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John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXI – Essays on Equality, Law, and Education (Subjection of Women) [1825]

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John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXI – Essays on Equality, Law, and Education, ed. John M. Robson, Introduction by Stefan Collini (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1984). http://oll.libertyfund.org/titles/255

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About this Title:

Vol. 21 of the 33 vol. Collected Works contains a number of Mill’s essays on the law, women and children, the American Civil War, and his book on The Subjection of Women. It also contains in the Appendix Harriet Taylor’s works On Marriage and the Enfranchisement of Women.

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The online edition of the Collected Works is published under licence from the copyright holder, The University of Toronto Press. ©2006 The University of Toronto Press. All rights reserved. No part of this material may be reproduced in any form or medium without the permission of The University of Toronto Press.

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This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i]
COLLECTED WORKS OF JOHN STUART MILL
VOLUME XXI
Edition: current; Page: [ii]

The Collected Edition of the works of John Stuart Mill has been planned and is being directed by an editorial committee appointed from the Faculty of Arts and Science of the University of Toronto, and from the University of Toronto Press. The primary aim of the edition is to present fully collated texts of those works which exist in a number of versions, both printed and manuscript, and to provide accurate texts of works previously unpublished or which have become relatively inaccessible.

Editorial Committee

j. m. robson, General Editor

harald bohne, alexander brady,

j. c. cairns, j. b. conacher, d. p. dryer,

francess halpenny, samuel hollander, jean houston,

marsh jeanneret, r. f. mcrae, f. e. l. priestley,

francis e. sparshott

Edition: current; Page: [iii]
Essays on Equality, Law, and Education
by JOHN STUART MILL
Editor of the Text JOHN M. ROBSON Professor of English, Victoria College, University of Toronto
Introduction by STEFAN COLLINI Reader in Intellectual History University of Sussex
UNIVERSITY OF TORONTO PRESS
ROUTLEDGE & KEGAN PAUL
Edition: current; Page: [iv]

©University of Toronto Press 1984

Toronto and Buffalo

Printed in Canada

ISBN 0-8020-5629-6

London, Routledge & Kegan Paul

ISBN 0 7100-9880-4

Canadian Cataloguing in Publication Data

Mill, John Stuart, 1806-1873

[Works]

Collected works of John Stuart Mill

Contents v. 21. Essays on law, equality, and education

ISBN 0-8020-5629-6 (v. 21)

1. Philosophy - Collected works 2 Political science - Collected works 3. Economics - Collected works

I Title

B1602 A2 1963 192 C64-188-2 rev

This volume has been published with the assistance of a grant from the Social Sciences and Humanities Research Council of Canada

Edition: current; Page: [v]

Contents

  • introduction, by Stefan Collini vii
  • textual introduction, by John M. Robson lvii
  • Law of Libel and Liberty of the Press (1825) 1
  • On Marriage (1832-33?) 35
  • Austin’s Lectures on Jurisprudence (1832) 51
  • Reform in Education (1834) 61
  • On Punishment (1834) 75
  • Smith on Law Reform (1841) 81
  • The Negro Question (1850) 85
  • Statement on Marriage (1851) 97
  • Remarks on Mr. Fitzroy’s Bill for the More Effectual Prevention of Assaults on Women and Children (1853) 101
  • A Few Words on Non-Intervention (1859) 109
  • The Contest in America (1862) 125
  • The Slave Power (1862) 143
  • Austin on Jurisprudence (1863) 165
  • Educational Endowments (1866) 207
  • Inaugural Address Delivered to the University of St. Andrews (1867) 215
  • The Subjection of Women (1869) 259
  • Treaty Obligations (1870) 341
  • The Contagious Diseases Acts (1871) 349Edition: current; Page: [vi]
  • appendices
    • Appendix A. On Marriage, by Harriet Taylor (1832-33?) 375
    • Appendix B. Papers on Women’s Rights, by Harriet Taylor Mill and J. S. Mill (1847-50) 378
    • Appendix C. Enfranchisement of Women, by Harriet Taylor Mill (1851) 393
    • Appendix D. Draft of a Portion of the Inaugural Address (1866) 416
    • Appendix E. Jamaica Committee: Public Documents (1866, 1868) 422
    • Appendix F. Textual Emendations 436
    • Appendix G. Bibliographic Index of Persons and Works Cited, with Variants and Notes 439
  • index 491
  • facsimiles
    • Folio 1r of “On Marriage” by J. S. Mill 38
    • Folio 1r of “On Marriage” by Harriet Taylor 374
Edition: current; Page: [vii]

Introduction

any volume of occasional writings, especially those of an author who, according to his own unapologetic testimony, had, and never hesitated to express, strong views on “most of the subjects interesting to mankind,”1 is bound to appear diverse in character, and no attempt will here be made to hide or apologize for this diversity. Indeed, part of the value of a collected edition lies precisely in the reminder it provides to later and more specialized ages of the range and interconnectedness of a major writer’s concerns. But in the present case the appearance of the contents-page may actually exaggerate the heterogeneity of the material in this volume. One way to counteract this judgment is to observe the thematic overlapping of the subject-matter. Even with an author whose intellectual ambitions were less systematic than Mill’s, writings on the topics of equality and law could hardly be remote from each other, and in Mill’s case, furthermore, his whole theory of social and moral improvement was in one obvious sense educational, so that his views on particular educational ideals and institutions can, without strain, be seen as further corollaries of those same basic principles which underlie his other writings, including those on equality and law. But even if one considers the categories in isolation for a moment, the list of contents may still convey a misleading impression of how the items are distributed among them, considered purely quantitatively, more than half the volume falls primarily under the heading of “equality”; “law” accounts for just over one quarter, and “education” for a little under a fifth. The most important concentration of all, however, is chronological, despite the fact that the earliest piece reproduced here was published forty-six years before the last. For in fact, about three-quarters of the volume is occupied by material published in the thirteen years between 1859 and 1871. This period, of course, marked the very peak of Mill’s reputation and influence as a public figure, and he very deliberately set about exploiting his recently established authority to promote his particular social and political views Edition: current; Page: [viii] as they related to the leading public issues of the day, utilizing all those means of addressing the relevant audiences which become available to an established public figure—pamphlets and manifestos as well as books, formal lectures as well as testimony to Royal Commissions, and, above all, articles, reviews, and letters in the periodical press. The essays in this volume are largely the fruit of this activity.

Readers of this edition need hardly be told that some phases of Mill’s career and aspects of his writing have been subjected to intensive, or at least repeated, study and are now comparatively familiar. Works expounding and criticizing his major theoretical writings in philosophy, politics, and economics exist in industrial quantities, and of course the earlier stages of his intellectual development have come to constitute one of the best-known identity crises in history. But neither his less extended mature writings nor the final, and in some ways quite distinct, phase of his career have received anything like such close attention; therefore, as a preliminary to a more detailed discussion of the individual pieces reprinted in this volume, it may be helpful to consider in a fairly general way Mill’s performance in the role of public moralist, and to try to place him in that world of High-Victorian polemical and periodical writing to which he was such a notable contributor. This is not simply a question of the set of doctrines which could be extracted from these essays. As a practitioner of the higher moralizing, Mill established a particular tone and level of discussion and employed certain characteristic modes of argument and other means of persuasion that together account for many of the features, often the most interesting features, common to the following pieces.

MILL AS PUBLIC MORALIST

with his reputation will stand or fall the intellectual repute of a whole generation of his countrymen. . . . If they did not accept his method of thinking, at least he determined the questions they should think about. . . . The better sort of journalists educated themselves on his books, and even the baser sort acquired a habit of quoting from them. He is the only writer in the world whose treatises on highly abstract subjects have been printed during his lifetime in editions for the people, and sold at the price of railway novels. Foreigners from all countries read his books as attentively as his most eager English disciples, and sought his opinions as to their own questions with as much reverence as if he had been a native oracle.2

It is, no doubt, difficult to write the obituary of an oracle, and John Morley’s prose here betrays the strain. Yet his studied hyperbole, or at least his apparent need to resort to it even when writing for a sympathetic audience, suitably indicates the quite extraordinary public standing that Mill achieved in the last decade or so of his life. We must be careful not to let the development of his reputation during the earlier stages of his career be obscured by or assimilated to its final remarkable apotheosis: in the 1830s he was best known as a leading representative of an Edition: current; Page: [ix] extreme and unpopular sect; in the 1840s and into the 1850s his double-decker treatises on logic and political economy won him a reputation that was formidable but restricted in scope and limited in extent. After all, up until 1859 these were the only books he had published (apart from the rather technical and commercially never very successful Essays on Some Unsettled Questions of Political Economy), and although his articles and reviews continued to appear during these decades, he did not, before his retirement from the East India Company and his wife’s death in 1858, deliberately and consistently seek the limelight by publication or any other means. It is interesting to reflect how different the obituaries would have been had Mill died in the mid-1850s, as seemed to him very likely at the time. Not only would his place in the history of political thought, for example, be comparatively negligible, but he would be seen as one of those distinguished figures in the history of thought who never achieved full recognition in their lifetimes, and whose subsequent reputation partly derived from incomplete or posthumous works, with the result that they stood in a quite different relation to their contemporary audiences. Nor, of course, would he have served his term in Parliament, the extraordinary manner of his election to which was both a symptom of his peculiar standing and a cause of its further growth.

Mill himself was well aware of the influence this lately acquired reputation gave him. Of his spate of publications after 1859, he says to an American correspondent in 1863, “They have been much more widely read than ever [my longer treatises] were, & have given me what I had not before, popular influence. I was regarded till then as a writer on special scientific subjects & had been little heard of by the miscellaneous public,” and, he adds with evident satisfaction, “I am in a very different position now.”3 The triumphant note of realized ambition is even clearer in his reflection recorded during his Westminster candidacy of 1865. “I am getting the ear of England.”4 He did not hesitate to bend that ear, and although he did not exactly pour honey into it, he was well aware of the persuasive arts needed to hold its attention. There may well be figures who conform to the stereotype of the theorist, working out ideas on abstract subjects heedless of the world’s response, but Mill cannot be numbered among them. Nor should his justly celebrated defence of the ideals of toleration and many-sidedness obscure the fact that on nearly all the issues of his time, intellectual as well as practical, he was rabidly partisan; as “a private in the army of Truth”5 he frequently engaged in hand-to-hand combat, offering little quarter to the unhesitatingly identified forces of Error.

Edition: current; Page: [x]

A revealing statement of Mill’s own conception of his role as a public moralist is seen in his reply in 1854 to the secretary of the charmingly named Neophyte Writers’ Society, which had invited him to become a member of its council:

So far as I am able to collect the objects of the Society from the somewhat vague description given of them in the Prospectus, I am led to believe that it is not established to promote any opinions in particular; that its members are bound together only by the fact of being writers, not by the purposes for which they write; that their publications will admit conflicting opinions with equal readiness, & that the mutual criticism which is invited will have for its object the improvement of the writers merely as writers, & not the promotion, by means of writing, of any valuable object.

Now I set no value whatever on writing for its own sake & have much less respect for the literary craftsman than for the manual labourer except so far as he uses his powers in promoting what I consider true & just. I have on most of the subjects interesting to mankind, opinions to which I attach importance & which I earnestly desire to diffuse; but I am not desirous of aiding the diffusion of opinions contrary to my own, & with respect to the mere faculty of expression independently of what is to be expressed, it does not appear to me to require any encouragement. There is already an abundance, not to say superabundance, of writers who are able to express in an effective manner the mischievous commonplaces which they have got to say. I would gladly give any aid in my power towards improving their opinions; but I have no fear that any opinions they have will not be sufficiently well expressed, not in any way would I be disposed to give any assistance in sharpening weapons when I know not in what cause they will be used.

For these reasons I cannot consent that my name should be added to the list of writers you send me.6

It could be argued that almost his entire mature career is a gloss on this letter; with an eye to the contents of the present volume, let us concentrate on just three aspects of it.

First of all, Mill was no tyro as far as the means for diffusing his opinions were concerned. Morley called him the best-informed man of his day: certainly he was one of the most attentive readers of the great reviews, then in their heyday. His correspondence is studded with references to the latest issue of this or that journal, the political and intellectual character of each being duly noted; a more than casual interest in the medium is revealed when a man spends several weeks systematically catching up on back issues of a periodical, as Mill did in 1860 with the Saturday Review, despite the fact that it was largely a journal of comment on the ephemeral topics of the day.7 He was always alive to the nature of the different audiences he could reach through these journals. He cultivated his connection with the Edinburgh Review, for example, despite the defects of its increasingly hide-bound Whiggism, because appearing in its pages conferred greater authority and respectability than any of its lesser rivals could offer; on the other hand, Edition: current; Page: [xi] particularly contentious or merely slight pieces were seen as needing more congenial company. Thus, to do justice to Austin’s reputation nothing less than the Edinburgh would do (and the subject was anyway a “safe” one), but the Westminster was a better platform from which to issue a timely puff in favour of Cairnes’ controversial The Slave Power. As Bain tersely put it: “He chose the Westminster when he wanted free room for his elbow.”8 The importance Mill attached to the maintenance of “an organ of really free opinions,” shows clearly his belief, whether justified or not, that it would otherwise be difficult to get a hearing for “advanced” opinions.9 When coaching the young Lord Amberley on how best to put a shoulder behind the wheel of Progress, he remarks: “The greatest utility of the Westminster Review is that it is willing to print bolder opinions on all subjects than the other periodicals: and when you feel moved to write anything that is too strong for other Reviews, you will generally be able to get it into the Westminster.”10 For this reason Mill remained willing, long after he had relinquished ownership of the paper, to sink money in its never very promising battle against low circulation figures, and in this he was only one among several contemporary public men to whom the prestige or accessibility of a review of a congenial temper justified often quite substantial subsidies.11 When in the last decade of his life the Fortnightly Review got under way, it fulfilled this role more successfully, especially while edited by his self-proclaimed disciple, John Morley, and several of Mill’s later pieces, including the last article reprinted here, were written for it. Testimony of a different kind about the importance Mill attached to such a review is provided by the fact that he should have offered, at the age of sixty-four and with numerous other claims on his time, to occupy the editor’s chair during Morley’s threatened absence rather than have the Fortnightly fall into the wrong hands or suffer a break in publication.12

Although he was predictably censorious of “professional excitement-makers,”13 Edition: current; Page: [xii] Mill’s mastery of his role also extended to that other important requirement, a sense of timing. In writing to the editor of the Westminster about a proposed article by another contributor, Mill reported; “he does not like the idea of its not appearing till April, and I should certainly think January would be a better time, as giving it a chance of helping to shape the speeches in Parliament or at public meetings, and the newspaper articles, by which alone any impression can be made upon unwilling Finance Ministers.”14 In issuing his own work, Mill calculated the moment for making the maximum “impression”; he delayed full expression of his unpopular views on the American Civil War until there was a “chance of getting a hearing for the Northern side of the question,” and later congratulated himself that “The Contest in America” had appeared at just the right moment to influence opinion.15 Similarly, he delayed publication of The Subjection of Women (which was written in 1861) until the campaign for the suffrage, which he helped to orchestrate, had created a more receptive audience.16 Judicious distribution of off-prints of his articles was intended to increase this impact, just as the pamphlet form of both his “Remarks on Mr. Fitzroy’s Bill” and his evidence to the Royal Commission on the Contagious Diseases Acts gave his views on these subjects a wider currency. And of course he was no less careful in judging the occasion for publishing further Library editions of his earlier works, as well as the cheap People’s Editions that, beginning in 1865, gave wide circulation to his major works.17 Having got “the ear of England,” Mill did not intend to let it go.

The second aspect of Mill’s performance in the role of public moralist that concerns us here is the fact that his views were always likely to be unpopular with the majority of the educated classes, or at least—what may be rather more interesting—Mill always thought of himself as the holder of unpopular views, despite the success of his writings. In very general terms it is true that Mill’s beliefs on “most of the subjects interesting to mankind” were those of an advanced Radical—secular, democratic, egalitarian, actively sympathetic to Socialism and the emancipation of women, yet more actively hostile to privilege and injustice and to the moral callousness he took to underlie these evils—and these views Edition: current; Page: [xiii] hardly commanded immediate assent in the smoking-rooms of mid-Victorian England. But it may have become important to Mill to exaggerate the extent to which he was a lonely crusader, lacking a supporting army (a few white knights aside), sustained only by the righteousness of the cause and the kinship of a scattering of rare spirits in other countries. Certainly, it is an identity which a self-described “radical” thinker is always likely to find comforting, since it simultaneously flatters the intellect, provides a sense of purpose, and explains away failure. Occasionally there is an almost paranoid note in Mill’s writing—it is part of what gives On Liberty its somewhat shrill tone—and although it is true that Mill was frequently reminded of the unpopularity of many of his causes, it is also true that magnifying the strength of the Forces of Darkness in his typically Manichaean vision of the world was essential to his polemical strategy. There are numerous instances of this in the present volume: to take but one, consider how often in the opening paragraphs of The Subjection of Women he depicts his task as “arduous,” emphasizing the great “difficulty” of “contend[ing] against . . . a mass of feeling,” and leading up to the subtly self-flattering self-excusing statement: “In every respect the burthen is hard on those who attack an almost universal opinion. They must be very fortunate as well as unusually capable if they obtain a hearing at all.” (261.) The first two editions of the book, it should be noted, sold out within a few months.

As the metaphor of “advanced” or “progressive” opinion suggests, Mill projected his differences with the majority of his contemporaries into a reassuring historical dimension. Mankind were strung out in an enormous caravan, slowly and often unwillingly trudging across the sands of time, with the English governing classes, in particular, reluctant to move on from their uniquely favoured oasis. Mill, some way in advance of the main party, could see distant vistas hidden from their view: the task was to convince the more susceptible among them to move in the right direction, and crucial to this task was showing that the recommended route was but an extension of the path successfully followed so far. Mill, unlike several of the most prominent nineteenth-century social thinkers, did not elaborate a fully teleological account of history, but the frequently resorted to the claim that there had been a discernible line of moral improvement, not dissimilar to what T.H. Green was to call “the extension of the area of the common good,”18 whereby the circle of full moral recognition was gradually being extended to all those hitherto neglected or excluded, whether they were English labourers or negro slaves or—the argument is used to particularly good effect here—women. It is always an advantage to portray one’s opponents as committed to defending a quite arbitrary stopping-place along the route of progress, and the argument had a particular resonance when addressed to an audience of mid-nineteenth-century Edition: current; Page: [xiv] English liberals who regarded such moral improvement as the chief among the glories of their age.

As this account reveals, Mill did not in fact stand in such a purely adversary relation to his culture as he sometimes liked to suggest, since he was constantly appealing to certain shared values when berating his contemporaries for failing either to draw the right inferences from their professed moral principles in theory or to live up to their agreed standards in practice. Mill—it is one of the few things about him one can assert with reasonable security against contradiction—was not Nietzsche. He was not, that is, attempting fundamentally to subvert or reverse his society’s moral sensibilities, but rather to refine them and call them more effectively into play on public issues (examples will be noted below). In these circumstances, the moralist runs the risk of priggishness, as he contrasts the consistency of his own position and the purity of his own motives with the logical confusions and self-interested prejudices that he must impute to those who, sharing the same premises, fail to draw the same conclusions.

This consideration brings us to the third aspect of Mill’s performance as public moralist to be discussed here, his characteristic style and manner of argument. Coleridge’s dictum, “Analogies are used in aid of Conviction: Metaphors as means of Illustration,19 catches and at the same time explains one of the most characteristic features of Mill’s style. His prose, typically, is didactic and forensic, conducting the reader through the logical deficiencies of arguments like a severe, slightly sarcastic, and not altogether patient tutor dissecting a pupil’s essay. He wrote to convince, and where he could not convince, to convict. No one has ever doubted the power of sustained analysis that he could command, but the pieces in this volume also display his mastery of the blunter weapons of controversy. One would be wise to respect an opponent who could begin a paragraph with a bland enquiry into the nature of Confederate society and then move smoothly to the conclusion: “The South are in rebellion not for simple slavery; they are in rebellion for the right of burning human creatures alive” (136). The invention of imaginary opponents underlined the gladiatorial nature of Mill’s dialectic, and he could be as unfair to them as Plato often is to Socrates’ stooges (who provide Mill’s model), as when in The Subjection of Women we are told what a “pertinacious adversary, pushed to extremities, may say,” only to discover a few lines later that this “will be said by no one now who is worth replying to” (292; cf. 310-11). But perhaps his most common rhetorical strategy is the reductio ad absurdum—and this observation underlines the earlier point about Mill’s reliance on a certain community of values between himself and his readers, without which the reductions would seem either not absurd or else simply irrelevant. Similarly, the use of analogy requires that the characterization of one term of the analogy be Edition: current; Page: [xv] beyond dispute: if it is not, the alleged extension will have no persuasive force. Arguments about equality are particularly likely to involve appeals to analogy; indeed, the whole of The Subjection of Women could be regarded as one long elaboration of the basic analogy between the historical position of slaves and the present position of women. And finally, the gap between profession and practice, to which Mill was constantly calling attention, invites the use of irony, though it must be said that his efforts at irony often sailed close to mere sarcasm and ridicule; his own highly developed sense of being, and having to be seen to be, “a man of principle” did not, perhaps, leave much room for that more generous and tolerant perception of human limitation which sustains the best forms of irony.

As a medium for addressing the reader of the periodicals of general culture, Mill’s prose was certainly not without its drawbacks Carlyle’s ungenerous description of Mill’s conversation as “sawdustish”20 could also be applied to some of his writing. He was aware, Bain tells us, that he lacked that facility of illustration which would have mitigated the overly abstract texture which characterizes almost all his work, and a compendium of Mill’s wit would be a slim volume indeed. His scorn for the mere “literary craftsman” quoted above was of a piece with his own avoidance of those arts common among the more winning essayists and reviewers in the nineteenth century. He never quite hits off the ideal tone for such writing in the way in which, say, Bagehot or Leslie Stephen did: he never manages to create that sense of intimacy between reader and author, that warming feeling of sharing a sensible view of a mad world. But in some ways the achievement of this effect would have been foreign to Mill’s purpose, for the sense of complicity it nurtured was to him only a subtler form of that complacency which he saw as the chief danger of modern society, the fons malorum that, above all else, required constant criticism: and here we come to the heart of his role as a public moralist.

Behind the particular issues to which the topical pieces in this volume were addressed there runs a common theme: the moral health of society is the highest good, calling, as the metaphor suggests, for constant care and sustenance if decay is not to set in.21 Mill is here acting as moral coach, keeping the national conscience in trim, shaming it out of flabbiness, urging it on to yet more strenuous efforts. In some ways this is an ancient role, and he sometimes hits a surprisingly traditional note: when, in defending the military action of the Northern states, he declared that “war, in a good cause, is not the greatest evil which a nation can suffer. . . . [T]he decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse” (141), we are reminded more of the language of Machiavelli and civic virtù than that of Cobden and Bright and the age of pacific commercialism. But for the most part the conception of morality to which Mill Edition: current; Page: [xvi] appeals appears unambiguously Victorian, both in its emphasis upon the active shaping of “character,” that constantly self-renewing disposition to form virtuous habits of conduct, and in its focus on the welfare of others as the object of moral action, and even, indeed, on the duty of altruism. What Mill is trying to do, beyond keeping this conception in good repair, is to mobilize its power in areas outside those over which it was conventionally granted sovereignty. In assessing England’s foreign policy he makes questions of moral example paramount; in discussing attitudes towards the American Civil War the moral tone of opinion in England is his chief concern; in opposing the Contagious Diseases Acts it is their public endorsement of vice he most objects to.

As prompter of the national conscience, Mill derived certain advantages from his deliberately nurtured position as an outsider among the English governing classes. Where the aim is to make one’s readers morally uncomfortable, too great an intimacy can be an obstacle; Mill seems to have felt that his avoidance of Society helped to provide the requisite distance as well as to preserve a kind of uncorrupted purity of feeling (he, though not he alone, attributed the allegedly superior moral insight of the labouring classes to the same cause). More obviously, he claimed a special authority on account of his familiarity (his unique familiarity, he sometimes seems to imply) with the main currents of Continental, and especially French, thought. Reproaches to his countrymen for their insular prejudice and ignorance are a staple ingredient in Mill’s writing, whether he is castigating them for their aversion to theories of history or upbraiding them for their unresponsiveness to the beauties of art. This is a further aspect of the didactic voice; tutor and pupil are not equals. An interesting complication emerges, however, where the comparative moral achievements of the English are concerned, for he repeatedly asserts that England is the superior of other nations in its “greater tenderness of conscience” (though characteristically he cannot resist the censorious warning, “I am not sure that we are not losing” the advantage [253]). As far as individual conduct was concerned, he could still maintain that its tendency to harden into a narrow “Hebraizing” called for correction from larger views of life that needed, on the whole, to be imported. But where national policy was at issue. Mill conceded England’s superior reputation, only to treat it as the source of an enlarged duty: as “incomparably the most conscientious of all nations” in its “national acts” (115), England had a special responsibility for maintaining and improving standards of international morality. In either case there was no rest for the virtuous. Since the English, according to Mill, were perpetually liable to complacency, a critic who could keep a more strenuous ideal before their minds would never want for employment.

It may help us to place that role as Mill’s practice defined it if we contrast it with two others, which were certainly no less available in mid-Victorian England, and which may, for convenience, simply be labelled those of the Sage and the Man of Edition: current; Page: [xvii] Letters.22 Claims to both these titles could be made on Mill’s behalf, yet their ultimate inappropriateness as descriptions of the author of the pieces in this volume (and, I think, of most of Mill’s mature oeuvre) is revealing of his position in the intellectual life of his time. The Sage (to construct a highly simplified ideal-type) trades in wisdom and new visions of experience as a whole. Typically, he is not so much attempting to argue his readers out of false beliefs as to reveal to them—or, better still, to put them in the way of discovering for themselves—the limitations of that perception of the world upon which they purport to base all their beliefs. The ineffable constantly looms, and he frequently employs a highly idiosyncratic vocabulary in an effort to disclose those dimensions of experience which the conventional categories are said to distort or obscure. Coleridge: Carlyle, and Newman might be taken as obvious nineteenth-century examples of this type, their very heterogeneity ensuring that it will not be understood to imply a set of common doctrines. Now, for all his Coleridgean and Carlylean flirtations in the late 1820s and early 1830s, I think it is clear that Mill does not belong in this galere. The Logic is hardly attempting to awaken in us a sense of the mysteries of the universe, and none of the essays in the volumes of Dissertations and Discussions leaves us feeling that we now possess our experience in a quite new way. Nothing in Mill’s philosophy strains at the limits of the plainly expressible, and if this restriction gives his prose a rather pedestrian quality by comparison with that of the Sages, we should remember that it is part of the definition of the pedestrian that he has his feet on the ground. After all, when Mill clashes directly with Carlyle over “the Negro Question” (89-95), it is not obvious that the latter’s esoteric vision yields the more appealing view, still less that it provides the more persuasive basis for action.

As one who wrote so extensively for the great Victorian reviews and on such a diverse range of subjects, Mill might seem to have a better claim to be included in the more capacious category of Man of Letters. His literary essays of the 1830s could be cited as one qualification for membership, his later reviews on historical and classical subjects, more dubiously, as another, and in any inclusive survey of the type Mill ought arguably to find a place. But even then he seems to be at most a kind of honorary member, too important to be left out, too individual to be conscripted, and his reply to the Neophyte Writers’ Society again provides the clue which helps us to pin down his distinctiveness. It is not only that Mill aimed to instruct rather than to delight, though it is worth recalling the disdain he entertained for what he dismissively termed “the mere faculty of expression”, he could never have subscribed to the view expressed in Francis Jeffrey’s defence of the lively style of the early Edinburgh Review: “To be learned and right is no doubt the first requisite, but to be ingenious and original and discursive is perhaps more Edition: current; Page: [xviii] than the second in a publication which can only do good by remaining popular.”23 But Mill is not divided from the best practitioners of literary journalism in his day only by a difference of tactics; there is the far deeper difference that he was not sufficiently interested in the variousness of literary achievement, not drawn to those exercises in appreciation, discrimination, and evocation that bulked so large in the reviews of the day. Where others collected their essays under such titles as “Hours in a Library,” “Literary Studies,” or simply “Miscellanies,” Mill quite accurately called his “Dissertations and Discussions.” Interestingly, he never wrote that kind of extended meditation on and appreciation of the work of a single figure which is among the chief essayistic glories of, say, Macaulay or Bagehot or Stephen, or even, more revealingly, of Morley, more revealingly because Morley was close to Mill in both doctrine and temperament. It is hard to imagine Mill, had he lived another ten years, contributing to Morley’s English Men of Letters series. Of the two books which Mill did devote to individual figures, that on Hamilton is a massive display of destructive criticism and dialectical overkill, while even the briefer and more general assessment of Comte remains firmly tied to an analytical discussion of the strengths and weaknesses of Comte’s theory. The nearest Mill had earlier come to this genre was in his famous essays on Bentham and Coleridge, yet even these were thinly disguised instalments in Mill’s own philosophical progress, less essays in appreciation than occasions for further synthesis. Similarly, his pieces on the French historians were intended to be contributions towards the development of a general historical theory, just as his reviews of Grote’s history were in effect manifestos for democracy, and so on. “I have on most of the subjects interesting to mankind, opinions to which I attach importance & which I earnestly desire to diffuse.” In pursuing this goal, the mature Mill husbanded his energies with principled care; perhaps he could not afford to explore other voices. At all events, as a moralist he never missed a chance to instruct, reproach, and exhort.

Such a figure is bound to excite strong feelings of one kind or another. In the pieces collected here, Mill, as a contemporary comment on his writings on the American Civil War put it, “ceases to be a philosopher and becomes the partisan,”24 and they are for that reason an excellent corrective to caricatures of Mill as the irenic spokesman for some factitious “Victorian orthodoxy.” It was because of such writings, above all, that he was regarded in many respectable circles as incorrigibly “extreme,” a zealous root-and-branch man; even many of those who had been enthusiastic admirers of his earlier works in philosophy and political economy found these later writings too “doctrinaire.”25 Others regarded Edition: current; Page: [xix] them as among his best works.26 It may be appropriate, therefore, to conclude this general discussion with two contemporary judgments which are both, it will be seen, essentially responses to those features of Mill the moralist we have been dealing with. A reviewer of The Subjection of Women, irked by Mill’s “assumption of especial enlightenment—of a philosophic vantage-ground from which he is justified in despising the wisdom of mankind from the beginning of things,” saw in this the source of his considerable unpopularity: “His intense arrogance, his incapacity to do justice to the feelings or motives of all from whom he differs, his intolerance of all but his own disciples, and lastly, in natural consequence of these qualities, his want of playfulness in himself and repugnance to it in others, all combine to create something like antipathy.”27 On the other hand, John Morley, commending Mill’s “moral thoroughness,” concluded. “The too common tendency in us all to moral slovenliness, and a lazy contentment with a little flaccid protest against evil, finds a constant rebuke in his career. . . . The value of this wise and virtuous mixture of boldness with tolerance, of courageous speech with courageous reserve, has been enormous.”28

EQUALITY

mill’s writings on equality included in this volume fall into two main groups, which it will be convenient to discuss separately, they are those that deal with what might be loosely termed “the negro question,” including, in addition to the piece of that name, his essays on the American Civil War and the papers of the Jamaica Committee; and those that deal with women, including, as well as the obvious items, his evidence on the Contagious Diseases Acts. (The two complementary pieces on foreign affairs—“A Few Words on Non-Intervention” and “Treaty Obligations”—will be discussed with the first group since they directly bear on the related question of the moral considerations that ought to govern England’s international conduct.) But, as the earlier remarks about analogy suggest, the arguments deployed in the two groups were very closely connected in Mill’s mind, and so it may be helpful to make a preliminary point about the chief feature they have in common.

