by means of h istory and philosophy thatthehonestum is thecause of righ t, and utility its occasion 1 28— 1 30

T heword Right signifies in general thedirection of an actiontowards a determinateend. Hencethefirst part of thiswork will bedesignated theO bjects of R ight, and willtreat of the humanends, namely, Religion, Science, Art,Industry, Commerce, Moral ity, and Justice

,considering

them in their essenceand in their modality. In anothersignification, theword Right indicates thepower inherentin thehuman person which cannot be taken away by any.

thing whatever ; and this will form thematter hi thesecond part of this work , entitled S ubjects of R ight, inwhich we shall treat of theIndividual and of Society

,

beginning with the Family, and advancing through theCommuneand the Provinceto the State

,to Nations

,

and to H umanity 1 30— 1 32

SUMMAR Y. 33,

PAR T F IR ST .

O B j'E C T S O F R I G H T .

CHAPTER I .— RELI G ION.

Between thinking and feeling there is an intermediate state

The

The

VO L . I ,

which is called faith. I t is distinguished into natural andsupernatural, according as it depends on intelligenceor onsuper-intelligence. Philosophy considers theclear sideofthe idea

,and religion the obscure side ; and hence two dif

ferent faculties,intelligence and super-intelligence 1 35

multiplicity of the religions is explained in two wayseither that they areall heresies of a certainnatural religion,or that they arealterations of a religion revealed by G odto the first men

,and preserved by theH ebrew people.

Some Religions havepantheism as their basis,such as

the Chinese Religion, the Indian Religion, theEgyptianReligion, the Persian Religion, and theG reco-RomanPolytheism. The social effects of thereligions werediffarant according to places and races. China, being poorin imagination, had a cult that was simpleandentirelydomestic without theshadow of a hierocracy. In India

,

some time after the conquest by theAryans, thesacerdotalclass acquired pre-eminence, and thewholeof societywas arranged in castes. Buddhism, with its principlesof equality, did not succeed in overthrowing that socialorganisation. In Egypt, society was divided into six orseven castes, and every individual had to follow the profession or trade of h is father. In Persia, weseeclasses,not castes.

The Greco-Roman polytheism reduced thegods to so many men of a superior nature, and set apartpriests to preside over theprayers and sacrifices. R c

ligion was an instrument of government by means of theoracles among theGreek s and of theauspices among theRomans 136- 144

religions which arefounded upon creative mono theismaretheH ebrew Religion, theChristian Religion, and theMohammedan Religion. Charity was not absent fromthe

r

T he

SUMMARY.

Hebrew Religion, seeing that alms were designated asjustice, and property was only emphyteutic, every sellerre-entering into possession every fiftieth year. I slamismhas no ofiicial clergy, and henceno onetakes special careof thepoor. T heChristian Religion looks to eternalsalvation, and therefore to morality in themost absolutesense theStatehas terrestrial prosperity as its end, andthereforerigh t in themost human sense. Their efi'

orts

arenot Opposed but convergent, seeing that eternal salv ation does not exclude temporal prosperity

,but would

have it subordinated to itself. But as such subordinationshoul d be the act of thefree-will , theS tate is under obligation to secure the individual his full liberty inmattersof faith 1 44

- 1 51

h istory of therelations of the Church with theStatemay be divided into ten epochs, during wh ich theChurchadvances from thecatacombs and seats herself hard bythethrone of Caesar, which it tries to dominate. Af ter along struggle, agreements areentered upon

,more or less

favourable to the Church . After the Reformation theidea of a completeseparation gains ground. T hemaximof Cavour : A freeChurch in a freeS tate, was inspiredby this idea. But it was modified in its application byhis successors, who violated acquired rights, and deniedconditions essential to the priesthood. The Statebeingtheexpression of themajority, will conform its conductin wholeor in part to thedictates of religion, according asthere may exist oneormore cults in its territory. Everyoneshould be free to believ e in his own way, but notto manifest his religious opinions except with in limitswhich shall not infringe the righ ts of others ; and hencetoleration or liberty of worship according to cases. Boththeerudite Max Muller and thenaturalistic Quatrefageshold that the religious sentiment distinguishes man fromtheanimal. Religion serves besides as a sanction tomorality, and thereforeit deserves all the respect of theS tate 151

