and appreciate their full measure and tendency. It may be difficult, if not impossible, to explain many obscurities as to the origin, necessity, and final cause of all laws. None of the great thinkers of the world has yet succeeded in defining their tendency, scope, and ultimate destination, or to lay down any settled rules as to the bounds of their interference with the pursuits of individuals or classes of men. But in this inquiry two things are to be distinguished. All laws may have one generic object, and yet there may be various ways of accomplishing that object, both as regards the subject-matter to be affected and the mode of affecting that subject-matter. The aim may be one and indivisible, and the ways of reaching it manifold. It may be possible to define the former, and not the latter. the current definition states neither. What the course of conduct enforced by the supreme power relates to—what object is to be attained thereby, or why it is to be attained, is not stated. The definition merely speaks of something being enforced-it speaks of a blind obedience, without indicating why that obedience is exacted, what good it is to do, and what length it goes or ought to go; and in this vital, essential element the current definition of law is conspicuously defective.

But

A new definition of municipal law. These two radical objections to the current definition of law naturally give rise to the demand for one that will be free from such objections, if, indeed, any such can be found. Such a definition seems to be this :-" Law is the sum of the varied restrictions on the actions of each individual, which the supreme power of the state enforces, in order that all its "members may follow their occupations with greater "security."

This definition, instead of representing the body of law as consisting of a course of conduct, confines the attention to the more limited purpose of controlling some only of the actions of men, either directly by restraining these, or indirectly by defining forms for giving greater effect to them, and that not entirely by way of positive command, but mainly by way of negative prohibition. It also points to the general purpose kept in view by the supreme legislative power. It does not indeed necessarily imply that that purpose is secured by the right means. It merely

states the object which is always professed, or is that which alone can be legitimately professed. The object may not be in fact attained, or it may be attained or sought to be attained by the wrong means. The means, however, which are used, and the subject-matter as to which restrictions are imposed, cannot be exactly stated or even indicated, for the simple reason that no human sagacity or acuteness has yet defined how far these restrictions may or ought to go in the further development of modern civilisation. It is the main business of politics to discuss and find a solution for each particular exigency. It is enough that the law proposes well, and does its best for the time being to decide what will most effectively secure the general good.

In order, however, to explain fully this definition, it will be necessary to examine more minutely its several parts.

Law is a restriction on human actions.—That law is the sum of the varied restrictions upon the actions of each individual, is the fundamental conception underlying its whole structure. Those writers who define law to be a course of action or of conduct lose sight of the manifest truth, that while the course of conduct consists of the whole acts and deeds of men, these spring from so many sources, that it would be idle to say that the law directed them, or even a thousandth part of them. Those sources are far too deep and subtle for any law to intercept or suppress, to guide, or even to watch. Men would go on satisfying their hunger, gratifying their feelings, desires, and passions, amassing and squandering property, bargaining, quarrelling, and domineering over each other, just the same if there were no laws at all. And though the particular details of the law, when such are enacted, influence greatly the general happiness, yet this good is not effected by any radical or material change which they produce in the conduct of men. The mass of men's actions remains the same whatever the laws may be. It is only in the Iskill with which one restriction is directed here and another there, and in the skill with which the superficial tendencies of human actions are balanced and played off one against another, that the total result becomes beneficial. That result moreover is the fruit of reason and reflection, and does not immediately flow from anything

the law can do. The law affects human conduct by and through the reason. To trace all the secret springs which render law suitable to the circumstances of a people, and which invigorate instead of harassing their multifarious energies and occupations, has been the theme of many disquisitions of curious inquirers. It is, however, too remote from our business, and it may be left in the hands of the legislators, whose occupation it is to discover what would be good laws and what would be bad laws before it is resolved to enact them, or what to preserve and what to amend of those that have already been enacted. It may for our present purpose be assumed that each individual carries within his own breast some standard, by which he can readily appraise their value and test by experience what is just and what is unjust. Mankind have, as Cicero observed, a genius for law. The vast populations of to-day are controlled by very few courts and judges. They gravitate towards law as if towards the inevitable. The common sense of mankind is thus often a better gauge than all the theories of the learned or the decrees of the powerful, as to where the law should begin and where it should end. But whether a law is good or bad, it acts mainly by way of restriction on some of the tendencies of men. The law prohibits each individual from murdering or assaulting or imprisoning his neighbour, from seizing another's property, from marrying certain persons, or more than one at a time, from breaking his contract, from slandering another's character, from interfering with another's mode of worship.1 But it cannot be supposed