Alexander Bain, increasingly sceptical of Mill’s later political enthusiasms, Edition: current; Page: [xx] considered the “doctrine of the natural equality of men” to be his master’s greatest error as a “scientific thinker.”29 Mill certainly presented the issue as essentially a matter of scientific method, making his opponents’ belief in natural inequalities seem a corollary of their defective grasp of the nature of induction. He constantly maintained that no reliable inference about what men and, more particularly, women would be like under a quite different set of circumstances could be made on the basis of our knowledge of their behaviour under the circumstances of systematic inequality which, he alleged in a rather brisk characterization of human history, had shaped that behaviour up to the present. His belief in the indefinite malleability of human nature provided one crucial ingredient of this claim, though here as elsewhere he was hampered (as he at times acknowledged) by his failure with his pet project of an “Ethology,” the scientific demonstration of the ways in which character is formed by circumstances.30 But in a way his view reflects the larger problem of negative evidence, a recurring motif in radical arguments against the existing order of things. That is to say, to the premise that individuals should be treated equally unless good cause can be shown to do otherwise, Mill wants to attach the rider that history could not in principle furnish the evidence needed to show such cause in the case of traditionally subordinate groups such as “the lower races,” the lower classes, or women. Actually, of course, Mill does wish to appeal to history in one way, namely (as suggested in general terms above), to present it as exhibiting a broad movement towards equality, but he is not, strictly speaking, attempting to have it both ways: the historical and epistemological claims are logically independent of each other. After all, it would be possible to uphold a belief in equality as in some sense “natural” whilst acknowledging that the march of history seemed to be in the direction of ever greater inequality, though unless buttressed by some ingenious supporting arguments this position might make the initial claim less plausible as well as, and perhaps more consequentially, less inspiriting. In practice, needless to say, Mill combined the two claims to good polemical effect: “the course of history, and the tendencies of progressive human society, afford not only no presumption in favour of this system of inequality of rights, but a strong one against it; and . . . so far as the whole course of human improvement up to this time, the whole stream of modern tendencies, warrants any inference on the subject, it is, that this relic of the past is discordant with the future, and must necessarily disappear” (272). He did not, in fact, always press the second, quasi-historicist, claim quite so hard; but he squeezed the first, negative, Edition: current; Page: [xxi] point very hard indeed, and it is this, above all, that imparts such a strongly destructive flavour to some of these pieces.

“The Negro Question” (1850), the earliest of the first group, was published in the form of a letter to the editor of Fraser’s replying to Carlyle’s “Occasional Discourse on the Negro Question” published in the preceding number.31 Mill’s friendship with Carlyle had cooled—indeed, all but lapsed—since the days of Mill’s heady, discipular enthusiasm in the early 1830s,32 and Carlyle’s ever more vehement denunciations of the sentimental cant of humanitarian reformers placed a very large obstacle in the way of any genuine intellectual rapprochement. This and other uncongenial themes, including the Divine sanction to the rule of the strongest, and the heroic, Promethean conception of work, were all rehearsed in this latest intemperate satire on the misguided world of Exeter Hall and “The Universal Abolition of Pain Association,” so that Mill’s reply involved a repudiation of the whole Carlylean vision. The exchange also prefigured the far more significant confrontations over the Governor Eyre controversy sixteen years later, when Mill and Carlyle were to emerge as leaders of the rival public committees, and when the lines of division were very much those canvassed in the earlier exchange.

The bare structure of Mill’s argument follows the basic pattern referred to above: what Carlyle takes as the distinctive and self-evidently inferior “nature” of the negro is in fact the result of the historical circumstances of subjection under which that character has been formed, and it is the distinctive mark of the modern age to be bent on mitigating or abolishing such subjection. Both science and history, therefore, tell against the view that the negro—“Quashee,” to use Carlyle’s mischievously provocative term—must perpetually work under the lash of a white master. But though Mill’s reply is, as ever, analytically sharp, it may seem to leave untouched the deeper sources of Carlyle’s rhetorical power. For example, in replying that the abolition of slavery “triumphed because it was the cause of justice,” not because the age itself was enslaved to a “rose-pink sentimentalism” (88), Mill does not really engage with that transvaluation of all values that lay at the root of Carlyle’s particular gibes (the appropriateness of the Nietzschean phrase is itself an indication of the systematically subversive nature of Carlyle’s assault on the moral truisms of his day). Mill’s criticisms are decisive in their own terms, but they bounce like small-arms fire off Carlyle’s armour-plated vision of the enthusiasm for human justice as itself part of that weak-kneed, self-deluded evasion of the facts of a power-governed universe. Carlyle, hardly surprisingly, thought Mill’s reply “most shrill, thin, poor, and insignificant.”33

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One significant feature of Mill’s attack was his prescient concentration on the prospects for slavery in the United States, and on the support given to “the owners of human flesh” by Carlyle’s flinging “this missile, loaded with the weight of his reputation, into the abolitionist camp” (95). Mill always followed American developments very closely, convinced that they would eventually prove decisive for several of the causes he cared most about:34 the fate of popular government, in particular, seemed to Mill and many others in England to be bound up with the successes and failures of “the great democratic experiment” of the United States.35 Although Mill shared many of Tocqueville’s misgivings about the pressures making for mediocrity and conformity in American society, he did not let these misgivings override his principled optimism about the future of democracy, and he was always alert to the ways in which anti-democratic opinion in England, with The Times in the van, tried to exploit the acknowledged weaknesses of American political life and constitutional arrangements to discredit all popular causes at home. The Civil War, therefore, touched several nerves in Mill’s moral physiology; not only did it involve the most blatant case of institutionalized inequality in the civilized world and the whole question of popular government’s ability to combine freedom with stability, but, always powerfully active in determining Mill’s interest in public issues, it provided a thermometer with which to take the moral temperature of English society as a whole.

The question of British attitudes towards the American Civil War is a notoriously complex and disputed one,36 but it is uncontentious to say that in the early stages of the war a very large majority among the articulate was hostile to the North, and that within that majority there was an influential body actively sympathetic to the Confederate cause. It was not simply that the upper classes largely sided with what was perceived as the aristocratic or gentlemanly character of plantation society, nor even that for many in all classes commercial self-interest seemed to dictate a prudent regard for the prosperity and independence of the cotton-exporting states. It was also that the Confederate cause was widely represented as the cause of freedom, that in defending their “right to secede” in the face of the superior force of an essentially alien power, the Southern states were Edition: current; Page: [xxiii] acting analogously to those peoples “rightly struggling to be free” who had aroused such enthusiasm in Britain in the preceding decade: Jefferson Davis was elevated to stand alongside Kossuth and Garibaldi. The issue was thus not one on which opinion divided (in so far as it very unequally did divide) along party lines: Gladstone and Russell were among those who considered the Federal attempt to “coerce the South” to be unwarranted, while Radicals were told by some of their spokesmen that “the first doctrine of Radicalism . . . was the right of a people to self-government.”37

Mill, to whom the real issue at stake in the war had from the outset been the continued existence of slavery, considered that much of this sympathy for the South rested on ignorance or, even more culpably, moral insensibility, and “The Contest in America” (1862) was his attempt to educate English opinion on both counts. He expected it, Bain recorded, “to give great offence, and to be the most hazardous thing for his influence that he had yet done.”38 He made this judgment not simply because he found himself on the side of the minority, and a pretty small one at that; this he had taken to be the more or less constant character of his intellectual life from his earliest Benthamite propaganda onwards. Bain’s phrase suggests, rather, that Mill was now the self-conscious possessor of a “reputation” which he was about to deploy in an outspoken condemnation of the moral myopia of the reputation-making classes. For, “the tone of the press & of English opinion,” as he confided to Thornton, “has caused me more disgust than anything has done for a long time”;39 he regarded the “moral attitude” displayed by “some of our leading journals” (The Times and the Saturday Review particularly galled him) as betraying an unavowed partiality for slavery. In some cases, he sneered, this arose from “the influence, more or less direct, of West Indian opinions and interests,” but in others—and here he warms to a favourite theme—it arose

from inbred Toryism, which, even when compelled by reason to hold opinions favourable to liberty, is always adverse to it in feeling, which likes the spectacle of irresponsible power exercised by one person over others; which has no moral repugnance to the thought of human beings born to the penal servitude for life, to which for the term of a few years we sentence our most hardened criminals, but keeps its indignation to be expended on “rabid and fanatical abolitionists” across the Atlantic, and on those writers in England who attach a sufficiently serious meaning to their Christian professions, to consider a fight against slavery as a fight for God (129)

Slavery is thus treated by Mill as the extreme form of undemocracy, a kind of Toryism of race to match the “Toryism of sex” that he saw in women’s exclusion from the franchise.40 The “warmth of his feelings” on the issue was remarked by Edition: current; Page: [xxiv] friends and opponents alike: he was, Grote recorded, “violent against the South . . . ; embracing heartily the extreme Abolitionist views, and thinking about little else in regard to the general question.”41 It was the outspoken public expression of this passion which, more than anything else, gave Mill that identity as a “partisan” controversialist which was such a marked feature of his reputation in the last decade of his life.

Mill was adamant that even if secession were the main issue at stake, this would still not automatically entitle the South to the support of those who thought of themselves as ranged on the side of freedom. Brandishing his own radical credentials, he announced, “I have sympathized more or less ardently with most of the rebellions, successful and unsuccessful, which have taken place in my time,” but emphasized that it was not simply their being rebellions that had determined their moral status: “those who rebel for the power of oppressing others” were not to be seen as exercising “as sacred a right as those who do the same thing to resist oppression practised upon themselves” (137). The nature and aims of Southern society were the decisive test, and in educating English opinion on this matter Mill found his chief ally in the Irish economist John Elliot Cairnes. The younger man had already won his senior’s approval with his very Millian statement of the method of classical political economy,42 and when in the summer of 1861 he sent Mill the manuscript of a course of lectures that he had just delivered on the nature of American slavery, Mill immediately recognized their polemical value and urged their publication.43 The resulting book, accurately entitled The Slave Power: Its Character, Career, and Probable Designs: Being an Attempt to Explain the Real Issues Involved in the American Contest,44 fully satisfied Mill’s expectations, and led to the growth between the two men of what Mill, in a revealing phrase, referred to as “the agreeable feeling of a brotherhood in arms.”45

The chief contentions of Cairnes’ book were that the nature of Southern society was determined by its basis in the economy of slavery, that such a system of production needed, under American conditions, continually to expand the territory cultivated by slave labour, and that this inherent dynamic accounted for the expansionist activities of the Southern states which, when the action of the Federal government threatened to curb them, naturally led to war. Secession was not, Edition: current; Page: [xxv] therefore, a demand of an oppressed people to be left alone: it was the inevitable outcome of an insatiably aggressive policy, which could only be halted by the destruction of slavery itself.

Mill was obviously right about the topical resonance of the work, which received considerable critical attention and was republished in a second, enlarged edition in 1863. But it is worth noting that Cairnes himself recorded that his purpose had initially been of “a purely speculative kind—my object being to show that the course of history is largely determined by the action of economic causes.”46 Now, in one sense, Cairnes’ procedure was naturally likely to be to Mill’s methodological taste: the argument of the book relies, to a quite surprising degree, on deduction from its small set of basic premises.47 Cairnes remarks at one point how the “political economist, by reasoning on the economic character of slavery and its peculiar connection with the soil, [may] deduce its leading social and political attributes, and almost construct, by way of a priori argument, the entire system of the society of which it forms the foundation,” and later he says that he has been examining “the direction in which, under ordinary circumstances, and in the absence of intervention from without, the development of such a system proceeds”;48 or, in other words, that he was employing the kind of hypothetical reasoning, setting aside “disturbing causes,” which Mill had long ago insisted was the proper procedure for political economy, and which Cairnes had elaborated, with Mill’s enthusiastic endorsement, in his first book. That Mill should here welcome the use of this method in treating a type of subject that, in his canonical statement of the method of the moral sciences in Book VI of his Logic, he had assigned to the province of sociology may simply be one among many indications of the extent to which in practice he ignored the grand design for a science of society that he had laid out in 1843 and fell back upon more traditional enterprises like political economy.49 But it is perhaps more surprising that he should let Cairnes’ historical materialism pass without comment, since Mill was in general so concerned to insist that moral and intellectual rather than economic causes are the motor of history. He presumably felt that this was no time to be parading differences over the finer points of method; brothers-in-arms have more important things to do than criticizing the cut of each other’s armour.

The review of Cairnes, the first half of which is a faithful paraphrase of the original in both tone and content, provided Mill with another opportunity to read a lesson on the debased state of “public morality” in England, “this sad aberration of Edition: current; Page: [xxvi] English feeling at this momentous crisis,” which he contrasted unfavourably with the right-mindedness of liberal feeling in France.50 As he recognized, opinion in England was at first very much affected by estimates of the likely outcome of the military struggle—in 1861 and early 1862 many people were not convinced that the North would win—and throughout the war there was hostility to the North on the grounds that even if it did win it could not permanently govern the South in a state of subjection. Indeed, the one point on which Mill and Cairnes initially differed was that the latter thought that the best outcome would be an independent South confined, fatally for its slave economy, to the existing slave states, whereas the former looked for nothing short of complete surrender and re-incorporation in the Union on the North’s terms, a view with which Cairnes seems to have come to agree by 1865.51 It is indicative of Mill’s passion on the subject that he immediately fastened on a potentially valuable aspect of Lincoln’s assassination: “I do not believe the cause will suffer,” he wrote to one correspondent. “It may even gain, by the indignation excited.”52 Keeping the indignation-level well topped-up in such cases Mill seems to have regarded as one of the routine tasks of the public moralist, and he hoped that one consequence of the feelings aroused by the assassination would be to “prevent a great deal of weak indulgence to the slaveholding class, whose power it is necessary should be completely and permanently broken at all costs.”53

This disposition to fight à l’outrance manifested itself even more strikingly in Mill’s contribution to the Governor Eyre controversy, which flared up later in 1865. This was one of those great moral earthquakes of Victorian public life whose fault lines are so revealing of the subterranean affinities and antipathies of the educated classes which the historian’s normal aerial survey of the surface cannot detect. Faced with a native insurrection of uncertain proportions in October, 1865, the English Governor of Jamaica had declared martial law, under which justification he apparently condoned several brutal acts of suppression carried out by his subordinates, some of them after the danger was, arguably, past, and including the summary execution of the leader of the native opposition party in the local assembly.54 Considerable uncertainty at first surrounded many of the facts of the case, but opinion in England immediately divided: on the one side were those who thought that, though the reported brutality was no doubt regrettable, Eyre’s unorthodox and vigorous action in a situation of great danger had saved the population, especially the white population, from far worse evils (the Indian Mutiny, after all, was still fresh in the memory); on the other side were those, Edition: current; Page: [xxvii] including Mill, who regarded Eyre’s actions as both morally unpardonable and flagrantly illegal, and who thought it their duty to see that he was brought to justice, and the moral stain on the character of English rule thereby removed. The intensity of Mill’s commitment to this view is strikingly illustrated by his comment in December, 1865, on the next session’s business in Parliament: “There is no part of it all, not even the Reform Bill, more important than the duty of dealing justly with the abominations committed in Jamaica.”55 He immediately joined the Jamaica Committee, which was founded in the same month to ensure that Eyre and his subordinates were brought to justice, and when its first Chairman, Charles Buxton, thinking it sufficient simply to secure Eyre’s dismissal and disgrace without also having him prosecuted for murder, resigned in June, 1866, Mill, then in Parliament and sternly resisting further calls on his time even for causes to which he was sympathetic, took over the chairmanship and retained it until the Committee was wound up in May, 1869.56

The three aims of the Committee were summarized in the progress report which Mill, together with the Treasurer and the Secretary, issued to members in July, 1868 (and which is reproduced as part of Appendix E below): “to obtain a judicial inquiry into the conduct of Mr. Eyre and his subordinates; to settle the law in the interest of justice, liberty and humanity; and to arouse public morality against oppression generally, and particularly against the oppression of subject and dependent races” (433). On the first point they had to acknowledge defeat: despite repeated efforts, which had earned for Mill, in particular, a reputation as the vindictive persecutor of the unfortunate Eyre, no court had proved willing to put him on trial. The second aim had met with some success as far as the status of martial law within the English legal system was concerned, though whether the inconclusive outcome of the whole affair vindicated the principle of “government by law,” which Mill had always insisted was at stake in the matter, is open to question.57 Quite what counted as success on the third point was obviously harder to say. “A great amount of sound public opinion has been called forth” (434), the statement reported, and for Mill this effect was something of an end in itself, though it is not obvious that the campaign exercised that morally educative influence which he always looked for in such cases. T.H. Huxley, predictably a member of the Jamaica Committee, may have been nearer the mark when he wrote to Charles Kingsley that “men take sides on this question, not so much by looking Edition: current; Page: [xxviii] at the mere facts of the case, but rather as their deepest political convictions lead them.”58 Certainly, attitudes towards the working class and democracy at home played a large part in the controversy; Eyre’s supporters were not slow to suggest, for example, that the Hyde Park riots of 1866 called for a similarly vigorous use of force by the authorities. Conversely, as far as Mill was concerned, right feeling on the matter transcended more pragmatic party loyalties: when in 1871 the Liberal government decided to honour a previous Tory promise to pay Eyre’s legal expenses, Mill, deeply disgusted, announced: “After this, I shall henceforth wish for a Tory Government.”59 Such issues of public righteousness provide surer touchstones by which to understand Mill’s later career than do any of the conventional political labels; it will always be difficult to say with certainty which of those liberal and reforming measures enacted in the decades after his death he would have approved of, but there can surely be no doubt that had he lived he would have been among the leaders of the agitation against the Bulgarian atrocities in 1876.60

The question of the proper conduct of nations towards each other, particularly the appropriate English role in international affairs, was one which exercised Mill throughout the latter part of his life. Although observations on it can be found in several of his other writings, most notably in Considerations on Representative Government, only two essays, both reprinted here, were devoted exclusively to it. The first, “A Few Words on Non-Intervention” (1859), was occasioned by Palmerston’s reported attempt to defeat an international project to build a Suez canal, on the grounds of the harm it might do to England’s commercial and strategic position in the East. Mill’s particular concern here was with England’s moral reputation, and with the harm done to that reputation by statements which seemed to confine English policy to the pursuit of purely selfish aims.61 But, as he says in the Autobiography: “. . . I took the opportunity of expressing ideas which had long been in my mind (some of them generated by my Indian experience and others by the international questions which then greatly occupied the European public) respecting the true principles of international morality and the legitimate modifications made in it by difference of times and circumstances. . . .”62 His premise was that nations, like individuals, “have duties . . . towards the weal of the human race,” and that the whole issue must accordingly be considered “as a really moral question” (116, 118), a phrase that always signals a change of key in Mill’s compositions. Viewing the question from this higher ground, he showed himself to have little sympathy with a policy of strict and complete “non-intervention,” a Edition: current; Page: [xxix] policy much canvassed in England in the 1850s and often popularly, if not altogether justifiably, associated with the names of Cobden and Bright. Mill disavowed slavish adherence to this (or any other) maxim in foreign affairs, just as he did to that of laissez-faire in domestic policy; the decisive test was rather whether intervention might promote the good of enabling a people with legitimate aspirations to independence to render themselves fit to exercise genuine self-government, a view with special resonance in the period of liberal nationalist uprisings in Europe. The stage of civilization reached by the society in question was a crucial consideration here; as he demonstrated in his better-known works on liberty and representative government, Mill thought a civilized power might have a duty not to leave a backward people stagnating in a freedom they could make no profitable use of. Where, on the other hand, a foreign despotism had been enlisted to suppress a genuine popular movement in another country, a liberal power had a duty to intervene, and it is an illustration of the seriousness with which Mill regarded this duty that he even maintained that England should have acted to prevent the Austrian suppression, with Russian aid, of the Hungarian uprising of 1849 (124). One of the things that drew Mill to Gladstone in the 1860s, however much they differed on specific policies, was the latter’s professed commitment to determining England’s international role by such moral principles.63

That this idealism was at the same time tempered by a kind of realism is suggested by the second piece reprinted here, the brief article on. “Treaty Obligations” (1870), which was written in response to a different kind of crisis. On 31 October, 1870, Russia declared its intention of repudiating the clause in the Treaty of Paris—the peace forced on Russia by the victorious Anglo-French alliance at the conclusion of the Crimean War in 1856—whereby the Black Sea was to remain neutral waters. This declaration produced an ill-considered cry in England for war against Russia to force her to honour the agreement, during which agitation the principle of the indefinite inviolability of treaty obligations was frequently invoked. Mill regarded the whole agitation as resting on this mistaken notion that treaties forced upon defeated powers ought to be regarded as binding in perpetuity: “Were they terminable, as they ought to be, those who object to them would have a rational hope of escape in some more moral way than an appeal to the same brute force which imposed them.”64 But as ever, he was also addressing himself to the state of mind—or, more accurately, the state of character—of which such misguided public responses were symptomatic. In both cases, it was “that laxity of principle which has almost always prevailed in public matters” which he denounced with especial warmth, moved yet again by the conviction that the unrebuked expression of such views was “injurious to public morality” (343, 345).

In turning to Mill’s writings on women, one approaches an area where the Edition: current; Page: [xxx] interplay between his private convictions and his public statements as well as between his biography and his reputation is particularly complex and controversial. It is deeply ironical that the interpretation of so much of the work of a man who reckoned the sexual urge to be a grossly overrated and ultimately insignificant part of human life should have come to be so completely entangled with, even determined by, competing assessments of the influence exercised over him by the woman he loved. Needless to say, this irony applies with especial force to his writings on women, so much so that we could reverse his dictum that “one can, to an almost laughable degree, infer what a man’s wife is like, from his opinions about women in general” (278). Even at the time, critics, especially once primed by the revelations of the Autobiography, were not slow to turn this remark against Mill, while even his admirers deplored the turn which Harriet was taken to have given to his thought on this and other questions. Any complete account of Mill’s thinking on the subject of women would have to come to terms with the role of this very clever, imaginative, passionate, intense, imperious, paranoid, unpleasant woman. Here, fortunately, it is appropriate to offer only a few prolegomena to The Subjection of Women, the last book published by Mill in his lifetime and the most substantial of the works included in the present volume.

It is at least clear, where so much is unclear, that Mill’s belief in the equality of the sexes was well established before he met Harriet. When at the opening of The Subjection of Women he refers to it as “an opinion I have held from the very earliest period when I had formed any opinions at all on social and political matters” (261), he seems, as far as the evidence allows us to judge, to be stating a literal truth. It occasioned, for example, his one point of dissent from his father’s Essay on Government at the time when he was in all other ways the most faithful and zealous expounder of the latter’s views, and even as a matter of tactics in the unpromising political climate of England in the 1820s he considered his father’s acceptance of women’s temporary exclusion from the suffrage to be “as great an error as any of those against which the Essay was directed.”65 Indeed, this ardent and uncompromising advocacy may have been one of the things that first attracted Harriet’s favourable attention. Their oddly formal exchange of statements, some two years after they met in 1830, about the position of women in relation to marriage was by then the rehearsal of shared views, and may be seen in Mill’s case as the bizarre courting behaviour of an over-intellectualized man. Not that this was not the way to Harriet’s heart: Mill could bask in the implied praise of her complaint that “it seems now that all men, with the exception of a few lofty-minded, are sensualists more or less,” to which she firmly added, “Women on the contrary are quite exempt from this trait, however it may appear otherwise in the cases of some” (375). Edition: current; Page: [xxxi] Understandably, this exchange between an unhappily married woman and her yearning admirer revolves around the question of the dissolubility of the marriage tie. Harriet’s soaring idealism is evident in her greater readiness to do “away with all laws whatever relating to marriage” (376). Mill, characteristically, subjects the arguments to careful analysis before concluding in favour of “leaving this like the other relations voluntarily contracted by human beings, to depend for its continuance upon the wishes of the contracting parties” (49). Clearly, though he may have sighed like a lover, he could still write like the son of James Mill. This expression of his view in a purely private form has a particular interest in that his avoidance of a clear recommendation about divorce in The Subjection of Women was to be a major point of criticism.66

It is worth remarking that even in this unconstrained expression of belief in the natural equality of the sexes, he still adhered to some rather more traditional notions about their distinctive roles. “In a healthy state of things,” he maintained, “the husband would be able by his single exertions to earn all that is necessary for both; and there would be no need that the wife should take part in the mere providing of what is required to support life: it will be for the happiness of both that her occupation should rather be to adorn and beautify it” (43). In a phrase which should remind us, if we need reminding, that Mill is not an unproblematic recruit to the ranks of late-twentieth-century feminism, he blandly laid down that a woman’s task in life is “accomplished rather by being than by doing” (43). While he always strenuously disputed, on essentially epistemological grounds, all assertions about “natural” differences between the sexes, this is an early indication—there are several later ones—that he was in practice willing to endorse certain conventional assumptions about the most “appropriate” sphere for women’s activity.

Despite the importance he attached to the subject—he later remarked that the “emancipation of women, & cooperative production, are . . . the two great changes that will regenerate society”67—Mill published nothing substantial on it until 1869. In part this was a matter of waiting for a less hostile phase of public opinion. (Mill, surely influenced here by Harriet’s paranoid attitude to society in general, was particularly pessimistic about the state of opinion in England in the 1850s.) As he explained to the editor of the Westminster in 1850: “My opinions on the whole subject are so totally opposed to the reigning notions that it would probably be inexpedient to express all of them.”68 In 1854 he and Harriet included it among the subjects on which they hoped to leave some record of their thoughts, but it was not Edition: current; Page: [xxxii] until some two years after Harriet’s death that Mill wrote The Subjection of Women, and only nine years later still that he considered the world ready to receive it. It may also have been the case that Mill’s failure to make any progress with the Ethology deterred him from attempting a systematic exploration of an issue which, as suggested above, was so closely dependent on that project as he conceived it. The extent to which his dispute with Comte over the alleged differences between the sexes turned on what Mill regarded as the questions to be settled by Ethology is very suggestive here.69 In complaining to Harriet in 1849 about the prevalence of false assumptions about woman’s “nature” (“on which the whole of the present bad constitution of the relation rests”), he declared: “I am convinced however that there are only two things which tend at all to shake this nonsensical prejudice: a better psychology & theory of human nature, for the few, & for the many, more & greater proofs by example of what women can do.”70

Most of all, he may have considered that his views on sexual equality had been given adequate public expression for the present—by Harriet. “I do not think that anything that could be written would do nearly so much good on that subject the most important of all, as the finishing your pamphlet. . . .”71 Quite how much Mill contributed to the writing of “The Enfranchisement of Women,” published in the Westminster in 1851, remains unclear, but there seems little doubt that it is substantially Harriet’s work, though Mill seems to have thought it prudent to let the editor assume it was by him (see the Textual Introduction, lxxv-lxxvii below). Mill certainly held a correspondingly inflated view of it: when asked by later correspondents to recommend reading on this subject he always put his wife’s article at the head of the list, and there is no doubt that he whole-heartedly subscribed to its contents, though his own expression of essentially the same views in The Subjection of Women is occasionally somewhat more circumspect. A list of the more obvious similarities between the two works could begin with the analogy with “the kindred cause of negro emancipation,” and go on to include the identification of custom as the great enemy, the interpretation of history as the prolonged repeal of the law of the strongest, the assertion that free competition will assign each to his or her appropriate role, and the appeal to the demonstrated practical ability of famous queens (401-2). After Harriet’s death, Mill included the article in his Dissertations and Discussions in 1859, with an embarrassing eulogy of its author (see 393-4), though he emphasized that it was far from being a complete statement of the case.

When Mill did decide that the time was ripe to issue a systematic statement of his views it was a ripeness he had played an important role in bringing on by his activities in Parliament. In particular, his presentation in June, 1866, of a petition for the extension of the suffrage to women, and his proposal during the debates of May, 1867, to amend the Reform Bill then before the House by omitting reference Edition: current; Page: [xxxiii] to the gender of householders entitled to the vote, had aroused a great deal of attention, not all of it hostile.72 That his amendment received the support of over seventy M.P.s, including John Bright, Mill found “most encouraging,” and in the wake of this triumph the National Society for Women’s Suffrage was formed, actively prompted by Mill and Helen Taylor.73 When The Subjection of Women was published, therefore, Mill was unusually optimistic about the progress the cause was likely to make in the immediate future.74

This short book, little more than an extended pamphlet as the nineteenth century knew that genre, offers the whole world of Mill’s characteristic political and moral arguments in microcosm, themes whose best known loci are in the Principles, On Liberty, or Representative Government are here drawn together and focussed on a single issue. This is true of such questions as the role of an élite who have the feelings of the future, the indispensability of liberty to individual happiness, the educative as well as defensive importance of participation in public affairs, and much more. At the same time, the work is a deliberately provocative and splendidly sustained polemic, one of the peaks of Mill’s rhetorical achievement as a public moralist. Considered in this light, two features of the book call for comment.

First there is the general question of argumentative strategy mentioned above Mill attempts systematically to undermine the standing of any evidence about the “natural subordination” of women drawn from past experience, just as in his claims about Socialism elsewhere he sometimes rules out of court all objections based on the selfishness of human nature as manifested in the past under non-socialist arrangements.75 In both cases, the move is one of considerable high-handedness, and not all readers have been disposed to go along with this dismissal of mankind’s accumulated experience. In fact, as we saw, Mill’s ban on evidence drawn from history is only partial: where that evidence may seem to suggest a positive conclusion about women’s capacities, as in the case of notable female monarchs,76 its doubtful epistemological credentials are treated more leniently, just as he considered examples of successful cooperative production to Edition: current; Page: [xxxiv] be admissible evidence in the parallel case. But, further, as in his early essay on marriage, Mill does not in fact exclude all current assumptions about distinctively feminine qualities or spheres of activity; for example, he holds that “the common arrangement, by which the man earns the income and the wife superintends the domestic expenditure, seems to me in general the most suitable division of labour between the two persons,” and “in an otherwise just state of things, it is not, therefore, I think, a desirable custom, that the wife should contribute by her labour to the income of the family” (297-8). Complaints about his “failure to question the social institutions of his time” (and about his “taking the bourgeois family as his model”)77 will recommend themselves to those who are irritated by the “failure” of historical figures to express approved modern views, but they miss the main point. It is not that Mill should be expected to have transcended the categories embodied in the common experience of his time—that is always a surprising achievement—it is rather that he takes some of these categories for granted when it suits his argument, after having had the methodological hubris to claim that all such experience was necessarily beside the point.

The other feature of the book calling for comment here is its concern with moral education. The forensic centrepiece of the work is its condemnation of existing marriage arrangements: as he pungently put it, “There remain no legal slaves except the mistress of every house” (323). He was, of course, arguing for far more than the removal of the legal disabilities of married women, important though he always considered the law as a means of wider improvement. He was also proposing a different conception of marriage, in which the couple, meeting as equals, are held together by the bonds of affection and mutual respect. But his concern in doing so goes beyond that of improving woman’s lot: he constantly treats marriage as “a school of genuine moral sentiment” (293), demonstrating once again his intense preoccupation with the consequences institutions have on the character and moral habits of those whose lives they structure. “Any society [in the sense of social contact] which is not improving, is deteriorating, and the more so, the closer and more familiar it is” (335). This, Mill argued (it was another point that had been made in Harriet’s article of 1851), was why “young men of the greatest promise generally cease to improve as soon as they marry, and, not improving, inevitably degenerate” (335). Marriage for a man whose closest daily contact is with someone whom he regards as his inferior, and who herself acts as his inferior, becomes “a school of wilfulness, over-bearingness, unbounded self-indulgence, and a double-dyed and idealized selfishness” (289). Mill’s argument here can be represented as a localized variant of Hegel’s famous parable of the need to recognize another’s autonomy and worth before that person’s response could provide any worthwhile confirmation of one’s own identity and Edition: current; Page: [xxxv] value. “The relation of superiors to dependents is the nursery of these vices of character” (288).

Mill’s critics found his ideal of marriage a little too much like a two-member Mutual Improvement Society. “To him marriage was a union of two philosophers in the pursuit of truth,” was how Goldwin Smith unkindly but not altogether unfairly put it, adding “not only does he scarcely think of children, but sex and its influences seem hardly to be present to his mind.”78 Certainly his prim dismissal of the role of the “animal instinct” might well be seen as something of a handicap for anyone wishing to alter the relations between the sexes. Bain, who thought Mill deficient in “sensuality” (“he made light of the difficulty of controlling the sexual appetite”), presented this criticism in the cautious form of reported speech: “It was the opinion of many, that while his estimate of pure sentimental affection was more than enough, his estimate of the sexual passion was too low.”79 Mill’s own professed view was that “the force of the natural passions” has been “exaggerated”. “I think it most probable that this particular passion will become with men, as it already is with a large number of women, completely under the control of the reason,” which surprising proposition he sought to buttress with a somewhat feeble appeal to authority—“I have known eminent medical men, and lawyers of logical mind, of the same opinion.”80

Faced with Mill’s call for a radical alteration in the nature of marriage as commonly understood, an alteration which women did not by and large seem to be demanding for themselves, contemporary critics were inclined to ask Cui bono?81 But for Mill this was not a matter of sectional interests. It was not just that wives were denied opportunities for self-fulfilment, he saw the existing pattern of marriage as systematically warping the moral sensibilities of men as well, and thus inhibiting the moral growth of society as a whole. “The moral regeneration of mankind will only really commence, when the most fundamental of the social relations is placed under the rule of equal justice, and when human beings learn to cultivate their strongest sympathy with an equal in rights and in cultivation” (336). The emphatic, insistent note here—“only,” “really,” “most fundamental,” “strongest,” and so on—is a sign of Mill’s anxiety that in these matters those who listen do not hear, while “moral regeneration” (the implication of the peculiarly debased state of the present is the cultural critic’s occupational failing) shows what high stakes are being played for.

