Charles Comte is a treatise on the science of legislation, as understood by him; that is to say, the science of the natural laws which regulate the condition of nations, and determine their prosperity, decline, or stagnation. (1) Storch, in the introduction to his treatise on political economy, divides the science of government ('la science de l'état') into two branches, social science and politics-the former being the theoretical, the latter the practical department of the subject. (15)

The term 'science of legislation' has been lately objected to by Mr. Mill, on the ground that legislation is making laws, and that we do not talk of the science of making anything. (1) Undoubtedly it is more correct to speak of the art, than of the science of legislation. Legislation is a practical work, for which the assistance of different sciences is often requisite. By the science of legislation has been generally understood, a theoretical inquiry into those political principles which serve to guide the legislator the 'legum leges, ex quibus informatio peti posset, quid in singulis legibus bene aut perperam positum aut constitutum sit.'(7) Speculative treatises on political economy and on

(14) 'Je voudrais, à l'aide de ces méthodes, essayer de découvrir et d'exposer quelles sont les lois générales suivant lesquelles les nations prospèrent, dépérissent, ou restent stationnaires.'-Traité de Législation, tom. i. p. 4 (Paris, 1835).

La science de la législation a pour objet la connoissance des rapports naturels qui existent, soit entre les divers membres ou les diverses fractions dont chaque société se compose, soit entre les hommes et les choses destinées à pourvoir à leur existence, ou à leur conservation.' - Ib. p. 26. See also p. 24, on the wide extent of the science of legis

lation.

(15) Cours d'Economie Politique, tom. i. p. 12-6.

(16) The science of legislation is an incorrect and misleading expression. Legislation is making laws. We do not talk of the science of making anything. Even the science of government would be an objectionable expression, were it not that government is often loosely taken to signify, not the act of governing, but the state or condition of being governed, or of living under a government.'-Essays on some Unsettled Questions of Political Economy, p. 136, n.

(17) Bacon de Augm. Scient. lib. viii. aph. 6 (vol. ix. p. 85). Concerning the expression leges legum, see Bacon, vol. xiii. p. 138; Stewart, First Diss. p. 36. The expression, as used by a great civilian, appears to refer to general legal maxims, such as those collected in Bacon's tract, which are applicable to a great variety of heads of law; for example, 'verba fortius accipiuntur contra proferentem.'

criminal and civil jurisprudence would, according to this acceptation of the term, form a part of the science of legislation.

$ 6 When it is perceived that political society and government are not accidental-that the wants, capacities, and feelings of man create certain conditions, with which political institutions must comply, and which circumscribe the free choice of the legislator by fixed limits, and that these conditions are common to the entire human race, it must be admitted that politics contain an element which is susceptible of scientific treatment. A large number of political philosophers, however, have not stopped here: they have not been satisfied with saying that there is a science of politics which furnishes theoretical principles, and that it belongs to the art of politics to show how those principles are to be applied in practice; but they have laid it down that there is a universal LAW OF NATURE, to which the civil law of every state, and the constitution of every government, ought to conform.

We have already pointed out the non-existence of any such universal standard of legislation, or canon of positive law, as the doctrine of the law of nature assumes.(18) Nevertheless, in denying the existence of a law of nature, or, at least, in denying the possibility of affixing any distinct meaning to the phrase, we are not to be understood as maintaining that, because there is no natural law, therefore positive law is independent of human nature, and that its standard is the mere arbitrary will of the legislator.(19)

(18) Above, ch. xv. § 3.

6

(19) This is the doctrine of Thrasymachus, in the first book of Plato's Republic, that justice is τὸ τοῦ κρείττονος συμφέρον. See i. 12, p. 338, with Ast's note, who says: Scilicet sophistæ, virtutem ipsam pervertentes, et moralem quam dicimus, hominis naturam tollentes, quæ justa et honesta censerentur, non per se (pvoet, naturâ) justa et honesta esse statuebant, sed lege et conventione quâdam (vóuo et éσe). The opinion is here correctly stated, though Mr. Grote is doubtless right in denying that it can be truly attributed to the Sophists' in a mass, Hist. of Gr. vol. viii. p. 530-3: compare the remarks (p. 524) on the same opinion. A similar doctrine was maintained by Carneades: Carneades ergo, quoniam erant infirma quæ a philosophis afferebantur, sumpsit audaciam refellendi, quia refelli posse intellexit. Ejus disputationis summa hæc fuit: jura sibi homines pro utilitate sanxisse, scilicet varia pro moribus; et apud eosdem pro temporibus sæpe mutata: jus autem naturale esse nullum: omnes et