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Laws, whether founded on a right or a wrong exercise of reason, are always intended to act as restraints on the actions of individuals and to interfere with the motives by which their conduct would be otherwise determined. This restraint may be said to be artificial, as opposed to the natural restraints of the individual reason and this perhaps is the distinction most generally intended when the natural conduct of men is contrasted with their conduct under the control of positive institutions. But as the motives which determine individual conduct are not always reasonable motives, so it is clear that what men naturally do is no sure test either of what they ought to do, or of what they ought to be allowed to do. It is their nature under certain conditions to do all that is bad and injurious tc themselves and others. Hence it is the most difficult of all problem in the science of government to determine, when, where, and how i is wise to interfere by the authority of law with the motives whic

that it is the law that creates just enough of motive and passion to lead to each lawful human action, or that if there were no law, all those motives and passions would be extinguished. On the contrary, all that is positive in the motives and tendencies existed before law began, and will outlive all the changes that the law will ever cause. The law confronts the irrepressible instincts and tendencies, and confesses that it can cope with them only circuitously through the medium of the understanding. It merely prunes the exuberant foliage, docks the towering branches, guides the roots to the one side or the other. The roots, the trunk, and the branches flourish as before; the individual identity continues, though the motive power and the intricate organisation are prevented from being mischievous to society.

The source of much of the confusion on this subject is traceable to Aristotle, who thought that law positively

are usually called the natural motives of men. The question is no other than this-How far the abuse of those motives can be checked and resisted by that public authority whose duty and function it is to place itself above the influences which in individual men overpower the voice of reason and of conscience."--D. of Argyll's Reign of Law, 866 (3rd ed.).

ADAM SMITH says: "Mere justice is upon most occasions but a negative virtue, and only hinders us from hurting our neighbours. We may often fulfil all the rules of justice by sitting still and doing nothing."-Smith's Theory, p. 2, § 2. "The

DR. JOHNSON also had a clear notion of this truth. He said : primary notion of law is restraint in the exercise of natural right.” 1 Bosw. Johns. 38. And again: "Political liberty is good only so far as it produces private liberty."-3 Bosw. Johns. 53.

BENTHAM says the principal function of government is to protect individuals from suffering.-1 Benth. W. 301.

GUIZOT says a civil government in its code comprehends only those actions morally culpable and socially dangerous.-Guizot Civ. Eur. Lec. 15.

WINDHAM (H.C. 1809, 14 Parl. Deb. 1031) said "Laws were almost universally restrictive. They restrained acts which were injurious to the community, and were such, moreover, as could be defined.” The same idea is noticed by ST. PAUL: "The law was not made for the righteous, but for the unruly and the disobedient."-1 Tim. i. 9; Pet. 1. ii. 9.

DE LOLME was surprised in his keen researches at not finding any English statute enacting the liberty of the press, till he began at last to reflect that it existed simply because it was not forbidden.—De Lolme on the Const.

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prescribed all the virtues. He says: "The law directs the performance of brave acts, such as standing at one's post, neither fleeing nor throwing away one's arms-also acts of temperance, such as not committing adultery or violencealso acts of moderation, as neither assaulting nor abusing others. And in like manner with the virtues and vices, it enjoins one class of actions and forbids others. As the proverb says, In justice all virtue is comprehended." He also says, "Whatever the law does not command it forbids." "12 The Roman maxim was the reverse, and nearer the truth, namely, that what the law does not forbid it permits. The correct maxim, however, is, that, what the law does not forbid, it leaves each to do or not to do as he pleases, and altogether declines to know or care anything about the decision he may come to.3

Law includes forms for giving effect to some human actions. But in defining all laws as in the nature of restrictions, there is still something to be added. A distinction is necessary between those laws which are primary and those which are secondary and subsidiary. Some laws are merely modes of carrying out the principle contained in other laws. The principle is always to be distinguished from the machinery necessary to work it out. A survey of the laws discloses, that a partial restriction only is imposed in many cases, and that an exception is allowed, which is declared to be the only legal mode of giving effect to the human tendency restrained. For example, when it is once determined to restrain the tendency to marry, it is found not to be enough to prohibit marriage with certain individuals, but a form is given by which marriage, even when not prohibited, is to be carried out, in order to define with greater certainty who are and

2 Ibid. b. v. ch. xi.

1 Arist. Eth. b. v. ch. i., § 11, 12. 8 "The ancient commonwealths and philosophers countenanced the regulation of every part of private conduct by public authority, on the ground that the state had a deep interest in the whole bodily and mental discipline of every one of its citizens-a mode of thinking which may have been admissible in small republics, surrounded by powerful enemies, in constant peril of being subverted by foreign attack or internal commotion, and to which even a short interval of relaxed energy and self-command might so easily be fatal, that they could not afford to wait for the salutary permanent effects of freedom."-J. S Mill, On Lib. 23.