In more immediate terms, the three legal issues with which the whole question Edition: current; Page: [xxxvi] was inseparably connected were property rights, divorce, and the suffrage. The first issue is fully and vigorously explored in The Subjection of Women,82 but the second, which had been central to the early essays, is deliberately avoided. As Mill explained to a correspondent in the following year:

The purpose of that book was to maintain the claim of women, whether in marriage or out of it, to perfect equality in all rights with the male sex. The relaxation or alteration of the marriage laws . . . is a question quite distinct from the object to which the book is devoted, and one which, in my own opinion, cannot be properly decided until that object has been attained. It is impossible, in my opinion, that a right marriage law can be made by men alone, or until women have an equal voice in making it.83

But this conviction only made the third issue, the suffrage, all the more crucial, and here the book was unequivocal: “Under whatever conditions, and within whatever limits, men are admitted to the suffrage, there is not a shadow of justification for not admitting women under the same” (301). Bain’s comment that The Subjection of Women constituted “the most sustained exposition of Mill’s life-long theme—the abuses of power”84 is apposite here, for in writing on the one subject on which he had from the outset criticized his father’s essay. “Government,” he echoed that work’s arguments throughout. Though his mind brooded on the prospects for moral progress in the long term, he never doubted that the key to the immediate relief of woman’s estate was her possession of the vote. In a letter to Florence Nightingale two years before, he had expressed this belief in a way that made its Philosophical Radical pedigree particularly clear. Nightingale had affirmed her preference for concentrating on other improvements in women’s position, expressing the hope that enlightened governments could be persuaded to bring about such improvements without women themselves having the vote. In reply, Mill gave her a brisk tutorial on the fundamentals of democratic political theory. He granted that “a ruling power” might be moved to alleviate the disabilities of the ruled: “The question is, has it ever seemed to them urgent to sweep away these disabilities, until there was a prospect of the ruled getting political power?” Even under an enlightened government, the interests of the ruled were constantly at risk, “for no earthly power can ever prevent the constant unceasing unsleeping elastic pressure of human egotism from weighing down and thrusting aside those who have not the power to resist it.” Ultimately, it was the primacy of the political that Mill was trying, unsuccessfully, to bring Nightingale to recognize: “political power is the only security against every form of oppression.”85 So much did this issue dominate the last years of Mill’s life—Helen Edition: current; Page: [xxxvii] Taylor showed some of her mother’s skill here—that Mill could announce in 1872: “The time, moreover, is, I think now come when, at parliamentary elections, a Conservative who will vote for women’s suffrage should be, in general, preferred to a professed Liberal who will not. . . . [T]he bare fact of supporting Mr Gladstone in office, certainly does not now give a man a claim to preference over one who will vote for the most important of all political improvements now under discussion.”86

Mill’s concern not just with the rights of women but with the moral sensibility exhibited in publicly condoned attitudes towards them came strongly to the fore in the agitation against the Contagious Diseases Acts from which the last of the items here reprinted takes its origin. These Acts, passed between 1864 and 1869, provided for the compulsory medical inspection and, if necessary, treatment of women suspected of being prostitutes in certain specified garrison towns, in an attempt to control the incidence of venereal disease among the troops stationed there. The Acts raised several questions of principle in relation to police powers and the treatment of women, as well as provoking a variety of less rational responses, and in 1869 a public campaign for the repeal of the Acts was launched with Josephine Butler at its head.87 Mill supported the campaign—“Of course one need scarcely say that to any man who looks upon political institutions & legislation from the point of view of principle the idea of keeping a large army in idleness & vice & then keeping a large army of prostitutes to pander to their vices is too monstrous to admit of a moment’s consideration”—though he was anxious lest the peculiarly emotional controversy that it aroused should injure the campaign for the suffrage.88 The agitation led to the setting up of a Royal Commission on the Acts in 1870; by Easter, 1871, it had heard forty-eight witnesses in favour of the maintenance or extension of the Acts and only twelve in favour of their repeal. The National Association for the Repeal of the Contagious Diseases Acts argued that it should hear more witnesses known to favour repeal, and Mill was among those Edition: current; Page: [xxxviii] called as a result.89 It is worth observing in passing that Mill was called as a witness despite having no official standing in any of the organizations or professions involved, having no expert knowledge of the subjects at issue, and having, on his own admission, made no special study of the working of the Acts; as with the Westminster candidacy in 1865, his being John Stuart Mill was sufficient recommendation. In fact he proved to be a model witness as, under hostile and unfair questioning from some members of the Commission, he maintained a calm and lucid hold on the essential questions of principle.90

What is striking about Mill’s evidence, particularly when read in conjunction with his discussion of related issues in On Liberty, is the extent to which he makes the question of the Acts’ official endorsement of vice the chief ground of his objection to them. This is not to say that he scouts objections based on the Acts’ potential invasion of individual liberty or the inequity of their effectively penalizing women but not men, for he puts both very forcibly. But when the hypothetical case is put to him of women voluntarily submitting to the examination and treatment, he replies: “I still think it objectionable because I do not think it is part of the business of the Government to provide securities beforehand against the consequences of immoralities of any kind” (353). Similarly, his primary objection to any system of licensing prostitutes is that licences “have still more the character of toleration of that kind of vicious indulgence” (356). And although he would not be opposed in principle to state provision of hospitals for the treatment of all contagious diseases, he insists that it would be improper to provide treatment for this class of disease alone, as again condoning publicly the sexual activity that led to it. As things stand, he fears that the troops themselves infer from the very existence of the Acts “that Parliament does not entertain any serious disapprobation of immoral conduct of that kind” (360), and he concludes his testimony by reiterating that the tendency of such Acts is “to do moral injury” (371). Furthermore, he places great weight on the distinction between the provision of assistance for those whose conduct has left them unable to provide it for themselves (essentially the principle of the Poor Law), and the provision, before the event, of securities against the natural consequences of immoral or imprudent conduct (the principle, as Mill sees it, of the Contagious Diseases Acts). Not only may the latter provision be taken as encouraging or endorsing the behaviour in question, but the crucial unstated premise of Mill’s objection to such provisions is that they interfere with the proper operation of the calculation of consequences upon the formation of the will. Ultimately, this moral psychology lies at the heart of all Mill’s reflections on the shaping of character by institutions, whether the character in question is that of a selfish voter at the polls, or of a feckless peasant on his smallholding, or of a randy young trooper in Aldershot.

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LAW

had the young john stuart mill not entered the service of the East India Company in 1823, he might have had a very distinguished legal career. His father at first intended him for the Bar,91 that great avenue of advancement for ambitious but impecunious young men, and although his extreme radical views would have made him an unlikely candidate for the Bench, it is not hard to imagine the brilliant, analytical, outspoken young barrister commanding the intricacies of the English law as well as cutting a considerable figure in public life. But this reflection only reminds us how surprisingly slight was Mill’s actual involvement with the law in his mature years. He had, after all, been brought up in a milieu suffused with legal categories and with a sense of the importance of the law; the whole fabric of Bentham’s theory, to take the central intellectual component in that milieu, had grown out of a concern with legal reform and was primarily constituted by the project of a science of legislation, imparting an emphasis that endured into early Philosophic Radical thought. Moreover, the young Mill’s most extensive literary work was the editing of the five volumes of Bentham’s Rationale of Judicial Evidence, and not only did this work contain “the most elaborate exposure of the vices and defects of English law, as it then was,” but in preparation for its editing Mill read “the most authoritative treatises on the English Law of Evidence, and commented on a few of the objectionable points of English rules, which had escaped Bentham’s notice.”92

Certainly, several of Mill’s later writings on politics, both at the topical and systematic levels, were concerned in a general sense with questions of legislation, and even at the height of his preoccupation with the power of sociological and moral forces he retained the conviction that the law was the most important instrument a government could exercise directly for influencing both the actions and the character of its citizens. But this is obviously still some distance either from a sustained concentration on jurisprudential issues, or even from the working-out of a political and social theory pervaded by legal categories. There is no need to exaggerate this perception into a paradox the trajectory of Mill’s actual intellectual development sufficiently accounts for his not having followed either of these courses. Still, even if we merely remark the fact that jurisprudence found no place in his map of the moral sciences in Book VI of the Logic, or that, in striking contrast to his wide-ranging work in several branches of philosophy, logic, politics, and political economy, he made no original contribution to legal thought, we thereby register how comparatively slight was the residue from his early exposure to the law.

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At a less elevated level, a large part of the political activity of the circle of young Radicals that formed around Bentham and James Mill in the 1820s was addressed to legal issues.93 Naturally, any proposals for change grounded in Benthamite political theory were likely to treat the law as the chief means by which self-interested individuals could be prompted to contribute to the general happiness. But such Radical critics went further, identifying the existing state of English law as an elaborate protective screen to disguise the oppressive reality of aristocratic privilege. Laws restricting freedom of expression, in particular, were regarded as the chief obstacle to any fundamental political improvement, since in the years immediately following the Napoleonic wars an anxious and twitchy government readily resorted to them as a way of suppressing any expression of views that could be construed as seditious. The close connection in this period between certain kinds of political radicalism and blasphemous or obscene literature facilitated the use of the very wide-ranging laws of libel to silence all kinds of critics of the established order, and some of the young Mill’s earliest publications were outspoken denunciations of such religious and political censorship.94

The first of the pieces included in this volume is a good example of this vein of criticism. Ostensibly a review-article on two works on the law of libel, it is essentially a rehearsal of some of the central tenets of the radical political theory developed by James Mill out of Bentham’s Utilitarianism. Written when the younger Mill was eighteen, it is a product of that phase of his life when, on his own later admission, he was little more than the mouthpiece of his father’s views on politics as on so much else.95 These views had attained their greatest circulation in the series of articles James Mill contributed to the Supplement to the Fourth, Fifth, and Sixth Editions of the Encyclopaedia Britannica, where the basic tenets of Philosophic Radical thought were insinuated through respectable encyclopaedia entries. On the subject of liberty of expression, his celebrated article on “Liberty of the Press,” written in 1821, provided the classic statement of the Radical case, and it is the immediate source for several of the arguments in his son’s article.96 Partly for this reason, the younger Mill’s article is itself of no great theoretical or literary interest; like several of his other early contributions to the Westminster, it is repetitive, somewhat crude, and at times simply boring. Its simplistic deductive logic is the hallmark of this early propagandistic phase, in fact the first and more general part of the article is an attempt to deduce the necessity for complete freedom of the press from “the great principles of human nature” (19). The Edition: current; Page: [xli] premise, most famously expressed in his father’s essay “Government,” is that rulers will, unless checked, necessarily abuse their power to further their own self interest.97 Criticism by their subjects is the essential check, but since the rulers cannot be allowed to determine which criticism may be expressed, there is no logical stopping-place short of complete freedom of expression. In practice, it could not be denied, a more limited form of freedom did exist, but this, too, was testimony to the power of opinion that, even in post-Waterloo England, would not tolerate complete suppression.98 It was characteristic of Philosophic Radical political criticism to reduce to such elemental forces the traditional claims about the ways in which the glorious constitution protected the historic rights of Englishmen. From the first page of this article, where he seeks to show that “the Law of England is as unfavourable to the liberty of the press, as that of the most despotic government which ever existed,” Mill indulges this iconoclastic hostility to invocations of the virtues of the constitution, all of which he treats as mystifications designed to protect the privileges of the established classes.

To this political antagonism towards the law-making class was added an intellectual impatience with the sheer muddle of English law at the beginning of the nineteenth century. This had been the spur which, half a century earlier, had stirred Bentham to pursue what became his lifelong project, and the hope of bringing some order to the ancient intricacies of English legal practice continued to animate the analytical jurisprudence of his successors. Radical critics complained that in many cases there existed no definitive statement of the law, that the latitude allowed judicial interpretation was practically limitless. Mill here traces the extraordinary variations in the existing libel laws to this source, “it is an evil inseparable from a system of common law” (20). His later support for measures for the limited codification of English law had its roots in this distrust, at once political and intellectual, of a legal system that was, in the dismissively pejorative sense of the term, merely “empirical.” Any move towards a more rational treatment of legal problems met with Mill’s approval, as witnessed by the two short pieces reprinted here, “On Punishment” and “Smith on Law Reform,” the first recommending a Utilitarian justification of punishment, the second displaying his hostility to the antiquarian character of so much English legal discussion.

Preceding those just mentioned is another short piece, his 1832 review of Austin’s Province of Jurisprudence Determined, discussion of which naturally leads on to the most substantial of his jurisprudential writings, his well-known essay of 1863 on Austin’s Lectures on Jurisprudence, consideration of which Edition: current; Page: [xlii] introduces a relationship requiring somewhat fuller discussion. That the significance of Mill’s connection with Austin should be tantalisingly elusive is appropriate, for Austin is one of the great shadowy figures of English nineteenth-century intellectual history. After his death he came to occupy a commanding place in the legal thought of the second half of the century, and no small proportion of the political theory of that period was devoted to discussion, usually critical, of his classic analyses of the central concepts of law and morality.99 The attention paid to his rather slight legacy of published work chiefly resulted, by an obvious paradox, from the very swing in intellectual fashion away from the kind of deductive method he was taken to have employed and towards more historical and evolutionary approaches. Austin was treated, especially and most influentially by Sir Henry Maine, as the chief exemplar of this outmoded method, and he, together with Ricardo, became a largely symbolic representative of the alleged methodological weaknesses of the moral sciences in the first half of the century.100 Changes in legal education, also, particularly following the recommendations of the Committee on Legal Education of 1846, meant that the second half of the century saw a new demand for a systematic textbook of jurisprudence, and Austin’s work thus had classic status thrust upon it.101 The fact that this celebrity was almost entirely posthumous only adds to the elusiveness of the man himself, who, however, we know played an important part in Mill’s early development.

Called to the bar in 1818, at the age of twenty-eight, after having abandoned a military career. Austin conducted a somewhat desultory practice in Lincoln’s Inn for seven years, in the first of several unsatisfactory attempts to find a suitable setting for his talents.102 He became a close associate of Bentham during this period, but, though a convinced Utilitarian, he maintained a characteristic distance from the extreme political radicalism of the circle gathered around the sage of Edition: current; Page: [xliii] Queen Square. He was nonetheless held in high esteem by those few who knew him well, and when James Mill thought of preparing his eldest son for the Bar, it was natural to send him to be coached by Austin, under whose supervision the young Mill read Roman Law and the works of Blackstone and Bentham in 1821 and 1822.103 Mill’s most sustained exposure to Austin’s own legal thought came after the latter was appointed to the Chair of Jurisprudence at the newly founded University College, London. Having first spent two years in Germany to prepare himself, Austin began lecturing in the autumn of 1828, and continued, with some intermissions, until the spring of 1833. After a promising start, the lectures quickly dwindled in popularity, but Mill remained one of the faithful to the end: in his correspondence in 1832 and 1833 he recorded that Austin was lecturing to “a very small but really select class,” only six or seven students “but those of a kind he likes” (his audience included several others who were to attain distinction, including G.C. Lewis, John Romilly, and Charles Buller).104 Austin clearly had all the qualities that make for a really unsuccessful lecturer—he was painstakingly thorough, unrelievedly dry, remorselessly analytical. “He never had the slightest idea of rendering his subject popular or easy,” his formidable wife, Sarah, later recalled with loyal respect, but also, perhaps, with a hint of exasperation (her own energies were of a more practical and direct kind).105 As Leslie Stephen coolly observed: “. . . Austin thought it a duty to be as dry as Bentham, and discharged that duty scrupulously.”106 When his introductory lectures were published in 1832 these same qualities were much in evidence. “It must be admitted that the reception given to his book at first was not encouraging,” his wife reported, and the major reviews ignored it.107 But “some eulogistic articles appeared in journals of less general currency,” the chief of these being the brief notice by Mill in the short-lived Tait’s Edinburgh Magazine, which, its author confided to Carlyle, “was chiefly intended as a recommendation of that work.”108 Most of the points made in this review, and even some of the phrasing, recur in the larger essay thirty years later, though it is noticeable how Mill, in his high Carlylean phase, recruits Austin to his own campaign against the debased tastes of an increasingly democratic culture (54).

Austin, as we have already remarked, never shared the ardent democratic enthusiasms of James Mill and his immediate circle,109 and there is some reason to Edition: current; Page: [xliv] think that his reservations about such matters, especially his ideas about the proper authority of the more enlightened elements in society, played an important part in fostering the young Mill’s reaction against this inherited creed.110 In the later 1830s and 1840s, however, Austin’s apprehensive political sensibilities led him to develop an increasingly conservative line of thought, opposing all further reform, in which Mill was unwilling to follow him. This difference of view reached its peak in a strong disagreement over the French Revolution of 1848 (Mill was a warm advocate of the popular cause), and some real or imagined slights by Sarah Austin to Harriet over her relations with Mill brought about a complete estrangement between the two couples, marked by that unyielding bitterness which characterized all Harriet’s social antagonisms.111 On John Austin’s death Mill could at first bring himself to write only a stiff, brief note to the Austins’ granddaughter, later checking with Helen Taylor to ensure that any further communication with Sarah Austin was consistent with what her mother would have wished.112 Despite these differences, Mill always retained his regard for Austin’s intellect and character, and when in 1863 Sarah Austin published her edition of her husband’s full lecture notes under the title of Lectures on Jurisprudence, Mill took the opportunity publicly to pay his respects to his former tutor and, in passing, to display his own command of the subject.

Bain, always relieved when the later Mill followed his analytical rather than his polemical inclinations, ranked the essay on Austin as “among the best of his minor compositions,” adding. “It does not seem to contain much originality, but it is a logical treat.”113 Mill would no doubt have acknowledged the justice of both parts of this judgment. He had himself described Austin’s project as an enquiry into “the logic of law,” and his review made clear that he extended full and sympathetic approval to this project, dissenting from Austin’s analysis only on one point of substance (see his discussion of Austin’s definition of a “right,” 178-81). Later commentators have not always found it so easy to characterize the nature of the project of analytical jurisprudence practised by Austin and endorsed by Mill. The chief difficulty seems to lie in determining what relation the apparently a priori analysis of the essence of law has to the variety of actual historical legal systems, especially when Austin’s subject-matter is defined, as it is by Mill at one point below, as “positive law—the legal institutions which exist, or have existed, among mankind, considered as actual facts” (169). The way both Austin and Mill seem to contrast the philosophy of law with the history of law only makes the difficulty Edition: current; Page: [xlv] more acute: as Mill puts it in a revealing phrase, existing bodies of law “having grown by mere aggregation,” they are subject to “no authoritative arrangement but the chronological one,” and therefore do not furnish the student with any general principles of classification. The task of the philosopher of law is thus that of “stripping off what belongs to the accidental or historical peculiarities” of any given system in order to identify the “universal” elements (171, 173).

In this last phrase the suggestion of the ancient ambition to distinguish essences from accidents points in the right direction, and one may recall one of Austin’s few self-revealing remarks here: “I was born out of time and place. I ought to have been a schoolman of the twelfth century—or a German professor.”114 The primary task of jurisprudence as Austin conceived it was essentially classificatory. It involved “clearing up and defining the notions which the human mind is compelled to form, and the distinctions which it is necessitated to make, by the mere existence of a body of law of any kind. . . .” It is true that to this statement Mill appended the potentially relativizing rider, “or of a body of law taking cognizance of the concerns of a civilized and complicated state of society” (168-9); but in practice neither he nor Austin allowed this consideration to limit the effectively universalist ambitions of analytical jurisprudence. These ambitions rested on the confidence that all legal systems in fact have certain features in common, since they are “designed . . . for the same world, and for the same human nature” (170). These similarities are not merely contingent. “There are certain combinations of facts and of ideas which every system of law must recognise . . .” (170), and the analyst must “free from confusion and set in a clear light those necessary resemblances and differences, which, if not brought into distinct apprehension by all systems of law, are latent in all, and do not depend on the accidental history of any” (172; my emphases). But in Mill’s view, developed in general terms in his System of Logic, establishing such connections was not a purely a priori procedure. As one commentator has aptly summarized the procedure in the present case: “Through factual investigations of the objects which possess the combination of attributes specified in the definition, one can discover (by various methods which Mill outlines) that these attributes cause other attributes to be present along with themselves; in other words, a necessary connection exists between the attributes specified in the definition and those discovered by an investigation of the objects possessing them.”115 Hence Mill’s confidence that the resulting system of classification would have a general purchase on all legal systems. “The same terminology, nomenclature, and principle of arrangement, which would render one system of law definite, clear, and (in Bentham’s language) cognoscible, would serve, with additions and variations in minor details, to render the same office for another” (171). Indeed, rather than creating a system of classification of Edition: current; Page: [xlvi] his own, Austin took that displayed in Roman law (albeit Roman law as systematized and abstracted by the Pandectists) as his basis, a decision that Mill warmly defended: “the legal system which has been moulded into the shape it possesses by the greatest number of exact and logical minds, will necessarily be the best adapted for the purpose; for, though the elements sought exist in all systems, this is the one in which the greatest number of them are likely to have been brought out into distinct expression, and the fewest to remain latent” (173). Though the goal is recognizably Benthamite, the route may seem curiously roundabout: English lawyers (but not lawyers alone) of the 1860s are being urged to think about the nature of law in terms of a set of principles developed in the 1820s out of Austin’s encounter with the German Pandectist rationalization of the legal system of the Roman Empire. Of course, the hostility to the common law which Austin and Mill shared came into play here: “Turning from the study of the English, to the study of the Roman Law,” Austin declared, “you escape from the empire of chaos and darkness, to a world which seems by comparison, the region of order and light.”116 It is noticeable how by far the longest extract from Austin’s work Mill permits himself to reproduce is that wherein Austin demolishes the common arguments against codification. The argument is conducted in general terms, but there is no doubting the moral Mill intended his contemporaries to draw from it.

This underlying preoccupation with reform also explains why Mill can so unequivocally commend the work of Henry Maine, who drew very different conclusions from the study, in his case the historical and comparative study, of Roman law. Some explanation is called for, since Maine’s Ancient Law, published in 1861, posed a fundamental methodological challenge to Austin’s work (and hence to Mill’s endorsement of it), and called into doubt some of its most central elements, such as the definitions of law and sovereignty.117 Nonetheless, Mill had been among the earliest admirers of the book, and his reference to it in the 1862 edition of his Principles as a “profound work” set the tone for all his future citations, of which there were several in the next decade, culminating in a glowing review in 1871 of Maine’s second book, Village-Communities in the East and West.118 In the present essay he treats Maine’s work as complementary to Austin’s without really drawing attention to the differences of approach and sensibility that informed them. But the terms of the commendation reveal that the focus of Mill’s attention is elsewhere: “the historical value” of such studies as Maine’s, he announces, “is the smallest part of their utility. They teach us the highly practical Edition: current; Page: [xlvii] lesson, that institutions which, with more or less of modification, still exist, originated in ideas now universally exploded; and conversely, that ideas and modes of thought which have not lost their hold even on our own time, are often the artificial, and in some sort accidental product of laws and institutions which exist no longer, and of which no one would now approve the revival.” (170.) Similarly, his use of Ancient Law in his Principles is to buttress his claim that existing property arrangements cannot be taken as natural or unalterable; Maine’s book is cited to demonstrate that no “presumption in favour of existing ideas on this subject is to be derived from their antiquity.”119 As so often, the heat of Mill’s enthusiasms is sufficient to melt the awkwardly hard edges of the authors whom he discusses: in his account, Maine and Austin stand side by side as contributors to “the improvement of law” (170).

“Austin on Jurisprudence” offers one of the best examples of Mill’s use of an extended essay in one of the great reviews to instruct the relevant section of the reading public on abstract subjects. The value of Austin’s rigorous analysis, he asserts, transcended its contribution to the special science of jurisprudence: it functioned “as a training school for the higher class of intellects” (167), and Mill’s own essay was intended as a small instalment of this training. It proceeds on the assumption that the readers of the Edinburgh Review—a class which even the critics of that journal could not by this date suggest was confined to Scotch lawyers—would be willing as part of their general self-culture to apply themselves to such subjects as the classification of public and private wrongs in the corpus juris. Mill’s prose betrays none of that defensiveness of the teacher who needs to justify his subject, on the contrary, the voice expresses confidence in an advanced community of interest: “We would particularly direct attention to the treatment of Dominium or Property, in its various senses, with the contrasted conception of servitus or easement” (198). How far his audience in fact met these expectations it is impossible to say; certainly Mill’s later correspondence suggests there were always some readers who received, and sometimes challenged, instruction at the appropriate level. But it is Mill’s own untroubled self-assurance as he moves across the details of yet another field of knowledge which is most remarkable. To have been able to give such a clear and forceful précis of the agonizingly involuted contents of Austin’s three volumes, and to have been able to take him on as an equal on disputed points, is some indication that Mill’s early immersion in the law was not, after all, without its effect, and a reminder that once he had mastered a subject he could always thereafter lay out its structure with impressive authority. For several generations of jurisprudence students Mill’s essay was required reading, and it is striking testimony to the qualities of his mind displayed in what is, after all, in the corpus of his work as a whole, a relatively minor, occasional Edition: current; Page: [xlviii] composition, that almost a century later the leading scholarly authority on Austin should still rank Mill’s essay as one of “the best comprehensive accounts” of its subject.120

EDUCATION

with a writer who says that by education he means “whatever helps to shape the human being; to make the individual what he is or hinder him from being what he is not” (217), it hardly seems appropriate to group so few of his writings together as representing his views on the subject. While he endorsed Helvétius’ dictum, “l’éducation peut tout,”121 we might, conversely, say that for Mill everything can be education. In one sense, no doubt, something similar could be said of any major social theorist: all is Bildung. But even by these standards, Mill’s conception of society is an exceptionally and pervasively educative one. We have already seen some instances of how he makes their effect on the shaping of character the ultimate test of all institutions and policies, and one could without strain regard his whole notion of political activity itself as an extended and strenuous adult-education course. Thus, the whole of this collected edition of his works, and not just part of one volume within it, might not improperly be subtitled “Essays on Education.” Even if we confine ourselves to education in the narrower sense of the business carried on in schools and universities, still the one major and two minor pieces included here could be augmented by essays in other volumes. For example, the general basis of the views on educational endowments expounded below (209-14) receives fuller treatment in his later article on “Endowments” in Essays on Economics and Society (Vol. V of the Collected Works), just as his account of the ideal university syllabus in his Inaugural Address (217-57) can be compared with his discussion of the same subject in his “Sedgwick’s Discourse” and “Civilization” (in Vol. X, Essays on Ethics, Religion, and Society, and Vol. XVIII, Essays on Politics and Society, respectively), the appearance of these three pieces in three different volumes of this edition is itself an indication of the artificiality, albeit inescapable, of appearing to imply that the pieces included here are an exhaustive representation of Mill on education.122

Mill was, of course, in no position to minimize the influence of education. His own extraordinary upbringing, while it might leave him with a dismissive scorn for what mere schooling usually accomplished, was hardly calculated to make him Edition: current; Page: [xlix] sceptical of the formative power of a properly conceived and rigorously administered education. Indeed, one of his professed reasons for writing the Autobiography was precisely to demonstrate “how much more than is commonly supposed”123 might be achieved if schoolmasters generally approximated more closely to the model of James Mill, which is one reason why that work reads more like Rousseau’s Emile than like his Confessions. For the younger Mill was, as he acknowledged only half regretfully, a guinea-pig upon whom his father tried out his educational theories, and so it was by both precept and experience that he absorbed the latter’s “fundamental doctrine . . . the formation of all human character by circumstances, through the universal Principle of Association, and the consequent unlimited possibility of improving the moral and intellectual condition of mankind by education.”124 Whatever other aspects of his intellectual inheritance Mill may have rejected or modified, on this count he was James Mill’s eldest boy to the last.

This optimistic doctrine formed one of the cornerstones of Philosophic Radical political theory in the 1820s and 1830s, and there were few existing practices dealt with more severely by those critics of all things established than what they regarded as the feeble provision for education in England, especially as contrasted with what was increasingly being provided under the auspices of the state in France and Prussia. The latter, in particular, was frequently cited as an example of what enlightened and efficient administration could achieve, and the architect of the Prussian education system, Wilhelm von Humboldt (from whom Mill was later to take the epigraph for On Liberty), ranked only below “the god-like Turgot” as a recent example of a statesman with genuinely philosophic vision.125 A report on Prussian education by another eminent philosopher and educational reformer, Victor Cousin, was, therefore, a naturally congenial document to the Philosophic Radical circle, one that could serve as a useful weapon with which to beat a government then showing some disposition to take up the question of national education, which had been pressed upon it very forcibly in the debates of 1833 by Molesworth and, above all, Roebuck. It seemed, as Mill says below, “an auspicious moment for inviting the attention of the English public to that highest and most important of all the objects which a government can place before itself” (63), and he took the opportunity to press the case in a favourable notice of Sarah Austin’s translation of Cousin’s book.

Although Mill had reported to Carlyle that Mrs. Austin’s preface was “the truest & best piece of printed writing I have read for many months,”126 his review was, Edition: current; Page: [l] even by early-nineteenth-century standards in these matters, a mere pretext for a bit of propagandizing about the deplorable state of English schools. There is practically no reference to Cousin’s work itself, and only one substantial quotation from the translator’s preface; instead the article is fleshed out with several lengthy extracts from an unflattering contemporary account of Church of England elementary schools, references to congenial speeches in Parliament, and, under the cover of anonymity, a long quotation from his own article on the abuses of church and corporation property published in the previous year. The article makes no constructive proposals, Mill contenting himself with exhorting the House of Commons committee on education to pursue “the reform of such abominations” (73). It is noticeable how slight and mechanical such early polemical pieces seem when juxtaposed to some of Mill’s later performances as a public moralist.

If the elementary education of the many had been culpably neglected, the ancient public schools and universities, on which the privileged classes were wont to congratulate themselves, Mill always regarded as grossly overvalued. The inefficient cramming of the rudiments of Latin and Greek carried on at many of the former was invariably referred to sarcastically, and even the better of them were berated for concentrating on what always seemed to Mill the least valuable part of such an education, the imitation of classical verse models. These sentiments can be found in works published in the 1860s as well as the 1830s, and his correspondence abounds with remarks about the “miserable pretence of education, which those classes now receive,” and especially about the “disgraceful” failure even to teach the ancient languages properly.127 In the 1830s Oxford and Cambridge, too, came in for some very sharp criticism, the great flaw and foundation of all other vices in these institutions being their position as virtual seminaries for the Established Church: “While their sectarian character, while the exclusion of all who will not sign away their freedom of thought, is contended for as if life depended on it, there is hardly a trace in the system of the Universities that any other object whatever is seriously cared for.”128 Education was naturally one of Mill’s favoured examples of the cramping effect of religion on English life, whether in the form of the conformity-exacting complacency of Anglicanism or the bigoted sectarianism of the Dissenters, and his repeated pleas for freedom of thought in education have to be seen in this context. His having neither received a religious education nor attended a school or university of any kind constituted an important element in his identity as an outsider, and meant that he never displayed that indulgent, forgiving piety towards the ancient educational foundations which marked the attitudes of the vast majority of the governing class who had passed through them.

If in the earlier part of the century the schoolmaster was abroad in the land, by the 1860s it was the school inspector, backed by the power of several Royal Edition: current; Page: [li] Commissions, who represented the essence of recent developments. The spirit of administrative reform was now breathing down the necks of lowly ushers in dames’ schools and of great pashas in public schools alike. Royal Commissions on the two extremities of the system, the leading public schools and “popular education,” were succeeded at the end of 1864 by a long-lived Commission with the self-consciously miscellaneous title of an enquiry into those schools “not comprised within Her Majesty’s two recent Commissions,” soon casually identified as “middle-class schools.” The Commission, usually referred to as the Taunton Commission after its Chairman Henry Labouchere, Baron Taunton, sent sets of questions to various possible witnesses, including Mill, who was at the time in Parliament and in fairly close contact with some members of the Commission.129 On matters of this type Mill often sought, and even more often received, coaching from Edwin Chadwick, whose tactlessness was always liable to obstruct the proper deployment of his expertise. In this case, Mill asked Chadwick to “cram” him on the subject, and submitted a draft of his replies for the latter’s approval.130 These comparatively slight replies (Chadwick had favoured the earlier Commission on popular education with 160 pages of information and advice) constitute a typically Chadwickian plea for administrative efficiency based on the recognizably Benthamite “conjunction of duty-and-interest” principle alluded to at their opening as the “fundamental” maxim governing “the conduct of business of any kind by a delegated agent” (209).