The indistinctness which pervades almost all the arguments on the subject, from Plato and Aristotle down to the writers of our own age, is chiefly owing to the indeterminate sense of the word nature. An antithesis is established between that which exists by institution, and that which exists by nature; and the consequences of this opposition are then deduced, before it is made clear what are the two ideas which are thus opposed to each other. The obvious meaning of this opposition is, that nature is a negation of law or positive institution, as it is of art; that it is the state which excludes human agency or interference.(2) Thus marriage, with its accessory rights, is an insti

homines, et alias animantes, ad utilitates suas naturâ ducente ferri; proinde aut nullam esse justitiam, aut, si sit aliqua, summam esse stultitiam.'Lactant. Div. Inst. i. 16. Compare Ritter, Gesch. der Phil. vol. iii. p. 671-3.

The arguments of Carneades on justice and injustice are recited at length in the speech of Philus, in the third book of Cicero de Republicâ ; in which, though it is not preserved entire, the course of the reasoning can be followed. The same doctrine is expressed in the following verses of Horace :

'Jura inventa metu injusti fateare necesse est,
Tempora si fastosque velis evolvere mundi.
Nec natura potest justo secernere iniquum,
Dividit ut bona diversis, fugienda petendis'-

Sat. i. 3, v. 111-4;

where Orelli says: Ex doctrinâ Sophistarum Epicurique nihil justum aut injustum est naturâ, sed legibus ac moribus; contra naturale est discrimen inter bona et mala, et suopte instinctu homo ducitur ad illa appetenda, hæc fugienda.' The same doctrine is implied in the celebrated dictum of Pindar, νόμος ὁ πάντων βασιλεὺς, as interpreted in the curious passage of Herodotus, iii. 38 (Fragm. inc. 48.)

The opposition of nature and law is laid down by Callicles, in the Gorgias of Plato, (c. 84-87, p. 482-4,) and is stated by Aristotle (Soph. Elench. c. 12, § 8) to have been acknowledged by all the early philosophers. Compare Eth. Nic. i. 1: τὰ δὲ καλὰ καὶ δίκαια, περὶ ὧν ἡ πολιτικὴ σκοπεῖται, τοσαύτην ἔχει διαφορὰν καὶ πλάνην, ὥστε δοκεῖν νόμῳ μόνον εἶναι, φύσει δὲ μή.

As to the doctrine attributed to Hobbes, that there is no natural justice, and that the only standard of justice is the will of the ruler, see Cudworth, Systema Intellectuale, vol. ii. p. 598; ed. Mosheim.

(20) In the following dialogue, at the beginning of Dryden's Indian Emperor, the new world is represented as being in a state of nature, without arts, and is contrasted on this account with the old world:

'Pasq. Corn, wine, and oil are wanting to this ground,

In which our countries fruitfully abound;

As if this infant world, yet unarray'd,

Naked and bare, in Nature's lap were laid :

tution or creation of positive law and hence natural children (filii naturales) i. e. the children of unmarried parents, are opposed to legitimate children, i. e. the children of married parents. In like manner, a natural lake or stream is opposed to an artificial one, the former existing without human interference, the latter being the work of man's hands. A natural year is one whose limits are marked by astronomical events; a civil year is one whose limits are marked by some event dependent on human volition. In this sense, every law or institution which owes its origin to man, is something which does not exist by nature.(")

If, however, by nature we mean not a merely negative idea, but the order and system of the universe-the aggregate of the laws by which the physical and moral world is governed-then human institutions and works of all kinds must be according to nature.(2) They must, if they are to accomplish the purposes

No useful arts have yet found footing here,
But all untaught and savage does appear.

'Cort. Wild and untaught are terms which we alone
Invent, for fashions differing from our own.
For all their customs are by Nature wrought,
But we, by art, unteach what Nature taught.'

