Again, with reference to the relations of independent states, it shows how sovereign governments act towards one another, and by what means international law is maintained. Many of the problems of political economy belong likewise to this branch of politics. The definition of the principal terms used in political economy-such as wealth, value, exchange, profit, rent, &c., and the determination of the elements necessarily involved in the leading economical relations, are properly of a positive or descriptive character.

It

The positive branch of politics does not pass any judgment upon the goodness or badness of forms of government, laws, or institutions: nor does it inquire into their probable operation or tendency. It explains, for example, what is a monarchy, what is an aristocracy, what is a democracy; but it does not teach whether either of these forms of government is more or less likely than another to promote the welfare of the community; except so far as its tendency may be inferred from its definition. shows what is the nature of punishment, and of criminal law; but it does not teach which punishments are most efficacious, or what are the effects produced by the different forms of criminal law. It expounds the relations of master and free servant, and of master and slave, and it shows in what the difference between them consists; but it does not trace their respective consequences, or inquire into their comparative influence upon the happiness of the community, and the state of the working classes. It explains the nature of a dependency, but it does not attempt to define the cases in which it is advisable to place a territory under a separate but subordinate government. It teaches the nature of a colony, but without undertaking to describe the circumstances which may render the foundation of a new colony expedient, or to enumerate the conditions for its success. It illustrates the manner in which sovereign governments act upon one another, and treats of the imperfect sanctions by which international law is enforced but it does not pretend to decide which rules of international law are good or bad, or how the evils against which it is intended to

guard may be best prevented. It shows what are the acts which constitute an exchange, and what is the difference between an exchange effected by simple barter, and an exchange effected by the use of money; but it does not attempt to trace the respective consequences of these sorts of exchanges, in facilitating the production or distribution of wealth, or in promoting trade.

If any writer on positive politics affirms that all men are born free and equal, this assertion is to be taken as an assertion of a general fact, without reference to the expediency of such a state of things. It is, therefore, wholly different from the assertion of the opinion that all men, in a well-regulated state, ought to be born free and equal. Not unfrequently, however, there is in politics a confusion between the assertion of a fact and the assertion of an opinion; between is and ought to be. Thus, such a proposition as that all men are born free and equal, would probably not be understood, by those who advance it, to be refuted by a reference to communities where slavery exists. It would be understood to imply that, according to natural right, all men are born free and equal; in other words, that men, though the fact is otherwise, ought from their birth to enjoy equal rights. Whenever it is affirmed that a sovereign government has a right to do anything (e. g. to inflict capital punishment, or to make war), we may be sure that we are getting out of the domain of positive politics; and that the proposition, though in form it merely asserts a fact, yet in substance asserts an opinion. Thus, in the example referred to, a person who maintains the right of a government to inflict capital punishment, means not merely to affirm that a government possesses this power, but that it is justified in exercising it on certain occasions.

The question of utility or expediency, of a tendency to promote the good of the community, is foreign to positive politics. This department of politics may be said, in the language of the comparative anatomist, to deal only with conditions of existence. It considers only what is necessary to constitute a government, or a law; not what is required in order to make a good govern

ment or a good law; nor what constitutes the comparative goodness or badness of governments and laws.

Thus universal jurisprudence may teach, in the words of Story, that in order to make a contract valid, it must be made by parties capable to contract, it must be voluntary, it must be upon a sufficient consideration, it must be lawful in its nature, and it must be in its terms reasonably certain. (3) But it does not attempt to determine what persons shall be capable of contracting; what circumstances destroy the voluntary character of the act; what constitutes a valid consideration; what purposes shall be deemed contrary to public policy; and what amount of uncertainty shall vitiate a contract. These are questions which the laws of different countries solve in different manners, according to various views of expediency. Hence, positive politics must be distinguished from the positive law of any given state, or from positive international law. The latter consist of positive rules, and vary according to time and place: whereas the former are necessary conditions, and are universal.

