you have so warmly carried. The chief difficulty which the Institute has had to face has been a financial one, but this can be remedied if more members and associates will join: we beg that all who belong to us will use every effort to obtain more members. During the past year, as mentioned in the report, various local meetings have been held with successful results: the Council are desirous that these meetings may be held in increased numbers in the future; our Secretary will gladly arrange for speakers at any other meetings which may be arranged: our experience so far has shown that those most suited to our purpose have been held in church rooms, as then an audience is readily obtainable, but gatherings in private houses are also useful.

It is a matter for hearty congratulation that the numbers of members and associates who have joined the Institute during the past two months exceed the total of the previous twelve; this is chiefly due to the successful exertions of our new Secretary and old member of Council, Mr. F. S. Bishop, M.A., J.P., who was unanimously elected to his present post four months ago. I gladly take this opportunity on behalf of the Council of expressing our sincere thanks to him for what he has already done; if we progress at our present rate we shall indeed do well; with the Lord's blessing the future of the Institute appears to be very promising.

The work of the Institute is as much needed as ever; it is true that Christianity and Science are now very generally in accord, but present-day difficulties arise upon questions of Philosophy and Criticism, and the Institute is doing its best to investigate these difficulties thoroughly and impartially.

The members present to-day testify to the interest and importance of the subject of Mr. Sharp's paper,* and the syllabus for this session will be found to contain other lectures on subjects which are exercising the minds of men at the present time.

A vote of thanks to Col. Mackinlay and Canon Girdlestone for their conduct in the chair was unanimously passed and the meeting terminated.

* See p. 77.

509TH ORDINARY GENERAL MEETING.

MONDAY, DECEMBER 5TH, 1910.

ARCHDEACON BERESFORD POTTER, MEMBER OF COUNCIL, IN THE CHAIR.

The Minutes of the previous Meeting were read and confirmed.

Mrs. G. F. Whidborne was elected a Member and Miss E. Zöl Johnson, Miss P. M. Bishop and Miss Lisa Bishop were elected Associates of the Institute.

The CHAIRMAN said: It was an interesting coincidence that while the paper, by a member of the Institute resident in the U.S.A., was being read here, the officers of the American Fleet were being entertained in London. It was gratifying to see these evidences of the strong bond of union between the two peoples.

The following paper, in the absence of the Author, was read by the Secretary:

THE THEORY OF JURISPRUDENCE.*

By Judge GEORGE H. SMITH, Los Angeles, California.

PROBLEM TO BE CONSIDERED.

Ta «the polation of Jurisprudence to the Law.""

HE problem I propose to consider upon this occasion, is to

This will involve the definition of these terms; and, it will be proper to say—as indicating the method upon which I shall proceed that my view of the matter is, that, in the successful accomplishment of this task, the problem must find its solution.

Of the two terms, the definition of Jurisprudence is sufficiently simple, and will be considered presently. But the definition of "the Law" is a problem of more difficulty; and it has even

*The first Essay written by Judge Smith was too long to be read or printed in extenso in this Journal. He kindly submitted the following outline of his paper instead.-ED.

been thought that its solution "is not possible unless and until we have a complete theory of the nature and functions of human society." (Sir Frederick Pollock, First Book of Jurisprudence, p. 4.)

In this I agree, except that I think we already have such a theory sufficiently complete to serve our purposes; and that the definition of "the Law" is, even now, quite practicable. But for the present, the task must be deferred, in order that the necessary preliminary matters (all of which fall within the province of Jurisprudence) be first considered. In the meanwhile, it will be understood, when not otherwise indicated, that the term, the Law, will be used to denote merely the aggregate of the rules and principles customarily observed by the courts in the exercise of jurisdiction; which is the sense now, perhaps, the most familiar.

I. OF JURISPRUDENCE.

Jurisprudence Defined.

Three definitions of Jurisprudence obviously suggest themselves :

(1) In the first, as suggested by the etymology of the
term-Jurisprudence may be defined as the science of
Jus or the Law, i.e., of the content of the Law.
(2) In the second, which is the sense in which the term
was universally received by jurists prior to the
advent of Bentham and Austin, it is defined simply
as the Science of Justice (justi atque injusti scientia).
This, I conceive, is to be taken as the proper sense of
the term.