(21) In a conference between James I. and the judges, upon the question whether the king could try causes in person, James remarked: 'I have often heard the boast, that your English law was founded upon reason. If that be so, why have not I and others reason as well as you, the judges?' To which Sir Edward Coke, the chief-justice, answered: 'Your majesty will allow me to say, with all reverence, that you are not learned in the laws of this your realm of England, and I crave leave to remind your majesty, that causes which concern the life or inheritance, or goods or fortunes, of your subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it.'-Cited from Coke's Reports, in Lord Campbell's Lives of the Chief Justices, c. 8.

(22) 'We speak of art as distinguished from nature, but art itself is natural to man. If we admit that man is susceptible of improvement, and has in himself a principle of progression and a desire of perfection, it appears improper to say that he has quitted the state of his nature, when he has begun to proceed; or that he finds a station for which he was not intended, while, like other animals, he only follows the disposition, and employs the powers, that nature has given. The latest efforts of human invention are but a continuation of certain devices which were practised in the earliest ages of the world, and in the rudest state of mankind.'-Ferguson, Essay on the History of Civil Society, p. 10, 13.

Allowing distinctly that the right of property is the creature of posi tive law, yet this law is so early and so imperiously forced on the attention

for which they are contrived, be in conformity with the natural laws of phenomena. Naturæ non imperatur nisi parendo,(*) says Lord Bacon, an aphorism applicable to every thing made by man, whether it be a machine, a manufacture, or a political institution. Agriculture is an artificial, not a natural process; but if the cultivator does not adapt his processes to the laws of nature-if he does not govern his conduct by the climate, seasons, and nature of the soil, and if he does not observe the limits within which the conditions of animal and vegetable life confine his operations, his labour and expense will be in vain.() Naviga

of mankind, that if it cannot be called a natural law, it must be considered the most natural as well as the most necessary of all positive laws.'Sumner, art. Population,' in Suppl. Enc. Brit. vol. vi. p. 331. Here natural, in the first place, means not positive-in the second place, it means agreeable to our nature.

(23) Nov. Org. i. aph. 129. Compare aph. 3: Natura non nisi parendo vincitur.'

(24) There are three primary elements necessary to the success of agricultural operations-skilful husbandry, a well-constituted soil, and a genial climate. The first of these is now placed within the reach of every intelligent man, and depends on the application of his own skill and industry; the constitution of the soil is in general well adapted by nature for the functions it has to perform; and where it is defective, its composition may be corrected and its productive powers increased; but the elements which constitute climate appear to be beyond man's control; he is comparatively powerless to mitigate its rigour, or to add to its generous influence. It is man's master, exacting submission-not his servant, obeying his behests. Of what avail, then, it may be asked, is the knowledge of such a subject? That we may bend to the power we cannot control, and learn to adapt our culture to the capabilities of the climate: indeed, climate is the ruling principle of agriculture-the law which governs the productions of different countries; and he who yields the most enlightened obedience obtains the largest reward.'-Whitley, On the Climate of the British Islands in its Effect on Cultivation,' Journal of the Royal Agricultural Society, vol. xi. p. 1.

Quiconque agit en dépit des lois de la nature n'éprouve que désastres. Les hommes sages en tirent, au contraire, de puissans secours quand ils apprennent à les connaître et à s'en servir. Un architecte qui construirait ses voûtes sans consulter les lois de l'équilibre, verrait son édifice s'écrouler. L'homme qui mettrait de la cire au feu afin de la durcir, n'en retirerait que confusion. Combattre les forces de la nature, c'est les employer contre soi. Or nous avons eu lieu de nous convaincre que l'existence du corps social est soumise à des lois non moins positives, non moins impérieuses, que celles qui président à l'existence du corps humain; à des lois qui résultent de la nature des sociétés ; que l'homme n'a point établies, et qu'il n'a pas le pouvoir d'abroger. Nous pouvons employer en notre faveur la puissance de ces lois; quand nous les méconnaissons, au lieu des services que nous en pouvions attendre, nous n'avons que des malheurs à recueillir.-Say, Cours d'Econ. Polit. tom. i. p. 33-4.