If one is not to exaggerate considerations of this sort in Mill’s thinking about education, however, these replies need to be read in conjunction with his article on “Endowments” published three years later (which includes several commendations of the Commission’s eventual report), wherein he considers the value of educational endowments from the wider perspective of his general social thought. In the later piece he makes clear, for example, that however much he might have been in favour of “payment by results” (the slogan made popular a few years earlier by Robert Lowe) as the foundation of efficient teaching in state schools, he did not regard education generally as a commodity that the operation of market forces could be expected to provide satisfactorily. Thus, endowments are assigned a crucial role in making available secondary education for those who would profit from it but would not otherwise be able to afford it (a meritocracy in which women are emphatically included), and the larger principle which this satisfies is that of preserving, and where necessary providing, variety. “It is desirable that every particular enterprise for education or other public objects should be organized, that is, its conductors should act together for a known object, on a definite plan, Edition: current; Page: [lii] without waste of strength or resources.” This is the typically Benthamite-Chadwickian note. “But it is far from desirable that all such enterprises should be organized exactly alike. . . . [W]hat the improvement of mankind and of all their works most imperatively demands is variety, not uniformity.”131 This is the distinctively Millian voice. Although he came to regard it as part of the duty of the state to see that all children received a certain level of education, he always thought it positively dangerous for the state to provide all the schools to which those children were to be sent.

By the 1860s Mill also recognized that the English universities, goaded by yet more Royal Commissions, fed by rejuvenated public schools, and prompted by reformers from within, were responding to the spirit of improvement.132 The beginnings of an expansion of the traditional classics- and mathematics-based curriculum formed part of a larger national debate on the proper role of the universities, which revived once again the challenge, endlessly offered and almost as endlessly refused in English educational history, of science to the dominant position held by the humanities. Mill’s own influence at Oxford and Cambridge was at its peak in this decade, an influence which was seen to tell on the side of “modern” studies. In accepting the invitation of the St. Andrews students to deliver a Rectorial address, Mill clearly saw an opportunity to deploy his influence in this debate, as well, perhaps, as to do a little homage to the Scottish university tradition, respect for which had been bred into him by his Edinburgh-educated father.

Mill’s Address, which took three hours to deliver (“a very lengthened performance,” Bain grumbled), does not rank with the speeches of Gladstone or Macaulay among the masterpieces of Victorian oratory, but it has some of the same monumental quality. Having taken as his theme “every essential department of general culture . . . considered in its relation to human cultivation at large . . . [and] the nature of the claims which each has to a place in liberal education” (220). Mill was in no position to be brief, though it must be said that the Address concludes with those headmasterly platitudes whose natural home is the school prize-giving: “what we achieve depends less on the amount of time we possess, than on the use we make of our time. You and your like are the hope and resource Edition: current; Page: [liii] of your country in the coming generation” (257), and so on. Bain, a Professor at a Scottish university, thought the Address a “mistake” in its setting because Mill “had no conception of the limits of a University curriculum.”133 Certainly Mill was describing a course of study for which a couple of decades would not have been too generous a provision of time. He professed himself “amazed at the limited conception which many educational reformers have formed to themselves of a human being’s power of acquisition” (221), but if his Address was intended as a practical proposal then it was one of those occasions when Mill was afflicted with a kind of solipsism in his judgment of human capacities (we have already seen something similar at work in his view of sex). And past experience is again denied authority as a guide, with all the optimism of one who had never taught in a university, Mill insists, “let us try what conscientious and intelligent teaching can do, before we presume to decide what cannot be done” (221). In fact the Address is not best read as a constructive proposal for reform of the syllabus, but rather as a statement of the values Mill wished to see fostered in higher education, and of his own distinctive conception of the contributions the various branches of knowledge could make to this goal. It thus serves as a good sketch-map of the geography of Mill’s mature thought on abstract subjects, embracing in its way a wider territory even than that mapped out in the Logic.

Although Mill affected to regard the dispute between the claims of classics and the claims of science as needless, in that any worthwhile education should include both, the stand he actually took on this issue was bound to appear a conservative one. For he pressed the case for the classics in the strongest possible terms. “The only languages . . . and the only literature, to which I would allow a place in the ordinary curriculum, are those of the Greeks and Romans, and to these I would preserve the position in it which they at present occupy” (225). It may be said that Mill slightly mis-states the import of his argument here, since the position these studies then occupied was confined by the traditional philological and textual preoccupations of English classical scholarship, whereas Mill was pressing for a much broader study of the ancient world (his tastes and loyalties were in fact always far more Greek than Roman) in which history and, above all, philosophy would predominate. He certainly did not see himself as endorsing the empty versifying of the English classical schools. But he was bound to appear to be upholding the traditional primacy of the classics: Huxley, for example, on a celebrated parallel occasion, responded in this way in contrasting his own call for the teaching of science at universities with Mill’s eulogy of the classics.134 Moreover, at a time when there was something of a crisis of confidence about just Edition: current; Page: [liv] what constituted the distinctive merits of a classical education, and when the discrepancies and contradictions between the various justifications were occasioning some embarrassment,135 Mill’s brisk amalgamation of the various arguments hit a particularly confident and unyielding note; the classics display the most polished examples of literary form, and they contain unrivalled wisdom and truth in their content; the grammatical structures of the ancient languages uniquely fit them to provide mental training, and exposure to the operation of minds so unlike our own is itself a most valuable discipline, and so on.

Mill had presented a brief defence of a classical education in slightly different and rather more revealing terms twenty-seven years earlier when he endorsed Tocqueville’s view of the importance to be attached to the ancient literatures “not as being without faults, but as having the contrary faults to those of our own day.” There, in more sociological vein, he suggested that these literatures, produced in “the military and agricultural commonwealths of Antiquity,” exhibit “precisely that order of virtues in which a commercial society is apt to be deficient.” The justification is unequivocally a moral one. And on these grounds he was, in 1840, already worried about the future of the classics: “If, as everyone may see, the want of affinity of these studies to the modern mind is gradually lowering them in popular estimation, this is but a confirmation of the need of them, and renders it more incumbent upon those who have the power, to do their utmost towards preventing their decline.”136 Here surely is the key to his decision to devote almost half his Address to a defence of that feature of university education which the existing system already fostered beyond all others. (For once, Bain failed to see that Mill was talking about a tendency, not a realized fact, commenting with some exasperation: “Mill had taken it into his head that the Greek and Roman classics had been too hardly pressed by the votaries of science, and were in some danger of being excluded from the higher teaching. . . .”)137 A glance at the development of the university syllabus in the last third of the nineteenth century hardly vindicates Mill’s anxiety that the study of the classics was on the point of extinction. But just as his ideal of what such a study should consist in and produce was far removed from the actual practice of the day which he seemed to be defending, so his anxiety about the fate of that study was not a realistic assessment of purely educational Edition: current; Page: [lv] changes, but an example of his familiar and more personal anxiety about the need for countervailing forces to the increasingly conformist pressure of modern society.

Another way of indicating how far removed Mill was from those pressing the claims of scientific and technological education is to point to the fact that his case for science is almost entirely couched in terms of its value as a training in method. Science provides, above all, “models of the art of estimating evidence” (235), and the term “models” naturally suggests that the particular content is of secondary importance. What Mill chiefly offers his audience here is a brisk summary of the Logic, taking the opportunity to press the correct method in circles all too prone to various forms of Intuitionism Comte’s classification of the sciences is followed from mathematics up to physiology, but at that point Mill reverts to the older British tradition of “the science of mind,” referred to indifferently as psychology or philosophy (Comte had moved directly from physiology, the study of man’s physical constitution, including phrenology, to sociology, the study of the laws governing man’s action in society). Thus, that part of Mill’s Address which lays down “the outline of a complete scientific education” concludes, revealingly, by prescribing the works of Hobbes, Locke, Reid, Stewart, Hume, Hartley, and Brown. To this he appends a brief section on those sciences that deal with “the great interests of mankind as moral and social beings” (243-4), brief because so few of the attempts at systematic study of these topics are considered to have attained the rank of sciences. Political economy and jurisprudence are treated as the only secure possessors of that status, and the account of jurisprudence is only one of several ways in which this section differs interestingly from the parallel discussion in Book VI of the Logic.

Only after having devoted three-quarters of his Address to what he called “intellectual education” did Mill move onto moral and aesthetic education: but these proportions are misleading if they suggest that his audience had not been kept constantly aware of the moral purposes all education was meant to serve. For example, in introducing the student to the philosophic view of history as the development of stages of civilization (a view with appropriately strong Scottish connections), the university would thereby—Mill seems to regard the connection as too obvious to need spelling out—be cultivating a conception of life as “an unremitting conflict between good and evil powers, of which every act done by any of us, insignificant as we are, forms one of the incidents, a conflict in which even the smallest of us cannot escape from taking part, in which whoever does not help the right side is helping the wrong, and for our share in which, whether it be greater or smaller, and let its actual consequences be visible or in the main invisible, no one of us can escape the responsibility” (244). The Headmaster has clearly moved over from the lectern to the pulpit, whatever a university teaches, “it should teach as penetrated by a sense of duty; it should present all knowledge as chiefly a means to worthiness of life, given for the double purpose of making each Edition: current; Page: [lvi] of us practically useful to his fellow-creatures, and of elevating the character of the species itself” (248).

The voice of the moralist sounds out equally clearly in Mill’s discussion of the value of art. Considered at this level of abstraction, this is one of those quicksand-like questions whose chief role seems to be to reveal the blind spots in any philosopher’s sensibilities. For Mill, step-child of English Romanticism, the cultivation of the feelings is the core of the aesthetic experience, but only a certain, rather narrow, selection of feelings seems to be involved. His residual Wordsworthianism surfaces here: natural beauty, for example, is said to make us “feel the puerility of the petty objects which set men’s interests at variance, contrasted with the nobler pleasures which all might share” (255). Mill’s aesthetic does not easily accommodate the tragic; where values appear to clash, there is a presumption that selfishness is at work somewhere. Indeed, not only does art not create a potential rival realm of value for Mill: beauty is not even allowed to be morally indifferent. “There is . . . a natural affinity between goodness and the cultivation of the Beautiful, when it is real cultivation, and not a mere unguided instinct. He who has learnt what beauty is, if he be of virtuous character, will desire to realize it in his own life—will keep before himself a type of perfect beauty in human character, to light his attempts at self-culture.” (255.) The rider “if he be of virtuous character” threatens to reduce the proposition to a tautology, a process which is assisted by his sliding from “beauty” in general to “beauty in human character.” It is a tension which, in other forms, appears elsewhere in Mill’s thought, most notably in On Liberty: the goal of self-development rests on a restricted notion of the self, a self whose development not only does not impede, but positively fosters, the moral interests of others. Once again, the dim outline of the idea of a common good is discernible in Mill’s thinking here. It is, in fact, the obverse of his Manichaeanism, which is itself another strategy for simplifying the disorderly actualities of moral experience. Launched into his peroration, Mill quite naturally makes “the ultimate end” from which his prescribed course of studies takes its “chief value” that of “making you more effective combatants in the great fight which never ceases to rage between Good and Evil” (256). Inaugural Addresses form an inescapably programmatic genre, and for that reason Mill’s displays several of his chief intellectual virtues to good effect: the magisterial survey is his natural medium, all of human knowledge his familiar bailiwick. His occasional tendency to a narrow and hectoring moralism finds only a subdued expression here, while the awesome range and dazzling lucidity of his mind are exhibited at their formidable, impressive best.

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Textual Introduction

equality, as Stefan Collini asserts in the Introduction above, is the dominant theme in this volume. Perhaps because the word does not appear in the title of any of Mill’s great essays, its importance in his thought and life is not often emphasized. The materials now gathered, which demonstrate its significance in his thought on education and law as well as on sexual, racial, and domestic issues, derive from each of the decades of his writing career, that is, from the 1820s to the 1870s.1 They also cover a wide range in provenance.2 The majority, eleven of the eighteen in the text proper, originated as reviews or essays in periodicals, three in each of the Westminster Review and Fraser’s Magazine, two in the Monthly Repository, and one in each of Tait’s Edinburgh Magazine, the Edinburgh Review, and the Fortnightly Review. Of these eleven, three were reprinted during Mill’s lifetime in the British edition of Dissertations and Discussions, one (“Treaty Obligations”) was republished in the posthumous fourth volume, and one (“The Slave Power”) in the U.S. editions of that collection. Two of the items, the Inaugural Address at St. Andrews (originally a speech) and The Subjection of Women, appeared as books; and one, Remarks on Mr. Fitzroy’s Bill, as a pamphlet. Parliamentary evidence, in written form and as a transcription of oral answers (republished in pamphlet form), supplies two further items. And two more not published by Mill are presented from manuscript. The appendices given to ancillary textual matter include essays and fragments by Harriet Taylor Mill, only one of which was published in her lifetime (in the Westminster), a manuscript Edition: current; Page: [lviii] fragment of the Inaugural Address, and three publications of the Jamaica Committee under Mill’s chairmanship.

These disparities make it convenient to discuss textual matters not according to dominant focus3 or provenance, but chronologically, beginning with “Law of Libel and Liberty of the Press” (April, 1825). Nothing specific is known of Mill’s relevant activities at this time, though he was in 1825 immersed in the massive task of editing Jeremy Bentham’s Rationale of Judicial Evidence (published in 1827). The essay, remarkable as the work of a youth still in his eighteenth year, reveals some Benthamic echoes (for example, the reference to judge-made law on 20), as well as much material from Francis Place, whose pamphlet on libel Mill is reviewing along with Richard Mence’s The Law of Libel. It will be noted that Place’s pamphlet was published in 1823 (in fact its separate essays first appeared at the end of 1822); and Mill had already reviewed it favourably in the Morning Chronicle on 1 January, 1824, 2, more than a year before the article here reprinted. Quite apparent is Mill’s heavy dependence on his father, James Mill, whose arguments in “Liberty of the Press” and whose habits of thought and phrasing reverberate throughout the essay. “We have no higher ambition,” anonymously and collectively says the young Mill, “than that of treading in [James Mill’s] steps [in “Liberty of the Press”], and, taking his principles as our guide, we shall endeavour to unravel the sophistry, and expose the mischievous designs of the enemies to free discussion.”4 This article, Mill’s fifth for the Westminster since its founding at the beginning of 1824, was the first of his to be given pride of place in the Radical review.

The wide gap in approach and style between that essay and the manuscript we have entitled. “On Marriage” is explained by Mill’s internal declaration of independence after his “mental crisis” and his meeting Harriet Hardy Taylor who, twenty years later, was to marry him. This essay, with her companion piece (printed here as Appendix A), examines in a highly personal tone questions that had the greatest practical import for their relations.5 It is therefore very annoying not to be able precisely to date the manuscripts. The evidence is slight: the watermarks, some of Mill’s letters, although none mentions the essays, and the reference in Mill’s essay to Robert Owen’s definitions of chastity and prostitution. Edition: current; Page: [lix] The watermarks, 1831 and 1832,6 led Professor Hayek to postulate a date of 1832, which presents no obvious difficulty when placed in the context of our general knowledge of their developing relations. Helen, the last of the Taylors’ three children, was born in July, 1831; Harriet Taylor’s attitudes towards marriage were consistently—and sensibly—coloured by her sense of responsibility to her children, and the views expressed in her and in Mill’s essays suggest a prior and protracted discussion of the effect of frequent births on a young and inexperienced mother. By 1832 they clearly had reached emotional intimacy, if the earliest of Mill’s surviving letters to her is correctly dated to August of that year.7 Another likely occasional cause for the essays appears in the marital disruption in the household of W.J. Fox, their friend, whose wife began to live separately from him though in the same house, her place being taken by his ward, Eliza Flower, Harriet Taylor’s closest and most admired companion. Again, the essays may well have preceded the six-month trial separation between Harriet and John Taylor beginning in September, 1833, when she went to Paris, to be joined there by Mill in October.8 The citation of Robert Owen’s definitions of chastity and prostitution proves less helpful in dating the essay than one would hope. The Owenite attitude to marriage had been known in the 1820s, particularly in the United States, where an account of one of Owen’s speeches in 1827 concludes with mention of his promptly complying with a request for his opinions on marriage which, having “before been promulgated in various ways, it is not thought necessary here to recapitulate.”9 But where and when would Mill have heard or read the definitions? He had, of course, debated with Owen’s adherents in 1825, and his father had known Owen for many years, but it is not known whether or not marriage was a moot issue in the debates and conversations. The closest wording to that appearing in Mill’s footnote is in the published account of an unbelievably long debate between Owen and Alexander Campbell in Cincinnati from 13 to 21 April, 1829, in which Owen is reported as saying: “For real chastity consists, in connexion Edition: current; Page: [lx] with affection, and prostitution, in connexion without affection.”10 It is hard to believe that Mill (or anyone) read the two thick volumes of that account, which cannot have had much of a sale in Britain. The first of Owen’s statements in Britain that approximates Mill’s wording was not made until 1 May, 1833, in London:11 Mill is likely to have heard of it—and could even have heard it—and if this was his first acquaintance with Owen’s precise views, the manuscript must be dated as late at least as May, 1833, not by any means an impossible date, but one that would slightly revise the received view of the rate at which his intimacy with Harriet Taylor had developed. The exchange of statements between them at that time would, in fact, help explain the crisis in their affairs that led to the flight to Paris in September, 1833. It could even be argued that Mill’s reference (39) to Thomas Carlyle simply by his last name implies a closeness of acquaintance on his part not reached until 1833. But this evidence is very tenuous, and it seems wise, unless and until further evidence emerges, to assign only a tentative “1832-33?” to the essays.

About the date of the next item, “Austin’s Lectures on Jurisprudence,” there is no such mystery: Mill had finished and sent off the review by 13 September, 1832,12 and it appeared in Tait’s Edinburgh Magazine for December of that year. A devoted friend of John and Sarah Austin at this time, Mill had read law while staying with them at Norwich a decade earlier, attended in 1829 the lectures he is here reviewing, advised John Austin (through Sarah) about the lectures in 1830, was now addressing Mrs. Austin as “My Dear Mütterlein,” and toured part of Cornwall with them in the interval between the writing and publishing of the review. It is not, however, mere puffery or “doctrinal matter”,13 nor was it composed because Mill was unoccupied. Indeed in five or six weeks he also wrote two other important—and very different—essays, “Corporation and Church Property” and “On Genius.”14

The same personal connection lies behind Mill’s “Reform in Education,” a review of Sarah Austin’s translation of Victor Cousin’s Report on the State of Public Instruction in Prussia. The personal note is muted, sounding only innocently in the recommendation that her preface to the translation “well deserves to be separately printed and widely circulated,” because it shows “force and conclusiveness,” and a “happy union . . . of an earnest spirit and a conciliatory and engaging tone” (64). Probably Mill got from Sarah Austin other information used Edition: current; Page: [lxi] in the review; in any case the first generation of Philosophic Radicals had engaged both theoretically and practically in the controversies over Lancasterian and National Schools that occupy much space in Mill’s review, especially in the long quotations from Biber. Mill also quotes from his own “Corporation and Church Property,” modifying the wording slightly as indicated in the variant notes:15 one merits mention here. Everywhere and always, Mill says in the original essay, and in its reprint in Dissertations and Discussions, “enlightened individuals and enlightened governments should . . . bestir themselves to provide (though by no means forcibly to impose) that good and wholesome food for the wants of the mind” that “the mere trading market” does not supply (65-6). As quoted in his review of Sarah Austin, the passage lacks the parenthesis, and it may be that at this particular time (though only a year had passed since the first version in “Corporation and Church Property”) Mill had entered one of his fiercer moods, and was less reluctant to restrain benevolent leaders.

The next two items, short reviews separated in time by seven years, reflect Mill’s continued interest in legal questions, especially those having to do with reform. “On Punishment” (1834) gives some hints of attitudes seen in newspaper articles of the 1850s by Harriet and John Mill, in Remarks on Mr. Fitzroy’s Bill, and in his later comments on justifications for corporal and capital punishment. It is the earliest of the pieces in this volume to have textual corrections based on Mill’s emendations in his own copy in the Somerville College Library, all such corrections are described in the headnotes.

The second of these short reviews, “Smith on Law Reform” (1841), was written when Mill, though busy finishing his System of Logic for the press, felt obliged to help work off a debt to William Hickson, who had taken over the Westminster Review from him in the preceding year. It presents no textual problems.

While there is another gap of nine years between that review and the next essay. “The Negro Question” (1850), one should not infer that Mill lacked interest in issues of equality, law, or education during the 1840s, which was one of his greatest decades as an author.16 Indeed, “The Negro Question,” occasioned by Carlyle’s “Occasional Discourse on the Negro Question,”17 was Mill’s second public disagreement on questions of justice and equality with his earlier intimate, for he had responded, in “England and Ireland” (Examiner, 13 May, 1848), to an article by Carlyle advocating forceful subjugation of the Irish anarchy. From this time, justice between blacks and whites became a leading theme in Mill’s writings, as the later essays in this volume clearly indicate. The attack on Carlyle was Edition: current; Page: [lxii] reprinted in the Daily News, with three substantive and several accidental variants; the substantive changes are given here in notes although there is no reason to think the reprinted text was supervised by Mill.18

The next item is Mill’s formal moral renunciation of the legal powers that would result from his impending marriage to Harriet Taylor, written on 6 March, prior to their wedding on 21 April, 1851.19 The text is taken from the facsimile reproduced in Hugh S.R. Elliot’s edition of Mill’s letters;20 the present location of the manuscript is unknown. It is not surprising that chronologically the preceding items in the present volume are Harriet Taylor’s fragments (here printed in Appendix B), and the succeeding ones are her “Enfranchisement of Women” (Appendix C) and the pamphlet Remarks on Mr. Fitzroy’s Bill, in all of which the abuse of power in sexual and familial relations is central. The last of these, the pamphlet, prompted by the introduction in Parliament on 10 March, 1853, of a bill to improve the protection of women and children from assaults, was jointly written by the two Mills.21 At this time Mill was publishing little, though he was beginning, with his wife, to draft what was finally published as his Autobiography, and to sketch out other important essays, including On Liberty and Utilitarianism.22

In the year after his wife’s death in 1858 came a great burst of books and articles, many of the latter on political issues, such as “A Few Words on Non-Intervention” (Fraser’s Magazine, December, 1859), the first of the items in this volume to have been reprinted in full by Mill himself. It is also the first to be explicitly mentioned in the Autobiography, where Mill explains his being prompted to write it by a desire to defend England against imputations of habitual selfishness in foreign affairs, and to account for the colour given to such imputations by the “low tone” of governmental pronouncements and behaviour (especially Palmerston’s).23 This Edition: current; Page: [lxiii] retrospective account is borne out by a letter of 14 November, 1859, to Alexander Bain, in which he also says he has just sent the article from Avignon to J.W. Parker for December publication in Fraser’s.24 He had the article offprinted (without revision), hoping it would have quick public effect, and was pleased with the response.25 The reprint in Dissertations and Discussions reveals very few changes;26 in this respect it is typical of Mill’s essays revised between 1859 and 1867 for Volume III of Dissertations and Discussions (which then first appeared, along with the 2nd edition of Volumes I and II).

“The Contest in America” (Fraser’s, February, 1862) was also reprinted in Volume III of Dissertations and Discussions. That reprinting suggests the importance Mill attached to this (and of course the preceding) essay, though a glance at the contents of Volume III shows that one criterion he had established in his Preface to the first two volumes in 1859 was somewhat loosely interpreted; he had excluded papers dominated by comments “on passing events.”27 Because his more enduring attitudes are also expressed, no question would be raised were it not that the companion essay (also 1862), “The Slave Power,” which moreover was a review of a work by his great friend John Elliot Cairnes, was not reprinted in the British version of Dissertations and Discussions. In any case, Mill thought “The Contest in America” had been timely and influential. He had withheld public comment on the American war because of the Trent incident, feelings over it having abated, he wrote the essay quickly in mid-January while in Avignon.28 Writing to William T. Thornton before the essay appeared in the February number of Fraser’s, Mill said his views, if noticed at all, would probably be much attacked, as opposed to the “tone of the press & of English opinion, a tone which,” he remarks, “has caused me more disgust than anything has done for a long time.”29 Reports of the article’s reception cheered him,30 and his retrospective view in the Autobiography is self-congratulatory or—more accurately—congratulatory of Helen Taylor:

I shall always feel grateful to my daughter that her urgency prevailed on me to write it when I did: for we were then on the point of setting out for a journey of some months in Greece and Turkey, and but for her, I should have deferred writing till our return. Written Edition: current; Page: [lxiv] and published when it was, the paper helped to encourage those Liberals who had felt overborne by the tide of illiberal opinion, and to form in favour of the good cause a nucleus of opinion which increased gradually, and after the success of the North began to seem probable, rapidly. When we returned from our journey I wrote a second article, a review of Professor Cairnes’ book published in the Westminster Review. England is paying the penalty, in many uncomfortable ways, of the durable resentment which her ruling classes stirred up in the United States by their ostentatious wishes for the ruin of America as a nation; they have reason to be thankful that a few, if only a few known writers and speakers, standing firmly by the Americans in the time of their greatest difficulty, effected a partial diversion of these bitter feelings, and made Great Britain not altogether odious to the Americans.31

The essay was offprinted in a textually unchanged version,32 and published as a pamphlet in Boston (Little, Brown, 1862) that went through two printings within a year. Of the changes between the versions in Fraser’s and in Dissertations and Discussions only one is important, the addition of a long footnote at 133, consisting mostly of quotation from a letter from Wendell Phillips correcting Mill’s statements about the Abolitionists. Of the minor alterations, perhaps the most interesting (as typical of Mill’s search for the accurate word) is his describing Henry Carey as a “high authority” in 1862 and an “unimpeachable” one in 1867 (132e-e).

The review of Cairnes’ The Slave Power, as suggested above, is closely related to “The Contest in America” in time as well as theme; it appeared, however, in the Westminster rather than Fraser’s, was not offprinted by Mill, and was excluded from the British Dissertations and Discussions. Like “The Contest in America” it was published as a pamphlet in the United States, and was included in American editions of Dissertations and Discussions. There is no indication that these versions were supervised by Mill, so our copy-text is the original and only British version; but substantive variants in the American versions, all minor, are given in notes.33 The epistolary record will make twentieth-century authors again sorrowful that technological progress has made haste rather less than slowly. While travelling with his stepdaughter after completing “The Contest in America,” Mill offered to review Cairnes for the Westminster. John Chapman, its editor, having accepted, Mill—now back in Avignon—promised on 31 August, 1862, to have it to Chapman by 20 September at the latest, as it was important to call attention to Cairnes’ book as soon as possible.34 He actually sent the review from Avignon on 11 September, asking for proof or, if there was not time, to have Edition: current; Page: [lxv] “some careful person . . . collate the proof with the manuscript.” But there was time, and thirteen days later, after two postal journeys between Avignon and London, setting, and proof-correction, the last page of proof was returned to Chapman.35

The intimacy that obtained between Mill and the Austins in the 1820s and ’30s did not survive political and personal differences in the late ’40s; indeed, when John Austin died late in 1859, Mill acknowledged his debt to him in a note to their granddaughter, Janet Duff-Gordon, without even mentioning Sarah.36 He brought himself, however, shortly thereafter, to recommend to her that all of her husband’s lectures be published, revised only to remove the repetitions; when the 2nd edition of the Province appeared in 1861, Mill actually defended those repetitions as necessary in lectures to students, against the criticism of James Fitzjames Stephen in the Edinburgh.37 In assembling her husband’s manuscripts, Sarah Austin found some gaps in the lectures; Mill, hearing of the problem, wrote to Henry Reeve, her nephew, offering his notes taken thirty years earlier, “to supply, in however imperfect a manner, the hiatus.”38 This typical meticulousness led to the restoration of important parts of the text, particularly much of Lecture 39 and all of Lecture 40, when, six years later, Robert Campbell prepared a so-called 3rd edition of the Lectures on Jurisprudence.39

To avoid confusion about the status of the edition Mill reviewed in October, 1863, a few words about the publishing history of Austin’s lectures are needed. The edition he reviewed is known as the 2nd, and Campbell’s is known as the 3rd, but those identifications are not exactly right: the 2nd edition of the Province, published in 1861, was also designated as Volume I of the three-volume edition of the Lectures in 1863 (the version Mill reviewed, though the original heading of his article refers to them as separate works, and in his notes he cites Volumes II and III as Volumes I and II). That is, Volumes II and III of the Lectures on Jurisprudence first appeared, and that title was first used, in 1863, so the edition of 1869 was really the 2nd, not the 3rd, edition of the Lectures, though (counting the 1861 and 1863 issues as one edition) it was the 3rd of the Province (though that title was not separately used in 1869). The matter is even further complicated by the issuance in 1863 as a separate publication of On the Uses of Jurisprudence “from the Third Volume of ‘Lectures on Jurisprudence”’, in the heading of Mill’s article it is so identified, although, as mentioned above, the Lectures are said in that heading to consist of only two volumes.

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Mill’s interest having been both stimulated and revealed to Austin and Reeve, it is not surprising that he reviewed the volumes, thus giving himself, as he says in the Autobiography, “an opportunity of paying a deserved tribute” to Austin’s memory, and also of “expressing some thoughts on a subject on which, in my old days of Benthamism, I had bestowed much study.”40 Correspondence concerning the review itself has not survived, except in a letter to Henry Samuel Chapman of 5 October, 1863, which mentions that it is about to appear in the Edinburgh.41 By that time Mill was occupied with the first draft of his Examination of Sir William Hamilton’s Philosophy (completed by November), and was thinking of the form his judgments of Auguste Comte should take, and so, given the detail and length of the article, it is likely that he worked on it early in the year.42 The close attention to the subject matter did not preclude the kind of personal touch that heightens the sense of mastery, as in the indications that he heard the lectures (179, 204), and had knowledge of the manuscripts (192). There is also an echo (though the terms of the metaphor have altered) of his earlier assessments of Bentham, who is here portrayed as employing a “battering ram” rather than a “builder’s trowel” (168). And there is another reflection that Mill himself may not have been conscious of, and that his contemporaries certainly could not have seen, in saying that Austin “has been in nothing more useful than in forming the minds by which he is, and will hereafter be, judged” (167). Mill comes very close to the views expressed by his wife and himself about their role as guides for the future.43

Like other articles of this period, the review of Austin was little revised for republication. It was offprinted without alterations, and only five minor changes (including two reflecting the difference in provenance and two corrections of misprints) were made for Dissertations and Discussions. There are rather more accidental changes than usual, probably because the Edinburgh’s preferred spellings (“s” rather than “z” in participles and hyphens inserted in some compound words) and punctuation (especially lighter use of commas) differed more from Longman’s (and Mill’s) style than did that of the other journals printing his essays at the time.

The next few years brought Mill to the height of his public acclaim as new books and editions poured forth and his election as M. P. for Westminster highlighted his ideas and public character. One inevitable result was a great increase in requests for opinions and appearances, his occasional compliance with which is witnessed in the next two items in this volume, his evidence to the Taunton Schools Inquiry Commission and his Inaugural Address at St. Andrews Anticipating a request for Edition: current; Page: [lxvii] his opinion on educational endowments, he wrote on 21 May, 1866, to his lifelong friend Edwin Chadwick for information and advice; Chadwick, ever willing, complied, and some time in the next two months, busy as Mill was with political affairs (the great Hyde Park Reform agitation occurred in July, when he also assumed the Chair of the Jamaica Committee), he sent a draft of his paper to Chadwick for comment. He requested its return on 5 August, and, having made “various alterations and insertions” to comply with those comments, sent his answers to the Commission on 9 August, at the same time conveying his thanks to Chadwick.44 The text, taken from Parliamentary Papers, has been altered slightly to conform to that used in this edition for all of Mill’s interrogations and evidence for parliamentary committees and royal commissions: the most significant typographical feature is the placing of the questions in italic type to contrast with the roman of Mill’s answers.