— 1 98

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SUMMARY.

by foreign princes or magnanimous donors. At their sidearose colleges and corporations to examine thestudents andto confer upon them thedegreeof doctor in theology inname of thepope, and that of doctor in jurisprudencein name of theemperor, by theauthority of whom thesedoctorates wereinstituted. Literary studies were afterwards added. This served as a typeto theo ther uni

versit ies of I taly and Europe. England still preserves itin thetwenty colleges united around theUniversity ofO xford, and in theseventeen colleges of theUniversityof Cambridge 204

- 205exact and natural sciences do not owe their progress to theuniversities

,

‘which werewholly absorbed in jurisprudenceand theology. R oger Bacon was driven from O x ford because helaid littleaccount on scholasticism and on ratiocination in general, for its conclusions were regarded byhim as only hypotheses when not confirmed by experience.T heRenaissance completed therevolution begun by R ogerBacon. Galileo taught that thelaws of naturearethesimplest of all By mathematical calculation andexperience

,G alileo discovered thelaw of gravity and that of the

pendulum,thehydrostatic balance, and thetelescope, with

which hesaw the satellites of Jupiter, the phases of Venusand Mars, the spots on thesun

,and themountains of

themoon. Francis Bacon of Verulam reduced to axiomsthe method followed by Galileo, and h imself made discoveries. Descartes with his analytical geometry, and

Fermat with thefirst elements of theinfinitesimal calculus,which was perfected by Leibniz , paved theway for Newton, who gave a sk etch of thesidereal movements, and itrequired thecommon efforts of great mathematicians andgreat astronomers for thesketch to becomea picture.As tronomy brought along with it thedevelopment of physics

,wh ich was begun by G alileo and carried on by Vol ta

,

O ersted, Ampere, and Melloni. The eighteenth centurywas not to remain beh ind theseventeenth century ; itcreated chemistry by thework of Lavoisier ; and it madephysiology moreperfect through Bichat, who gavea newdirection to medicine, with a moreexact knowledge of theorganism. The work of Bichat was hardly sketched when

SUMMARY. 341

hedied in h is thirty-first year,but it was taken up and

carried on by Claude Bernard 206- 209The extraordinary progress madeby theexact and natural

sciences led Comte to trace out a new encyclopedia of thewhole, independent of metaphysics, and thereverseof whatantiqui ty and theMiddl e Ages had recognised 2 1 0— 2 1 3

Gioberti subordinates thesciences anew to metaphysics, anddeduces theencyclopedia of sciencefrom the ideal formula.T herelations between theState and science may be conceived in three ways : as an abstention from teaching, asin theGreco-Roman antiquity ; an indirect interference,as in theMiddleAges and amonopoly, as in somemodernStates. Whiletheaction of theS tateought to exciteat need individual energy, it should not prevent privateparties with properestablishments from taking part intheteach ing. T heGerman universitieswere instituted on

thetypeof theancient University of Paris, which had beencopied from theI talian universities. They arecorporations in which the S tate is represented by a curator, and itsupplies their needs in so far as their private revenues donot suffice. I n return for this aid theMinister of PublicI nstruction nominates theprofessors from among threecandidates proposed by theSenatus Academicus. T hefaculties alone havethe right to confer university degreesand those who aspireat practising a profession aresubjected in Prussia to a State-examination. In France, before the L aw of 1 sth March 1 850 , and of 1 2th July 1 8 75,

the university had the monopoly not only of thehigherteaching, but of themiddleteaching. In I taly, thismonopoly 13

0

restricted by theL aw of 1 3th November 1 859 to

thehigher teaching alone, and is somewhat tempered bytheadmission of private lectures. The 1 7th ArticleoftheBelgian Statutedeclares that teach ing is free ; everypreventiveprovision is prohibited ; and therepression of

offences is regulated by thelaw 2 14— 226

What are therelations which ough t to bemaintained by theState between religion and science? Weanswer, theircompleteindependence, but at thesame timethis ihdependence must not beallowed to degenerateintohostility 226

CHAPTER I I I .— AR T .

