"Est itaque quod gratias agamus Macciavello et hujusmodi scriptoribus, qui aperte et indissimulanter proferunt quid homines facere soleant, non quid debeant." Bacon.

"Mais qu'est-ce donc enfin qu'une loi? Tant qu'on se contentera de n'attacher à ce mot que des idées métaphysiques on continuera de raisonner sans s'entendre." Rousseau.

"I suggest that we should abandon for the present the enterprise of deciding what the State ought to be, and to aim at and consider by way of pure observation what it has actually been." Sir John Seeley.

"While we are apparently aiming at definitions of terms, our attention should be really fixed on distinctions and relations of fact."

H. Sidgwick.

"The first call of a theory of Law is that it should fit the facts.]
Mr. Justice Holmes.

Rec. Feb. 6, 1904

PREFACE.

THIS volume is the first instalment of a treatise on Jurisprudence, but is so far complete in itself. I have given it the title of "The Data of Jurisprudence," because I am more anxious to state the problem, "What is Right?" "What is Law?" than at present to offer any solution. I have generally adopted the standpoint of the common sense man, but the difficulty in the earlier chapters is to stop at the point where law becomes technical. I have not, however, hesitated to use technical illustrations where the law is simple and elementary, because every law, like the language in which it is expressed, is an adaptation of

popular ideas to technical purposes. I have made my illustrations as numerous and as wide as possible, in order that the bases of induction may be as wide as possible. In like manner, in the mode of arrangement and in the discussion of the aim of law in the last chapter, it has been necessary to anticipate much which belongs to more abstract philosophy, but I hope to have an opportunity of discussing the subject there dealt with more fully and more deliberately hereafter. The main questions on which a provisional position is assumed are the following:

1. In the matter of method, I wish to protest against the pretensions of the professional "philosopher," who declares

that "Law is just applied Philosophy," as if "philosophy " were some independent entity. The view taken here is that law gives abundant matter for scientific treatment. by induction, and has a metaphysic of its own as much as religion (Theology) or the phenomenal universe (Physical Science).

For the purposes of Comparative Jurisprudence it is generally assumed uncritically that the law of each country is a unity. What the unity is, is a question of metaphysics. But within each legal system we may have comparative jurisprudence by collating the civil, criminal, ecclesiastical, military, mercantile, constitutional, and administrative systems. Or again, within one such system we may make a comparative jurisprudence, for example, by comparing contracts, sale, loan, pledge, trusts, marriage, and so on; or by comparing the laws dealing with murder, theft, robbery, fraud, and other crimes. So strongly did this view appeal to Sir J. F. Stephen, that this eminent jurist, in his History of the Criminal Law, denied that the criminal law of England was a unity. But, as I have just pointed out, the nature of the unity is a metaphysical question.

2. It is assumed that the phenomenon known as Law (Right) presents itself in three aspects-Right, Duty and Law -in a narrower sense. Each of these implies the others, and an exposition of any one involves a full exposition of the other two. From what source these ideas flow is a question of history. Whether these elements are really different aspects of one reality, and whether we ought to find one or more additional elements of the same kind, are questions of metaphysics.

Under each of these heads I have discussed the various forms assumed, according to the matter or interest involved, and have given these in tabular form.

3. In each section, dealing generally with a single idea, I have provisionally traced a (scientific) law of (jural) law,1 that physical ideas tend to become ideal, and ideal tend to become physical, many words assuming all these forms in the course of their history. This of course is connected with the general theory of the relation of thought and language.

4. Another (scientific) law which may be traced is the tendency of law to develop from extrajudicial to technical judicial forms, and again to become extrajudicial,—first, rude rough remedies then technical judicial procedure-then extrajudicial substantive law, shading off into morality and religion. This presents several interesting topics of discussion:-First comes the relation of law to logic-form and matter. The view which I have maintained at considerable length is that it is as great a mistake to define Jurisprudence as a formal science, as it would be to confine the idea of

literature to spelling, grammar, or even rhetoric, except in the Aristotelian sense. Formal logic I assume to be a

development of grammar.

Then we may notice the relation

of law to economics. The ideas of interest, value, credit belong to both sciences, because they deal with different aspects of persons, things, and property. Again we may notice the relation of law to ethics-individual cases to courses of conduct. The history of ethics points to this science being a development of politics and technical positive law. And

1

Bacon, "Laws of Laws," De Augmentis, viii. (Spedding, v. 89)