The other item directly related to Mill’s public stature is his Inaugural Address delivered to the University of St. Andrews on 1 February, 1867, and quickly published in an edition of 1000 copies, a 2nd edition of 500 being called for in the same month, and a cheap People’s Edition of 2000 copies in March, with another issue of 1000 in June. The students, in electing Mill Rector, were obviously partaking in a widespread expectation of sagacity from him, and seeking to honour him, rather than to have him serve them in very material ways.45 The general rather than local aims—though the praise of Scottish universities and the concluding references to theological studies show his attention to pathos and ethos46—are clear in the few sentences he gives to the Address in his Autobiography:

In this Discourse I gave expression to many thoughts and opinions which had been accumulating in me through life respecting the various studies which belong to a liberal education, their uses and influences, and the mode in which they should be pursued to render those influences most beneficial. The position I took up, vindicating the high educational value alike of the old classic and the new scientific studies, on even stronger grounds than are urged by most of their advocates and insisting that it is only the stupid inefficiency of the usual teaching which makes those studies be regarded as competitors instead of allies, was, I think, calculated, not only to aid and stimulate the improvement which has happily commenced in the national institutions for higher education, but to diffuse juster ideas than we often find even in highly educated men on the conditions of the highest mental cultivation.47

This account suggests both the time and the care he spent in preparing the Address (probably in Avignon, where he spent much of the inter-parliamentary recess), Edition: current; Page: [lxviii] however, he gave little time to St. Andrews, arriving only on 31 January, and leaving again on 2 February for two speaking engagements in Manchester before returning to London on the 5th. (This flurry of activity outside London was quite untypical; Mill delivered public speeches rarely, even during his parliamentary career, and almost always in London.) He undoubtedly had a printed version in mind from the beginning, though perhaps he thought a three-hour speech was fitting to the occasion. The full transcription of his speech in those capacious repositories, the contemporary newspapers, as well as the quick publication in book form, gave publicity to his ideas, and the response to them was generally favourable, though, as Stefan Collini points out (liii-liv above), there was criticism of his support for classical studies. The Address was widely read in the United States (it appeared in Littell’s Living Age, in book form, and in the U.S. editions of Dissertations and Discussions); it was, like almost all his works, quickly translated into German, and, unusually, into Hungarian.

The printed text is uncomplicated, with but one variant, probably from the compositor’s misreading of “lines” for “times.” A portion of what would appear to be a first draft exists, which differs in a multitude of details from the printed version; the differences are so numerous that attention to them might divert the reader from the main argument, and so they are given in Appendix D, as variant notes to the fragment in its draft version.

The Inaugural Address provides a broad and relatively objective survey of many of Mill’s concerns, public and private, the second book in this volume, The Subjection of Women, gives his fullest argument for the most passionately felt of these, sexual equality. The book’s antecedents may be inferred in part from other items here included: the companion essays on marriage, the fragments printed in Appendix B, and Harriet Mill’s “Enfranchisement of Women” (Appendix C). Mill so determinedly and correctly asserted that his attitude to sexual equality preceded her teaching of him that his main statement deserves quotation in full:

The steps in my mental growth for which I was indebted to her were far from being those which a person wholly uninformed on the subject would probably suspect. It might be supposed, for instance, that my strong convictions on the complete equality in all legal, political, social and domestic relations, which ought to exist between men and women, may have been adopted or learnt from her. This was so far from being the fact, that those convictions were among the earliest results of the application of my mind to political subjects, and the strength with which I held them was, as I believe, more than anything else, the originating cause of the interest she felt in me. What is true is, that until I knew her, the opinion was, in my mind, little more than an abstract principle. I saw no more reason why women should be held in legal subjection to other people, than why men should. I was certain that their interests required fully as much protection as those of men, and were quite as little likely to obtain it without an equal voice in making the laws by which they are to be bound. But that perception of the vast practical bearings of women’s disabilities which found expression in the book on The Subjection of Women, was acquired mainly through her teaching. But for her rare knowledge of human nature and comprehension of moral and social influences, though I should doubtless have held my present opinions I should have Edition: current; Page: [lxix] had a very insufficient perception of the mode in which the consequences of the inferior position of women intertwine themselves with all the evils of existing society and with all the difficulties of human improvement. I am indeed painfully conscious how much of her best thoughts on the subject I have failed to reproduce, and how greatly that little treatise falls short of what would have been given to the world if she had put on paper her entire mind on this question, or had lived to revise and improve, as she certainly would have done, my imperfect statement of the case.48

It seems likely, though not provable, that the priority of publication of her “Enfranchisement of Women” in 1851 inhibited the preparation of a fuller work by them together or by him alone. When, three years later, they were planning their life’s work, their list of subjects only hints at aspects of the question.49 “Differences of character,” including those arising from sex, “Love,” “Education of tastes,” “Family & Conventional,” all bear some relation to the themes of The Subjection of Women, but none is specially close except the first (which clearly suggests the “Ethology” that Mill never wrote) and the last two (which, especially the final one, are touched on in Harriet Taylor’s manuscript fragments). A month later, in March, 1854, however, when they agreed not to accept John Chapman’s request to reprint the “Enfranchisement,” a work more specifically like The Subjection of Women is implied. “I think that to refuse was best, on the whole,” Mill writes to his wife, “for I should not like any more than you that that paper should be supposed to be the best we could do, or the real expression of our mind on the subject. . . . I only wish the better thing we have promised to write were already written instead of being in prospect.”50 It remained in prospect, however, until 1860, when Mill felt ready to put down his own thoughts at length. Writing to Henry Fawcett on 24 December, he remarked that he had finished two works (Considerations on Representative Government and Utilitarianism), and had “made good progress with a third,” that is, The Subjection of Women.51 It was, like most of his other works, including the other two just mentioned, not occasional, and his explanation in the Autobiography of its genesis and delayed publication is plausible if not fully conclusive:

It was written at my daughter’s suggestion that there might, in any event, be in existence a written exposition of my opinions on that great question, as full and conclusive as I could make it. The intention was to keep this among other unpublished papers, improving it from time to time if I was able, and to publish it at the time when it should seem likely to be most useful. As ultimately published it was enriched with some important ideas of my daughter’s, and passages of her writing. But in what was of my own composition, all that is Edition: current; Page: [lxx] most striking and profound belongs to my wife; coming from the fund of thought which had been made common to us both, by our innumerable conversations and discussions on a topic which filled so large a place in our minds.52

At any rate, when he decided to publish the book in 1869, after his help in founding and promoting the Women’s Suffrage Society and his advocacy of the cause in the House of Commons, he seems to have chosen his time well. Three British editions, each of 1500 copies, appeared in May, June, and October, 1869, and two in the United States in that year; and it was translated almost immediately into French, Danish, German, Italian, Polish, and Russian.53 Even a casual glance through Mill’s correspondence for 1869 and 1870 will show just how much interest and admiration The Subjection of Women earned; indeed, on the surviving evidence, no other of his works drew so much immediate correspondence. (The comparison is of course skewed because both his public position and his circle of acquaintance were greater in 1869 than when his earlier works appeared.)

As well as enthusiastic supporters, and such vituperative opponents as J.F. Stephen, there were some allies who thought Mill’s message was untimely if not excessive; Bain was one, and Mill’s reply to him strongly asserts the ripeness of the time. Mill’s impassioned plea, too long for full quotation here, deserves to be read, but Bain’s subdued summary gives the sense:

Without entering into an argument with him on his equality view, I expressed my doubts as to the expediency of putting this more strongly than people generally would be willing to accept, inasmuch as the equality of rights did not presuppose absolute equality of faculties. He replied with much warmth, contending that the day of a temporizing policy was past, that it was necessary to show, not simply that the removal of restrictions would leave things as they are, but that many women are really capable of taking advantage of the higher openings. And further, he urged, it was necessary to stimulate the aspirations of women themselves, so as to obtain proofs from experience as to what they could do.54

The rapid exhaustion of the first two editions meant that Mill had little time to reconsider, and so it is not surprising that the only textual change is the correction in the 2nd edition of a misprint (“progressive” for “progressive” at 276.16), or that one evident error remained in all editions (“she” at 324.20, corrected in this edition Edition: current; Page: [lxxi] to “he”). Like On Liberty and Utilitarianism, The Subjection of Women has few even implicit references; unlike them, and in this respect unique among Mill’s books, for no evident reason it lacks chapter titles.

The campaign for women’s rights occupied much of Mill’s time and energy for the remainder of his life, sharing primacy with the movement for reform of land tenure, but he, deeply concerned like many others over the European situation, did not ignore international relations. “Treaty Obligations,” published over his name in the Fortnightly Review in December, 1870, shows his concern, as do the associated letters he wrote to The Times. They were, indeed, written at the same time, for the letters appeared on 19 and 24 November, and Mill returned the proofs of “Treaty Obligations” on the 28th.55 In her continuation of Mill’s Autobiography, Helen Taylor refers to the publication of the article, and says.

he also wrote two letters to the Times in the month of November 1870 on the same topic. They were called forth by a cry, that arose at that time in a portion of the English press, for plunging England into a war with Russia. They were the first protest that appeared in any well known name against such a war, they called forth others and helped to calm down the warlike excitement that was being aroused.56

Again the text provides no problems, the article was not republished in Mill’s lifetime, and the posthumous version in Volume IV of Dissertations and Discussions (1875), edited by Helen Taylor, shows a corrected typographical error (a comma was removed), one minor substantive (“which” changed to “that”, a change purists wish had been more often made in Mill’s works), and one altered spelling (“s” to “z” in “demoralizing”).

The final item in the main text is Mill’s evidence, given on 13 May, 1871, before the Royal Commission on the Contagious Diseases Acts of 1866 and 1869. Busy as ever, he was engaged—aided, abetted, and led by Helen Taylor—in controversy over leadership of the women’s suffrage movement,57 and active in the Land Tenure Reform Association, having written its Explanatory Statement in March, and making a speech for it on 15 May. He also published “Maine on Village Communities” in that month, and was understandably fussed over getting rid of his Blackheath house, where he had lived since his marriage, preparatory to moving to his last London home in apartments in Victoria Street. He must have had little time to consider the details of the administration and operation of the Contagious Diseases Acts, of which he certainly had no personal knowledge, and so his answers, firm and persistent, draw, as Stefan Collini argues, on principle and reason, not facts and induction.

The text presents problems that are disguised in other cases where Mill’s oral Edition: current; Page: [lxxii] evidence is included in this edition, because here there are two versions, one in Parliamentary Papers and one in a pamphlet issued by the National Association for the Repeal of the Contagious Diseases Acts that says on its title page, quite wrongly, “Reprinted Verbatim from the Blue Book.” Under normal circumstances, which there is no reason to believe did not obtain, the evidence in the Blue Books gives what the recorder took down, amended—not by the witness—merely to ensure sense. Nothing is known that would indicate Mill’s control over the pamphlet text, and neither version is in Mill’s library, and so one is left with two differing versions with competing authority. It appears, however, that the pamphlet was printed, if not verbatim, at least on the basis of the Blue Book, and not from some version amended by Mill or another.58 The later version has some evident corrections (“fail” for “fall” at 365.40, and “care” for “cure” at 366.47), and in general the pamphlet reflects some attention to clarity. We therefore have adopted it as copy-text, but have given the variant readings from Parliamentary Papers in notes,59 and accepted, where sense and consistency demanded, some accidentals from the earlier version. (The resisted urge to do more emendation was very strong, as will be realized by anyone who has seen supposedly verbatim reports of her or his lectures or conversation.) The format, as with all such verbal evidence, has been slightly modified to ease reading: questions are italicized, the “Q.” and “A.” that precede questions and answers in the pamphlet version are omitted, as are the numbers of the questions in the Blue Book version; and the full names of the commission members are given before the first question each asks.

APPENDICES

the appended materials are of four kinds: (a) essays and fragments by Harriet Taylor, before and after her marriage to Mill, that are cognate to his writings on sexual equality, and in the writing of which he had an indirect or even a direct hand, (b) a draft fragment in his hand, (c) material that is not certainly of Mill’s own composition, though issued over his name with his authority, and (d) editorial materials.

In the first group fall Appendices A, B, and C. The first of these is Harriet Taylor’s early essay,60 which we have entitled, like Mill’s companion piece, “On Marriage” (see above, lviii-lx).61 The evidence for dating, as indicated above, is Edition: current; Page: [lxxiii] slight. One related fragment is on paper watermarked 1831; the other, closer to our text, is like it on paper watermarked 1832.62 So we have contented ourselves with the rather hollow certainty that her essay is of the same unascertained but probable date as his, i.e., 1832-33. The essay is of interest biographically, and also as tending to support, if not confirm, his assertion about her role in giving him ideas that he developed. The most obvious one here is in the concluding sentence. “It is for you . . . to teach, such as may be taught, that the higher the kind of enjoyment, the greater the degree . . .”; this hint, coupled as it is with the notion of the lofty “poetic nature,” adumbrates a central issue in Mill’s ethics.

Appendix B is made up of five items that we attribute jointly to Harriet Taylor and J.S. Mill. They are all in Mill’s hand, except the title of the first and some corrections on the first and fourth, which are in hers, but that title, “Rights of Women—and Especially with Regard to the Elective Franchise—By a Woman—Dedicated to Queen Victoria,” the character, tone, and syntax of the pieces, and our slight knowledge of their working habits, all suggest that Mill wrote them at her dictation and/or copied them from now lost drafts in her hand. They all, in subject and in argument, can be interpreted as preliminary to her “Enfranchisement of Women” (discussed below), especially as the paper that is watermarked is of 1847, but there is no reference to them in extant correspondence or memoirs.

The first and most extensive is on paper of 1847.63 The editorial notes indicate where Taylor’s changes can be made out (she made alterations in pencil that Mill traced over in ink), and where the length of text on a side suggests piece-meal composition.

The text of the second manuscript, entitled in Mill’s hand “Women—(Rights of),” is reconstructed from two now separate items in the Mill-Taylor Collection.64 No explanation has been found for the curious condition of this manuscript the first two sheets having been cut in half. Taylor pencilled a circled “A” at the end of the text on f. 1r and a circled “B” at the end of f. 2r of No. 2; she then, in the blank space at the bottom of 3v, wrote (all in faded pencil, except for the first Edition: current; Page: [lxxiv] twenty words of “B,” where the pencil has been inked over), following a circled “A” and “B,” the same words that Mill wrote in ink on 1r and 2r of No. 6—i.e., the parts of 1r and 2r of No. 2 that were cut off. Also, after the first word on No. 6, f. 1v (“extinction,”), which ends a paragraph, she has pencilled “Rights of women.” Whatever the explanation, there can be no doubt that the sequence of scraps is (as here published) No. 2, f. 1r; No. 6, f. 1r; No. 2, f. 1v; No. 6, f. 1v; No. 2, f. 2r; No. 6, f. 2v (because the slip is bound in backwards); No. 2, f. 2v; No. 6, f. 2r; No. 2, f. 3r; No. 2, f. 3v (top half).

The third manuscript, headed rather ungrammatically in Mill’s hand “The Rights of Women to the Elective Franchise and Its Advantages,” is clearly an outline rather than a finished document or even a draft.65 The fourth manuscript, headed in Mill’s hand “Why Women Are Entitled to the Suffrage,”66 and the fifth unheaded manuscript67 are even more patently outlines.

Although only preliminary workings, these are all informative, not least in their expressing radical feminist principles rather more openly than do “The Enfranchisement of Women” and The Subjection of Women. It may be noted incidentally that the title of the latter is adumbrated at the opening of the second paragraph of “Women—(Rights of).” Certainly the manuscripts indicate singly and collectively the extent to which questions of sexual equality were in the minds of Taylor and Mill in the late 1840s when, it seems fair to say, their effective authorial collaboration was really beginning, as Mill’s account in the Autobiography of her part in Principles of Political Economy and his dedication of that work to her assert so strongly.68

Appendix C, “The Enfranchisement of Women,” was the only published expression of their views on sexual equality during Harriet Taylor Mill’s lifetime. That the items included in Appendix B are related to its composition is suggested by Mill’s letter to her of 21 February, 1849, wherein he says that the best contribution to improved relations between women and men would be for her to finish her “pamphlet—or little book rather, for it should be that.” He adds: “I do hope you are going on with it—gone on with & finished & published it must be, & next season too.”69 That urgency was not complied with, but just over a year later, on 19 March, 1850, when writing to Hickson about the possibility of articles for the Westminster, Mill says that he may be moved to write on the whole question of the effect of laws and customs on the status of women.70 The occasion for completing Edition: current; Page: [lxxv] the essay came in October, when the New York Tribune reported on the Women’s Rights Convention in Worcester, Massachusetts; here obviously was a chance to show advanced British opinion that the United States was leading the way. But the essay was not finished before 3 March, 1851, when Mill offered to send it to Hickson within a week for the April number of the Westminster.71 Indeed, it was not quite ready even then, for, learning that the April number was full, Mill delayed a little further, but finally sent it for the July number (expressing relief that it escaped association with the “despicable trash” printed in the April number).72 Hickson was at this time trying vainly to get Mill to reassume editorship of the review, but Mill, who had—after over twenty years of love—finally married Harriet Taylor on 21 April, seems not to have been seriously tempted.73 In an undated letter, probably of late May, Mill wrote again to Hickson, to say that he wished to keep the proof, which had just arrived, as long as was convenient, it being “necessary on such a subject to be as far as possible invulnerable.” “I have not,” he continues, “quite fixed on a heading. The best I have thought of is ‘Enfranchisement of Women.’ The one you propose with the word ‘sex’ in it would never do. That word is enough to vulgarize a whole review. It is almost as bad as ‘female.’ ”74 The touchiness here evident is much more pronounced in the next letter to Hickson on 9 June.

I am surprised to see by the revise of my article that you have made two verbal alterations. I gave you the article on an understood consideration, the only one on which I ever write, that no alterations should be made by anyone but myself, & from this condition I cannot depart. I have returned the corrected revise to the printer. I should be obliged by your letting me have (if possible before the review is out) twenty-five separate copies, at my expense. I wish for no title page, but in place of it a page with only the words “Reprinted from the Westminster Review for July 1851.” I should like to see a proof of the reprint.75

It will have been noted that in the correspondence with Hickson Mill consistently refers to the article as his own, because Hickson was familiar with Mill’s handwriting, one may infer that the manuscript was in his hand (as are those in Appendix B). There is, therefore, on this evidence some uncertainty about authorship, and the essay has been attributed to Mill by some. As will be seen, however, most of the evidence lies in the other scale. Mill, it will be recalled, had urged Harriet Taylor to finish her “pamphlet” or “little book.” After its publication (and their marriage), he wrote to Anna Blackwell, on 16 August, 1851, noting that the article was anonymous, and declining her attribution of it to him.76 This is a quiet hint, but the next is more vehement, in a letter to his wife on 6 March, 1854, when reporting a letter from John Chapman proposing to reprint the article, which Edition: current; Page: [lxxvi] Chapman “vulgarly calls . . . the article on Woman,” Mill says, “How very vulgar all his notes are. I am glad however that it is your permission he asks.” He goes on to ask her what to do.77 She, as always, complied, and he reported to her on 20 March:

I sent to Chapman the letter you drafted, exactly as it was, only choosing the phrases I preferred where you gave the choice of two. I think that to refuse was best, on the whole, for I should not like any more than you that that paper should be supposed to be the best we could do, or the real expression of our mind on the subject. This is not supposed of a mere review article written on a special occasion as that was, but would perhaps be so if the same thing were put out, years after, under our own auspices as a pamphlet. I only wish the better thing we have promised to write were already written instead of being in prospect. In any case the article will of course be in any collection or rather selection of articles which we may either publish in our life, or leave for publication afterwards, & whichever we do it shall be preceded by a preface which will shew that much of all my later articles, & all the best of that one, were, as they were, my Darling’s.78

On any assumption about authorship it is difficult to interpret the remark, “I should not like any more than you that that paper should be supposed to be the best we could do,” and the comment that “the best” of the “Enfranchisement” was hers leaves open the interpretation that the rest, the “worst,” was his. In the preface to the article when republished, he says more clearly that the essay is different from the “joint productions,” in that his share in it was “little more than that of an editor and amanuensis” (393). He also elaborates the excuse for the essay’s failure to do her mind justice, and says, in my view conclusively, that her authorship was known at the time. Indeed, in an angry letter to George Jacob Holyoake of 21 September, 1856, he is explicit on the subject:

On returning a few days ago from the Continent I found your note inclosing the reprint of my wife’s article in the W.R. on the enfranchisement of women. I think you are not justified in reprinting it without asking the permission of the author which you could easily have done through me, still less with many errors in the reprint. I have marked the principal of them in the margin of the copy you sent. One particularly offensive is the excessive vulgarity of substituting “woman” for “Women”; this occurs in several places and in the first paragraph. One of the purposes of writing the article was to warn the American women to disunite their cause from the feeble sentimentality which exposes it to contempt & of which the stuff continually talked & written about “woman” may be taken as a symbol & test,—& it is therefore very disagreeable to the writer to see this piece of vulgarity prominent on the face of the article itself.79

And later, in 1865, in agreeing to the publication of his articles by his election Edition: current; Page: [lxxvii] committee, he says that if the “Enfranchisement” is reprinted, “it must be as my wife’s, not as mine”; and in thanking Moncure Conway for his report of the article’s value in the U.S.A., he comments on how much pleasure its author would have taken from the movement’s progress, “had she lived to see it.”80 Finally, in preparing for the reprinting of the essay as a pamphlet, with “by Mrs. Stuart Mill” on the cover, he describes it to Herbert Spencer as “Mrs Mill’s paper,” and after the publication refers to it in correspondence as hers.81 It is not fanciful, further, to see the delay in completing the article and the spiteful annoyance over details as not being characteristic of Mill in reference to writings unmistakably his own. One may safely conclude that the article is, on the common understanding of authorship, Harriet Taylor Mill’s; on her and her husband’s understanding, it is a “joint production”; but to accept that description here is surely to weaken the claim that she played a major role in those joint productions that appeared under his name. Attributing it to her, of course, again strengthens the case for her influence on Mill’s thought (see the Introduction, xxxii above, for resemblances).

The transmission of text among the different versions seems clear the original article (or its textually identical offprint) served as base text for the 1st edition of Dissertations and Discussions, in which nine substantive changes were introduced. The 2nd edition of Dissertations and Discussions was based on the first, four substantive changes being made. None of these appears in the pamphlet of 1868, and only one of the nine introduced in 1859 is seen there, while the pamphlet differs from all other versions in twenty-two substantives. The inference that the version of 1868 was based on that of 1851 is borne out by a study of the accidental variants, where in punctuation those two agree as against Dissertations and Discussions in sixteen cases compared with one agreement between 1868 and Dissertations and Discussions as against 1851.82 No elaborate conclusions seem necessary or justified: it appears probable that Mill, having made the changes for the 1st edition of Dissertations and Discussions himself, thought little about the (typically) minor changes for the 2nd edition, but called on Helen Taylor’s collaboration in preparing the pamphlet, for which they used the most convenient base text, a copy of the offprint.

The second kind of material in the appendices is found in Appendix D, the draft of part of the Inaugural Address, which has a quite different, and much slighter, interest, as giving one of the rare glimpses of Mill, late in life, revising a work Edition: current; Page: [lxxviii] thoroughly as to wording, but not finding it necessary to make structural or argumentative changes. Both economy and precision were well served in what must have been a rapid rewriting. This fragment was probably preserved merely by accident when many of the Mill-Taylor papers were destroyed in Avignon after Helen Taylor’s return to England in 1905; it found a place in a miscellaneous collection bought from the Avignon bookseller J. Roumanille by George Herbert Palmer, and eventually was deposited in the Houghton Library, Harvard University.

Appendix E is of the third kind; it consists of three documents issued by the Jamaica Committee under Mill’s chairmanship, one dating from 1866, and two from 1868. Mill’s name appears first among the signatories of each, and he must have approved, even if he did not draft, the contents of each. His passionate involvement in the attempt of the Committee to bring Governor Eyre to trial, discussed in the Introduction (xxvi-xxviii), is fully illustrated in his parliamentary career, both in his speeches and actions and in attacks on and defences of him in Parliament and the press. The texts for the documents are based on different sources. The first, the extensive “Statement of the Jamaica Committee,” 27 July, 1866, is taken from Volume III of the series of Jamaica Papers issued from time to time by the Committee. It also appeared in the press. No official copy has been found of the second document, an address to friends of the Committee, dated October, 1866. Our text is taken from the Examiner of 13 October, where the format appears less altered by newspaper practice than that in the Daily News of 12 October. The third, the concluding statement by the Committee, dated 15 July, 1868, and indicating the winding up of its business, comes from a printed letter, two copies of which are in the Mill-Taylor Collection; no full version has been found in the press, which by then reflected the general public indifference or hostility to the Committee’s cause, though a summary of the statement is in the Daily Telegraph of 24 July.

The final two appendices contain editorial materials. Appendix F lists the textual emendations, most of which are corrections of typographical errors. Appendix G, the Bibliographic Appendix, provides a guide to Mill’s references and quotations, with notes concerning the separate entries, and a list of substantive variants between his quotations and their sources. The items in this volume contain references to more than 150 publications (excluding Statutes and Parliamentary Papers and unidentified anonymous quotations, but including classical tags and references that occur in quotations from others). Mill quotes from over seventy of these, including the eight works he reviews. The most extensive quotation is, as one would expect, from the reviewed works; a large number of the shorter quotations (some of which are indirect) are undoubtedly taken from memory, with no explicit references being given, and the identification of some of these is inescapably inferential.

Because Appendix G serves as an index to persons, writings, and statutes, Edition: current; Page: [lxxix] references to them do not appear in the Index proper, which has been prepared by Dr. Jean O’Grady.

TEXTUAL PRINCIPLES AND METHODS

as throughout this edition, the copy-text for each item is that of the final version supervised by Mill.83 Details concerning revisions are given in the headnotes to each item and in the discussion above.

Method of indicating variants. All the substantive variants are governed by the principles enunciated below; “substantive” here means all changes of text except spelling, hyphenation, punctuation, demonstrable typographical errors, and such printing-house concerns as type size, etc. The substantive variants are of three kinds: addition of a word or words, substitution of a word or words, deletion of a word or words. The following illustrative examples are drawn, except as indicated, from “The Contest in America.”

Addition of a word or words: see 128a-a. In the text, the last word of the passage “A nation which has made the professions that England has made” appears as “amadea”, the variant note reads “a-a+67”. The plus sign indicates an addition in the edition signalled by the following numbers. The editions are always indicated by the last two numbers of the year of publication, here 67 indicates 1867 (the 2nd edition of Volumes I and II of Dissertations and Discussions). Information explaining the use of these abbreviations is given in each headnote, as required. Any added editorial comment is enclosed in square brackets and italicized.

Placing this example in context, the interpretation is that when first published (1862) the reading was “A nation which has made the professions that England has”; this reading was retained in the offprint (also 1862); but in 1867 the reading of the concluding clause became “that England has made”.

Substitution of a word or words: see 129d-d. In the text the passage “Now that the mind of England” appears as “Now dthatd the mind of England”, the variant note reads “d-d621,2 , when”. Here the word following the edition indicator is that for which “that” was substituted; applying the same rules and putting the variant in context, the interpretation is that when first published in 1862 (indicated by 621) the reading was “Now, when the mind of England”, this reading was retained in the offprint (indicated by 622): in 1867 it was altered to “Now that the mind of England”.

Deletion of a word or words, see 141j and 65c-c. The first of these is typical, representing the most convenient way of indicating deletions in a later edition. In the text on 141 a single superscript j appears centred between “repudiation,” and Edition: current; Page: [lxxx] “Unless”; the variant note reads “j621,2 Mississippi was the first state which repudiated, Mr. Jefferson Davis was Governor of Mississippi, and the Legislature of Mississippi had passed a Bill recognizing and providing for the debt, which Bill Mr. Jefferson Davis repudiated.” Here the sentence following the edition indicator was deleted. Applying the same rules and putting the variant in context, the interpretation is that when first published (1862) and offprinted (also 1862) the sentence appeared between “repudiation,” and “Unless”, in 1867 it was deleted.

The second example (65c-c), illustrates the method used to cover more conveniently deletions when portions of the copy-text were later reprinted, as in the case of “Reform in Education,” in which Mill quotes from his own “Corporation and Church Property,” which was republished in Dissertations and Discussions, Volume I. (That is, there is here, exceptionally, a later version of part of the copy-text, whereas normally the copy-text is the latest version.) In the text the words “a particle worse than” appear as “ca particlec worse than”; the variant note reads “c-c-59.67”. The minus sign indicates that in the editions signified the words enclosed were deleted. Putting the example in context, the interpretation is that when first published (1834) the reading was (as is clear in the text) “a particle worse than”; this reading was altered in 1859 (the 1st edition of Dissertation and Discussions) to “worse than”; and the altered reading was retained in 1867.

Dates of footnotes: see 133n. In this edition the practice is to place immediately after the footnote indicator, in square brackets, the figures indicating the edition in which Mill’s footnote first appeared. In the example cited, “[67]” signifies that the note was added in 1867. In the only other instance in this volume (at 420n) “[-67]” signifies that the footnote in the draft manuscript was removed for the printed version. Elsewhere, where no such indication appears, the note is in all versions.

Punctuation and spelling. In general, changes between versions in punctuation and spelling are ignored. Those changes that occur as part of a substantive variant are included in that variant, and the superscript letters in the text are placed exactly with reference to punctuation. Changes between italic and roman type are treated as substantive variants except in titles of works, abbreviations, and in one case (“prima facie” at 275.33) a foreign phrase. One unusual old form (“began” rather than “begun” at 315.15) has been retained, as it persists through three editions.

Other textual liberties. Some of the titles have been modified or supplied, but most are those found in the copy-texts “Law of Libel and Liberty of the Press” and “Austin’s Lectures on Jurisprudence” are taken from the running titles. The manuscripts, if not entitled, are given titles reflecting their contents, as are the short review “Smith on Law Reform” and the two extracts from Parliamentary Papers. The headnotes give information about original headings and titles (the running titles, when cited, are standardized in capitalization and font). The dates added to the titles are those of first publication or, for manuscripts, composition. Edition: current; Page: [lxxxi] When footnotes to the original titles of articles gave bibliographic information, these have been deleted, and the information given in the headnotes. The original headnote to “The Negro Question,” which was supplied by the editor of Fraser’s Magazine, is given as a footnote.

Typographical errors have been silently corrected in the text, they are listed in Appendix F. Some of these, as well as some variants, are indicated by Mill in copies now in Somerville College, Oxford (signified by “SC” in our notes). In the headnotes, errors in the quotations from Mill’s bibliography, the manuscript of which is a scribal copy, are also silently corrected; the note below lists them.84 While the punctuation and spelling of each item are retained, the style has been made uniform: for example, periods are deleted after references to monarchs (for example, “Charles I.”), dashes are deleted when combined with other punctuation before a quotation or reference, and italic punctuation after italic passages has been made roman. For consistency, in a few places titles are given an initial capital, and at 270.10 an initial capital has been placed on “parliament”. In monarchs’ titles the sequential designations have been regularized to roman numerals (for example, “Francis the First” is given as “Francis I”). Indications of ellipsis have been normalized to three dots plus, when necessary, terminal punctuation. The positioning of footnote indicators has been normalized so that they always appear after adjacent punctuation marks; in some cases references have been moved from the beginning to the end of quotations for consistency. Where the copy-text is manuscript, the ampersand is given as “and”, in those in Appendix B contractions such as “wd” are expanded and superscripts lowered.

Also, in accordance with modern practice, all long quotations have been reduced in type size and the quotation marks removed. In consequence, it has occasionally been necessary to add square brackets around Mill’s words in quotations; there is little opportunity for confusion, as there are no editorial insertions except page references. Double quotation marks replace single, and titles of works originally published separately are given in italics. At 198.3 and 245.26-7 quotation marks have been placed around “Vision” (i.e., Addison’s “Vision of Mirzah”) and “Hymn to Intellectual Beauty” by Shelley. Mill’s references to sources, and additional editorial references (in square brackets), have been normalized. When necessary his references have been corrected, a list of the corrections and alterations is given in the note below.85

Edition: current; Page: [lxxxii]

As indicated above, the format of “The Contagious Diseases Acts” has been made compatible with that used elsewhere in this edition for Mill’s parliamentary evidence: the numbers of the questions have been deleted; the questioners’ names are given in full; and the questions are given in italic (this practice is also followed in “Educational Endowments,” where Mill’s evidence was given in writing rather than viva voce).