If the positive branch of politics does not profess to decide upon the goodness or badness of political institutions; if it merely explains what they are, without inquiring into their probable influence upon the happiness of the community; still less does it attempt to lay down any maxims of conduct, or to predict the specific effects of certain political measures.

Positive politics may be compared with that department of ethics which teaches the nature of the emotions, affections, passions, and moral sentiments-which shows what anger, compassion, envy, love, &c., is; but without inquiring how these feelings affect the individual himself, or the person whom they concern; and, also, without laying down any precepts with regard to them, or indicating their probable consequences in any given case. Again, positive politics may be compared with physiology; which describes the component parts and organs of the body, and their several

(3) Conflict of Laws, p. 307.

3.

functions; but without tracing their influence upon human life, or teaching how their action, when deranged, is to be restored. Or it may be compared with that elementary portion of a treatise on architecture, which teaches what a building is, and how composed, before it teaches how a building ought to be constructed: or with that portion of a treatise on strategics, which explains the nature of arms and fortifications, the composition and movements of an army, &c., before it shows how an army ought to be moved, how a battle ought to be fought, and how a campaign ought to be conducted.

§ 4 The speculative department of politics assumes that the positive department has accomplished its work. It assumes that we know what a state is; what are its functions; what are the conditions necessary for its existence; by what instruments it acts; what are its possible relations with other states. Starting from this point, it inquires how certain forms of government, and certain laws and political institutions, operate; it seeks, from observed facts and from known principles of human nature, to determine their character and tendency; it attempts to frame propositions respecting their probable consequences, either universally, or in some hypothetical state of circumstances. Thus it may undertake to determine the respective characters of monarchy, aristocracy, and democracy; it may show how each of these forms of government promotes the happiness of the community, and which of them is preferable to the other two. It may inquire into the operation of certain modes of preventing crimes-as police,-of criminal procedure, and of legal punishment, such as death, transportation, imprisonment, pecuniary fines,-and it may seek to determine the characteristic advantages and disadvantages of each, in certain assumed conditions. It may inquire into the operation of different systems of taxation—of laws respecting trade and industry-of modes of regulating the currency -of laws regulating the distribution of property with or without will-and other economical relations. It may lay down the conditions which render it expedient to govern a territory as a dependency; or which tend to promote the prosperity of a new

colony. It may define the circumstances which ensure the permanence of national confederacies, and it may inquire what are the rules of international law which would tend to promote the uninterrupted maintenance of peace.(")

It seeks to lay down general theorems respecting the operation and consequences of political institutions, and measures them by their utility or their capacity for promoting the welfare of the national community to which they are applicable. positions of this sort may lead (though not by so direct a road as is often supposed) to preceptive maxims; but they are themselves merely general expressions of fact, and they neither prescribe any course of conduct, nor do they predict any specific occurrence; though, from the generality of their form, they may relate as much to the future as to the past.(5)

§ 5 The fourth and last department of politics consists of 4 maxims of political practice. Political practice, like other branches of practice, can only receive assistance from general propositions when reduced into the form of maxims or precepts. These maxims are necessarily general in their form, and their application to the individual case, in action, must be left to the discretion of the practical politician himself. Such general maxims may either be the results of philosophical speculation, and supported by systematic reasoning, or they may be insulated apophthegms, extracted from the writings of historians, or current among the people in the shape of proverbs.

The second and third of these departments together correspond with the science of politics; the fourth corresponds with the art. They likewise correspond respectively with the division into pure and applied politics.(")

(4) The difference between positive and speculative politics is shadowed out in Montesquieu's definition of the nature and the principle of a government. Il y a cette différence entre la nature du gouvernement et son principe, que sa nature est ce qui le fait être tel; et son principe, ce qui le fait agir. L'une est sa structure particulière, et l'autre les passions humaines qui le font mouvoir.'-Esprit des Lois, iii. 1.

(5) See Mill's Essays, p. 135.

(6) See Rau, Prima Linea Historia Politices (Erlangen, 1816), pp. 8-9.