(3) In the third, Jurisprudence is defined as the Science of
Rights; or substituting for the plural, the corres-
ponding collective term, the Science of Right.

These several senses of the term, have been thought by Mr. Holland, and jurists of his school, to be essentially different. But obviously, with regard to the second and third of the definitions given, this is not the case. For according to the received definition, and the universal acceptation of the terms, Justice consists merely in the observance of rights (jus suum cuique tribuere); and Jurisprudence may, therefore, be defined as the Science of Rights.

So, if we have regard to the terms used, and assume the term, jus, to retain, in the composite term, its original sense,

we must admit an essential identity, more or less complete, between Jurisprudence as the science of justice or rights, and the same as the science of jus or the Law.

This is, at least, a legitimate sense of the term, the Law, and I conceive it to be the proper sense to be used in Jurisprudence. How far the Law in this sense can be identified with the Law in the more familiar sense, as denoting the aggregate of the rules by which the courts are customarily governed in the exercise of jurisdiction, will be considered in the sequel.

The definition of Jurisprudence as the Science of Rights is the most specific, and pregnant of results; and from it it follows that, to acquire an adequate notion of Jurisprudence, an adequate analysis of the notion expressed in the term, rights, is essential.

Rights defined.

The term, a right, is but a special use of the more abstract word, right, which is used in many senses. Of these, three only are material to our present purpose, according to which, the term is used to denote: (1) A liberty or power of acting (facultas agendi), as when we speak of a right; (2) the quality of rightness or rectitude, as when we speak of right as opposed to wrong; and (3) the rule or standard in conformity to which the quality of rectitude consists (norma agendi).

Of these several senses, the last is involved only indirectly as implied in the others, and will be considered in the sequel. Of the other two senses, the second is involved in the first-that is to say the term, "a right," according to its universal use and acceptation, connotes the quality of rightness.

This is no less admitted by Austin and jurists of his school than by others. Their definition of a right is that it is a power or liberty created by the will of the State. But to maintain this, they are compelled to invent a new kind of rightness or rectitude, consisting in conformity to the will of the State.

A right may, therefore, be regarded as constituted of the two elements the faculty of acting, and the quality of rectitude, and may be defined as a rightful or jural liberty to act.

An "Unjust Right" an "Insignificant Sound."

Hence, to speak of an unjust right would be an expression belonging to the category of what Hobbes calls "insignificant sounds," as when men make a name of two names whose significations are contradictory and inconsistent; as, "an incorporeal body," and a great number more, or as if we should

speak of a crooked straight line, or round square. "For," as he says, whensoever an affirmation is false, the two names of which it is composed, put together and made one, signify nothing at all.”

Juridical and Non-Juridical Rights.

Hence, also, the distinction sometimes made between moral and legal rights is to be regarded as inadmissible. For a legal right, if it be a right at all, must also be a moral right; and such a right would be nothing more than what is more appropriately called a juridical, as distinguished from a nonjuridical right. (Authorities cited R. & L., pp. 161, 185.) But, in fact, as the distinction is commonly used, the quality of rectitude is ignored, and legality regarded as the sole essential element. But this is not merely to vary the sense of a term, which is often legitimate, but to substitute a new and contradictory sense, with the effect, or proposed effect, of displacing the proper sense, and thus eradicating the notion. expressed by the term. Accordingly, to those who use this distinction, the jus primae noctis, referred to by Blackstone (2 Com. 283), would, if allowed, be a true right; or, to vary the expression, the execution of Socrates, and of the innumerable martyrs who have suffered under cruel laws, would be just.

Natural and Legal Rights.

So, too, I regard the distinction between natural and legal rights as at least inappropriate. For, as will presently be more fully explained, all rights originate in events, of which human acts constitute the most conspicuous class; and among these are included the acts of government officials, legislative, judicial and administrative. But these are but acts, not differing from others except in the rights vested in their authors; and, therefore, like other human acts, they constitute mere facts or elements of the problems presented in Jurisprudence. From the standpoint of Jurisprudence, therefore, all rights are natural rights; and there cannot be a right of any other kind. Thus, for example, a right arising from the contract, grant, tort, or other act, of a private individual, is admittedly a natural right. But between such a right, and a right arising from an act or acts of legislation, which are but the acts of men vested with the right of legislation, there is, in this regard, no discernible essential difference. In either case, the right has its origin in the act, and its cause in the right of