The laws of Hammurabi, though not devoid of humane touches, form a striking contrast to those of Moses.

The principle of love to the neighbour is, of course, fundamental in Christian morals; it increasingly affects our own laws.

For instance, the Poor Laws, the Old Age Pensions Act, and the feeding of necessitous children. We have recognized in our law, that the indigent have a claim on the well-to-do.

Hence the old jurisprudence (in the sense of the essay) tends to become inadequate as a moral basis for modern (English) law. It is interesting to compare a Hebrew pattern of a righteous

man:

"He hath dispersed, he hath given to the poor, his righteousness endureth for ever" (Ps. cxii, 9),

with the Roman model—

"Vir bonus est quis ?

Qui consulta patrum, qui leges juraque servat."

Mr. BALFOUR BROWNE, K.C., said:-It was difficult to criticise the paper because he was in substantial agreement with the writer. He took it that the judge's view was that law, positive law, or jurisprudence was another name of the Science of Justice or right. In this, he was in antagonism to the obsolete theory of Laws of Austin, who found in them nothing but Legislation and Sanctions. That theory left us still to determine by what right legislation exists, and upon what ground its sanctions or compulsions were just.

But even the writer of the paper begins his theory of jurisprudence too late. A science of philosophy of law must deal with and discuss the principles upon which legal rights rest and are enforcible. Locke and Mill seemed to think that there was no question of

right" in the matter, and that utility was the sole basis of law. Scotch lawyers had since the time of Lord Staire based their jurisprudence upon the law of nature, and Hume, who was one of the most thorough-headed of Scotchmen, said, "the apparatus of our government has ultimately no other objective purpose but the distribution of justice, or in other words the support of the twelve judges": which implies the existence of an antecedent "justice" which is to be "distributed." Sir Henry Maine has gone for his Twelve Talks of the Law to history, and has drawn from remote ages the germs which have evolved into the whole system of law, but without

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explaining or accounting for the beginning of the germ, any more than Darwin accounted for the Ascidian. Our present day Pragmatical philosophers, William James, Davey and Schiller hold that "truth" is what is good for you, and "the right" is what will wash. But I take it that Judge Smith holds with Hume that there is a "justice" to be administered that there is a sense of right and wrong in man (sometimes obscure, sometimes bright), and that the sense of right is developed into our law, and the tendency to wrong is regarded as outside the "jural liberty" of the individual. Or in other words, that active sins against the moral sense are the acts which we call criminal and which our law of Restraints seeks to remedy.

One writer made property the foundation of government. But property must depend not merely, as the writer of the paper suggests, on the obligation of others not to disturb or interfere with my possession or enjoyment, but must rest upon some active principle in the owner, and that active principle is the exercise of Will in the act or "event" of appropriation, or in the case of land, of occupancy. That will which makes property must not be disturbed or interfered with. The fundamental ideas of law are, I take it, Property, which includes self-ownership and family ownership, Contract and Penalty. All of these involve the action of the will. Will in possession, will in exchange, and will restricting to a criminal his real moral nature by restraining his immoral tendencies by the Sanctions of the law. And the right of the State to do so rests not only in the nature of the man himself, but in what Hume called "opinion"; but that opinion is again the individual sense of Right and Wrong in man.

But we have some curious departures to-day from these principles of jurisprudence. Property, private property seems to be regarded by many as theft, and the collective will is to be substituted for the individual will. Contract, private contract, is not to count. not allowed to make a bargain with a tenant as to hares and rabbits or with a servant as to injuries he may sustain while in my employment. Penalty still exists, I suppose, except when the Home Office takes it upon itself to stand between the offender and the law.

Dr. PINCHES said: I rise to speak-quite as a layman-upon a section of law which interests me-legal enactments of which I was

requested to speak, namely, the laws of Babylon. I am afraid I cannot analyse them in the same way as Mr. Corrie did those of the Old Testament; and after the excellent comments which we have heard, what I have to add to the discussion will probably fall very short of its high level hitherto. These laws-the Code of Hammurabí -are very difficult to treat of, and one can only say, that they show what a remarkable book of Babylonian law has been made since the time of the earliest code-for there must have been one before that of Hammurabi, as the tablets giving exercises for those studying to be scribes show. One of the speakers has said that law is another name for Right; but the laws of Babylon, both those which go back to the earlier period, and the later codes, show one thing, namely, that there was no personal right; or, at least, that the personal right of liberty of action was invested in the freemen of Babylonia. There was a large class of serfs, who, though not slaves, apparently had no real liberty of action. They seem to have been obliged to work in various ways, and to toil on the farms, though they possessed property, and were not really slaves, whose position showed a very noteworthy difference.