ACKNOWLEDGMENTS

for permission to publish manuscript material, we are indebted to the British Library of Political and Economic Science, the Houghton Library, Harvard University, and the National Provincial Bank (literary executors and residual legatees of Mary Taylor, Mill’s step-granddaughter). Stefan Collini and I have also received gracious help from the staffs of the Aberdeen University Library, the British Library (with the regrettable exception of one librarian at Colindale), the Central Library of the City of Manchester, Dr. Williams’s Library, the History of Ideas Unit, Australian National University (particularly Sam Goldberg and Barry Smith), the Instituto Internacional de Estudios Avanzados, Caracas (especially Luis Castro), the Jamaica Archives, the Lindsay Institute (Lanark), the London Library, the Longmans Archive, Reading University, the National Library of Jamaica, the National Library of Scotland, Somerville College Library, the University of London Library, the University of Toronto Library, Victoria University Library, and Yale University Library. The unflagging personal and technical help of the staff of the University of Toronto Press, and especially of our copy-editors, Rosemary Shipton and Margaret Parker, deserve only our richest Edition: current; Page: [lxxxiii] thanks. Individuals whose aid we are delighted to acknowledge include the members of the Editorial Committee, and Robin Alston, John Burrow, D.G. Clarke, Peter Clarke, G.M. Craig, John Dinwiddy, Claire Gobbi, Joseph Hamburger, Geoffrey Hawthorn, Bruce L. Kinzer, David Lieberman, J. McGarrity, W.E. McLeod, Kenneth McNaught, Francis E. Mineka, Ruth Morse, Stephen B. Oates, William, John, and Ann Christine Robson, C.A. Silber, John Thompson, Donald Winch, and Elizabeth Zyman.

Our greatest benefactor is the Social Sciences and Humanities Research Council of Canada, whose generous Major Editorial Project Grant supports both publication and the work of our talented and dedicated editorial team. For this volume, much of the credit belongs to Jean O’Grady, Marion Filipiuk, Maureen Clarke, Rea Wilmshurst, Allison Taylor, and Jonathan Cutmore. My wife, Professor Ann P. Robson, to whom my greatest debt is owed, will not object to my linking her and our favourite publishing house in saying, with Horace, “Domus et placens uxor.”

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ESSAYS ON EQUALITY, LAW AND EDUCATION

LAW OF LIBEL AND LIBERTY OF THE PRESS
1825

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EDITOR’S NOTE

Westminster Review, III (Apr., 1825), 285-321. Headed “Art I On the Law of Libel, with Strictures on the self-styled Constitutional Association. [By Francis Place.] 8vo. pp. 73. London: John Hunt, 1823. The Law of Libel. By Richard Mence, Esq. of the Middle Temple, Barrister. 8vo. 2 Vols. in one, pp. 595. London [“Pople], 1824.” Running titles “Law of Libel and Liberty of the Press.” Unsigned; not republished. Identified in Mill’s bibliography as “An article on the Liberty of the Press, in the sixth number of the Westminster Review” (MacMinn, 6). Vol. III of the Westminster in the Somerville College Library has no corrections or alterations. For comment on the review, see xl-xli and lviii above.

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Law of Libel and Liberty of the Press

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

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

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

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

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

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

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

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

There is scarcely a right,* for the violation of which, scarcely an operation of government, for the disturbance of which, the press may not be employed as an instrument. The offences capable of being committed by the press are indeed nearly coextensive with the whole field of delinquency.

It is not, however, necessary to give a separate definition of every such violation or disturbance, when committed by the press, for that would be to write the penal code a second time; first describing each offence as it appears in ordinary cases, and then describing it anew for the case in which the press is the particular instrument.

If, for the prevention of the violation of rights, it were necessary to give a separate definition, on account of every instrument which might be employed as a means of producing the several violations, the penal code would be endless. In general the instrument or means is an immaterial circumstance. The violation itself, and the degree of alarm which may attend it, are the principal objects of consideration. If a man is put in fear of his life, and robbed of his purse, it is of no consequence whether he is threatened with a pistol, or with a sword. In the deposition of a theft, of a fraud, or a murder, it is not necessary to include an account of all the sorts of means by which these injuries may be perpetrated. It is sufficient if Edition: current; Page: [5] the injury itself is accurately described. The object is, to prevent the injury, not merely when produced by one sort of means or another sort of means, but by any means.

As far as persons and property are concerned, the general definition of the acts by which rights are liable to be violated, has always been held sufficient, and has been regarded as including not less the cases in which the instrumentality of the press has been employed, than those in which any other means have been employed to the same end. Nobody ever thought of a particular law for restraining the press on account of the cases in which it may have been rendered subservient to the perpetration of a murder or theft. It is enough that a law is made to punish him who has been guilty of the murder or theft, whether he has employed the press or any thing else as the means for accomplishing his end.*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Religion, in some of its shapes, has in most countries been placed on the footing of an institution of the state. Ought the freedom of the press to be as complete with regard to this, as we have seen that it ought to be in regard to all other institutions of the state? If any one says that it ought not, it is incumbent upon him to shew, wherein the principles which are applicable to the other institutions, fail in their application to this.

We have seen, that, in regard to all other institutions, it is unsafe for the people to permit any but themselves to choose opinions for them. Nothing can be more certain, than that it is unsafe for them to permit any but themselves to choose for them in religion.

If they part with the power of choosing their own religious opinions, they part with every power. It is well known with what ease religious opinions can be made to embrace every thing upon which the unlimited power of rulers and the utmost degradation of the people Edition: current; Page: [14] depend. The doctrine of passive obedience and non-resistance was a religious doctrine. Permit any man, or any set of men, to say what shall and what shall not be religious opinions, you make them despotic immediately.

This is so obvious, that it requires neither illustration nor proof.

But if the people here, too, must choose opinions for themselves, discussion must have its course; the same propositions which we have proved to be true in regard to other institutions, are true in regard to this; and no opinion ought to be impeded more than another, by any thing but the adduction of evidence on the opposite side.*

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

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

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

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

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

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

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

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

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

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

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

The question is, whether indecent discussion should be prohibited? To answer this question, we must, of course, inquire what is meant by indecent

In English libel law, where this term holds so distinguished a place, is it not defined?

English legislators have not hitherto been good at defining, and English lawyers have always vehemently condemned, and grossly abused it. The word “indecent,” therefore, has always been a term under which it was not difficult, on each occasion, for the judge to include whatever he did not like. “Decent” and “what the judge likes,” have been pretty nearly synonymous.*

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

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

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

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

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

Our constitution, in fact, as it at present exists, in a church reformed from the errors of superstition, and in a system of liberty equally remote from feudal anarchy, and monarchical despotism, is almost entirely, under Providence, the fruit of a free press. It was this which awakened the minds of men from that apathy in which ignorance of their rights, and of the duties of their rulers, left them. It was by these means that moral and religious knowledge, the foundations of all liberty, was refracted, multiplied, and circulated, and instead of existing in masses, and in the single points of schools and universities, was rendered the common atmosphere in which we all live and breathe. It was from the press that originated, what is, in fact, the main distinction of the ancient and modern world, public opinion. A single question will be sufficient to put the importance of this subject in the strongest point of view. In the present state of knowledge and manners, is it possible that a Nero or Tiberius would be suffered to live or reign?

(1st ed., pp. 39, 40.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One might almost as reasonably contend, [says Mr. Mence,] that it ought to be criminal in point of law for any person to carry money about him, lest it should tempt some scoundrel to pick his pocket or knock his brains out. The punishment in such a case, as the law now stands, would fall upon the thief, instead of the tempter. And the peace would be at least as well secured, and the interests of morality much better consulted, in cases of alleged libel, by punishing not the man who exposes vice and holds it up to deserved infamy, but the man whose vicious conduct is exposed, and who to his crimes has added the farther crime of braving the disgrace, and committing violence upon the person who may justly and meritoriously have exposed him.

(Vol. I, p. 136.)
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The reader may be curious to learn for what purpose this ludicrous fiction was invented. The purpose was, to render libel a penal offence, instead of being merely a civil injury. Had it been classed among private offences, under the head of injuries to reputation, it would have been necessary to prove, in the first place, that an injury had really been sustained; and then the damages awarded would not have exceeded a fair compensation for the actual injury which had been proved. To make it a public offence, it was erected into a sort of virtual breach of the peace, which, again, by another equally contemptible fiction, is the king’s peace; and thus, a libel against an individual became an offence against the king. Englishmen, who have been accustomed to hear, and to believe, that the law is the perfection of human reason,[*] will be astonished to learn, that there is scarcely one, even of its good principles, which has any thing better than such fictions as the above for its basis. In fictione juris semper aequitas, say the lawyers. It is an assertion which they would not venture to put forth, were not the apathy of the public a sufficient security for its being believed without inquiry. Yet here is, at any rate, one instance, (and every one who has examined the law without a resolution to find every thing as it should be,[†] can supply many more), in which such fictions have been devised for the most mischievous of all purposes.

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

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

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

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

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

If the law protects the subject in his rights, and punishes every invasion of them, much more does it protect that system from which all these rights proceed, and by which alone they can be maintained. The government and constitution being the common inheritance, every attack made upon them, which affects their permanence and security, is in a degree an attack upon every individual in the state, and concerns the rights of all. If it be the highest crime known to our laws, to subvert by force that constitution and polity which the wisdom and valour of our ancestors have erected and confirmed, it is certainly a crime, though of inferior magnitude, yet of great enormity, to endeavour to despoil it of its best support, the veneration, esteem, and affection of the people. It is, therefore, a maxim of the law of England, flowing by natural consequence and easy deduction from the great principle of self-defence, to consider as libels and misdemeanours every species of attack by speaking or writing, the object of which is wantonly to defame, or indecorously to calumniate, that economy, order, and constitution of things, which make up the general system of the law and government of the country.

(P. 74.)

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

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

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

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

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

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

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

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

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

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

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

The constitution of this country, which is nothing but perfect reason, acknowledges in every man a right to set forth a general or individual hardship, and to suggest error, even in the highest branch of the magistracy. The constitution, indeed, is too wise not to acknowledge that the best interest of the state, as of human society at large, is truth. It opens, therefore, a ready ear to honest and useful truth of all kinds, and as it receives this truth from human beings, and therefore can only expect it as mingled up and adulterated with human passions, it will often pardon and overlook a natural warmth, for the sake of the truth which it produces. This is the character of the constitution with respect to public libels Edition: current; Page: [26] in good times. But every right has its limits. The right is given by the constitution, in so far as it is necessary and salutary, for the purposes of reminding kings of their duty, and parliaments of their trusts; the right stops at that point where its exercise would endanger the permanence and due weight of government: that is, where it serves no other purpose than to revive the original anarchy and to spread disaffection and tumult through the state.

(P. 76.)

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

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

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

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

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

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

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

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

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

Every Englishman has a clear right to discuss public affairs freely, inasmuch as, from the renewable nature of the popular part of our constitution, and the privilege of choosing his representatives, he has a particular, as well as a general interest in them. He has a right to point out error and abuse in the conduct of the affairs of state, and freely and temperately to canvass every question connected with the public policy of the country. But, if instead of the sober and honest discussion of a man prudent and attentive to his own interests, his purpose is, to misrepresent, and find a handle for faction; if, instead of the respectful language of complaint and decorous remonstrance, he assumes a tone and a deportment which can belong to no individual in civil society, if, forgetting the wholesome respect which is due to authority, and to the maintenance of every system, he proposes to reform the evils of the state by lessening the reverence of the laws; if he indiscriminately assigns bad motives to imagined errors and abuses; if, in short, he uses the liberty of the press to cloak a malicious intention, to the end of injuring private feeling, and disturbing the peace, economy, and order of the state, the law, under such circumstances, considers him as abusing to the purposes of anarchy what it has given him for the purposes of defence.

(Pp. 102-3.)

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

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

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

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

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

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

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

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

lord holt. They say that nothing is a libel but what reflects on some particular person. But this is a very strange doctrine, to say that it is not a libel reflecting on the government, endeavouring to possess the people that the government is mal-administered by corrupt persons that are employed in such stations, either in the navy or army. To say that corrupt Edition: current; Page: [29] officers are appointed to administer affairs is certainly a reflection on the government. If men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist.*

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

lord chief justice raymond. Even a private man’s character is not to be scandalized, either directly or indirectly; because there are remedies appointed by law, in case he has injured any person, without maliciously scandalizing him in his character. And much less is a magistrate, minister of state, or other public person’s character to be stained, either directly or indirectly. And the law reckons it a greater offence when the libel is pointed at persons in a public capacity, as it is a reproach to the government to have corrupt magistrates, &c. substituted by his majesty, and tends to sow sedition, and disturb the peace of the kingdom.

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

sir philip yorke (afterwards Lord Chancellor Hardwicke). He (the printer) is not to publish any thing reflecting on the character, and reputation, and administration of his majesty, or his ministers.

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

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

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lord ellenborough. It is no new doctrine, that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law. It is a crime, it has ever been considered as a crime, whether wrapt in one form or another.*

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

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

To impute to the ministers under any form of government, whether monarchy or any other established form of government, wicked and corrupt motives of a pecuniary nature, or of another and a worse sort, viz. that corruption arising from a desire to destroy the liberties and the constitution of their country, and to take away from the subjects of the state all the happiness intended to be given by the laws and constitution, is, I take leave boldly to state, without hazard of contradiction from any lawyer in the country, a libel against the administration of the government: against the ministers employed in that administration.

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

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

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

It is open to every subject of the country to discuss the measures of government, provided he do it reasonably, fairly, and impartially; but if, instead of reasoning and discussing upon measures general or particular, a person chooses to issue forth to the world slander and calumny against the government, or against the authors of those measures, he then becomes amenable to the law; if I may so say, where reasoning ends and slander and calumny begin, there is the line by which a judgment is to be formed.

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

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

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

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

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

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

It is, undoubtedly, within the natural compass of the liberty of the press, to discuss, in a peaceable and temperate manner, the decisions and judgments of a court of justice: to suggest even error, and, provided it be done in the language, and with the views, of fair criticism, to censure what is apparently wrong, but with this limitation, that no false or dishonest motives be assigned to any party.*

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

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

justice buller. Nothing can be of greater importance to the welfare of the public, than to put a stop to the animadversions and censures which are so frequently made upon courts of justice in this country. They can be of no service, and may be attended with the most mischievous consequences. Cases may happen, in which the judge and jury may be mistaken; when they are, the law has afforded a remedy, and the party injured is entitled to pursue every method which the law allows to correct the mistake. But, when a person has recourse either by writing like the present, by publications in print, or by any other means, to calumniate the proceedings of a court of justice, the obvious tendency of it is, to weaken the administration of justice, and, in consequence, to sap the very foundation of the constitution itself.

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

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

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

We are perpetually boasting, [says the writer of the pamphlet which stands together with Mr. Mence’s work, at the head of this article.] We are perpetually boasting of the integrity of the judges. The judges on the bench are always, for the time being, the best of judges, the wisest and most upright of men, men who will neither do nor suffer injustice, men who will drive from their presence all who seek to pervert the law, or who take advantage of its defects to do injury to any one. Woe to him who shall dare to impeach the conduct of a living judge!

Yet how few are the dead judges whose conduct has not been impeached, and that, too, on good grounds. Were the judges really and truly independent of the executive power, and were the people at liberty, as they ought to be, but as, with the consent of the judges, they never will be, were they at liberty to canvass the conduct of a living judge to the necessary extent, so that no judge could commit acts of folly or of injustice with impunity, very few such acts would be committed. Had this security been taken, and this freedom been enjoyed in time past, the evils which have been accumulating for ages would have had no existence, the law would have been precise, clear, and sufficient, and its administration very different indeed from that which we are compelled to witness.*

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

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

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

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

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

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

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ON MARRIAGE
1832–33?

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EDITOR’S NOTE

Holograph MS, Mill-Taylor Collection, British Library of Political and Economic Science, London School of Economics. Untitled and unsigned, but in Mill’s hand Dated on physical evidence. Not published (and therefore not in Mill’s bibliography). For a description of the MS, and comment on it, see xxx-xxxi and lviii-lx above.

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On Marriage

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

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

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

lf0223-21_figure_001.jpg

Folio 1r of “On Marriage”

British Library of Political and Economic Science

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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AUSTIN’S LECTURES ON JURISPRUDENCE
1832

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EDITOR’S NOTE

Tait’s Edinburgh Magazine, II (Dec., 1832), 343-8. Title footnoted. “The Province of Jurisprudence Determined. By John Austin, Esq., Barrister at Law. [London: Murray, 1832.]” Running titles as title. Unsigned, not republished. Identified in Mill’s bibliography as “A review of Austin’s Lectures on Jurisprudence in the 9th number of Tait’s Edinburgh Magazine (December 1832.)” (MacMinn, 23.) The Somerville College copy (tear-sheets) has three inked corrections by Mill that are adopted in the present text at 53.1 “early a brilliant” is altered to “early or brilliant”, at 54, 19 “people Our” is altered to “people, Our” (we complete the correction by printing “our”), and at 56.10 “as an author” is changed to “as our author”. For comment on the review, see xli-xliii and lx above.

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Austin’s Lectures on Jurisprudence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If there were a reading public, numerous, discerning, and impartial, the science of ethics, and all the various sciences which are nearly related to ethics, would advance with unexampled rapidity.

By the hope of obtaining the approbation which it would bestow upon genuine merit, writers would be incited to the patient research and reflection, which are not less requisite to the improvement of ethical, than to the advancement of mathematical science.

Slight and incoherent thinking would be received with general contempt, though it were cased in polished periods, studded with brilliant metaphors. Ethics would be considered by readers, and, therefore, treated by writers, as the matter or subject of a science; as a subject for persevering and accurate investigation, and not as a theme for childish and babbling rhetoric.

This general demand for truth, (though it were clothed in homely guise,) and this general contempt of falsehood and nonsense, (though they were decked with rhetorical graces,) would improve the method and the style of inquiries into ethics, and into the various sciences which are nearly related to ethics. The writers would attend to the suggestions of Hobbes and of Locke, and would imitate the method so successfully pursued by geometers, though such is the variety of the premises which some of their inquiries involve, and such are the complexity and ambiguity of some of the terms, that they would often fall short of the perfect exactness and coherency which the fewness of his premises, and the simplicity and definiteness of his expressions, enable the geometer to reach. But, though they would often fall short of geometrical exactness and coherency, they might always approach, and would often attain to them. They would acquire the art and the habit of defining their leading terms, of steadily adhering to the meanings announced by the definitions; of carefully examining and distinctly stating their premises, and of deducing the consequences of their premises with logical vigour. Without rejecting embellishments which might happen to fall in their way, the only excellencies of style for which they would seek are precision, clearness, and conciseness; the first being absolutely requisite to the successful prosecution of inquiry, whilst the others enable the reader to seize the meaning with certainty, and spare him unnecessary fatigue.

And, what is equally important, the protection afforded by this public to diligent and honest writers would inspire into writers upon ethics, and upon the nearly related sciences, the spirit of dispassionate inquiry the “indifferency” or impartiality in the pursuit of truth, which is just as requisite to the detection of truth as continued and close attention, or Edition: current; Page: [59] sincerity and simplicity of purpose. Relying on the discernment and the justice of a numerous and powerful public, shielded by its countenance from the shafts of the hypocrite and the bigot, indifferent to the idle whistling of that harmless storm, they would scrutinize established institutions, and current or received opinions, fearlessly but coolly, with the freedom which is imperiously demanded by general utility, but without the antipathy which is begotten by the dread of persecution, and which is scarcely less adverse than “the love of things ancient” to the rapid advancement of science

This patience in investigation, this distinctness and accuracy of method, this freedom and indifferency in the pursuit of the useful and the true, would thoroughly dispel the obscurity by which the science is clouded, and would clear it from most of its uncertainties. The wish, the hope, the prediction of Mr. Locke, would, in time, be accomplished: and “ethics would rank with the sciences which are capable of demonstration.[*] The adepts in ethical, as well as in mathematical science, would commonly agree in their results, and, as the jar of their conclusions gradually subsided, a body of doctrine and authority, to which the multitude might trust, would emerge from the existing chaos. The direct examination of the multitude would only extend to the elements, and to the easier, though more momentous of the derivative practical truths. But none of their opinions would be adopted blindly, nor would any of their opinions be obnoxious to groundless and capricious charge. Though most or many of their opinions would still be taken from authority, the authority to which they would trust might satisfy the most scrupulous reason. In the unanimous or general consent of numerous and impartial inquirers, they would find that mark of trustworthiness which justifies reliance on authority, wherever we are debarred from the opportunity of examining the evidence for ourselves.

(Pp. 81-4.)

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

The treatise by Dr. Paley on Moral and Political Philosophy[†] exemplifies the natural tendency of narrow and domineering interests to pervert the course of inquiry from its legitimate purpose

As men go, this celebrated and influential writer was a wise and a virtuous man. By the qualities of his head and heart, by the cast of his talents and affections, he was fitted, in a high degree, to seek for ethical truth, and to expound it successfully to others. He had a clear and a just understanding; a hearty contempt of paradox, and of ingenious but useless refinements, no fastidious disdain of the working people, but a warm sympathy with their homely enjoyments and sufferings. He knew that they are more numerous than all the rest of the community, and he felt that they are more important than all the rest of the community to the eye of unclouded reason and impartial benevolence

But the sinister influence[‡] of the position, which he unluckily occupied, cramped his generous affections, and warped the rectitude of his understanding

A steady pursuit of the consequences indicated by general utility, was not the most obvious way to professional advancement, nor even the short cut to extensive reputation. For there was no impartial public, formed from the community at large, to reward and encourage with its approbation an inflexible adherence to truth

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If the bulk of the community had been instructed, so far as their position will permit, he might have looked for a host of readers from the middle classes. He might have looked for a host of readers from those classes of the working people, whose wages are commonly high, whose leisure is not inconsiderable, and whose mental powers are called into frequent exercise by the natures of their occupations or callings. To readers of the middle classes, and of all the higher classes of the working people, a well-made and honest Treatise on Moral and Political Philosophy, in his clear, vivid, downright, English style, would have been the most easy and attractive, as well as instructive and useful, of abstract or scientific books

But those numerous classes of the community were commonly too coarse and ignorant to care for books of the sort. The great majority of the readers who were likely to look into his book, belonged to the classes which are elevated by rank or opulence, and to the peculiar professions or callings which are distinguished by the name of “liberal.” And the character of the book which he wrote, betrays the position of the writer. In almost every chapter, and in almost every page, his fear of offending the prejudices, commonly entertained by such readers, palpably suppresses the suggestions of his clear and vigorous reason, and masters the better affections which inclined him to the general good.

He was one of the greatest and best of the great and excellent writers, who by the strength of their philosophical genius, or by their large and tolerant spirit, have given imperishable lustre to the Church of England, and extinguished or softened the hostility of many who reject her creed. He may rank with the Berkeleys and Butlers, with the Burnets, Tillotsons, and Hoadleys.

But in spite of the esteem with which I regard his memory, truth compels me to add, that the book is unworthy of the man. For there is much ignoble truckling to the dominant and influential few. There is a deal of shabby sophistry in defence or extenuation of abuses which the few are interested in upholding.

(Pp. 79-81.)
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REFORM IN EDUCATION
1834

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EDITOR’S NOTE

Monthly Repository, n.s. VIII (July, 1834), 502-13. Headed “Mrs. Austin’s Translation of M. Cousin’s Report on the State of Public Instruction in Prussia.” Title footnoted. “[London:] Effingham Wilson [, 1834].” Running titles “Reform in Education.” Unsigned; not republished. Identified in Mill’s bibliography as “A review of Mrs. Austin’s Translation of Cousin’s Report on the State of Public Instruction in Prussia, in the Monthly Repository for July 1834” (MacMinn, 40). There are no corrections or emendations in the Somerville College copy (tear-sheets). For comment on the review, see xlix-l and lx-lxi above.

The long quotation at 65-6 from Mill’s “Corporation and Church Property” has been collated with its successive versions; in the variant notes “33” indicates Jurist (and the offprint, which does not differ), “59” indicates D&D, 1st ed. (1859), and “67” indicates D&D, 2nd ed. (1867).

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Reform in Education

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

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

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

Constituted, [says she,] as the government of this country is, and accustomed as it is to receive its impulses from without, (a state of things approved and consecrated by the national ways of thinking,) it would be contrary to reason and to experience to expect it to originate any great changes. This is not recognised, either by governors or governed, as any part of its duty. It is to the public mind, therefore, that those who desire any change must address themselves.

(P. viii.)

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

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

In a country containing thirteen millions of people, the whole expense of the schools to the state, not only for the lower but for the middling classes, did not amount, in the year 1831, to 35,000l. When we remember that, as it is asserted on the highest authority, 1,200,000l are voluntarily raised for the support of our extremely defective popular schools, we have surely no reason to despair that if our management were equal to our means, ample provision would be found for the suitable education of the whole people.*

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

aLet us blook at home, and examine whether with all the grievous abuses of the endowed seminaries of Great Britain, they are, after all, ca particlec worse than, or even so bad as, almost all our other places of deducation.d We may ask, whether the desire to gain as much money with as little labour as is consistent with saving appearances, be peculiar to the endowed teachers? Whether the plan of nineteen-twentieths of our unendowed schools be not an organized system of charlatanerie for imposing upon the ignorance of ethee parents? Whether parents do, in point of fact, prove themselves as solicitous, and as well qualified, to judge rightly of the merits of places of education, as the theory of Adam Smith supposes?[†] Whether the truth be not, that, for the most part, they bestow very little thought upon the matter; or, if they do, show themselves in general the ready dupes of the very shallowest artifices? Whether the necessity of keeping parents in good humour does not too often, instead of rendering the education better, render it worse, the real ends of instruction being sacrificed, not solely (as would fbe the case under other circumstancesf) to the ease of the teacher, but to that, and galsog to the additional positive vices of clap-trap and lip-proficiency? We may ask, whether it is not matter of experience, that a schoolmaster who endeavours really to educate, instead of endeavouring only to seem to educate, and laying himself out for the suffrages of those who never look below the surface, and only for an instant at that, is almost sure, unless he have the genius and the ardour of a Pestalozzi, to make a losing speculation? Let us do what we may, it will be the study of the hmereh trading schoolmaster to teach down to the level of the parents, be that level high or low, as it is of the trading author to write down to the level of his readers. And in the one shape as in the other, it is iati all times and in all places indispensable, that enlightened individuals and Edition: current; Page: [66] enlightened governments should, from other motives than that of pecuniary gain, bestir themselves to providej that good and wholesome food for the wants of the mind, for which the competition of the mere trading market affords in general so indifferent a substitute.*

To quote another author:

As regards the common run of day and boarding schools, it is well known that they are, as much as any shopkeepers, obliged to gratify the tastes, and satisfy the wishes of their customers; and that, even if some establishments have risen into such popularity, as to render it truly difficult to insure places in them, this enables them no more to resist and combat the prevailing prejudices, than the most fashionable shop in the metropolis has it in its power to abolish all fanciful fashions, and to introduce a plain and simple dress. Their high popularity is founded upon the opinion, that by them the public taste will be gratified more than anywhere else; but let it for a moment be suspected, that there is a design radically to reform that taste, or merely to correct and purify it, and all the popularity will be gone in an instant. Nowhere is there a more extensive application made of the maxim, Mundus vult decipi, ergo decipiatur;[*] that is to say, in education,—the vanity and folly of the parents will be flattered, therefore let us flatter them. And although the weakness of the parents, and the servility of schoolmasters, has been fully explored, and although they heartily despise one another, yet the practical language of a father, when putting his child to school, is still, “I want to be deceived,—I want to be flattered;” and the schoolmaster’s answer is no less, “You may rely upon it, it shall be done, in general matters, on the usual terms, and in special matters, at so much extra.”

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

The so-called education, provided for the working classes of England, deficient as it is admitted to be in quantity, is immeasurably more deficient in quality; as instruction, it is lamentably meagre, incomplete, and inappropriate; as education, as nearly as possible, absolutely null. All instruction consists in the mere repetition by rote of certain words, to which the children affix either no idea at all, or ideas too indistinct to have any hold on their minds, or influence on their conduct.[†]

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

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

In order to obviate all doubts upon this subject, and at the same time to provide us with the data required for legislation on it, some means should immediately be adopted to ascertain distinctly what is actually taught in the popular schools throughout the country.[*]

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

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

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

What affords the most convincing evidence on this subject, and what I wish, therefore, all those that are interested in it to witness themselves, if they have the opportunity, is the yearly public examination of the central school at Baldwin’s Gardens. I have been present on one of those occasions, and what I then witnessed, far exceeded all my conceptions of manufacture-teaching. What struck my mind most forcibly in the whole display, was a sort of co-operative plan in the solution of an arithmetical question. This was done, like all the rest, in rotation, the first boy beginning, for instance, 6 times 3 are 18, second boy: put 8 and carry 1, third boy: 6 times 2 are 12; fourth boy: 12 and 1 are 13, fifth boy: put 3 and carry 1; sixth boy: 6 times 7 are 42; seventh boy: 42 and 1 are 43; eighth boy: put 3 and carry 4 and so all round and round, again and again, till the whole of it was gone through. Now, although unquestionably all the children could, with a moderate degree of attention, get the ciphers correctly on their slates, it is evident that, with all this, there might, perhaps, not have been more than two in the whole number, who could have solved the same problem for Edition: current; Page: [68] themselves. But what is far more important is, that such a plan of instruction is the direct way of preventing them from ever thinking about what they are doing, and thus cutting off every chance of their understanding it. With their memory-knowledge of the multiplication, addition, and other tables, they are put into this machinery, which, like the wheel of a treadmill, although put in motion by the joint exertions of those in it, overpowers the individual, and forces him to go on at any rate, whether he be disposed to do so or not. Not to mention the absolute ignorance in which the children in those schools always remain concerning number, their attention being only directed to ciphers, I question whether the above plan is calculated to make even good cipherers. For if there be no knowledge of numbers, there should be some understanding, at least as far as it can be had without the other, of the ciphering system, that the pupil may not be the blind instrument of rules, blindly learned by rote. Nevertheless the solution of the question, as I have described it to you, gave general satisfaction to a number of the bishops, and a large public, assembled on the occasion; and so did the reading of a long list of alms—or reward—givings, at the end of the examination, decreeing to one girl an apron, to another girl a pair of shoes, to such a boy half a crown, to such another boy a pair of trowsers, &c.; that both the givers and receivers might be seen and known of men! The observations I made at that examination, I found confirmed by private visits to the schools; and, among the rest, to one which I may, with the more propriety, instance in support of the charges I have brought against the system, as I can, from personal acquaintance, bear the highest testimony to the zeal, as well as the generally enlightened views, of the clergyman who presides over it, and in whose company I visited it. I asked the children to read the parable of the Prodigal Son,[*] and among other questions which I put to them was this. “What is meant by riotous living?” “Dissipated living.” “And what does dissipated living mean?” “Wasteful living.” “And what is the meaning of wasteful living?” To this question, as their collection of synonymes was exhausted, I received no answer, and therefore, to get upon intelligible ground I asked then what things were necessary for subsistence, and what not; when some of the girls contended that beer, and cheese, and cakes, and patties, were indispensably necessary for life. And as in this case, so I found it invariably, whenever and wherever I travelled out of the road of those questions, which have for their object to direct the children’s attention to mere words, on the most common subjects I found their ideas unclear and confused, and the same children, who would use the most correct language as long as they remained in the track of what they were just then reading, or what they had learned by rote, were unable to express themselves even with tolerable correctness on other matters; a clear proof that their apparent knowledge was a mere word-knowledge, in the acquisition or advantages of which the mind had no share. Thus, on another visit, the boys were exhibiting their slates, on which they had written various words. I stopped one among the rest, who had the word “disadvantageous.” “What does that word mean, my boy?” “I don’t know.” “You know, perhaps, what disadvantage means?” “No.” “Do you know what advantageous means?” “No.” “Or, have you ever heard the word advantage, what does that mean?” “I don’t know.” “Well, but suppose you lost your jacket, would that be an advantage or a disadvantage to you?” “An advantage!” was his answer.