‘

The beautiful appears when the I dea presents itself to us commingledwith external reality, fromwhich it is separated bythemindwithout being carried up to its abstract general ity.

Wh en theI dea surpasses the form,we have thesublime ;

when it is in a certainequil ibriumwith it wehavethebeautiful In thearts

,thesublimeappears first

,because

it is nearer the I dea. Art begins as interpreter of thereligious ideas, expressing by symbols the relations of theinvisible principlewi th theobjects of nature. In orientalart there is displayed fervid imagination, a vague and con

fused thought. I n theEast, arch itectureis theart parexcellence; and sculpture is still but a vast hieroglyph whichrepresents theattributes of the divinity. With theG reek s

,

sculpture and painting ceased to be simpleaccessories ofarchitecture, and they introduced a newelement, theartof grouping personages, which wecall composition. TheGreeks further created style and tastethat is to say, theyperfected theexpression of created thingswithout tak ing aocount of theh ieratic types, and they acquired that practicalfamiliarity with thegood and beautiful which leads to areasoned choice . T heRomans, occupied with politics andadministration, sought utili ty in thebeautiful arts. In

architecture,they preferred the arch to theentablature

or architrave ; they constructed magnificent bridges, aqueducts, and cloacas, and invented buildings of a specialkind lik e the baths and amphi theatres 2 2 7

— 231

In theGreco-Roman art,thelines arestraigh t and sometimes

monotonous in their simplicity they do not rise to any

considerable height from the soil,but constitutean archi

tecturethat is horiz ontal and characterised by length . O n

theo ther hand,in Persia theancient Assyrian archi tecture

madeprogress its lines showed a predilection for curves,and they darted up towards theheav ens, forming a speciesof architecture that was perpendicular, and characterisedby height. Certain distinguished authors havemaintainedthat theByz antine art was derived from thePersian. T hearchitecture which is improperly called Gothic was pro

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CHAPTER I V .— INDU S TRY .

T hedaily support of man is produced by labour, the spontaneous fruits of theearth being scarce on thewhole.Labour supposes property as ownership ( 1 ) of the personalfacul ties

,and (2) of thematter to which they areapplied.

Property, lik e society, is natural to man as a being endowedwith liberty. Property includes theright to labour, toform capital

,to exchange, to make donations, and to transmit

to others 246— 249

In the beginning all men have implicitly theright to useexternal things for the rational ends of life; but as

such things arenot directly presented in sufiiciency forall

,society has established rules according to which the

indiv idual can acquire, preserve, or lose theimmediatepower

‘

over them. T heS tate, which represents society,

has always a supreme dominion over property. I t claimsa part of i t in theform of taxes, and it establishes theorganic connection between the generations, determiningthe modes of transmission and succession 249

— 251

S o long as primitive man lived by thechase, fishing, and wildfruits

,hedid not th ink of appropriating theland, and

he considered as his own only those objects which werecaptured or fash ioned by his hand. Under thepastoralregime, thenotion of property in land began to crop upbut it was limited to thespace which the herds of eachtribewere wont to traverse. When thepopulations becamesettled, thelands were occupied in common

,and div ided

among the different associated families their produceonlywas distributed according to households . Theagrariancommunity and thecity constituted by theunion offamilies

,werebound! together by intimate relationships.

In its development,property followed the status of the

251 — 253Both collective and individual ownership of property havehad

scientific defenders. Plato was for thefirst , Aristo tle forthesecond. Christianitymitigated therigour of individualownership by recommending alms 254

— 26 2

In modern times, Sir Thomas More and Campanella have re

SUMMARY. 34;

produced the ideas of Plato slightly modified Morelly,Rousseau, and other writers of theeighteenth century

,also

declared themselyes averse to individual ownership. In

thenineteenth century,Proudhon revived thethesis of

Rousseau, along with socialists and communis ts. G rotiuswas able to rise above what was taught by theRomanjurisconsults with regard to property. Lockewas thefirst to derive property from labour, which doctrine wasadoptedby the economists. Someauthors

,likeMontesquieu

and Bentham,have made theright of ownership inproperty

depend on thelaw 263- 2 7 1

From thepoint of view of quantity, ownership isexclusive orjoint (condominium) , according as onephysical or moralperson possesses therights of property over the wholething or over an ideal part of it, such as a fifth or sixthof thewhole . From thepoint of view of quality, ownersh ip may be full and entire

,or incompleteand divided.