One of the precepts of the Old Testament is, an eye for an eye, and a tooth for a tooth," and this has its parallel in Babylonian law as exhibited by the Code of Hammurabi. That a man should be made to suffer as he had made another suffer, seems natural; but to my mind it is hardly a practical thing, for to mutilate a man because he had mutilated another was simply to make two defective members of society instead of one-other means of punishing him without impairing his usefulness might easily have been found. In this matter of mutilations, there is a point concerning the old Babylonian contracts which struck me, and therefrom one gathers that the laws were sometimes regarded as not quite sufficient. According to the translation of a Babylonian contract made by a German Assyriologist Dr. Ungnad, one of the parties, in a certain contingency, agrees to submit to mutilation, or something similar, of a more severe character than that exacted by the law referring thereto. This shows the nature of social state of the Babylonians, and suggests, also, that the laws by which they set so much store were not always observed; and that something was left to the contracting parties in such a case as this. And this leads to the question of imprisonment. A man awaiting trial or punishment would naturally have to be

placed in prison, but prison as a punishment seems to have been either not at all or very rarely resorted to, which is another point of difference between our laws and those of the ancient Babylonians. We must naturally be very thankful that we live in these more merciful times. The laws, with the Babylonians, were not exactly in all cases "dictated by common sense," but, as in the case of all primitive and class-legislation, by interest-it was to the interest of the freeman to get all he could from the serf whom he employed, or the slave whom he owned, and this self-interest is probably not altogether absent from legislation even now. It is a pleasant thing to think that our own laws are so dictated by "common sense," though people have had doubts about it, as witness the oft-quoted dictum which says that "the law is a hass." With the Babylonians, however, the law was dictated by the state of society which existed there at least, that is what their codes would lead one to suppose.

What I have said embodied such thoughts as occurred to me whilst the paper was being read. It is not of the best, but I offer it for what it is worth.

Dr. THIRTLE said:-That the penalty should sustain a proportional relation to the offence was assuredly recognised by the lex talionis. There was, moreover, another side to that manner of punishment. In unsettled social conditions it must have exercised an important restraining influence. It was "an eye for an eye"-not two eyes for one, and probably further mutilation as well, exacted in lawless. vengeance. Again, it was "a tooth for a tooth "-not every tooth from the head of the hapless offender, as penalty for an act of malice or neglect, whereby some slight injury was inflicted upon his fellow. Thus there was a merciful side to the law of retaliation, as it is set out in the Mosaic code. Exod. xxi, 20-25; Lev. xxiv, 17-22; Deut. xix, 21.

Mr. OKE said :-Has the writer made sufficient distinction between law and morality? I think I should prefer that wonderful book of Austin. What would be the position of slavery if custom guided morality? One would like to have more clearly stated what is law and what is custom. There are difficulties of that kind which suggest themselves to my mind, and I regret that the writer of this interesting paper is not here to throw light on these subjects. Professor LANGHORNE ORCHARD.-Our thanks are due to the able

author for this acute and thoughtful paper-a paper of which the propositions and reasoning command general assent.

But exception may be taken to some of the author's definitions. Correctly defining (page 8)* Jurisprudence as "the Science of Rights," he makes this equivalent to "the Science of Right." This is to confound Jurisprudence with Ethics. So, too, he defines the Law (page 44)* as "a theory of right," whereas the correct definition (in my judgment) is "the Theory of Rights." Right and Rights are not identical, although every true right has its basis in Right. Right is conformity with the moral standard which is the supreme law-the Law of God witnessed to by the moral faculty. On this point I am glad to find myself in agreement with Hobbes (a writer with whom accord is usually impossible), see the splendid extract from his "Leviathan" given on pp. 70-71.* If we ask "What is a right?" the answer is "A man has a Right to whatever power or possession it is right for him to have." Natural rights and Social (or "Instituted") rights spring from the application of the Divine Law to the Natural and Social relations of men regarded as moral agents. If in any case of supposed "right" this application be erroneous, the so-called "right" is not a true right. The function and business of Jurisprudence is to make this application, to correct erroneous applications, and to investigate the relationships between rights with a view to an unified system.

May not the word "interference" on pp. 22, 23, etc.,* be advantageously replaced by "opposition"

With regard to the lex talionis, the objection has been brought that its enforcement would lessen a malefactor's physical value to society. The objection (for whatever it is worth) lies against imprisonment and fine, and generally against all punishment and suffering. The moral may, however, be held more important than the physical; and the enactment of eye for eye, and tooth for tooth, i.e., punishment in man, does undoubtedly express the principle of

abstract Justice.

The CHAIRMAN said: It is interesting to think, while listening to a paper on Jurisprudence by an American, that the new country guides its affairs on the basis of the old laws derived from old civilisations, but sown on new soil.

These pages refer to the original essay.