It would be unfair, however, to let it be supposed that facts, such as these, are only to be met with in National schools. On this head the British system is quite as defective. Its method of ciphering, though different in some of the details, is, on the whole, no less objectionable, as it is, like the other, a mere mechanical application of the mechanical rules of ciphering, mechanically inculcated into the memory. And, as regards the preposterous exercise of learning to read and to write words, selected merely from a regard to the number Edition: current; Page: [69] of their syllables, by which the children are so stupified, that they lose the habit of thinking altogether, and do not care about the meaning even of that which they might understand, I recollect a fact which far outdoes the boy, who thought it an advantage for him to lose his jacket. It was at a Lancasterian school, and one which has the name of being among the best conducted; so at least I was told by my friend who went with me, and who is one of the managers. When we entered the room, we found the boys engaged in writing words of different lengths, according to the order of their seats, I passed by those in which such words as “approximation, superintendency,” and the like, caught my eye, and, looking over the sentences which some of the more advanced boys were writing, I found one who had copied, about half a dozen times, the words “Live in love.” “What are you writing here?” I asked, “Live in love.” “And what does that mean?” “I don’t know!” “You don’t know! But don’t you know what ‘love’ means?” “No!” “Or do you know what ‘live’ means?” “No!” “What must you do to live in love?” “I don’t know!” “Do you know what you must not do, to live in love!” “No, I don’t.” “Well, but you should know something about what ‘Live in love’ means. Does it mean that you are to fight with the other boys?” “I can’t tell!” “Well,” said I, turning to my friend, “what do you say to this?” Upon which the school-master, observing somewhat of the scope of our conversation, came up to us and said, “I dare say you might ask such questions all over the school, without getting a better answer, they none of them know what they are writing.”[*]

Of the Lancasterian schools:

It is worth while to examine, in detail, the operations of this system. “Tickets of nominal value are given to deserving boys each school time, which are called in at the end of every three months, and rewards are paid to the holders in exchange. These tickets are valued at the rate of eight for one penny.” It is not a mere prospect of reward, by which the pupils are encouraged, a prize stuck up at the end of a long career, which they must run through to attain it:—no, a reward is immediately bestowed upon every performance of duty, the very same morning or afternoon. A distant prospect, it is apprehended, might not act powerfully enough; thus the children are accustomed to “love a reward upon every cornfloor,”[†] and in whatsoever they do, instead of doing it, according to the apostle’s injunction, for the glory of God,[‡] to “love gifts, and follow after rewards.”[§] So effectual is the operation of this admirable principle, that the fact has actually occurred in a Lancasterian school that, upon the mistress proposing a task of rather a novel description, the girls asked her, whether they should have tickets for doing it, openly declaring, that if there was no reward attached to it, they would not do it. “Point d’argent, point de Suisse.[¶] The daily getting of a reward for every thing that is called “deserving,” by the British system, is, however, not sufficient, properly to cultivate an hireling spirit. To complete this part of its education, the system gives proper encouragement to a calculating spirit, first of all by the conversion of the reward tickets into substantial rewards every three months, and, secondly, by a popish sort of indulgence-trade, which the children are permitted to carry on with them before their conversion into real property, and by which those reward tickets come fully under the denomination of the “Mammon of unrighteousness.”[∥] Under the head “Punishments,” we Edition: current; Page: [70] are informed that at the close of each school-time, “the bad boys are classed into divisions, corresponding with the number of their offences, and are required to pay one ticket for each offence; those who do so are dismissed, and those who have no tickets are confined a quarter of an hour for every offence reported against them.” And lest any doubt should remain on the subject, it is further stated that “in all cases, the parties may be excused from confinement, if they are in possession of reward tickets, by forfeiting them, at the rate of one ticket for every quarter of an hour’s detention.” Not enough that the child is taught to do his duty, not from conscientious feeling of obligation, but for reward’s sake; he is also taught, and that in the most effectual manner, viz., by practice, that past good conduct amounts to a license for the commission of sin. This may not be the intention of the framers of those ill-contrived regulations, but it is the necessary effect of them. How easy is it, for instance, for a clever boy to gain reward tickets, to a considerable amount, by attention to reading, spelling, and arithmetic, all of which he may, if he prefer present indulgence to future gratification, convert into as many tickets of license for the perpetration of such offences as are particularly to his taste. I call upon those that are candid, among the advocates of the British system, to deny, if they can, on the score of principle, that from such causes such effects must follow, or, on the ground of practical experience, that such effects are actually taking place. And if they have not been observed as frequently as might be anticipated, is there not reason to suppose, that this may partly be owing to the want of close contact, on the part of the master, with every individual child, an evil which is the necessary consequence of the much-extolled machinery of the British system, and which, on more than one ground, calls loudly for a remedy? Be that as it may, the effect of the remission of punishment, for the forfeiture of rewards, is obvious enough, and the fact has been admitted to me by some who have had opportunities, more than myself, of watching the practical effects of the system. But even without such an admission it would be evident, from the combination of all the influences enumerated, that the British system must beget a set of hirelings, who, for hire’s sake, do the good, and, for hire’s sake, abstain from evil. But, as if there had been an anxiety to collect, on the score of motives, all that is unscriptural, and to put it into practice in those schools, the conversion of the reward tickets into actual rewards, at the expiration of each three months, is celebrated in the following manner: “When all the boys have received the prizes, they are conducted round the school-room by the general monitors, who proclaim that they have obtained their prizes for good behaviour, regular attendance, and improvement in learning; after walking two or three times round the school, they are permitted to go home.” Is not this, in plain language, sounding a trumpet before the boys?

Now, I would ask my Christian friends—for so, I know, some of the managers and supporters of the British system will permit me to call them, in spite of what I have said against that system—I would ask them, as Christians, whether they can justify any of these practices individually: the setting aside of genuine moral feeling, the stimulus of appearing greater and better, one than the other, the seeking a reward for every performance of duty, the exemption from punishment through rewards before gained; the calculation of the total amount of these rewards within a given period; and lastly, the going round “the corners” of the school, with the monitors as trumpeters before them?[*]

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

The original design of the infant system has been entirely perverted; and, as a natural consequence of this, the system itself has undergone considerable alterations. The first idea, if I am correctly informed, was to collect those children who were below the grasp of the other systems, and to endeavour, at the very tenderest age, to awaken them to a life of love and intelligence.[†] Positive instruction was not made an object of, but merely considered as a means for the attainment of that higher object, the development of the soul in the true life. With this view, the first infant schools were founded, and it seemed as if, from the mouths of babes, the public would receive evidence, to convince them of the errors of long cherished prejudices. But, as it is written, “Though thou shouldest bray a fool in a mortar among wheat, with a pestle, yet will not his foolishness depart from him,”[‡] so did it prove to be the case with the prejudices of the public. Infant schools, indeed, became the fashion, for there was a something in them to win the feelings, which has since very much worn off, but which, then, was in all its freshness, and made converts by hundreds. But the consequence of this was, not that the public adopted the principles of the new system, but that they grafted upon it their old prejudices, their sectarian sympathies and antipathies, and all their paltry party feelings and interests. Originally, the infant schools were calculated to show, what could be done by appealing to a principle of love in the child, which would subdue the wrath of its nature, and to a principle of truth, which would enlighten its darkness; and thereby eventually to subvert those systems in which, as we have seen, the evil tendencies of our nature are made the levers of education. This was no sooner discovered, than a stir was made, for the purpose of suppressing the rising opposition in its very germ. A society was formed, which, under the pretence of advocating the infant system, succeeded in gradually commuting it into the very reverse of what it was originally meant to be, and which, after having accomplished so praiseworthy an object, has at length absconded, by a sort of mystification, in a stationer’s shop. But although the agents have vanished, the baneful effects of their labours have remained. The infant schools are now no more than preparatory for the Lancasterian and National schools, especially the latter, which had most to dread from the rising system, and whose influence, therefore, was most powerfully exerted in defeating its success. The machinery of those two systems has found its way into the infant schools, and has made them, with rare exceptions, mere miniature pictures of the others. You see the little monitors spelling, with their classes, over the A, B, C, and a variety of lesson tables without sense and meaning, you hear them say, by rote, the multiplication table, the pence table, and so on. The same things are repeated over and over again, so that a parrot hung up for some time in one of those schools, would unquestionably make as good an infant school mistress as any. There is hardly one of the means introduced at the beginning, which has not been turned to a bad purpose. Thus, for instance, among other things, sets of geometrical figures and bodies, cut out of wood, were used, for the Edition: current; Page: [72] purpose of questioning the children respecting the number and proportion of their angles, sides, &c.; but, instead of making them the means of intellectual exercises, in which the children would be led every day to make new discoveries, and to think for themselves, those figures are now pulled out, chiefly in the presence of visitors, and then the whole school bawls out together, “This is a pentagon—this is a hexagon—this is an octagon, and so on.” One of the most pleasing features of the infant system, in its origin, was the social feeling, the cordiality, and cheerfulness of the little company, which was greatly promoted by some short and easy tunes, to which occasionally some infantine words were sung. The effect which this had, in soothing the irritation of some, moderating the violence of others, and arousing the dull ones into life, was truly wonderful; but no sooner was the discovery made, that there was, so early in life, a way to man’s heart and mind by singing, than the machinists of education availed themselves of this fact, for the purpose of conveying to the memory some of their dead stock, which would not otherwise have found its way there so easily, and, presently, the multiplication, and other ciphering tables, the pence table, avoirdupois weight, and more of the like kind, were set to music, and occasionally better fitted for the infantine taste, at least so it was supposed, by the addition of the most silly rhymes. What intellectual or moral effect, I should like to know, can be anticipated from a child learning such a verse as this:

  • Forty pence are three and four pence,
  • A pretty sum, or I’m mistaken,
  • Fifty pence are four and two pence,
  • Which will buy five pounds of bacon;

Or, still more vulgar, in the song about the cow:

  • And when she’s dead, her flesh is good,
  • For beef is our true English food;
  • But though ’twill make us brave and strong,
  • To eat too much, we know, is wrong.[*]

In one infant school, I have known the children to be made to laugh, or to cry, or to look happy, or unhappy, or kind, or angry, at the master’s command, in another school, in which the picture of a farm yard was hung up on the wall, the master assured me that he was expressly enjoined by his committee, to ask the children for scripture references to every object represented in that picture. Thus, when he pointed to a cow, the children were to quote him chapter and verse of those passages in scripture in which a cow was mentioned, the same with the sheaves, the clouds, and whatever else the picture contained, this was considered, by the committee, as an excellent method of connecting religious instruction with all other subjects. To enumerate all the nonsense that has been practised, and is still practised, in this manner, would be an endless task; but what has most effectually contributed to the ruin of the infant system, is the manner of propagating it. The renown of the system penetrates into some country place, or into some district of a large town, and some persons take it into their heads, upon hearing what excellent things the infant schools are, that they too will have an infant school. They then go in search of a place, and find out Edition: current; Page: [73] some old barn, or coach-house, which, with a few alterations, can be turned into a school-room. So far all is right, for it is better that a good school should be in a wretched place, than, as we so often see it before our eyes in the metropolis, that a wretched school should be in a splendid place. But the great difficulty arises in the choice of the future master or mistress. Each of the originators and patrons of the proposed institution, has some client in view, whom he has nominated in his heart. A poor fellow, a tailor, a shoe-maker, or a fiddler by trade, who is not prosperous in the exercise of his calling, has the suffrage of the most active member of the committee, or an old dame, whose school would suffer by the opposition of the new system, is patronized by some charitable ladies; or the richest contributor has an old servant, whom she wants to put into a snug place, a struggle arises between these contending interests, the result of which is, that the client of the most influential party is selected for the situation, although, perhaps, the most unfit of all the candidates. The next question then is, how the new master or mistress is to learn the system, of which they must be presumed to be entirely ignorant. Some friend, perhaps, advises the committee to send the teacher to London, or some other place, for three months, and have him regularly trained under a good infant school master. In vain! they cannot wait so long, it will protract the business, and the zeal of the good people in the town might get cool in the mean time. The infant school must be opened in a fortnight or three weeks at the latest, and this is consequently all the time that can be permitted to the newly chosen master for his preparation. The question of time being settled, another arises to what place is he to be sent? The expense of sending him up to London, or to some other place of note, is found too great, particularly for so short a time, and it seems, therefore, better that he should be sent the least distance possible, to the nearest infant school, to “catch” the system. But suppose even he come to London, or to Exeter, or Bristol, to one of the best schools that are, what can he learn in so short a time? What strikes him chiefly, is the singing of the tables, the distribution in classes, the marching round the room, the clapping of hands, and all the other machinery. This he catches, as well as he can, and back he goes, and opens his school, and his chief endeavour is to follow the system which he has caught, as closely as he can. And what can be expected after this? What else, but that the infant school should become a treadmill for the minds of the poor children!

Such has been the history of the infant system, it has been misapprehended by prejudice and narrow-mindedness, and perverted by bigotry and false zeal, so much so that those who were its warmest advocates, are tempted to wish that never so much as one infant school had been established in the country.[*]

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

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

I have had a sad picture to lay before you, when speaking of the neglect of education, and of the numbers of children who are left without any instruction at all, but no less sad is the picture of the present state of our charity schools. All the evils under which society at large labours are, as it were, concentrated upon this point, as if to destroy the very vitals of the nation. The universal motive is money-getting, the means are all devised upon the analogy Edition: current; Page: [74] of large manufactures, carried on by mechanical power; and, to make the measure of evil full, the cloak of it all is a dead profession of the gospel. The principle of mammon is recognized as the life of education, the existence of mental and moral powers is set aside, and the spirit of religion is supplanted by the letter. Such is the general character of the education which is imparted to the poorer classes of this country, whatever may be the name of the system under which it is done. I leave you to judge, what must become of the nation![*]

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ON PUNISHMENT
1834

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EDITOR’S NOTE

Monthly Repository, n.s. VIII (Oct., 1834), 734-6. Title footnoted: “Remarks on Criminal Law; with a Plan for an Improved System, and Observations on the Prevention of Crime [By Thomas Jevons, London: Hamilton, Adams; Edinburgh: Waugh and Innes, Dublin Curry; Liverpool: Marples, 1834.]” Running titles as title. Unsigned; not republished. Identified in Mill’s bibliography as “An article headed ‘On Punishment’ being a review of an anonymous work by Mr. Jevons of Liverpool; in the Monthly Repository of October 1834” (MacMinn, 42). In the Somerville College copy (tear-sheets) there are two corrections by Mill that are adopted in the present text, at 78.6 the question mark after “another” is deleted (we substitute a period); and at 79.17 “merely” is altered to “surely”. For comment on the review, see xli and lxi above.

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On Punishment

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

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

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

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

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

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

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

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

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

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

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SMITH ON LAW REFORM
1841

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EDITOR’S NOTE

Westminster Review, XXXV (Jan., 1841), 239-40. In the Miscellaneous Notices section, under “Law,” headed. “Remarks on Law Reform; addressed more particularly to the general reader. By William Smith, Esq., of the Middle Temple, barrister at law. [London:] Maxwell: 1840.” Running title to section, not to article. Signed “A.” Not republished. Identified in Mill’s bibliography as “A short notice of a pamphlet on Law Reform by William Smith, in the Miscellaneous Notices of the Westminster Review for January 1841. (No. 68.)” (MacMinn, 53.) There is no copy in the Somerville College Library. For comment, see xli and lxi above.

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Smith on Law Reform

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

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

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If any one expects, by a revision of our laws, to prepare a system so simple that every man may acquire sufficient knowledge of it, that he who runs may read,[*] that no body of professed lawyers will be requisite to conduct litigation or frame legal instruments, he is merely manifesting his total ignorance upon the subject. Jurisprudence, when it advances beyond those simple rules which are dictated by the general sense of what is just or unjust, becomes in some measure arbitrary, and inevitably complicate. Rules are then to be laid down, which must be the result of a nice balance of opposite expediencies, and when these, or, indeed, any other rules, are determined, innumerable cases arise, of which again it is difficult to decide whether they are included in the rules. But because jurisprudence must of necessity present to our view a vast and complex system, because it must admit many distinctions, the value and importance of which cannot without much previous study be appreciated, is it therefore to be loaded with any foreign matter whatsoever? Is this a reason for admitting and perpetuating a mass of erudition quite alien to the science itself of jurisprudence? Is it not rather a reason, since law must be difficult, for avoiding every needless cause of difficulty? Again and again I protest against the admixture, still too frequent, of feudalism and antiquarian lore with English jurisprudence. Why am I to be incessantly presented with an historical account of its origin as a sufficient reason for the actual existence of the law which governs me? Doubtless, the antiquarian will be shocked, and denounce me as a man of rude, uncultured taste, if I dispute the necessity of recording by existing laws the ancient feudalism of Europe. What! no trace left of past times? no pride of ancestry increased by the very framework of our jurisprudence? all to be new and scientific? Our laws, he exclaims, will no longer be English, they might as well be French, or Russian, or Chinese; they will not belong to us and to our history. Let him go and study history, and providentially endowed as he is with the love of what is dark and little, connect with it what antiquities he thinks fit; I will listen and will learn of him with pleasure. But why must I meet, to my confusion and dismay, in the real business of life, and at the hazard of my property, these relics, these spectral remains of the maxims and manners of my forefathers? I can read with interest of the struggle maintained by our courts of law against the subtle contrivances of land-loving monks. Must I, therefore, desire that this struggle be recorded in the deed which conveys my property? Think you that law, which is the most ancient matter in this world, and has dealt with the nearest interests of living men through the remotest generations of the earth, needs to be set off with this antique and Gothic tracery? Or is it true that jurisprudence has ends of its own so idle and unimportant to mankind, that it must stand indebted to such sources of interest as an antiquarian society can supply?[†]

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THE NEGRO QUESTION
1850

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EDITOR’S NOTE

Fraser’s Magazine, XLI (Jan., 1850), 25-31. Headed and running titles as title. Introduced by an editorial note by John William Parker, Jr., here given in a footnote to the title. Signed “D.” Not republished. Identified in Mill’s bibliography as “A letter to the Editor of Fraser’s Magazine, in answer to an attack by Carlyle on the ‘rights of negroes,’ published under the signature D in Fraser’s Magazine for January 1850. (Copied into the D[aily] News of 2d Jany.)” (MacMinn, 72.) In response to Thomas Carlyle, “Occasional Discourse on the Negro Question,” Fraser’s Magazine, XL (Dec., 1849), 670-9. The Somerville College copy has one pencilled emendation by Mill that is adopted in the present text at 93.39 “highest” is altered to “briefest”. For comment on the essay, see xxi-xxii and lxi-lxii above.

The copy-text is the Fraser’s version, but collation with the version in the Daily News of 2 Jan., 1850, 3, reveals three variants that, as they may be considered improvements, are given in notes; in these notes “502” indicates Daily News.

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The Negro Question*

sir,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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STATEMENT ON MARRIAGE
1851

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EDITOR’S NOTE

MS facsimile reproduced in Hugh S.R. Elliot, The Letters of John Stuart Mill, 2 vols. (London: Longmans, Green, 1910), I, facing 159 and 160. Unheaded. Signed “J.S. Mill” and dated 6 March, 1851. Not published (and therefore not in Mill’s bibliography). In Elliot’s transcription, “pretension” (1.17) is mistakenly given as “pretence”. For comment, see lxii above.

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Statement on Marriage

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

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REMARKS ON MR. FITZROY’S BILL FOR THE MORE EFFECTUAL PREVENTION OF ASSAULTS ON WOMEN AND CHILDREN
1853

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EDITOR’S NOTE

London: printed “for private distribution,” 1853. Anonymous; not republished. Identified in Mill’s bibliography as “A pamphlet (a few copies only printed for distribution)—entitled ‘Remarks on Mr. Fitzroy’s Bill for the more effectual prevention of assaults on women and children.’ (In this I acted chiefly as amanuensis to my wife.)” (MacMinn, 79.) Occasioned by Henry Fitzroy’s “A Bill for the Better Prevention and Punishment of Assaults on Women and Children,” 16 Victoria (10 Mar., 1853), PP, 1852-53, I, 9-12, enacted as 16 & 17 Victoria, c.30 (1853). The Somerville College copies have no corrections or emendations. For comment, see lxii above.

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

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

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

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

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

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

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

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

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

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

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A FEW WORDS ON NON-INTERVENTION
1859

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EDITOR’S NOTE

Dissertations and Discussions, III (1867), 153-78, where the title is footnoted. “Fraser’s Magazine, December 1859.” Reprinted from Fraser’s Magazine, LX (Dec., 1859), 766-76, signed “John Stuart Mill”, left running titles as title; right running titles: “Ideas of English Foreign Policy on the Continent” (767, equivalent of 111.20-113.1); “Misrepresentation of the National Feeling” (769, equivalent of 114.14-115.28), “The Isthmus of Suez Question” (771; equivalent of 117.3-118.17), “British Relations with Native Indian States” (773; equivalent of 119.30-121.8), and “How One Free Government May Assist Another” (775; equivalent of 122.21-123.36). Identified in Mill’s bibliography as “An article headed ‘A few words on Non-Intervention’ in Fraser’s Magazine for December 1859” (MacMinn, 93). In Somerville College there are no corrections or emendations in the copy of the original (tear-sheets) or in an offprint, which is headed, “[Reprinted from ‘Fraser’s Magazine’ for December, 1859,]” but is otherwise identical. For comment on the article, see xxviii-xxix and lxii-lxiii above.

The text below is that of D&D, III (1867), the only edition of that volume in Mill’s lifetime. In the four footnoted variants, “591” indicates Fraser’s Magazine, “592”, the offprint.

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A Few Words on Non-Intervention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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THE CONTEST IN AMERICA
1862

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EDITOR’S NOTE

Dissertations and Discussions, III (1867), 179-205, where the title is footnoted, “Fraser’s Magazine, February 1862.” Reprinted from Fraser’s Magazine, LXV (Feb., 1862), 258-68, “By John Stuart Mill” appearing under title; left running titles as title; right running titles. “Attitude of England towards the Northern States” (259, equivalent of 128.22-129.35); “Slavery the One Cause of the War” (261: equivalent of 131.8-132.18); “Tendency of the Struggle towards Abolition” (263, equivalent of 134.29-136.1), “The South Not United” (265, equivalent of 137.17-138.27); and “The Alternatives and Their Consequences” (267; equivalent of 139.38-141.10). Identified in Mill’s bibliography as “An article entitled ‘The Contest in America’ in Fraser’s Magazine for February 1862” (MacMinn, 94). In Somerville College there are no corrections or emendations in the offprint, which is headed, “[Reprinted from ‘Fraser’s Magazine’ for February, 1862.],” and is repaged 1-11, but is otherwise identical. For comment on the article, see xxii-xxiv and lxiii-lxiv above.

The text below is that of D&D, III (1867), the only edition of that volume in Mill’s lifetime. In the footnoted variants, “621” indicates Fraser’s Magazine; “622”, the offprint, and “67”, D&D.

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The Contest in America

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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THE SLAVE POWER
1862

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EDITOR’S NOTE

Westminster Review, LXXVIII (Oct., 1862), 489-510. Headed “Art. VIII—The Slave Power. The Slave Power, its Character, Career, and Probable Designs, being an Attempt to explain the real Issues involved in the American Contest. By J.E. Cairnes, M.A., Professor of Jurisprudence and Political Economy in Queen’s College, Galway, and late Whately Professor of Political Economy in the University of Dublin London [Parker, Son, and Bourne,] 1862.” Running title as title Unsigned, not republished in British Dissertations and Discussions, but appeared in U.S. editions. Also reprinted in U.S. as a pamphlet (New York: Crowen, 1862). Identified in Mill’s bibliography as “A review of Prof. Cairnes’s work ‘The Slave Power’ in the Westminster Review for Oct. 1862” (MacMinn. 94). In the Somerville College Library the two copies (tear-sheets) of the Westminster version have no corrections or emendations. Vol. III of the Boston ed. of D&D, in which the article appears, is no longer in Somerville. For comment on the review, see xxiv-xxvi and lxiv-lxv above.

The Westminster version is used as copy-text, it has been collated with the New York reprint and the 1st American ed. of D&D (Boston: Spencer, 1864). In the footnoted variants, “621” indicates WR, “622”, the pamphlet, “64”, the U.S. D&D.

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The Slave Power

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

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

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

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

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

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

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

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

When the soils are not of good quality, cultivation needs to be elaborate; a larger capital is expended, and with the increase of capital the processes become more varied, and the agricultural implements of a finer and more delicate construction. With such implements slaves cannot be trusted, and for such processes they are unfit. It is only, therefore, where the natural fertility of the soil is so great as to compensate for the inferiority of the cultivation, where nature does so much as to leave little for art, and to supersede the necessity of the more difficult contrivances of industry, that slave labour can be turned to profitable account.

Further, slavery, as a permanent system, has need not merely of a fertile soil, but of a practically unlimited extent of it. This arises from the defect of slave labour in point of versatility. As has been already remarked, the difficulty of teaching the slave anything is so great—the result of the compulsory ignorance in which he is kept, combined with want of intelligent interest in his work—that the only chance of rendering his labour profitable is, Edition: current; Page: [149] when he has once learned a lesson, to keep him to that lesson for life. Accordingly, where agricultural operations are carried on by slaves, the business of each gang is always restricted to the raising of a single product. Whatever crop cbec best suited to the character of the soil and the nature of slave industry, whether cotton, tobacco, sugar, or rice, that crop is cultivated, and that crop only. Rotation of crops is thus precluded by the conditions of the case. The soil is tasked again and again to yield the same product, and the inevitable result follows. After a short series of years its fertility is completely exhausted, the planter abandons the ground which he has rendered worthless, and passes on to seek in new soils for that fertility under which alone the agencies at his disposal can be profitably employed.

(Pp. 53-6.)

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

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

The single merit of slave labour as an industrial instrument consists, as we have seen, in its capacity for organization, its susceptibility of being adjusted with precision to the kind of work to be done, and of being directed on a comprehensive plan towards some distinctly conceived end. Now, to give scope to this quality, the scale on which industry is carried on must be extensive, and to carry on industry on an extensive scale, large capitals are required.

(p. 66)

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

Owing to these causes, large capitals are, relatively to small, more profitable, and are at the same time absolutely more required, in countries of slave, than in countries of free labour. It happens, however, that capital is in slave countries a particularly scarce commodity, owing partly to the exclusion from such countries of many modes of creating it—manufactures and commerce, for example—which are open to free communities, and partly to what is also a consequence of the institution, the unthrifty habits of the upper classes. From this state of things result two phenomena, which may be regarded as typical of industry carried on by Edition: current; Page: [150] slaves—the magnitude of the plantations, and the indebtedness of the planters. Wherever negro slavery has prevailed in modern times, these two phenomena will be found to exist. “Our wealthier planters,” says Mr. Clay, “are buying out their poorer neighbours, extending their plantations, and adding to their slave force. The wealthy few, who are able to live on smaller profits, and to give their blasted fields some rest, are thus pushing off the many who are merely independent.”[*] At the same time these wealthier planters are, it is well known, very generally in debt, the forthcoming crops being for the most part mortgaged to Northern capitalists, who make the needful advances, and who thus become the instruments by which a considerable proportion of the slave labour of the South is maintained. The tendency of things, therefore, in slave countries, is to a very unequal distribution of wealth. The large capitalists, having a steady advantage over their smaller competitors, engross with the progress of time a larger and larger proportion of the aggregate wealth of the country, and gradually acquire the control of its collective industry. Meantime, amongst the ascendant class a condition of general indebtedness prevails.

(Pp. 66-71.)

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

Become the resort of a numerous horde of people, who, too poor to keep slaves, and too proud to work, prefer a vagrant and precarious life spent in the desert, to engaging in occupations which would associate them with the slaves whom they despise. In the Southern States no less than five millions of human beings are now said to exist in this manner, in a condition little removed from savage life, eking out a wretched subsistence by hunting, by fishing, by hiring themselves out for occasional jobs, by plunder. Combining the restlessness and contempt for regular industry peculiar to the savage, with the vices of the proletaire of civilized communities, these people make up a class at once degraded and dangerous; and constantly reinforced as they are by all that is idle, worthless, and lawless among the population of the neighbouring States, form an inexhaustible preserve of ruffianism, ready at hand for all the worst purposes of Southern ambition. The planters complain of these people for their idleness, for corrupting their slaves, for their thievish propensities; but they cannot dispense with them, for in truth they perform an indispensable function in the economy of slave societies, of which they are at once the victims and the principal supporters. It is from their ranks that those filibustering expeditions are recruited, which have been found so effective an instrument in extending the domain of the slave power; they furnish the “Border Ruffians” who in the colonization struggle with the Northern States contend with Freesoilers on the territories, and it is to their antipathy to the negroes that the planters securely trust for repressing every attempt at servile insurrection.

(Pp. 75-6.)

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

When the whole wealth of a country is monopolized by a thirtieth part of its population, while the remainder are by physical or moral causes consigned to compulsory poverty and ignorance, when the persons composing the privileged thirtieth part are all engaged in pursuits of the same kind, subject to the influence of the same moral ideas, and identified with the maintenance of the same species of property; political power will of necessity reside with those in whom centre the elements of such power—wealth, knowledge, and intelligence—the small minority for whose exclusive benefit the system exists. The polity of such a society must thus, in essence, be an oligarchy, whatever be the particular mould in which it is cast. Nor is this all. A society so organized tends to develop with a peculiar intensity the distinctive vices of an oligarchy. In a country of free labour, whatever be the form of government to which it is subject, the pursuits of industry are various. Various interests, therefore, take root, and parties grow up which, regarding national questions from various points of view, become centres of opposition, whether against the undue pretensions of any one of their number, or against those of a single ruler. It is not so in the Slave States. That variety of interests which springs from the individual impulses of a free population does not here exist. The elements of a political opposition are wanting. There is but one party, but one set of men who are capable of acting together in political concert. The rest is an undisciplined rabble. From this state of things the only possible result is that which we find—a despotism, in the last degree unscrupulous and impatient of control, wielded by the wealthy few.

To sum up in a few words the general results of the foregoing discussion, the Slave Power—that power which has long held the helm of government in the Union—is, under the forms of a democracy, an uncontrolled despotism, wielded by a compact oligarchy Supported by the labour of four millions of slaves, it rules a population of five millions of whites—a population ignorant, averse to systematic industry, and prone to irregular adventure. A system of society more formidable for evil, more menacing to the best interests of the human race, it is difficult to conceive.

(Pp. 85-7, and 92.)

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

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

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

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

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

So long as each nation was in the main dependent on the industry of its own members for the supply of its wants, a strong motive would be present for the cultivation of the intelligence, and the improvement of the condition, of the industrial classes. The commodities which minister to comfort and luxury cannot be produced without skilled labour, and skilled labour implies a certain degree of mental cultivation, and a certain progress in social respect. To attain success in the more difficult industrial arts, the workman must respect his vocation, must take an interest in his task; habits of care, deliberation, forethought, must be acquired; in short, there must be such a general awakening of the faculties, intellectual and moral, as by leading men to a knowledge of their rights and of the means of enforcing them, inevitably disqualifies them for the servile condition. Now this was the position in which the slave master found himself in the ancient world. He was, in the main, dependent on the skill of his slaves for obtaining whatever he required. He was therefore naturally led to cultivate the faculties of his slaves, and by consequence to promote generally the improvement of their condition. His progress in the enjoyment of the material advantages of civilization depended directly upon their progress in knowledge and social consideration. Accordingly the education of slaves was never prohibited in the ancient Roman world, and, in point of fact, no small number of them enjoyed the advantage of a high cultivation. “The youths of promising genius,” says Gibbon, “were instructed in the arts and sciences, and almost every profession, liberal and mechanical, might be found in the household of an opulent senator.”[†] Modern slaveholders, on the contrary, are independent of the skill, and therefore of the intelligence and social improvement, of their slave population. They have only need to find a Edition: current; Page: [153] commodity which is capable of being produced by crude labour, and at the same time in large demand in the markets of the world, and by applying their slaves to the production of this, they may, through an exchange with other countries, make it the means of procuring for themselves whatever they require. Cotton and sugar, for example, are commodities which fulfil these conditions: they may be raised by crude labour, and they are in large demand throughout the world. Accordingly, Alabama and Louisiana have only to employ their slaves in raising these products, and they are enabled through their means to command the industrial resources of all commercial nations. Without cultivating one of the arts or refinements of civilization, they can possess themselves of all its material comforts. Without employing an artisan, a manufacturer, a skilled labourer of any sort, they can secure the products of the highest manufacturing and mechanical skill.

(Pp. 100-3.)

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

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

the place which the slave trade fills in the organization of modern slavery. Trading in slaves was doubtless practised by the ancients, and with sufficient barbarity. But we look in vain in the records of antiquity for a traffic which, in extent, in systematic character, and above all, in the function discharged by it as the common support of countries breeding and consuming human labour, can with justice be regarded as the analogue of the modern slave trade—of that organized system which has been carried on between Guinea and the coast of America, and of that between Virginia, the Guinea of the New World, and the slave-consuming States of the South and West.

[Pp. 107-8.]