Ownership may suffer dismemberments by necessary orconventional servitudes

,and it may have increments by

means of accession,immovable, ormovable, and industrial .

Special frules of law areestablished for ownership in property

,whether industrial, artistic, or l iterary, or in mines

and forests 2 7 2— 2 73

What are the relations between industry, science, and art ? I f

in the past, religion assigned a very subordinatepositionto industry

,it nevertheless admitted it within thesocial

organisation in India and Egypt T hecollegz'a opifieumof the Romans were sorts of confraternities like thoseof theMiddle Ages, when industry put itsel f under thepatronage of a saint. Science has been o ften occupiedwith theinterests of industry, which would return to itsrudimentary state without theaid of mechanics, physics,and chemistry.

To industry, art lends taste, that indescribable charm which makes thecommonest objects of

life so dear. T hemodern S tates arestriving to open up

outlets for industry, and to aid its progress by means o f

moretechnical and professional instruction 274

CHAPTER V .— COMMERCE.

T heword commerce has two different significations : in thewidesense

,it indicates every human relation in thestrict

sense, it indicates theexchange of products and serv ices.

T heR omans seem to have used it in thefirst significa

tion,comprising in thejus commereiz' et connubi i, which

were gradually conceded to the plebeians,almost the

whole of civil right. In the primi tivetimes, only theheads of famil ies coul d be bound by obligations, butthey took place very rarely

,and with such formalities

that theleast inobservance of them issued in thenulli tyof theobligation. The most ancient form of contractingamong theRomans was thenexum

,which the scholars

defined : omnequad gem'

tur per aes et Zibram. At first

the nexum served to givesolemnity to thealienation of

goods, and then it was applied to other contracts whichwere considered as incomplete sales. Thenexum gaveorigin to four forms of Contracts : verbal, written, real,and consensual . To these four classes of contracts onlywas given an obligatory form and in the first three

,

certain indispensable formalities had to be observed, theconsent of thecontracting parties sutficing only for someof them. Besides contracts, there werePacts which didnot produce a civ il action. But many of these graduallyobtained this from thepraeto r or by theimperial constitutions, or becausethey were immediately joined to bondfidecontracts 2 74

— 2 78

Domat and Pothier freed this part of the Roman Law fromtherubbish of thepast, and introduced into it whatwas necessary of consuetudinary right. T hecompilers oftheFrench Code only reduced their treatises to articles.

According to theFrench Code, contracts areobligatoryby the sole consent of theparties without there beingnecessary any delivery of thething, or thefulfilment of

thefact on thepart of thecontractors or of any extrinsicformalities. Kant, in hisMetaphysical P rinciples of R ight,classifies contracts according as they hav e for their objecta unilateral acquisition, a bilateral acquisition, or only a

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CHAPT ER VL — MO RAL ITY .

T heState cannot leave to the pleasure of the individual thefulfilment of thewholemoral law. H istory shows uspublic power arising out

“

oflthefamily. At Sparta, privatelifehardly existed

,all thehours of thecitizens being regu

lated. At Athens,liberty was entire

,but theAreopagus

jealously scrutinised theconduct of every candidateforpublic offices. I n the year 444 11 0

,two magistrates were

appointed at Rome to whom thematerial andmoral supervision or censorsh ip of therepublic was entrusted. Towards theend of the Roman Empire

,and during thewhole

of theMiddle Ages, theChurch ‘claimed the censorship of

manners,and theecclesiastical prescriptions also ob tained

civileffect. After theFrench Revolution theS tatebecamesecular

,and hencethegreater importance of the police as

theinheritor of theancient censorship and of theecclesiastical supervision 290

- 291

Public Beneficenceis the corrective of indiv idual ownershipin property. Not that theS tateis under obligation torelieve thepoor

,but it ought to intervene in great national

misfortunes, such as inundations and the destruction ofwh ole cities by fire, and it ough t to give a good directionto the founding of works of piety. Thiers, in a reportpresented to theF rench Assembly of 24th January 1 850 ,enumerates theinstitutions of beneficencethat ough t tobe promoted 29 1

— 293

Antiquity was not entirely lacking in benevolent institutions.

T heinstitutions of thepatronateand hospitality, thelegesagrariae, theZeges annonarz’ae, thelargz'tz'ones,epulae, sportula

,and thetessem frumentarz’a, weredirected towards

reliev ing thepeoplefrom distress. N or werethere wantingsocieties formutual help both at Athens andRome. S omeof thedispositions of the Digest enjoined on thecities theduty of consecrating thesurplus of therevenues for therelief of children and of theaged indigent 293

— 298

Christianity enlarged thesphereof beneficence. Jesus Christinculcated voluntary poverty and labour

,and S t. Paul

gavean exampleof it . Among thefirst Christians alms

SUMMARY. 349

were distributed by the Diaconates,which werereal offices

of beneficence. During the first three centuries,charity

hadno other treasury than thealms of the faithful, and no

otherministers than thebishops and deacons. When thepompous imperial dotation was substituted for themodestoblations of the faithful

,theconstruction of thechurches

was changed in many of their parts the dwell ing of thebishop became theepiscopal palace

,and thepoor had a

separatebuilding call ed an infirmary,a leper asylum,

orhospice

,with a priest specially appointed to it. Jnstinian

recognised '

thebondwhich unites beneficencewith religion,

and put all thebequests of the dying under thespecialsupervision of the bishops and archbishops. T heCanonLaw assimilated the property of chari table institutions tothat of the Church. I n thetime which preceded theFrench Revolution

,theS tateclaimed its right of inter

ference. The I talian law regarding works of beneficenceof 3rdAugust 1 8 6 2 , wh ile respecting their individualityin themost absolute manner, assigned theguardianship ofthem to Provincial Committees under thehigher supervision of the Minister of theInterior 298

-30 1

Where property is badly divided, and thetransmission of it is

fettered, beneficenceassumes theform of legal charity.

England is an example of this. Before theNorman Conquest, the obligation to succour thepoor was incumbenton parents and on therich ; afterwards it fell upon theChurch and thefeudal lord, andwhen thebonds of propertybecame loosened, thepoor foundno longer any reliefexceptfrom theChurch. After the suppression of the convents,theStatehad to substitute itself for theChurch, and itadopted the maxim of theCanon Law, that thepoor hada right to support and shelter. The Statute of Elizabethof l gth December 1 60 1 divided thepoor into classes,and prescribed that work should be furnished to theablebodied at home, that relief should begiven to inval ids,and that a tradeshould betaught to thechildren, all

at the expense of their respective parishes. In 1 834,

this Statutewas reformed, to theeffect that Unionswere formed among theparisheS , and workhouses werekept up where theable-bodied poor wereconstrained to

labour, guardians being nominated by those who were

interested 30 1-303

I f the progress of industry has abolished slavery,will it sufiice

t o abolish want ? I t is necessary to di stinguish povertyfrom Want. Poverty is oneof theconsequences of thenatural inequality of men, and cannot disappear. Miseryisexcess of poverty

,and it may be avoided when instruo

t ion will makelabourefficacious,and education will pro

mote thrift. Provident institutions and insurance willthen restrict more andmorethefunction of hospitals andother benevolent establishments

,and physical and moral

misery will cease at thesame time 304

CHAPT ER V I I .

— JU S T ICE .