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

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

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

It is not simply as a productive instrument that slavery is valued by its supporters. It is far rather for its social and political results, as the means of upholding a form of society in which slaveholders are the sole depositaries of social prestige and political power, as the corner-stone of an edifice of which they are the masters, that the system is prized. Abolish slavery, and you introduce a new order of things, in which the ascendancy of the men who now rule eine the South would be at an end. An immigration of new men would set in rapidly from various quarters. The planters and their adherents would soon be placed in a hopeless minority in their old dominions. New interests would take root and grow, new social ideas would germinate; new political combinations would be formed; and the power and hopes of the party which has long swayed the politics of the Union, and which now seeks to break loose from that Union in order to secure a free career for the accomplishment of bolder designs, would be gone for ever.

[Pp. 138-9.]

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

Edition: current; Page: [155]

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

“in this house or out of it, but who knows perfectly well that whenever slavery is confined within certain specified limits its future existence is doomed, it is only a question of time as to its final destruction. You may take any single slaveholding county in the Southern States, in which the great staples of cotton and sugar are cultivated to any extent, and confine the present slave population within the limits of that county. Such is the rapid natural increase of the slaves, and the rapid exhaustion of the soil in the cultivation of those crops (which add so much to the commercial wealth of the country), that in a few years it would be impossible to support them within the limits of such county. Both master and slave would be starved out; and what would be the practical effect in any one county, the same result would happen to all the Slaveholding States. Slavery cannot be confined within certain limits without producing the destruction of both master and slave, it requires fresh lands, plenty of wood and water, not only for the comfort and happiness of the slave, but for the benefit of the owner.”[*]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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AUSTIN ON JURISPRUDENCE
1863

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EDITOR’S NOTE

Dissertations and Discussions, III (1867), 206-74, where the title is footnoted, “Edinburgh Review, October 1863.—1 ‘Lectures on Jurisprudence; being the Sequel to “The Province of Jurisprudence Determined.” To which are added Notes and Fragments, now first published from the Original Manuscripts.’ By the late John Austin, Esq., of the Inner Temple, Barrister-at-Law. [Ed. Sarah Austin.] Two vols. 8vo. London: [Murray,] 1863. 2. ‘On the Uses of the Study of Jurisprudence.’ By the late John Austin, Esq., of the Inner Temple, Barrister-at-Law. Reprinted from the Third Volume of ‘Lectures on Jurisprudence.’ [Ed. Sarah Austin.] London: [Murray,] 1863.” Reprinted from Edinburgh Review, CXVIII (Oct., 1863), 439-82, where it appeared as Art. V, headed by the same information as in the footnote to the title in D&D; running titles. “Austin on Jurisprudence.” Unsigned Identified in Mill’s bibliography as “A review of Austin’s Lectures on Jurisprudence in the Edinburgh Review for October 1863 (omitted in its proper place)” (MacMinn, 96), the entry appears between those for 1865 and for 1866. In the Somerville College copy of an offprint of the Edinburgh Review version (repaged 1-44 but otherwise identical) are two corrections in Mill’s hand, both of which are adopted in D&D (and in the present text), see 167a-a and 172d-d. In the Somerville College set of D&D there is a further correction at 179.27 “motion” is corrected in pencil to “notion” (as in the Edinburgh version and in the 2nd ed. of Vol. III of D&D [1875, edited after Mill’s death by Helen Taylor]), it too is adopted here. For comment on the essay, see xli-xlviii and lxv-lxvi above.

The text below is that of D&D, III (1867), the only edition of that volume in Mill’s lifetime. In the footnoted variants, “631” indicates Edinburgh Review, “632”, the offprint; “67”, D&D, III.

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Austin on Jurisprudence

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

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

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

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

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

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

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

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

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

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

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

Much has been talked of the philosophy of the Roman Institutional writers. Of familiarity with Grecian philosophy there are few traces in their writings, and the little that they have borrowed from that source is the veriest foolishness for example, their account of Jus Naturale, in which they confound Law with animal instincts—Law, with all those wants and necessities of mankind which are causes of its institutions.

Nor is the Roman law to be resorted to as a magazine of legislative wisdom. The great Roman Lawyers are, in truth, expositors of a positive or technical system. Not Lord Coke himself is more purely technical.[*] Their real merits lie in their thorough mastery of that system; in their command of its principles, in the readiness with which they recall, and the facility and certainty with which they apply them.

In consequence of this mastery of principles, of their perfect consistency (elegantia), and of the clearness of the method in which they are arranged, there is no positive system of law which it is so easy to seize as a whole. The smallness of its volume tends to the same end.

The principles themselves, many of them being derived from barbarous ages, are indeed ill fitted to the ends of law, and the conclusions at which they arrive, being logical consequences of their imperfect principles, necessarily partake of the same defect.

([On the] Study of Jurisprudence, pp. 17-19.)*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After Nature had become a household word in the mouths of the Romans, the belief gradually prevailed among the Roman lawyers that the old jus gentium was in fact the lost code of Nature, and that the praetor, in framing an Edictal Jurisprudence on the principles of the jus gentium, was gradually restoring a type from which law had only departed to deteriorate.

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

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

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

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

First: A judiciary law (or a rule of judiciary law) exists nowhere in fixed or determinate expressions. It lies in concreto, or it is implicated with the peculiarities of the particular case or cases, by the decision or decisions whereon, the law or rule was established. Before we can arrive at the rule, we must abstract the ratio decidendi (which really constitutes the rule) from all that is peculiar to the case through which the rule was introduced, or to the resolution of which the rule was originally applied. And in trying to arrive at the rule by this process of abstraction and induction, we must not confine our attention to the general positions or expressions which the judicial legislator actually employed. We must look at the whole case which it was his business to decide, and to the whole of the discourse by which he signified his decision. And from the whole of his discourse, combined with the whole of the case, we must extract that ratio decidendi, or that general principle or ground, which truly constitutes the law that the particular decision established.

But the process of abstraction and induction to which I now have alluded, is not uncommonly a delicate and difficult process, its difficulty being proportioned to the number and the intricacy of the cases from which the rule that is sought must be abstracted and induced. Consequently, a rule of judiciary law is less accessible and knowable than a statute law. . . . And it must be recollected, that whether it be performed by judges applying the rule to subsequent cases, or by private persons in the course of extra-judicial business, this delicate and difficult process is commonly performed in haste. Insomuch that judges in the exercise of their judicial functions, and private persons in their extra-judicial transactions, must often mistake the import of the rule which they are trying to ascertain and apply.

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And this naturally conducts me to a second objection: namely, that judiciary law (generally speaking) is not only applied in haste, but is also made in haste. It is made (generally speaking) in the hurry of judicial business, and not with the mature deliberation which legislation requires, and with which statute law is or might be constructed. . . .

There is more of stability and coherency in judiciary law than might, at the first blush, be imagined. But though it be never so stable and never so coherent, every system of judiciary law has all the evils of a system which is really vague and inconsistent. This arises mainly from two causes, the enormous bulk of the documents in which the law must be sought, and the difficulty of extracting the law (supposing the decisions known) from the particular decided cases in which it lies imbedded.

By consequence, a system of judiciary law (as every candid man will readily admit) is nearly unknown to the bulk of the community, although they are bound to adjust their conduct to the rules or principles of which it consists. Nay, it is known imperfectly to the mass of lawyers, and even to the most experienced of the legal profession. A man of Lord Eldon’s legal learning, and of Lord Eldon’s acuteness and comprehension, may know where to find the documents in which the law is preserved, and may be able to extract from the documents the rule for which he is seeking. To a man, therefore, of Lord Eldon’s learning, and of Lord Eldon’s acuteness, the law might really serve as a guide of conduct. But by the great body of the legal profession (when engaged in advising those who resort to them for counsel), the law (generally speaking) is divined rather than ascertained. And whoever has seen opinions even of celebrated lawyers, must know that they are often worded with a discreet and studied ambiguity, which, whilst it saves the credit of the uncertain and perplexed adviser, thickens the doubts of the party who is seeking instruction and guidance. And as to the bulk of the community—the simple-minded laity (to whom, by reason of their simplicity, the law is so benign)—they might as well be subject to the mere arbitrium of the tribunals, as to a system of law made by judicial decisions. A few of its rules or principles are extremely simple, and are also exemplified practically in the ordinary course of affairs. Such, for example, are the rules which relate to certain crimes, and to contracts of frequent occurrence. And of these rules or principles, the bulk of the community have some notion. But those portions of the law which are somewhat complex, and are not daily and hourly exemplified in practice, are by the mass of the community utterly unknown, and are by the mass of the community utterly unknowable. Of those, for example, who marry, or of those who purchase land, not one in a hundred (I will venture to affirm) has a distinct notion of the consequences which the law annexes to the transaction.

Consequently, although judiciary law be really certain and coherent, it has all the mischievous effect (in regard to the bulk of the community) of ex post facto legislation. Unable to obtain professional advice, or unable to obtain advice which is sound and safe, men enter into transactions of which they know not the consequences, and then (to their surprise and dismay) find themselves saddled with duties which they never contemplated.

The ordinary course is this:—

A man enters into some transaction (say, for example, a contract) either without advice, or with the advice of an incompetent attorney.

By consequence, he gets into a scrape

Finding himself in a scrape, he submits a case, through his attorney, to counsel

And, for the fee to attorney and counsel, he has the exquisite satisfaction of learning with certainty that the mischief is irremediable

[I am far from thinking, that the law ever can be so condensed and simplified, that any considerable portion of the community may know the whole or much of it

But I think that it may be so condensed and simplified, that lawyers may know it and that Edition: current; Page: [190] at a moderate expense, the rest of the community may learn from lawyers beforehand the legal effect of transactions in which they are about to engage.

Not to mention (as I shall show, when I come to the rationale of the distinction between Law of Things and Law of Persons) that the law may be so arranged, that each of the different classes of persons may know something of the part of it with which they are particularly concerned.

Forms, too, for the more usual transactions might be made out by the legislature.]

The evil upon which I am insisting is certainly not peculiar to judiciary law. Statute law badly expressed, and made bit by bit, may be just as bulky and just as inaccessible as law of the opposite kind. But there is this essential difference between the kinds of law. The evil is inherent in judiciary law, although it be as well constructed as judiciary law can be. But statute law (though it often is bulky and obscure) may be compact and perspicuous, if constructed with care and skill.

Fifthly: I am not aware that there is any test by which the validity of a rule made judicially can be ascertained.

Is it the number of decisions in which a rule has been followed, that makes it law binding on future judges? Or is it the elegantia of the rule (to borrow the language of the Roman lawyers), or its consistency and harmony with the bulk of the legal system? Or is it the reputation of the judge or judges by whom the case or cases introducing the rule was decided? . . .

We never can be absolutely certain (so far as I know) that any judiciary rule is good or valid law, and will certainly be followed by future judges in cases resembling the cases by which it has been introduced.

Here, then, is a cause of uncertainty which seems to be of the essence of judiciary law. For I am not aware of any contrivance by which the inconvenience could be obviated.

Sixthly: In consequence of the implication of the ratio decidendi with the peculiarities of the decided case, the rule established by the decision (or the ratio, or the general principle of the decision) is never or rarely comprehensive. It is almost necessarily confined to such future cases as closely resemble the case actually decided although other cases more remotely resembling may need the care of the legislator. In other words, the rule is necessarily limited to a narrow species or sort, although the genus or kind, which includes that species or sort, ought to be provided for at the same time by one comprehensive law.

This is excellently explained by Sir Samuel Romilly.

“Not only is the judge, who at the very moment when he is making law, is bound to profess that it is his province only to declare it, not only is he thus confined to technical doctrines and to artificial reasoning—he is further compelled to take the narrowest view possible of every subject on which he legislates. The law he makes is necessarily restricted to the particular case which gives occasion for its promulgation. Often when he is providing for that particular case, or according to the fiction of our Constitution, is declaring how the ancient and long-forgotten law has provided for it, he represents to himself other cases which probably may arise, though there is no record of their ever having yet occurred, which will as urgently call for a remedy as that which it is his duty to decide. It would be a prudent part to provide, by one comprehensive rule, as well for these possible events, as for the actual case that is in dispute, and, while terminating the existing litigation, to obviate and prevent all future contests. This, however, is, to the judicial legislator, strictly forbidden; and if, in illustrating the grounds of his judgment, he adverts to other and analogous cases, and presumes to anticipate how they should be decided, he is considered as exceeding his province; and the opinions thus delivered are treated by succeeding judges as extra-judicial, and as entitled to no authority.”[*]

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[Hence, exigencies of society provided for bit by bit, and therefore slowly.

Hence, further, immense volume of the documents in which the law is recorded. For in lieu of one comprehensive rule determining a genus of cases, we have many several and narrow rules severally determining the species which that genus includes.]

And this inconvenience (for a reason which I have noticed above)[*] is probably of the essence of judiciary law. So delicate and difficult is the task of legislation, that any comprehensive rule, made in haste, and under a pressure of business, would probably be ill adapted to meet the contemplated purpose. It is certain that the most experienced, and the most learned and able of our judges, have commonly abstained the most scrupulously from throwing out general propositions which were not as proximate as possible to the case awaiting solution: though the ratio decidendi (or ground or principle of decision) is necessarily a general position applying to a class of cases, and does not concern exclusively the particular case in question. . . .

Seventhly. Wherever much of the law is judiciary law, the statute law which coexists with it, is imperfect, unsystematic, and bulky.

For the judiciary law is, as it were, the nucleus around which the statute law is formed. The judiciary law contains the legal dictionary, or the definitions and expositions (in so far as such exist) of the leading technical terms of the entire legal system. The statute law is not a whole of itself, but is formed or fashioned on the judiciary law, and tacitly refers throughout to those leading terms and principles which are expounded by the judiciary.

Wherever, therefore, much of the law consists of judiciary law, the statute law is not of itself complete, but is merely a partial and irregular supplement to that judiciary law which is the mass and bulk of the system. The statute law is not of itself an edifice, but is merely a set of irregular unsystematic patches stuck from time to time upon the edifice reared by judges. . .

Wherever, therefore, much of the law consists of judiciary law, the entire legal system, or the entire corpus juris, is necessarily a monstrous chaos partly consisting of judiciary law, introduced bit by bit, and imbedded in a measureless heap of particular judicial decisions, and partly of legislative law stuck by patches on the judiciary law, and imbedded in a measureless heap of occasional and supplemental statutes.*

Since such [continues Mr. Austin] are the monstrous evils of judicial legislation, it would seem that the expediency of a Code, or of a complete or exclusive body of statute law, will hardly admit of a doubt. Nor would it, provided that the chaos of judiciary law and of the statute law stuck patchwise on the judiciary could be superseded by a good code. For when we contrast the chaos with a positive code, we must not contrast it with the very best of possible or conceivable codes, but with the code which, under the given circumstances of the given community, would probably be the result of an attempt to codify.[†]

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

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

The current objection to codification is the necessary incompleteness of a code. It is said that the individual cases which may arise in fact or practice are infinite, and that, therefore, they cannot be anticipated, and provided for, by a body of general rules. The objection (as applied to statute law generally) is thus put by Lord Mansfield in the case of Omichund and Barker. (He was then Solicitor-General.) “Cases of Law depend upon occasions which give rise to them. All occasions do not arise at once. A statute very seldom can take in all cases. Therefore the common law that works itself pure by rules drawn from the fountains of justice, is superior to an act of parliament.”[‡]

My answer to this objection is, that it is equally applicable to all law; and that it implies in the partisans of judiciary law (who are pleased to insist upon it) a profound ignorance, or a complete forgetfulness, of the nature of the law which is established by judicial decisions.

Judiciary law consists of rules, or it is merely a heap of particular decisions inapplicable to the solution of future cases. On the last supposition, it is not law at all and the judges who apply decided cases to the resolution of other cases, are not resolving the latter by any determinate law, but are deciding them arbitrarily.

The truth, however, is, that the general grounds or principles of judicial decisions are as completely law as statute law itself, though they differ considerably from statutes in the manner and form of expression. And being law, it is clear that they are liable to the very imperfection which is objected to statute law. Be the law statute or judiciary, it cannot anticipate all the cases which may possibly arise in practice.

The objection implies, that all judicial decisions which are not applications of statutes are merely arbitrary. It therefore involves a double mistake. It mistakes the nature of judiciary law, and it confounds law with the arbitrium of the judge. Deciding arbitrarily, the judge, Edition: current; Page: [193] no doubt, may provide for all possible cases. But whether providing for them thus be providing for them by law, I leave it to the judicious to consider.

If law, as reduced into a code, would be incomplete, so is it incomplete as not so reduced. For codification is the re-expression of existing law. It is true that the code might be incomplete, owing to an oversight of redactors. But this is an objection to codification in particular. . .

Repetition and inconsistency are far more likely, where rules are formed one by one (and, perhaps, without concert, by many distinct tribunals), than where all are made at once by a single individual or body, who are trying to embrace the whole field of law, and so to construct every rule as that it may harmonize with the rest.

And here I would make a remark which the objection in question suggests, and which to my understanding is quite conclusive.

Rules of judiciary law are not decided cases, but the general grounds or principles (or the rationes decidendi) whereon the cases are decided. Now, by the practical admission of those who apply these grounds or principles, they may be codified, or turned into statute laws. For what is that process of induction by which the principle is gathered before it is applied, but this very process of codifying such principles, performed on a particular occasion, and performed on a small scale? If it be possible to extract from a case, or from a few cases, the ratio decidendi, or general principle of decision, it is possible to extract from all decided cases their respective grounds of decisions, and to turn them into a body of law, abstract in its form, and therefore compact and accessible. Assuming that judiciary law is really law, it clearly may be codified.

I admit that no code can be complete or perfect. But it may be less incomplete than judge-made law, and (if well constructed) free from the great defects which I have pointed out in the latter. It may be brief, compact, systematic, and therefore knowable as far as it goes.

(Vol. II, pp. 374-7.)

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

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The great difficulty is, the impossibility that any one man should perform the whole. But if done by several, it would be incoherent, unless all were imbued with the same principles, and all versed in the power of applying them. The great difficulty, therefore, is to get a sufficient number of competent men, versed in common studies and modes of reasoning. This being given, codification is practicable and expedient.

Peculiarly technical and partial knowledge of English lawyers. No English lawyer is master even of English law, and has, therefore, no notion of that interdependency of parts of a system, on which its successful codification must depend.

A code must be the work of many minds. The project must be the work of one, and revised by a commission. The general outline, the work of one, might be filled up by divers.

All-importance in codification of the first intention. Till minds are trained, it will scarcely succeed. How the difficulty is to be surmounted. Necessity for men versed in theory, and equally versed in practice, or rather, of a combination of theorists and practitioners. Necessity for preliminary digests, or for waiting till successful jurists and jurisprudence are formed through effectual legal education.

(Vol. III, pp. 278-9.)

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

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

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

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

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

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

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

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

lf0223-21_figure_002.jpg
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The remaining Lectures are devoted to the examination and elucidation of the particulars included under these heads. And, with all their incompleteness (which, as with the broken arches in Addison’s “Vision,” becomes greater as we approach the point where they cease altogether),[*] their value to the student will be found to be very great. We would particularly direct attention to the treatment of Dominium or Property, in its various senses, with the contrasted conception of servitus or easement.[†] The nature and boundaries of these two kinds of rights are made so transparently clear, that it requires some acquaintance with the speculations of jurists to be able to believe that any one could ever have misunderstood the subject.

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

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

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

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

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

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

1. Primary Rights, with the correlative Duties.

2. Sanctions.

3. Laws determining the mode of applying the Sanctions.

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

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

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

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

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

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

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

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

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

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EDUCATIONAL ENDOWMENTS
1866

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EDITOR’S NOTE

In “Report of Commissioners on Education in Schools in England. Not Comprised within Her Majesty’s Two Recent Commissions on Popular Education and Public Schools.” Parliamentary Papers, 1867-68, XXVIII, Pt. 2, 67-72. Headed, “John Stuart Mill, Esq., M.P.” Signed “J.S. Mill.” Not listed in Mill’s bibliography. No copy in Somerville College. For comment on the items, see li-lii and lxvi-lxvii above.

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John Stuart Mill
Mill, John Stuart
August 9, 1866
Blackheath Park

Educational Endowments

sir,

I have now the honour of transmitting to the Royal Commissioners for Inquiry into Schools, such answers as it is in my power to give to the queries which the Commissioners did me the honour of addressing to me. Want of time, no less than the understood wishes of the Commissioners, has compelled me to be brief; but, for the further elucidation of the topics to which I have adverted, as well as for many valuable facts and thoughts connected with the subject of their inquiries, I hope I may be permitted to refer the Commissioners to the paper by Mr. Chadwick,[*] mentioned in my answer to the second query, and the evidence appended thereto.

I have, &c.
J.S. Mill

The Secretary of the Schools Inquiry Commission

* * * * *

1. The expediency, in the case of endowed schools, of continuing to give gratuitous education to the scholars, and fixed incomes to the teachers.

I conceive the practice of payment by fixed salaries to be almost fatal to the general usefulness of educational endowments, and quite sufficient in itself to account for the admitted fact of their extensive failure.

If any practical maxim for the conduct of business of any kind by a delegated agent can be called fundamental, it is that of identifying the agent’s interest with his duty. But if a schoolmaster’s remuneration is neither increased by efficiency, nor diminished by inefficiency, his personal interest is, to have as few pupils as Edition: current; Page: [210] possible, and to take the least possible trouble with their instruction. I have read of a school where the master’s salary was 600l. a year, and his object was to drive away the pupils, which he succeeded in effecting by a series of severe floggings.[*] Without vouching for the strict truth of this anecdote, it may be accepted as a warning illustration of what may happen in an extreme case. Every motive that acts upon a teacher thus situated, tends to render his work valueless, except conscience or a disinterested love for his duty; and the insufficiency, in average cases, of these motives, is the principal cause which renders laws and institutions necessary.

The true principle for the remuneration of schoolmasters of all classes and grades, wherever it is possible to apply it, is that of payment for results. The results of their teaching can, in general, only be tested by examinations, conducted by independent public examiners, and if this examination were partly of a competitive character, extending to the pupils of all endowed middle-class schools, somewhat after the model of the Oxford and Cambridge local examinations, it might be made a basis for proportioning, in some degree, the remuneration of schoolmasters to the degree of success which their pupils obtained in the examinations.

It appears to me, generally speaking, undesirable that education should be provided gratuitously for the children of the classes specifically concerned in the present inquiry. Those classes can afford to pay, they are not objects of charity: they have no claim to be relieved from the duty of providing education for their children; and entire relief from that obligation on any other ground than inability, appears to me to have a highly demoralizing tendency. The suggestion that exhibitions should be given to pupils of the elementary schools, to be earned by merit, for the purpose of enabling them to prolong their school course, and advance to a higher grade of education, seems to me, on the contrary, to be of a highly moral and improving character, and I would give it my warmest support. I would suggest that these exhibitions be awarded by competitive examination. It is, however, a different question, whether the funds of endowments should be exclusively devoted to this purpose, or to this and to the pensioning of retired teachers. Though endowments are not, I conceive, beneficially employed in educating the children of the middle classes without expense to the parents, I think it a very proper application of them to provide, for those classes, a better quality of education than can be supplied from the contributions of parents as an exclusive resource. They should be called on to pay only what they can, in ordinary cases, well afford, and this having been done, the very best education should be given which can be provided by the addition to those payments, of all other funds legitimately applicable to the purpose.

2. The best mode of providing for the future management of endowments, and of preventing them from relapsing into inefficiency.

As the first and most indispensable part of any arrangements for this purpose, I Edition: current; Page: [211] would urge that the whole of the foundation schools be placed under the regular supervision of the Inspectors of the Privy Council. Nothing but frequent and systematic inspection, by an authority having the power, if not of removing, at least of proposing the removal of the schoolmaster in case of proved unfitness, will ever prevent the majority of such schools from falling back into the state from which it is now desired to rescue them. The inspectors, some of whom are gentlemen of great experience and ability, and the selection of whom will always be the most important of all the duties of the Education Committee of Council, will be the persons most capable of pointing out, in each case, the best arrangements for securing a local superintendence in aid of the general one. The manner in which power and responsibility should be shared between the local and the central authority, and, above all, the question which of the two should exercise, in the last resort, the most important function of all, the appointment and removal of the masters, are matters of deep and serious consideration, with a view to obtain the best security for the efficiency of the work, while avoiding the danger of giving too great a control over the education of the country to a department of the executive. In a country possessing any organized system of local administration, there would be, in every district of a certain size, a school committee, composed of those inhabitants of the locality (whether elected or nominated) who took the greatest practical interest in the subject; and to such a committee, with a representative of the Education Committee of the Privy Council for their regularly appointed adviser, the authority over the local schools might safely and properly be entrusted. But in the chaotic confusion of English local institutions, which throws such obstacles in the way of any systematic improvement in the real government of the country, it would require much more practical experience than I possess, and more meditation than I have been able to bestow on the subject, to enable me to suggest the best constitution for the local superintending body, or to define the powers which ought to be vested in it. It is even possible that both its constitution and its powers ought to be different in different localities, according to the nature of the materials available. For the present, probably, the responsibility of selecting the proper persons from among the leading inhabitants of all denominations, might with advantage be temporarily intrusted to the inspectors; though I would by no means propose this as a permanent arrangement. In whatever manner appointed. I strongly recommend that there should be but one such body for the whole of the endowed schools of a considerable district, comprising, however, persons from various parts of the district, who might severally act as local visitors of the schools nearest to them.

In still further extension of the same principle, I would propose that all the educational endowments of the district, together with all other charitable endowments within the same local limits which are now applied, ostensibly or really, to the relief of the poor in modes which are useless or hurtful, should be brought into a single fund, to be devoted to maintaining one or a few large schools in convenient situations, in preference to a greater number of small ones.

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Large schools, with numerous pupils, have a great advantage in point of economy and efficiency over small schools with few pupils. The principal sources of this advantage are—

a. That when the pupils are numerous they can be formed into considerable classes, of about the same degree of proficiency, and capable of profiting by the same teaching; while, if they are few in number, pupils of very unequal degrees of advancement have to be taught together, and either the majority are neglected in favour of the few most proficient, or the teacher’s attention is given to them by turns, those to whom the teaching of the moment is unsuited remaining comparatively idle.

b. That by merging many small schools in one large school, it becomes possible to obtain teachers of a far better quality for the same cost, and to economize their labour by confining the superior teachers to the higher departments. A small number of well-paid masters, adapted to the different grades of proficiency, are a vastly superior educational instrument to a large number of illpaid masters scattered over the country, each of whom has to teach pupils of all grades, and if he is fit for the higher work, is throwing away his labour in teaching mere elements to little boys.

c. And lastly, that large schools economize, in a similar manner, the most important labour of all, and that which requires the highest qualities in the persons intrusted with it, the labour of inspection.

These and other reasons in favour of the consolidation of schools, will be found largely illustrated in a document forming No. 120 of the papers printed by order of the House of Commons in the session of 1862, containing evidence collected by Mr. Chadwick for the former Royal Commission on Education, accompanied by comments of his own on this and other points of the very highest value.[*]

The same Parliamentary paper contains the particulars of a most important practical application of the principles just stated—the case of the Faversham schools.[†] This was a new foundation, growing out of a bequest by a banker of Faversham,[‡] as recently as 1840, of property yielding 2,000l. a year, for the general benefit of the poor of that place. The trustees, being thus free to adopt the best ideas of the age, and being evidently men of practical good sense, determined that the purposes of the testator could best be effected by devoting the bequest to an improved scheme of public education for the town and its neighbourhood; and having drawn up a plan for that purpose, obtained the authority of the Court of Chancery for carrying it into execution. The plan comprehends an infant school, a national school, a middle-class or commercial school, and an evening school for Edition: current; Page: [213] adults under trained masters. The Parliamentary paper already referred to shows the great advantages which have been found to attend the union of all these schools under the same management. Pupils are promoted, as a reward for proficiency, from the national to the commercial school, where they are supplied with books, and their school fees paid, at the expense of the endowment; and there is an annual examination of the commercial school by graduates of one of the Universities, at which exhibitions are awarded, by what is stated to be in effect a competitive examination, to successful pupils, to enable them to continue their studies in an old foundation grammar school which already existed in the town under another trust, and the union of which with the new schools under a common management would complete the scheme. No religious difficulty is experienced, dissenters and churchmen, both lay and clerical, acting together with perfect cordiality, both as trustees and as members of the school committee.

3. The possibility of securing for purposes of education, endowments that are now wasted.

There are numerous charitable funds which are now, under the terms of antiquated trusts, distributed in mere doles, to persons supposed to be necessitous, but who have not always even that claim, such as it is. It would be a far more efficacious mode of alleviating the evil of indigence, to employ these funds in making war on its principal cause, the want of education. Full information respecting these wasted endowments could probably be obtained through the Charity Commissioners, within whose special duty it naturally falls to procure such information, when they do not already possess it.[*] The sanction of the Court of Chancery or of Parliament would probably not be refused to the necessary change in the destination of these endowments, due regard being had to the fair claims of living individuals who may have become, in any degree, dependent on them for support.

4. The best mode of securing, or at least encouraging, a due supply of qualified teachers.

No part of the subject is more important than this; the wretched incompetency of the great majority of the existing schools for the children of the middle classes being notorious. Mr. Edward Carleton Tufnell, one of the ablest and most experienced of Her Majesty’s inspectors of schools, stated in evidence to Mr. Chadwick, “It has frequently occurred to me to cause the dismissal of a master from a pauper school on account of gross ignorance or gross immorality. The useful power of the Poor Law Board[†] prevents such people being again appointed to pauper schools, but I have taken pains to ascertain what has become of those Edition: current; Page: [214] masters, and I have generally found that they have got places as ushers in schools for the middle or upper classes.”[*]

With a view to correct the extreme deficiency of due qualification in the teachers, all the suggestions referred to in the letter which the Commissioners did me the honour to address to me, appear worthy of adoption, and all of them together are not more than sufficient. It would be highly important that training schools should be established for teachers, where they should learn, not only the things they will have to teach, but how to teach them; for which purpose these training schools must of course be connected with schools of the ordinary kind, where the art of teaching may be practically acquired. It is evidently proper that the restriction, in many foundations, of the office of schoolmaster to persons in holy orders, should be abolished. And it is also right that certificates of fitness for the office of teacher should be granted, after examination, either by the Universities (that of London included) or by examiners appointed by the Committee of Council. I would add a recommendation that on the first appointment of teachers, the principle of competitive examination should be introduced as far as practicable, and that in their subsequent promotion a mode of examination should be resorted to, which might, if possible, test the results of their teaching in the schools where they had already taught. But the greatest security of all, without which no other will permanently avail, is the assured prospect of removal, in case of incompetency proved by experience. The whole chance of success of any reform in the endowed schools rests upon the degree of certainty which can be given to this expectation; and the utmost exertions of the department should, I earnestly urge, be above all directed to this end. With a view to it, the visitorial functions of the Court of Chancery should be transferred to the Privy Council, who might be empowered to avail themselves, if needful, of the aid of the Poor Law Inspectors, as well as of the Charity Commissioners. The arrangements for local visitation I have already touched upon. But all will be ineffective without efficient and vigorous examination of the pupils, by an authority totally independent of the teachers and of those by whom the teachers are appointed; and the value of this examination would be greatly increased if part of it were made competitive among the pupils of all the schools in a given district, or in the whole country.

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INAUGURAL ADDRESS DELIVERED TO THE UNIVERSITY OF ST. ANDREWS
1867

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EDITOR’S NOTE

2nd ed. London Longmans, Green, Reader, and Dyer, 1867. Reprinted from 1st ed., ibid. Identified in Mill’s bibliography as “Inaugural delivered to the University of St. Andrews on February 1st 1867” (MacMinn, 98). The only copy in Somerville College (Boston: Little and Gray, n.d.; double column) has no corrections or emendations. For comment on the work, see lii-lvi and lxvii-lxviii above.

The text below is that of the 2nd ed., the last in Mill’s lifetime. There is only one variant between the printed texts (see 245b-b), in the note “671” indicates the 1st ed. A portion of the text exists in early draft form in the Houghton Library, Harvard University, it is printed, with variant notes, in Appendix D.

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Inaugural Address Delivered to the University of St. Andrews

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I have given a very incomplete and summary view of the educational benefits derived from instruction in the more perfect sciences, and in the rules for the proper use of the intellectual faculties which the practice of those sciences has suggested. There are other sciences, which are in a more backward state, and tax the whole powers of the mind in its mature years, yet a beginning of which may be beneficially made in university studies, while a tincture of them is valuable even to those who are never likely to proceed further. The first is physiology; the science of the laws of organic and animal life, and especially of the structure and functions of the human body. It would be absurd to pretend that a profound knowledge of this difficult subject can be acquired in youth, or as a part of general education. Yet an acquaintan