The general significanceof theterm Right is the direction of

an action towards a determinateend ; and henceVicoplaces theregulativ e principle in theinfinitereason of

G od as substantially identical with thetruth and theorderof things. This does not clash with theview that Righ thas to serve as themeans for theattainment of theotherends above enumerated. Right is anend when it pursuestheequal distribution of thegood ; it is a means when itsecures it by force. TheState provides in three ways forthereal isation of right : by preventing, commanding, andpunishing. I t prevents by its institutions of morality,andespecially by thepolice it commands restitution forinjuries and compensation for every obligation wh ich hasnot been maintained or which has been occasioned byculpable negligence, and it punishes al l infraction of thesocial order 305

Procedure was born contemporaneously with Right and Just1ceto which it lent all theapparatus necessary to impress theimagination of thepeoples. I t is disputed whether civ ilor penal tribunals first arose 3 themost recent writershave proved that crimes werefirst considered as wrongsor as v iolations of indiv idual rights, and that thecommunity then gradually felt itsel f injured as theguardianof thesocial order, and intervened, first by singleacts,and then with general laws. Both the civil and penal

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SUMMARY.

to bealready duly expiscated, follow the course of thecivil tribunals 30 7

—

309In thepenal tribunals thesubject matter is different, as theprincipal object in v iew is not the damage sustained

,

but thediscovery and punishment of the culprit. Theprocess is divided into two parts, thefirst consisting intheinvestigation of the proof, and thesecond in thediscussion of it . In the first, theprocess is treated accordingto the inquisitorial system in thesecond

,thejudgment

is developed under the form of an accusation. I t wasthemerit of the French Revolution to fuse thetwo systemsin the laws of 1 78 1 , and in theCode of Criminal Instruotion of 1 808 , from which most of the existing legislationshave taken form. In themost ancient times

,thejudge

was assisted in his functions by a number of persons,

who attended theprocess of judgment in thequality of

witnesses or conjuratores. These eonjuratores graduallybecame the judges of fact under the name of jurymen,thefunction of expounding the question of law and

applying thepunishment being left to themagistrate.In thecase of lighter offences, thesamejudges pronounceboth in matters of fact and law. In such cases

,there is

theremedy of an appeal, except in the lightest o ffences,whi ch are punished by a pecuniary penalty. In all sentenoes of condemnation, there is thesupreme remedy ofappeal on the Special ground of violation of law or pro

cedure 309-31 3

C ivil sentences are executed on the patrimony,and penal

sentences principally on theperson theformer look atthemaking up of the damage, and the latter also at thepunishment of theoffence. A crime is theviolation ofan exigible duty to thedamage of society and of indiv iduals, theduty being oneof which the observanceisuseful to thepolitical order, and theinfraction of whichcan becertified by human justice. Punishment is a paininflicted on the delinquent in proport ion to thequalityand quantity of the evil , according to theimportanceof the duty violated, and thespecial gravity of theviolation committed, which is determined by theconditions ofthe concrete and particular fact. A crime in violating a

SUMMARY. 353

duty negates a right, which the punishment reafiirms bothin theconsciousness of theculprit and in that of humansociety. As to the quantity and measure of thepunishment, it ought to be proportioned to theevil of thecrime,that is

,to theoffence and damagein a ratio compounded

of its moral and utilitarian elements. Accordingly punishment ought to be_moral , personal, divisible,easily valuable, reparable, and remissible,equal and satisfying,exemplary, reformative and sufficient. Beforeapplying thepunishment

,it is incumbent to look at theimputability

of the agent in order to estimatehis responsibility,and

to theobjective evil,or to thefact as to whether the

crime was attempted, frustrated, or consummated. Penalrigh t is thesanction of every k ind of right ; it springsfrom justice

,which arises from thehonestum

,and regulates

utility 314-

32 1

the other hand,thereis a new penal scho ol which does

not look at theevil in itself, but merely at thedelinquent,with regard to whom it is necessary t o take measures of

precaut ion, eliminating him from society by death or

deportation on account o f grave crimes, and putting h iminto a condition whereit becomes impossibleto do harm,

by imprisonment or criminal discipline, on account of lightcrimes. Accordingly th is school substitutes for thecriterionof imputability that of liability to fear 32 1

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323

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VOL. I .